The URL can be used to link to this page

Closing Packet - Bloomberg Garage Purchase A A1 AN OFFICE OF THE CITY ATTORNEY, Jose Smith, City Attorney Interoffice Memorandum ' To: Bob P.archer Date: June 9;:2011 City Clerk :From: Raul- J..Aguila Chief Deputy City- Attorney Subjeet: City of - Miami Beach Purchase from American Riviera Real Estate Company .(Bloomberg Garage - Glosin9) Property: 340.23 Street; Miami Beach, - 'Florida Bob :E =nclosed herewith his :the .fina'I closing::packet for . the above referenced matter.. Should you have any, :questions, -please �do -not hesitate to --contact me. TPlease - acknowledge your :receipt -of the above .menti.oned -.transm.itted -to ,you -with - this 'Memo, in Ahe provided ;below,.and return signed original`Memo back to °me. Thanks :Raul i :Date: Received .:By.: , Print -Name: T Ew - CARDE 105-nxFLOO SEASO TOWER T T O k N 1' S ,; T {' A W 1441 BRICKELLAVENUE MIAMI, FLORIDA 33131-3407 T 305.536.1112 F 305.536.1116 \h�h'1h'.TEWl�.b1'. GO1`4 June 3, 201 l VIA COURIER Raul :1. Aguila, Chief Deputy City Attorney Off of the Cit -v .,ktio - ney Ci of Mianli I ot'..0 h 1700 Con ;ej -1110 � �:ezlter Drive 4"' Floor Miami Beach, t'iorida 33139 Re: (;it 1 of Miami Beach ptcrchtise frd'nc..�iriei it,tri; . ivies iGc�t��f �stc�t�i Property: 340 23 Street, Miami Beach, FL Dear _Mr. Aguila: In connection With the referenced transaction. v,°c� iAz� cz�cl��singl�ze C�iosirlgBinUer foa your tales. Please let me know if you need any additional d unlelItatioil. As always, it has been a pleasure working witll c >L>. Qi �� :;recd 1'ar��legal /i sd Enclosure 554031.1 CLOSING BINDER INDEX 79496 -008 BUYER: CITY OF MIAMI BEACH, a Florida municipal corporation SELLER: AMERICAN RIVIERA REAL ESTATE COMPANY, Inc., a Florida corporation PROEPRTY: 340.23 Street, Miami Beach, Florida DATE OF CLOSING: April 20, 2011 CONTRACTS AND AMENDMENTS AND CLOSING STATEMENT 1. Contract and All Amendments 2. Closing Statement FEE TITLE HOLDER'S CONVE'Y'ANCE DOCUMENTS: 3. Trustee's Deed 4. Closing Affidavit 5. Certification of Trust (Nancy Ball Trust) 6. Certification of Trust (Ray & Margaret Ball Trust) CERTIFICATES, AUTHORIZATIONS AND ASSIGNMENTS OF SELLER: T. Good Standing Certificate of American Riviera Real Estate Company, Inc. '8. Resolutions of the Board of Directors and all of the Shareholders of American Riviera Real Estate Company, Inc. 9. ` Seller's Affidavit 10. Non - Foreign Certification by American Riviera Real Estate Company, Inc. 1 l . Warranty of Title 12. Certificate of Representations and Warranties 13 . Assignment of Chevron Indemnity Agreement 14. Assignment of Plans 553593.2 15. General Release 16. Parking Permit .Agreement 17. Parking. Rights Agreement SUBLEASE AND GROUND LEASE DOCUMENTS 18. Estoppel Affidavit 19. Indemnification Agreement 20. Assignment of Sublease Interest by Sublessee 21. Assignment of Sublease Interest by Sublessor; .22. Assignment of Ground Lease Interest by Ground Lease Lessee; 23. Termination of Sublease Agreement; 24. Termination of Ground Lease Agreement; TITLE DOCUMENTS 25. Termination of Option Agreement 26. Everbank Satisfaction of Mortgage; 27. Everbank Discharge of Lis Pendens; 28. Everbank Notice of Voluntary Dismissal 29. Survey 30. Owner's Title Insurance Policy 553593.2 AGREEMENT FOR SALE AND PURCHASE € F RE Al, PROPERTY AMERIC RIVIERA RE' A ESTATE COMI PANY, a Florida corporation ( " Seller "), hereby agrees to sell and convey to CITY OF MIAMI BE ACS, FLORIDA, a municipal corporation (" Buyer and Buyer agrees to purchase from Seller, the Property (as hereinafter defined) and the other assets and rights herein described, on the following terms and cOn "itaons; Section 1.: Definitions and References The following terms. as used in this greement, Have the f ollowing..mean:ings unless the context is L�consl.sent therewith: " Aareemeni .Date means the date upon which this Agreement has been excc:uEed by both Seller and Buyer. " Closin <,T means the consurm -tion of the sale and conveyance of the Property by Seller to Buyer and payment of the Purchase Price by Buyer to Seller; pursuant to Section S of .this Agreement. " Closin« Date :Weans the date upon which the Closing occurs, as set forth in . Section �.1 �f t�tis :1�reerra.eilt. . Contracts means al] contr acts wad other agreements, - 1A itten or ©ral, governing or relating to or affecting the Land.. . Co - unty " means V1ia?�i -Dade County a poh tical subdivision of the State cif Florida. " Ground Lease means the leases between Media Dallett and Charlotte and .John Stainer and Ned.ia and Michael Dalleti and Matilda Miller (undated).. " Hazardous Substances cleans (i) those substances included within the dcfi211tiQr1S of " hazardous. sub stances, "hazardous materials," ``toxic substdnC& or was in the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. ^960 et � seo ., the Resource Conservation and Recovery Art of 1976, 42 U.S.C. §6901 et . sue., the Hazardous lvlaterial.s Trasnspoi Cation Act, 49 t1:S.C. � 1 �Cl 1 et seg., or. the Cican eater Act, a U.S.C. 13?1 et sea, and in the regulations, pro.mulwgated pursuant thereto; (ii) those subsiallces.listed in the United States Department of Transportat ion Table (49 CFR � 172,10 1) or by the Environmental Protection A gcncy as "hazardous substances "; (iii) su;;h other substances Materials and wastes which. are regulated, or classiz "led as hazardous or toxic, under applicable local, state or federal lain or. regulations; and (iv) any material, waste or substance v, is petroleum, asbestos, polychlorinated biphenyls, flammable explosives or radioactive materials. " mt)rt>verents cleans an inlrastrueture or other physical improvements now located upon the. Land. " Inspection Period has the meaning set forth in. Section 6.1 Land means the real property 'described on I ;xhibitE -1 , together with all tenements, heredita-ments, easements, privileges, reversions, remainders and other rights and appurtenances belonging or in any manner appertaining `hereto including, without limitation, all re:tjersonary interests in and .to an3' adjoining or abutting righ'lS -of -way. The Land includes, v /ithout limitation, a 17,25 0 square foot parcel. " Leases " means all leases, subleases, subsu:b .Clases, licenses and other agreetnents, whvtli.r or or written, for the use ou occupancy of any ?portion of the ]Property, including without limitation th- Ground Lease and Sublease. " Permits " means all permits, approvals, orders, licenses and other authorizations held by Seller relating to the Properi7, :including those listed on Schedule S -1 . " Per rn tted. Exceptions means the title excepti cas set " forth in Schedule B, Section 11 of tl - ie Title Commitment that are hereafter approved by Buyer in writing, and to be included in the Title, Policy, pursuant to Section M hereof... " Plans " means all of Seller's existing aTahitectural. drawings and plans for proposed development of the Land including without limitation, those prepared by ADD. Inc. ( "Architect ") for a mixed used parking garage and retail project. `; 1'ropern� " means the Lard the Improvements and the Plans. " Purchase Price has the meaning set forth in Section 2.1. " Sub- Lease means the 99 -year Tease entered into by Nedia M. Dallett, as lessor. and Standard Oil Company, as lesswe, dated January 1, 1948, assigned to 1" merican Riviera R..ual Estate. " Survev "' means the survey of the Land to be prepared by the Surveyor, as provlded •ln Sect':on .� . " Surveyor " mt;ans a Iic en. sed Florida land surveyor selected by Buyer and a.ecep :able to Title Company. " Title A- Sent means an. _agent for the IJn.derwriter 'd.esi V gnat:,a' by Buyer by whore the `;`tilt Comrnitmerrt and Title Policy are to be issued.. " Title Commitment means the Owner's Marketability Title Insararicte Commitment issued or to be issued to Buyer including an ALTA Form 9 endorse -merit vVith respect to the - Land and. Improvements, as contemplated by S -ctiou 3. 1, which will include copies Of all matters for whi h exception is n: -Lade in Schedule B, Section II thereof. " Title Police means the Owner's Marketability Title insurance Policy (With Form 9 endorsement to be issued to Buyer pursuant to the Title Commitment). 5407.73 9 " Underurriter(s) means Chicago Title Insurance Company or another rational iile� company acceptable to Buyer, for and upon vlllorn the Title Cornrnitmel�t and Title Policy are to .be. written and issued. Section ?. Purchase Price and Terms of Payment 2.1 Purchase Pricc ' The purchase price for the Property shall be Four Million .dine Hundred Severity -Five Thou and and loo /100 D611ars (S4,97�,f�();}) (the `` Purchase Price "), subject to adjustments and prorations as-herein provided. 2,2 Terms of Payment The Purchase Price will be paid as follows: . The entire Purchase Price, subject to the prorati ons and adjustments for ;which provision is made in this - Agreement, will be paid by Buyer to Seller at the time of Cl osinb by wire transfer to Seller's account Seller shall provldc , �A iring instructions to Buyer not less than three (3) business dad's prior to Closing. Section 3. l�itle Evidence >.I Title insurance Commitment 'Titlun ten (10) days after the execution hereof, Buy: shall cause the Title to issue upon the Underwriter tl�e Title C omrriitrnent in an amount equal to the Purchase Price (with such affirmative endorsements as may be reasonably obtainable and requested by Buyer., but in any event including yLTA 1=orna 9 Endorsement) and- havin.c, an effective date subsequent to the Agreement Date. Buyer will have until the end of the Inspection Period speci fied in Section 6.1 within which to cause the Title Comrmmnent anal. Survey to be examined _and to noii:� ; t' of an T ob'ections to Seller's title reflected by the Title Commitment and /or Survey ( "Obiection lotice " ). Seller may elect to cure or reMovti, on or before Clo sing, any obj ection raised by Buyer and shall have thirty -(L0) days follow ng the biection Notice to do so; provided however, Seller shall be obligated to (i) cause any mortgage or lien on the Property to be satisfied and released of record, (ii) cause all Leases to be terminated; and (iii) cure such other objections that can be cured by the payment of a zx?onetary sum of up- to :Nifty Thousand and NW1.00 Dollars ($50,000.04) in the aggregate with respect to all such other objections. If Seller is diligently wor k ing to cure or remove an- objection and the cure or removal can not be, accomplished within thirty ('0) days, Seller have up to an addLti onal sixty b0) days to effect the cure or remov : e er elects not to or is unable to cure or remove ar�y obiection other than those referenced in (i), (ii ), and (iii) above, Buyer, at I33�y .r' sole option, may: (a) dos C`iosin� for a period of time not to exceed: sixty (60) days; �� during which Seller shall continue efforts to cure or remove any objection. but Seller shall have no obligation to do so other than those objections referenced in (i), (ii) and (Iii) abo at the end of which postponement period Buyer, will elect to proceed as set forth in, (b) or (c) below, or (b) accept title to the Land and Improvements in its then existing condition and proceed with. Closing; or ry 54 0773 9 n (c) terminate this greement by writien .notice to Seller, upon whi -h this Agreement will be dull and void and the par<ies .hereto will have no further ri ghts or obli��ations Hereunder. �.? S�arvey S -ller has delivered to Buyer a current survey of she Land dated March 17, 2010. During the inspection Period, Buyer may obtain an updated ox ne« sunie} at Buyer's cost (the " Survey ") certific-,d to Buyer, the T tle Age-m. and the 1Jnderwriter and including a surveyor's .certi.ncate approved by Buyer. If the Survey shoves any en- roachmenl, hiatus or other condition which could affect the; marketability of title to the Land or Improvements or could have an effect upan use of the Land and improvements in general, or upon the use of the Land and Improvements specifically for construct of a Rarage and retail mixed -use project, Buyer will have the right to object to such condition as a defect in title pursuant to provisions of Section 3.1 hereof. Buyer shall also have the right to object as .a defect in title to any hiatus between the Land, and the adjacent parcel that is currently owned by Buyer. Section 4. Seller's Representations and � Seller hereby represents. and warrants to Buyer as. follovrs: 4.1 Due Execution and Performance This AcTree rent has been, and the deed of conveyance and all other documents, intrur gents azad agreements required to be delivered by Seller pursuant to this Agreement will b� when executed and delivered, duly executed and delivered by Seller and constitute the legal, valid and. binding o'ligations Uf Seller enforceable i.:n - accordance�ith their respective terms. 1\either tl�i execution, deli�Tery �r perforr3ance of this Ag - eernent or any document, instrument or agreement required to be dell c-red by Seller pursuant 11 reto, nor the consummation of the transactions contemplated hereby, is prohibited by, or requires Seller to obtain the consent, approval or authorization of, or .notice to or firing or registration with any person, public authority,. cour or any other entity having jurisdiction over Sellq or tl�F .Property, except any such approval as has alrtady� been obtained and except that Seller shall arrange. for the Ground Lea.se.and- Sublease to be te2Z17in=d at :losing. 4.2 B n5 Aire °plants .he execution and delivery by Sellex of Lhis. A greem:nt and the perfo.rrrance by Seller of its obligat�ions hereunder do not and will not conflict wil_h, or result in a breach of or a default or violation ender, any contract, agreement or a+rran.gement to which Seller is a party or any statute, decree, judgnm ent regulation, order or rule of any governmental authority or court having jurisdiction over Seller or the Property, except that Seller shall arrange .for the Ground Lease and Sublease to be terminated at Closing. 4.3 Mechanic's Lens There are no unpaid bills f or labor, services or work p .rformed or rendered upon the Property, or for materials or supplies furnished or delivered to the Property, which could .result in the filing of mechanics', materialmen's or laborers' liens upon the Property, except those that Seller. shall. cause to be released or satisfied at or before Closing. 4.4 IYnnroverr;cnts:.Leal. Reuireznents 'Neither the Irnprovernents on tlse 1'ropert), nor its present use, are zx1 violation ni any governmental or private requirements or 4- 340',ia 9 e , restrictions or any development order which applies to th.e Property, except that the conditional use approval to allow park ing has expired (`'Conditional C Ise Expiration "). 4.5 Litigation: Proceedings There are no suits or proceedings pending, or to the best of Seller's knowledge threatened, against or oonccming Seller or ally portion of the Property. Seller has received no notice and has no knowledge of , any pending or threatened condemnation. taping or si_nilar procecoina affecting the Land or any port: on ?hereof or any pending public mprovel.nelts in or about any portion of the Land which could result in special assessments or any re- assessments against or affecting any of the Land. 4.5 Plazardous Substances Seller has no notice or lmmvledge of (i ) any Hazardous Substance present on or within the Property or otherwise adversely affecting the Property, (n) any present or past generation, recycling, reuse, sale, storage handling, transport and /or disposal of any Hazardous Substance on or vunthin the Property., or (iii) any failure to comply with any applicable governmental., environmental laws, regulations, ordinances or orders relating to the generation, recycling, reuse, sale, storage, handling, .transport and/or disposal of any Hazardous Substance other than as reflected in. the reports listed on Schedule S -2, which is a list of all Wnv.' onrne��tal. reports in Seller's possession or control, true copies of which have begin provided. to Buyer. 4,7 Property Compliance The Property confo ns in all material respects to all dead restricapris, all building, zoning environmental or similar laws, ordinances or regulations and any other covenants contained in any agreement with other land owners or any governrrlental entit��. 4.8 Contracts There are no Contracts to which Seller is a part�r that directly or indirectly relate to affect the Property.. 4.9 Leasees There are no. Leases in effect. with respect to the Property, except . those that Seller shall cause (or arrange) to be te rm i nated on or before Closing, 4.10 Permits: Governmental Approvals Schedule S - contains a complete list: of all Permits and govenu?�ental approvals applicab �ith respect to the Poper'��. Said I'errrlit.s and approvals ate in good standing without default thereunder, except for the Conditional Use - Explratlon., 4.11 Ad. --erse Information Seller has received no information nor has any knowledge of any judicial or administrative action, or any action by ad.javwnt lando wners, natural or artificidl conditions upon the Propurty or any other signiflicant . adverse fact or condAion relating to the Property that would materially adversely affect the development of the Property for a -,nixed use c rarage and retail project: 4. l ? Compliance With Laws The Property and the present uses thereof are in compliaizce with all applicable federal, state and local la«rs, ordinances, regulations, statutes, rules and restrictions (collectively, "Laws pertaining to and affecting the Property, other than the Conditional Use Expiration. S- s4o7 9 i 4. 1 13 .Accuracy of Representations_ Seller's Knowledge All representations and /or warra_MT es coritaincd herein that are rnade "to Seller's knowledge" or ``ia the best of Seller's knowledge" shall include any faas, or circumstances known to Seller and its - .principals. All statements and information. of Seller set forth in this Agreement are and on and as of the Closing Date gill be, correct in every material respeci. Section 5. Covenants of Seller Seller hemby warrants to and covenants with Buyer as follows: 5.1 C omr)liance Prior to the Closing, Seller Nvi_ll continue to comply with all authorizations approvals and legal requirements applicable to the Property, other than the Conditional Use Expiration. �.? Maintenance of the Property Seller will maintain the Property in its existing condition and will deliver the Propemy to Buyer at Closing in sane condition as exists on the Agreement Date, normal scar .and tear excepted. Seller will not perform or allow the performance of any additional construction. on the Property or enter into aany new Contracts Leases, or other agreements affecting or bi dingy upon. the Property, after the Agreement Date Without Buyer's prior written consent. .� Cooperation Seller will cooperate with Buyer :n good faith in connection with all investigations, examinations and inspections being made by Buyer With respect to this transa: tion: Section b. Buyer's Inspection Period 6.1 Inspection Period Buyer will have the right; from and after ihe Agreement hate through 6:00 .m. on the date that is tErty ( days after the Agreement Date .(the "Inspection Period":) to inspect and investigate the physic^ and other conditiions of or ��t� respect to the Property. Buyer's inspections and investigations of the Property may include but shall not be. limited to ( revie of surveys, plans, tale insurance policies, ea- gincering .studies, sit pla ns, and any other materials, do��r�aents, tests, s uo��s, any reports re area io t e rope __ �-id,�or the developn:�ent, thUreaf which Seller has i� its possess.on or control, (ii) re�'i�w of Penr?its, Plans and oth -.r documents relating to die Prop.— (iii) review of the status of" title and all zoning and /or government restrictions and requirements; (iv) obtaining an environmental audit of the Property., (v) performance of engine rim and Soil tests; analyses and other investigations as Buyer deems necessary and appropriate;, and (vi) investigation and /or review any other facts circums�ances oz' rnattwrs which Buyer deems relevant to its proposed purchase of the Property. Seller agrees to cooperate `JJitll Buyer in all investigations and to provide to Buyer promptly copies 01: all items, documents and materials that Buyer may reason ably request and that Seller or its attorneys or agonts have in their possession or control. Buyer shall have full .access to the Propem for the purpose of conducting the foregoing inspections and investigations after first notifying Seller since the Property is currently used for parking. Buyer shall be responsible for all costs of repair and for n,-v .rni_ng the Property to its original. condition and. for the partncr�t of any violatiar�s or lien aMrsirg as a rusujt of i u��er's inspection. Buyer ah31i (to_ the extent p=.itted by, and subject to Cie lim {itati.ons on liability under Section 7�� :?� Florid V , b- 540773 9 Statutes) indemnify :Seller for any and all damages io person or property resulting from Buyer's inspection, C.2 Termination by Buver Buyer will have the right, which may be exercised by sending written notice to Seller at anti time aurin, the Inspection Pe riod, to terminate this Agreement if in Buyer's sole opinion the Land is not suitable or fvasible Buyer's intended purpose of devclopin a municipal pubic parking garage and retail project ( "Intended Usc ") or that such development and'use may be unusually expensive (ineludin� for c� aznple, the presence of Hazardous Substances or adverse soil or subsurface conditions). Upon any such. termination this A< cement uJill be null and void an the parties will .have no further rights or obligations hereunder or with respect to the Property. If Buyer fails, or elects not, to give written notice of termination prior to the expiration of the Inspection Period, this Agreement shall remain in effect in accordance «rith its terns. In the event that the last day of the Inspection Period occurs on a legal holiday,, such date will be extended to the next succeeding regLlar business day. Section 7, Co idi`tions to Obliaations of'Buver The obligations of Buver to this Agreement are conditioned upon fIfillment of each of tine follmving conditions. 7.1 Correctness of Representations and Warranties Each of the representations and - xxarranties of Seller set forth herein shall have been true and complete in. all. material respects when made and on the Closing) Date, as if made at and as of that time. 7.2 Absence of Adverse Churn< e . Between the.:1greeme�t. Bate and the Closing late, no materially adverse change in. the Property shall have occurred and no fact .shall have arisen which has or could be expected o have a material adverse affect on the Property. If any conditions) precedent set forth in this Section 7 are not satisfied as f the Cl C) n. Date, Seiler shall be afforded a period of thirty (30) days in which to cause them to be satisfied (or such greater period not to exceed an additional 90 days as Buyer shall. specify). Seller aryrees io use 0 faith efforts to attempt to satisfy such conditions during such cure period. If the conditions axe not satisfied within such cure period, then. Buyer mav either (a) waive satisfaction of such conditions) and proceed to Closing, or (b) terminate this Agreement by written notice to Seller, in which event this Agreement will be null and void and the parties will have no f, > -then rights or obligations hereunder; (c) seek specific performance of Sell. is obli gations hereunder, or (d) ii1 the case of Seller's breach of any ��arranties or representat ?.o- =_is, seek all available remedies. Section S. Closincy .1 "fi�x�e �a�d I'lacQ Unless extended pursuant to =fie provisions of this l�greenlent, the Closing - \vill take place within ten (l0) days after the Inspection Period at #:he offices of the Buy =er or at such other place as the parties nay mutually approve. Buyer upon not less than five days notice to Seller may accelerate the Closhn.cj to a date specified by Buyer In 540773 9- u 4; such 'noticp. in "me, event the scheduled. Closing Date falls upon a legal holiday, the Closing will occur on the next succeeding r; gulag business day. 8.2 Ciosinp Exbenses (a) At Closing, Seller shall pay, or cause to bi paid, the cost of recording the warranty deed and and correctii e instruments, all documentar�� stamp taxes and surtaxes on the warranty deed, the asslunment of Sublease and all . other documents dQiivered pursuant to Section 8, and any other applicable transfer or conveyance taxes on the transactions ontexnplated hereby (and this provision shall suinlive Closin�7). (b) All Closing, Buyer will pay the premium for the, 'Title Policy. (c) Each party will pay its Own attorneys' le s and f cs due to its other consultants or agents. 83 Delivery of Documents bar Seller At the Closing, in addition to any other documents specifically requ -ired to be delivered or acts required to be done pursuant to this Agreement, Seller will deliver, or cause to be delivered, to Buyer the following (all of which shall be in form reasonably acceptable to Buyer and Seller); (a) assign= -ent of the Sublessoe's int ;rest in Sublease (but City shall assuine no liability thereunder) (b' agreement terminating the Ground Lease. executed by the ground lessee thereuYsder (ti�fnich shall include a full. release of liab lit) as to the City) (c) agreement terminating the Sublease (with full release of all liability of each party) (d) warranty deed con: veying title to the Land subject only to the Penr.itted Excepti (c) indemnity from feller in fa of Cite ds to a'i obligations under the Ground Lease and Sublease including, without limita #ion, indeznnificatic�n from Seller to City as to any f inancial liability which may arise as a result of the order of the closings co n templated herein, or of the t ssignnlent and termination of the Sublease and the Ground Lease, (f.) general warrant) of title to the :Land subject only to Perrni fed Exceptions executed by Seller in favor of Buyer (g) such affidavits) or certifi� ations as nay reasonably be required to induce thy_ Title Agent and /or Underwr to issue the- Closing C:ommitmuent(s) to B-;yer at Closing; (h) a certificate of Seller, dated as of the Closing Date, ccrtif� (i) that the representations and v \ ties of Seller contained in thus Agreerneni are -- rue as of the O µ a' C)773 9 Closing Date in all ma respects; ; ^i) that there are no unpaid bills for labor, materials or services to the Land or improvements and no labor, services or materials have bw°n under taken or supplied which could be the basis for any claims agrainst the Propert)ll (iii) that Seller is in sole and exclusive possLssion of the Property and that no other person. or entity has any right or claim to poss4ssion thereof and all Leases are terminated at Closing with no remaining obligations thereunder; and (iv) the information customarily required by title insurance cornpanies to insure title against matters arising during the "information gap.'.' (i) a statement reflecting the results of searches of. the Uniforn, Commercial Code (UC;C) rewords of the Secretary of the State of Florida and the Clerk of the Circuit Court of .Miami -Dade Cournty; dated as close to Closing as possible under practices and pr oce-dures. of such offices and showing that there are no UCC financing statements fled 'of recora affecting SvIIQr's interest in the Property; (j) an affidavit complying with the provisions of Section 1445(b)(2) of the Internal Re:<<enue Code of 1 954, as amended, stating that Seller is mot a f��reign person; (k) an assigm -nent of the Permits and th.e Plans- �1) the consent of the - Architect who prepared the Plans to the assignment t6 Buyer (including agreement to perform further architectural services for Buyer); in form and content approved by Buyer; (m) such evidence as the Underwriter and Buyer shall reasona�l�.Iy require to verify the due execution, delivery and enforceability of - this Agreement and the dc3cumerits executed and delivered by Seller at Closing and. till termination of the Ground Lease and Sublease: (n) a lease or other agreement (the "Post Cosino Agreernent ") pursuant to which Seller sh=ill be entitled to use the Land as a parking facility provided that Seller (1) complies with all .legal and regulatory requirements (including obtaining all necessary permits and governmental approvals such as reinstatement of the conditional use approval to alto -v parrking); (ii)obtains such. insurance for the bener t of Seller and Buyer. as Buyer may reasonably require; (iii) agrees to indemnify and hold Buycr harmless from all liability, costs and expense relating to the Property or its operation; (IV) pays all real estate taxes and assessments; and ( pays rental or permit fees the mount of $1.00 for the first eighteen (1 rrronths aA thereafter (if the Post - Closing Agreement is still in effect) pays a monthly fee for each parkin -gf space on the Land equal to City's then prevailing monthly parking, permit, charges established pursuant to Section 106 -55 of the lvliami Beach City Code (the parties acknowledges that there are -t-) parking space located on the Land). The .Post Closing. !agreement shall commence can. the Closing Date and shall end on the date Buyer delrvers Buyer's notice to proceed to the general contractor to commence construction of a..municipa.l public parking. gai ge on the Land. The form. of Post - Closing _ �;reernent shall be agrced upon duri "n.g the Inspection. Period; (o) an agreement (the "Parking Rights Agreement") pursuant to which Buyer shall agree that if Buyer constructs a public municipal parking garage on the Land, so long 5 i as.sucoh par_king remains on the Lana and is operated as a public - municipal parking garage, (a) Seller or its .Permitted assignee shall be entitled to purchase up to fifty (5 0) .parking permits ��!ithin the. parking garage .at Buyer's th n prevailing rat;: in the garaa- Owhich permits shall be purchased on an annual. or monthly basis and at Buy then prevailiing.annual rate in the City' of Miami Beach Parking System : establish -d pursuant to Sectio: 106 -55 of the Miami Beach City Code) and (b) shall be not less than frfty� (50) spaces in thv game available fir ,Talet storage use and Buyer shall not preclude Seller or Seller's Permitted Assigmce from neg.otiatin with the valet operator to also service Palm Court; and (c) betwton the Termination Date of"the Post - osincy A�mtement and the date that a new municipal - )ublic p arki.ng -arage has been constructed on the Land and is available for use., Buyer shall allow Seller or its Permitted Assignee to purchase at prevailing rates the use of up to 50 parking perm its in other public pail ing.fac :lities �;z��n -6 �bv Buyer. Buy r shall mare. best efforts to provi said parking permits «rithin close proximity to Palm Court but no farther than the paxking,facility located at 27 Street. and Collins.. As used herein; "Permitted Assignee" shall mean the present of the Palm Court and any successor in title to the Palm Court. The ,Parking Rights A( ¢Lment shall be agreed upon during the Inspection Period, (p) 1�n assignment of the existing Chevron Indemnity - A, Bement together with conlirrnat;on in form acceptable to Buyer that. the Chevron i ndemnity rernams in full force and eject. Seller shall be `entitled to use a portipn of the closing proceeds 'to accomplish Seller's simultaneous acquisition of fee title to the Land and termination of the Ground Lease the Sublease and. any other Lease, all of which shall occur immediately prior to Seller's delive;� , of the instruments referenced in a` above, c�vided, however, tllht Buy () (p) p- ye shall have the right to .approve the procedures for accomplishing the foregoing, which approval shall not unreasonably b:; witLheld. Buyer agrees to coop -rate w*tl1 Seller in an effort to reduce transfer or, other taros provided Buyer dQtermines that in doe ing .so ()" B :uyer's rights (including rights to title N arranties, rndAlrnities and representations) as established in this r gr e��ie21t will not adversely be affected and By fully, Warr ants title to the Land subiect only to the Permitted B ceptit }ns, (yr) Buyer's liabilities .or costs will not be increased; and (z) the Ground Lease and Sublease are terminated at Closing and Buy- shall hie: no liability with rLspect thereto (and Se.l.ler shall indern._ ` and 11old Buyer harzonle:ss vvith respect the in form and substan e approved by. Buyer). 8.4 Delivery of 1)ocuznents by B.uy r . Al C1losing, in addition to any documents spcciDcally r eq aired to be delivered or required to be done pu rsuant to this Agry brit., Buy. will deliver, or cause to be delivered to Seller the. follo %dng: (a) the Purchase R ice, as adjusted bV prorations and adjustments pro�rjded Herein, by wire transfer to Seller's account; (b) the Parking RigThts Agreement; and (c) the Post - Closing A.fyreement. 5 -07 ?3 9 .5 Prorations Except as aLherwise specifically sef fa in iri this fibrcexnent, ad valorem property taxes and other revenues and expenses of, and impounds, prepayments or'' deposits affecting or related to, the Property (excluding insurance costs andrerr�iums, v,Jill be prorated between Seiler and Buyer as of the Closing vote and Sella shall pay the prorated taxes as required by law at Closing. Special assess men! liens - 5 ed, or fo* which tine work a c substantially completed. as of the Closing Date will L) paid bar Seller. env re, completed, for tap es attributable to peric)ds prior 'to Closing shall belong to Seller. �.6 Execution and Delivery of Bilateral areements Closing, in addition to any oilier doc} meats required to be e�: ,cuted and delivered in counterparts by bofri parties, Seller and Buyer will execute and deliver to each other closing statements accounting for sums adjusted or disbursed at . Cl o sing. Section 9. Brokers Bach party represents and warrants to the other that it has not contracted with, consulted, dealt or negotiated with any real estate brDker, 1Ynder, salesrn.an or agent to whom a commission or other compensation is or could be due in - onnection with the sale of he Propert} b Seller to BuyTer or any oth -r mater associated with than .Agreement hand Seller sp�cifcallyr disclaims; and- right to a commission fror Buyer). Anything to the contra—n notwithstanding, fhe representations. warranties and agreements of �tlus Section .9 will survive; . closing of� file transactions which are the subject of this Agreement and the deliverer of `�1�c deed of conveyance � , o any earlier termination of this Ajc eement. Section 10. Sunji al of Repres-,ntations, Warranties and ALreernents: lndemnificdtion 10.1 Survival The - warranties and representations contained herein shall survive the Closing and the delivery of the deed. 10.2 Indemnity by Seller Seller will defend, indemna: and hold harmless Buy +er froze and against all damages accz from or resulting by rea son of the ina.c eu-,acy of any representation .or warranty or the breach or nonperforrnanee of any covenant o..r agreernent made by Seller in this Ag reement that survives Closing. Phe provisions of this Section 10.2 shall survival the C losing, Section 1.1. Default 11.1 B uver' s Default if Buycr fails or refuses to perform am cf Buyer's obligations set forth in this fi greerrient, Seller's sole remedy- will be to terminate this A greement yid recWive a sole equal to one hundred Thousand Dollars (S100 000) fr- om3uyer as ay reed anti liquidated dam aacs and in full settlement of all claims of Seller against Bayer related to the transaction which is the sub ct of this greement, it being specifically understood and agreed that in such event Seller will suffer damages otherwise incapable of preci ascertaim - ncnt, and thereafter this grcenlent will be null { and void and the parties hereta will have no further rights or obligations hereunder. 11.2 Seder's Default In the event Seller fails or refuses to performs aaiy . of Seller's obligations under this gtement, Buyer may, at Buyer's sole option, pursue its.rcr tidies j 540'1 7> at lain anti /or in equity including;, but not limited to. (a) -terminating this Ato; -ment, and /or (�} rnaintainim an actio for specific ptrforinano of -the to mis of this ? >gre: rnenl. Section 12. Risk of Loss 12.1 Casualty - . Seller will bear all risk df loss occurri:na to or u on.any portion of the Pro ert�T prior to conveyance thereof by Seller to Buyer pursuant to tht tents of this Agreement. In event that any material portion. of the Propvi y is darnao-ed or destroyed prior to Closing, (a) Seller shall cause all Il s to be demolished and removed front the Land (and nasty apply any insurance premiums to the cost thereof); and (b) deli`,�er and /or assign to. Buyr -r all insurance proceeds, with respect to such damage or destruction. except, however for, those used by Seller pursuant to (a) above. 12.2 Condemnation In the event than any portiotl of the Property is taken by eminent domain or condemnation proceeding prior to sale and conveyance thereof by Seller to B u ver, Buyer rX1ty either (a)' proceed to close not xithstanding the eminent domain or condemnation proceeding, in which event Seller will assign to Buyer its entire right, title and Y nter _ it and to any a A a., d, or (b) to minate this ,Afire: mer_t bye deli��ering written notice of termination to S - 11_ -L aeon which this AgrevLnent will be dull and void a: d the parties will have no farther r ; <. hts or obligations hereunder. Seller agrees promptly to ao Hy Buyer of any eminent dor lain or condemnation proceeding and Buyer will be entitled to join in such proceeding and to defend Buyer's interest herv'ander in the Property' affected thereby Section 13. Miscella 1.3.1. Subseg gent . Ntaajations Seller agrees that it - will not enter Into anv ne oiiations for.the sal of triC ropem� w th any other prospective purchaser subsequent to .the Agree�rient Date unless tlils Agreement is teilnlinuted pursuant to the tez hereof. 13? Litigation In the e�Tent of anv lit1- Lion betuTeei� Seller and Buyer cGncelmIng the terms of this Ag reeinent, the prevail party will be entitled to reimbursennent of its reasonable costs and expenses including attoyrneys' fees. incurred in trial., appellate and post - iudgrnent proceedings. 13 ,3 Notices Notices required of permitted to be given pur suant.to the terms df this Agreleznent will be delivered in person or sent by cel u.fed mail return TeCC'.ipt requested, Pos prepaid, by rec�g�ni�ed c�ntiact carder providing si {rased receipt for delivery, or by Iu simile transmission and will be deerhed delivered on the date of dea.ivery�, if in person or facsimile transmission, two ( days fallowing the .deposit with the Postal Service, if sent by mail, or one {1) day following de -posit with the carrier, i�f sent by contract cagier. Notices will be delivered at the following addr"Isses /facsim.ile numbers .subject to the right of any parr' to charige the address /facsiziaile number. at �A. h it is to receive notice by wr uteri notice to the other party' -12 _540773 9 e To 13UV' City of Miam' Bach 1700 Convention Center Drive Miami Beech, Florida 3.3139 Attention:. Jorge l�— Gonzalez, City Mana er Telephone: (30�} X73 -7010 Copy to: City of Miami Beach 170( Convention Centel Drive Miami Beach, Florida 313139 attention: City kttorney Telephone: ( )05) Facsimile: (3.0a) 673 -7782 To Seller: American Riviera Real-Estairc Company X 09 2 � r Street, SUI - e 20 Miam, i Beach, .Florida 33139 Attention: Ronald Bloomberg, President Telephone: (305) 38 -9090 Copy to: McArdle- L Perez, P.4 201 Alhambra Circle. Suite 711 Coral Gb1zs, Florida. 331.34 Attention George Mc_Ardle, Esq.. `I' Llephone: (300 442 -221.4 . 3.4 l.nte�ratlon.`and Se yerabUjty. 'M s A� eenae- and the' attaClamcnts .her (all of which are hereby incorporated herein and made a parr hereof by refe rcnce) .set forth the entire unde� stal�Iding of Buyer and Seller «riLla the respect to the matters w hich a -•e the subject of this Agrc=ent, superseding and /or incorporating all prior or contemporaneous oral or wl tten agreements, and may be changed, modified, or amended only by an instrumcnt' in writing executed by the. party against whoaxl the enforc Inert of any such change, znodifcatlon or anlendnn nt is sought. Any prOvision of this lL re ement which is pz :oh bited or tin ;nforceable -, 540711 9 will be inef T ective to the extent of such - prohibition or invalidity without invalidat the r emain portions hereof. 13.5 Siiccessors and Assigns. This A "green.ent Mill I. C to the benefit of and be binding upon, and is intended solel317 for the ben. f t of, the parties hereto and their respective heirs, personal representatives, successors, and. assigns; and no' third party -vvill .have anN rights, privileges or other beneficial "interests herein. or hereunder. 13.6 Construction Headings and similar structural elements set forth in this agreement are intended for ease of reference on] , and are not intended, and will not be construed, to reflect the intention of the parties or to affroct the substance; of this Agreement. This agreement has been negotiated at arm's length between Seller and Buyer, each represented by legal counsel of its choice and having an ample opportunity to negotiate the form and substance hereof, and thererore in constrain _thel�rovisions of this Agreement the parties will be deemed to have "hac3 equal 1 roles in drafting. 13.7 Govcrnina Law. This Agreement is governed by and will be construed. in accordance with the internal laws of the State ofFloridu without regard try con�lict of law, 13.8. Count - rr)arLs This Agreement may be executed in two or more counterparts -each of which shall be dec.med an on vinal, but all of which will oc)nstitute the saJme instrur>7ent, 13.9 1 „ urthQr 'Assurances In addition to the obligations required to be perforrned under this Agreement by the parries hereto at the closing, each such part agrees to perform. such. other acts, and. to execute, aclnowledge and delivcr subsequent to the closing such other insrunler_ts, docu��ents and other rnaterials, as the other pasty spay reaso;iabl� request in order to effectuatc the,co'nsu=alion of the transactions contemplated herein and to vest title to 'the Property in Buver. F 'ITN SS �f1�.ERE"OF, the parties have caased this Azrc -went to be executed on the date(s) hereinafter set forth. Witnessed by SELLER: AMERICAI RIVI�PA DEAL r�STA'1' . C l� l'ANY, a 1''lorida corpj oration i' � " f � an. � - ��a {c 31c3orr�berzT _FF Title: President. -� Date: z -A Print N am° - l4- 54077:> 9 ' BUYS : CITY OF 141- .Ivll EACH, a Florida _ murilcipal corporation Print Name, :�;� N a Tifiie: Dat:: Ira. T'rint Name �? 3 ATTEST 'PROVED AS TO FORM & LANGUAGE FOR EXECUT �1 % y ,+ \ J` bats >4077- 9 EXHIBITS ADD SCHEDULES .A Le gal Des - ption of Land. S -1 Permits S -2 Fnviro=cntal Report e .J- -16- - 540773 9 EXHIBI LEGAL DESCRIPTION OF LAND Lots. 5 7, and 9 loo? thLrlv 10.0 feet for sire,--t u idenin rposes ; oz U;ea� Front PropeMj of the Miami Beach In provement Co. Subdivision according to the Pict thtr zt as recordd in Plat3005 at Pa <�"es 7 & of the Public Records of Miami -I�adL Cau1ty,Iorida, 540773 9 S - 1 PER Ccmdlfi.011al T se Approval (Final C }raer ?��. I422) for surface parl,il�� lc�t. Ci }y of IvIl'ami Beach �'lanning Board i S_3 E TVIRONMENI t AL REPORTS i . Phase I En ironinentai. Sipe Assessment Report dated June 3.. 2004 pr -pared for —mc cr an Riviera Real Estate Compmiy by Land Science Environ Consultants' and Di ineers. 2. Letter dated October 25, 2005 from ORB & Environmental Service, Inc. to Centaur Realty Organization. 54077.E 9 yt '�Z�r� ao ► o -- - 73 - 7 - 7 . MERST AYMN NMNT TO SALE AND PURCR, SE OF REAL PROPERTY, ANNRICAN RIVIERA. REAL ESTATE CONVANY, a. Florida corporation ( "Seller '} and CITY OF lv L4AR BEACH, FLORIDA, a mumcipal corporation ( "Buyer ") hereby amend that certain Agreema t, for Sale and Puxcbase of Real Property betvveela the parties having axe Agreerrzeat Date of April 14, 20 10 (the "Agreement' as follows (all capitalized terms used herein without bung . defined herein shall have the meanings ascribed to them in the Agreexxlez�t): 1, Pursuant to Section 3.1(a), Buyer hereby exercises its right to postpone the C3osix�g until September T, 2014 (" Closing Bate "). In accordance with Section 3.1, Seller shall continue eforts cure ox remove all title objections raised by Buyer. In the event Buyei . has mot removed .all tide objections on or before August 20, 2010 (tame being of the essence), Buyer skull have : the . option to proceed under Section M (b) or 11(c). 2: Buyer has eonapleted its inspection of the physical condition, of the Property aad is satisf ed except that Buyer's environment consultants have determined that the 1?zoperty contains Hazardous Subgta aces. Buyer is curre�atly investigating th costs of �remediatiom. Buyer shall have the f to ternaa.uate the Agreement at any time prior to Closing in. the event, Buyer detexnoirnes in Buyer s inlo� . sole. , the potential Hazardous Substances zeinediataon costs are unusually e� pensive. a If Buyer exercises its zXght of termination, the Agree�aent shad. be termimatcd and ;neither party shall have any hex rights or obligations under the Agreement or with respect to the property: 3, � order to be consistent with the terms of.Resolutiou No. 2014- 27377, Buyer and S eller 1-u agree to amezad Sectiori 8.3(o) "of the Agreement pertaining to the Pk)6x4 Rights Agreement, to add the p prase "provided Buyer elects to }nave valet storage in the new municipal parking . garas e ", at the beginning of subsection. (b) thereof 4. As modified hereby, the • A,gxeement is h:exeby ratifi ed and coin =ed and rerxzailas in full force and effect. This Amendment may be signed and transmitted electronically (pdf) avd will be deemed effective when transmitted to the other party o . When physically received by the other patty. IN WITNESS VVlHREOF, Seller and Buyer have executed this First Amendrbezit as of the 2na day of August 2010. \ . SELLER: V,ritnessed by: A MRICAN RTVIEItA RE AI, ESTATE COWANY; a Florida corporation . P ame: h < Larne: Title: >c� 544413.1 1 C k date. print Nance: �ip- k3LTYER: Witnessed b CITY OF MUTM BEACH, .FL' OMA. �' a znuni'pal corporation By: pmt Name. N T' e: c A 2. 2 • Pxunt Name: A TTEST. , ' , �� .�'_� t�• �" wa ' • a 4�'� ., fl /p �% . • _ B G�.�t, � � r i (L�1 S { `� ti (. .y j j • � is �c � � y,�;,11rv3`�•'� y, i APPROVED AS TO FARM & LANGUAGE & FOR EXECUTION I - � ity tt e at 544413.1 f SECOND AMENDMENT TO AGREEMENT OF SALE AND PURCHASE OF REAL, PROPERTY This Second Amendment to Agreement'of Sale and Purchase of Real Property ( "Second Amendment ") is entered into as of _ March 9, 2011 ( "Effective Date ") by and between AMERICAN RIVIERA REAL ESTATE COMPANY, a Florida corporation ( "Seller ") and CITY OF MIAMI BEACH, FLORIDA, a municipal corporation ("City") RECITALS A. - Seller and City entered .into an Agreement for Sale and Purchase of Real Property dated April 14, 2010 (the "Agreement" ). All capitalized terms used herein without being defined herein shall have the meanings ascribed to them in the Agreement. B. Pursuant to -Section 3.1 of the Agreement, Seller had a period of thirty (.3 0) days following the Objection Notice to cure or remove all title objections (the "Title .Cure Period"); provided, however, the Title Cure Period was extended for an additional sixty (60) days if Seller was unable to cure or remove the title objections within the initial thirty (3 0) day period. C. Seller was unable to cure or remove the title objections within the, initial thirty 3 0 day Title Cure Period nor durin the additional sixty (60) day extension o the Title Cure Period. . D. Seller and City .entered into a First Amendment to Agreement of Sale and Purchase of Real Property dated August 2, 2010 ( "First Am. mendment" ). Paragraph 1 of the First Amendment extended the Title Cure Period until August 20, 2010 (time being of the essence). i E. Seller was unable to cure or remove the title objections by August 20 2010 and many of the title objections still remain uncured as of the 'date': hereof. Accordingly,. City currently has the right to terminate the Agreement. F.. City also has the right to terminate the Agreement pursuant to paragraph 2 of the First Amendment. G. Seller and City agree that the remaining title objections (the "Title Objections ") are the following items reflected on the title commitment attached hereto and made a part hereof., . as Exhibit A ( "Title Commitment "): (i) all items shown on Schedule B -1, other than item 1 thereof; . any items hereafter added pursuant to item 1 of Schedule B -2 thereof. H. In an effort to cure some of the Title Objections, Seller has filed a Quiet Title Lawsuit styled Michael F. Dallet IV,, Plaintiff v. Marsha Victoria Linder et al in the Circuit Court of the J 1�' Judicial Circuit in and for Miami -Dade County, Florida (Case No. 70 -55087 CA -4) (the "Quiet Title Action ") 545516.10 r 1. The Title Objections shall be deemed cured or removed only if and when the Title Commitment has been endorsed by the Title Company to eliminate them from the Title. Commitment and the Quiet Title Action has been completed with verdict for the Plaintiff on all counts and all appeal periods have expired with no appeal having been taken. NOW, THEREFORE, in consideration of the premises and other - valuable. - considerations, Seller and City agree as follows: 1 Incorporation of Recitals Seller and City agree that the Recitals are correct and are hereby incorporated into and made apart of this Second Amendment by reference... 2. Extension of Title Cure Period Seller and City hereby agree that the Title Cure Period is hereby extended until April 19, 2011 at 5:00 p.m., time being of the essence. -Seller. shall use diligent and good faith efforts to cure all Title Objections prior to expiration of the Title -- - Cure P eriod: \VithoutlimitinQ - (a) Seller shall diligently pursue the completion of the Quiet. Title Action. (b) Seller shall work diligently with the. Title Company to obtain the Title Company's approval as to the manner of resolving all Title Objections; and (c) Sell shall cause all Monetary Liens to be released or satisfied on or before Closing Date. As used herein, "Monetary Liens" means_ any liens, mortgages, and other encumbrances that can be .satisfied or released upon payment of money. 3. Purchase Price Adjustment, The Purchase Price is hereby reduced by $100,000, thereby resulting in the Purchase Price being $4,875,000. All references to the "Purchase Price" . contained in the Agreement or any present or future amendment thereto shall. mean and refer to the reduced Purchase Price. The foregoing reduction is made to compensate. City for the delayed Closing Date, additional costs incurred by City, and in consideration for City's agreement to enter into this Second Amendment, The Purchase Price as amended'hereby shall be subject to all prorations and adjustments required by the Agreement. 4. Pre - Closing On March 23, 2011 at 10 :00 a.m. ( "Pre- Closing Time "), Seller and City shall conduct a Pre- Closing in the City Attorney's office (1700 Convention Center Drive, Miami Beach, Florida) or, if both parties agree, another- location in Miami -Dade County. At the Pre- Closin all - Closin =documents uured -the -A regiment -shall be presented for review and g g q Y g -_ approval. Any documents required to be signed by third parties. shall have been fully executed and copies shall be available at the Pre - Closing. Copies of any. Closing documents may then be sent for approval to the Title Company (and ' if not approved shall be amended as necessary but , shall not otherwise be amended). The Pre - Closing shall be held even if the City does not have confirmation that all Title Objections have been cured as of the Pre- Closing Time. 5. First Amendment Modification Paragraph . 2 of the First Amendment is hereby deleted. 6. Closing. Closing shall occur on or before April 21, 2011, ( "Outside Closing Date "), time being of the essence. 545516.10 2 7. No Further Extension; Consequences (a) There shall be no further extensions of the Title Cure Period beyond April 19, 2011 for any reason whatsoever; (b) There shall be no further extensions of the Closing Date beyond April 21, 2011 - for any reason whatsoever. In the event that all Title Objections have not been cured by April 19, 2011 for any reason whatsoever or in the event that Closing has not occurred by April 21, 2011 for any reason -whatsoever, then and in that event: (i) If the failure to timely satisfy or cute all Title .Objections or to timely close the transaction results from Seller's default, City shall be entitled, to all remedies - available - under - S- S- l - -1:2 of -the - Agreement; winch -provides- that C -ides -at -its may pursue its remedies at law and /or equity including, but not limited to, (a) terminating the Agreement and /or (b) maintaining an action for specific performance; (ii) If the failure to timely close the transaction is the result of City's. default; Seller shall be entitled only to its remedies under Section 11.2, which provides that S eller's sole remedy is to terminate the Agreement and receive a sum equal, to One Hundred Thousand Dollar ($100,000) as ag reed and li damages and in full settlement of all claims against City (the parties agreeing that will suffer damages incapable of precise ascertainment and that receipt of $100,000 is fair and reasonable and is liquidated damages and not a penalty); (iii) If failure to timely cure Title Objections or timely close the transaction did not result from Seller's default. or City's default, the Agreement shall automatically terminate and neither party shall have any further rights or obligations to each other under the Agreement or otherwise: If for any reason whatsoever, closing has not occurred on or before April 21, 2011, the City Manager is authorized to take any and all actions on behalf of the City to terminate this Agreement and /or to pursue any rights or remedies available to City. 8. Pending Foreclosure Action, Quiet Title Action Seller has - disclosed the existence of a mortgage encumbering the - Property securing a Monetary Lien held- by-Everbank and the pending foreclosure action filed against the Property by Everbank. Seller further represents that other than (a) the need for the Monetary Lien held by Everbank to be satisfied or released and for the pending foreclosure action to be dismissed, and (b) the need to complete the Quiet Title Action, Seller is not aware of any facts, or circumstances that will prevent Closing from occurring on or before the Outside Closing Date. 9. General Release By execution hereof, Seller for itself and its officers, directors, shareholders and principals, and Ronald Bloomberg'. individually, (all of the foregoing "Seller Parties ") hereby fully and unconditionally release- City and its commissioners, employees, administrative executives, staff, and attorneys and their respective successors and assigns ( "Releasees ") from any and all manner of.. actions, causes of action, contracts, agreements, 545516.10 a d , n covenants, controversies, claims, and demands whatsoever, ,whether legal or equitable, known or unknown, fixed or contingent, relating to the Property or the Agreement or relating to Everbank t or any discussions with Everbank from the beginning of the world until the Effective Date of this Second Amendment, except for City's obligation to complete the closing of the Agreement if and only if all conditions and requirements of the Agreement as modified hereby .are met (but City with res ' ect thereto shall be limited to liquidated damages as specified` in any default by Ci y p q Section 11.1 of the Agreement). The provisions of this paragraph 9 shall survive any termination or closing of the Agreement. At Closing or upon termination Seller and Ronald Bloomberg and City shall execute a mutual release that will be effective. through the date of Closing or termination, as applicable, with respect to the Property and the Agreement and Everbank, except that in the event Closing occurs, the release shall not apply to: (a) any rights or obligations of either party under this Agreement or any documents executed at Closing that survive Closing; nor (b) any matters that would adversely affect City's rights to pursue claims with respect to the Chevron Indemnity. 10, Ratification As amended hereby, the Agreement as amended. by the First Amendment shall remain in full force and effect and is hereby ratified and confirmed. IN WITNESS WHEREOF, Seller and Buyer have executed this Second Amendment as of the date set forth above. SELLER: Witnessed by: AMERICAN RIVIERA. REAL ESTATE COMPANY, a Florida corporation. n lJ L Print Name: Name: Title: Rc si �P� 'Date: me: JOINDER Ronald Bloomberg hereby joins.in this Second Amendment for the sole purpose of agreeing to paragraph 9. RON MBER - 545516.10 4 4 r CITY OF MIAMI BEACH, FLORIDA, a municipal corporation Witnessed by: By: Name: A� A Pr' t a r e Title: /L Date: R41i_ Zo tJ LJ , Print Name: AN By: [Seal] t APPROVED AS TO FORM & LANGUAGE ... FC)R EXECUTION ttorney ��' Date 545516.10 5 CLOSING STATEMENT Buyer: City of Miami Beach, a Florida municipal corporation Seller: American Riviera Real Estate Company, a Florida corporation Property: 340 23 Street, Miami Beach, FL 33139 _ Date: April 18, 2011 BUYER SELLER CREDITS CREDITS Purchase Price $ 4,87500.00. TOTAL CREDITS 0.00 .4,875,000.00 CASH DUE SELLER FROM BUYER $4 S 4 1 875 9 000.00 BUYER SELLER COSTS COSTS COSTS AND CHARGES TO BE DISBURSED AT CLOSING Mortgage Payoff to Everbank: $ 1,179,784.89 . (Account No. 2116796) Mortgage Payoff to Everbank: $ 1,121, 8 00.38 (Account No. 2075752) Documentary Stamps 29,250.00 Surtax 21,937.50 2010 Real Estate Taxes (02- 3226 -001 -0400) 43,476.77 to Miami -Dade County Tax Collector 2011 Real Estate Taxes (02- 3226 -001 -0400) 1600.00 Estimate 1/1 /11 through 4/21/11 to be held in escrow by Tew Cardenas until final bill* '2010 Real Estate Taxes (02- 3226 - 001 -0405) 21,749.76 to Miami -Dade County. Tax Collector 2009 Real Estate Taxes (02 -3226- 001 -0405) 2600.69' to Miami -Dade County Tax Collector 552322.1 2011 Real Estate Tapes (02 -3226= 001- 0405) 800.00 Estimate, l /1 /1 l through 4/21 /11 to be held in Escrow by Tew Cardenas until final bill* Lien Letters, Violation, Permit. Searches 487.00 to Al Title Support Services .Title Commitment Fee 300.00 to Attorneys Title Insurance Company Misc. Recording Fees 950.00 Owner's Title Insurance Policy to $14 Tew Cardenas & Chicago Title Insurance TOTAL DEBITS: $ 14,762.50 $2 BUYER RECAP Cash Due from Buyer $4,875,000.00 Plus Buyer's Costs' 14,762.50 Total Cash to Close from Buyer $4,889 SELLER RECAP Cash Due Seller from Buyer $4,875,000:00 Less Seller's Costs (- 2,470,616.99) Seller's Net Proceeds $2,404,383.01 552322.1 RECEIPTS AND DISBURSEMENTS SCHEDULE RECEIPTS BY TEW CARDENAS From Buyer $409,762.50 DISBURSEMENTS BY TEW, CARDENAS Seller via wire instructions attached hereto as Exhibit A $2,404,383.01 . Everbank Mortgage Payoff to Everbank: $1,179,784.89 (Account No 21 16796) via wire instructions Attached hereto as Exhibit B Everbank Mortgage Payoff to Everbank: $1,121,800.38 (Account No. 2075752) via wire instructions Attached hereto as Exhibit B Clerk of Court $ 52 Miami -Dade County Tax Collector $ 92;107.22 Al Title Support Service $ 487.00 Title Commitment Fee to Attorneys Title $ 300.00 Tew Cardenas, et al., as agent for Chicago $ 14,762.50 Title Insurance Company (covering title insurance) Tew Cardenas for 2011 Tax Escrow $ 2400.00 TOTAL DISBURSEMENTS $41889,762.50 , - 552322.1 NOTES I. Seller is required to pay all real estate taxes and assessments through the Closing Date. With respect to 2011 ad valorem real property taxes, the sum of $24,000 has been estimated as Seller's responsibility and reflected as part of Seller's Costs. Tew Cardenas LLP as Closing Agent shall hold such amount in trust and shall pay the 20 1. l tax bill after it becomes available provided that, the bill is equal to or less than $24,000 (and any excess will be paid to Seller). If the tax bill exceeds $24,000, Seller will provide to Closing Agent a cashier's check for the deficiency upon request and Closing Agent shall then pay the tax bill. 2. This Settlement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same Closing Statement. 3. Having read, approved and agreed to the above credit and disbursement amounts and other- provisions, the undersigned parties hereby approve each such. credit and disbursement provisions and hereby authorize and direct Tew Cardenas, LLP to make the disbursements set forth herein. Notwithstanding the foregoing, should Buyer or Seller discover any error in the figures and computations set forth in this Closing Statement, Buyer and Seller agree to adjust among themselves the payments made pursuant hereto to compensate for any bona - fide error. CITE' OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida gB y' Date ATTEST: By: Date: [Seller signature page follows] APPROVED AS TO FORM & LANGUAGE & FO -, f'it. ttome� ' Elate X2322.1 _.. From•: 04/20/2; :09;51 #719 P.006 /006 AAMEWCAN JZ IE�E�+,a. ST 7'E a Florida c®rPv 3 Ran B g� p resid�r�� 55722.1 McArdle & Perez, P.A. Professional Association Georbe E. McArdle 806 S. Douglas Road. Rafael A. Perez Suite 625 Coral Gables, Florida 33134 Telephone: ( 305) 442 -2214 Facsimile: (305) 442 -2291 WIRE INSTRUCTIONS ABA Routing Number 061000104 For Credit To: WARDLE & PEREZ, P.A. TRUST ACCOUNT Account Number: 100004478'7678 Bank: SUNTRUST BANKS', INC. Suntrust Plaza 201 Alhambra Circle Coral Gables, Florida 33134 Bank Contact: Ingrid Rivera Telephone: (305) 442 -3200 Fax:, (305) 442 -3010 Exhibit «A» t EVIUrScu l 501 Riverside Avenue • Jacksonville, Florida 32202 Date: April 13, 2011 Borrower: American Riviera Real Estate Co Collateral: Property located at 340 23 St, Miami, FL 33,139 Account Number: 2116796 Payoff Good 'Through: April 13, 2011 Payoff details: Current Principal $964,795.16 Interest @5% 20,137.97 Daily accrual of $•133.9993278 Interest@ default rate 18% 145,684.04 Daily accrual of $482.3970000 Late Charges 6,182.89 Deferred Loan Fee 4,996.81 Appraisal 4,000.00 Appraisal Review 720.00 Legal Fees 29,408.84 Payoff Total $1,175 This payoff calculation assumes that no transactions will occur between today's date and the payoff date.. Should you have further questions regarding this account or payoff, please feel free to call Lender at (239) 254 -2100. Please remit payoffto: Wire to: EverBank of Florida. 501 Riverside Ave Jacksonville, FL 32202 Routing #063000225 Account # 0000137215536 Ref: American Riviera Real Estate Co Loan #2116796 Sincerely; James Citrano Commercial & Special Assets Mgr Exhibit "B' t R . Evvrf3.a lk 501 Riverside Avenue • Jacksonville, Florida 32202 Date: April 13, 2011 Borrower: American Riviera Real Estate Co Collateral,' Property located at 18600 NE 22 Ave Miami FL 33179. Account Number: 2075752 Payoff Good Through: April 13, 2011 Payoff details: Current Principal $868,136.22 Interest @5% 18,118.63 Daily accrual of $1 _ Interest @ default rate 18% 131, 0 Daily accrual of $434.068111 Late Charges 4,966.36 Deferred Loan Fee 4,496.20 Real Estate Taxes 5603.58 Appraisal 3,500.00 Legal Fees 32,018.28 Payoff Total $1J18,327.84 This payoff calculation assumes that no transactions. will occur between today's date and the payoff date. Should you have further questions regarding this. account or payoff, please feel free to call Lender at (239) 254 -2100. Please remit payoff. to: Wire to: EverBank of Florida 501 Riverside Ave Jacksonville, FL 32202 Routing #063000225 Account # 000013721 5536 Ref: American Riviera Real Estate Co Loan #2075752 Sincerely, James Citrano Commercial & Special Assets Mgr E 49 !@ . l �;{ (r�, } F'JS. 111 - ' 1 7, 2; (. tp9s) R CO D1:D 114_'2 15 1_ti D O {_ l 4;r`-`. ` r 511',1 If l 1.1ARVE'r RUVRl'r t::'_EfiK OF C:OLJRT Yr_ e�ared by and return to : �llANI- 1.tADE COI. iT r FLORIDA David Weisman, Esquire ;Attorney at Law GREENSPOON MARDER, P.A. TRADE CENTRE SOUTH, Ste. 700 100 West Cypress Creek Road Fort Lauderdale, FL 33309 954491 -1120 File Number: BALN.0004 [Space Above This Line For Recording Data] Trustee's Deed This Trustee's Deed made this } .7 day of April, 2011, between NANCY BALL, Individually, and as Trustee of the ; � NANCY BALL TRUST dated July 21, 2003 and NANCY BALL, Individually, and as Successor Trustee of RAY W. BALL AND MARGARET BALL TRUST dated 5/2/1973, as amended, whose post office address is 18755 Park Haven Lane, Huntington Beach,. CA 92648, grantor, and CITY OF MIAMI BEACH, a Florida municipal corporation, whose post office address is 1700. Convention Center Drive, Miami Beach, FL 33139,grantee: (Whenever used herein the terms grantor and grantee include all the parties to this instrument and the heirs, legal representatives, and assigns of individuals, . and the successors and assigns of corporations, trusts and trustees) Witnesseth, that said grantor, for and in consideration of the sum TEN AND NO /100 DOt,LARS ($10.00) and other good and valuable considerations to said grantor in hand paid by said grantee, the receipt whereof is hereby acknowledged, has grantee, bargained, and sold to the said grantee, and grantees heirs and assigns forever, the following described land, situate, lying and being in Miami -Dade County, Florida, to -wit: Lots 5,7 and 9, Block 1, OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 5, Page 7, of the Public Records of Miami -Dade County, Florida, less the Northerly 10.00 feet thereof for street widenening purposes. Property ID #: 02 -3226- 001 -0405 and 02 -3226- 001 -0400 This Deed also assigns the Lessor's interest in those certain 99 year leases recorded in Deed Book 2315, Page 80, Deed Book 2390, Page 296, and Deed,Book 2315, Page 71, all as amended, of the Public Records of Miami- , Dade County, Florida. The above- described property is not the residence of the Grantors who reside in .Huntington Beach, California. Together with all the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining. To Have and to Hold the same in fee simple forever. In Witness Whereof, grantor has hereunto set grantor's hand and seal the day and year first above -written. DoubleTime® i Signed, sealed and delivered -in our presence' Witless Name: NANCY BALL, Individ� ]ly and as,Trustee of the Nancy r Ball Trust dated July 21,1200 Lo/� '� fit:. • Wit ess ame`. NANCY BALL, Indiv du ly, and as Trustee of the I Trust dated 5/2/1973, as amended Ct �c� lll�lut"�uf� State of California County of Orange s a knowled ed before me this V day of April, 2011, b The fore Instrument wa c g y P y NANCY BALL, Individually and as Trustee of the NANCY BALL TRUST dated July 21, 2003, who [_j is personally known or [X] has produced a driver's license as identification. ,[Notary Seal] t rry:,P�Ltblic - - - - -- - -- � -- - -- - - -- --- . - - - - -- - - - - -:- M. CRIeDL1 . COMM # 180 Printed Name: • Wit NOTARY PUBLIC • CALIFORNIA – - — \ - ORANGE COUNTY MY COOi)I, EzP, JUNE 29, 2012 My Commission Expires: State of California - County of Orange The foregoing instrument was acknowledged before me this day of April, 2011, by NANCY BALL, Individually and g g as Trustee of the RUST dated 5/2/1973, as amended, who - [djli ] is persf rally known or [X] has produced a driver's license as identification. I by ( [Notary Seal]. Notary Printed Name: M, CANDLISH . Coin 4804892 ((} My Commission Expires:, N NOTARY PUBLIC CALIFORNIA an ORANGE COUNTY MY GomkI. taxp, Jutif _29, 2012 Trustee's Deed - Page 2 DoubleTime® 1 Closing Affidavit (Seller) Before me, the undersigned authority, personally appeared the undersigned ( "Affiant "), who being by me first duly sworn, on oath,' depose(s) and say(s) that: 1. NANCY BALL, Individually, and as Trustee of the NANCY BALL TRUST dated July 21, 2003 and NANCY BALL,, Individually, and as Successor Trustee of the RAY W. BALL AND MARGARET BALL TRUST dated 5/2/1973, as amended ( "Seller "), is the owner of and is selling the following described property to CITY OF MIAMI BEACH, a Florida municipal corporation ( "Buyer "), to wit: Lots 5,7 and 9, Block 1, OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY SUBDIVISION,. according to the Plat thereof, as recorded_ in Plat Book 5, Page 7, of the Public Records of Miami -Dade County, Florida, less the Northerly 10.00 feet thereof for - street widenening purposes. 2: The above described property is free and clear of all liens, taxes, encumbrances and claims of every kind, nature and description of record whatsoever, except for those.matters disclosed by Old Republic National Title Insurance Company Commitment 01 -2010- 004487 -A4 (the "Title Commitment ") and except for real estate and personal property taxes for the years 2008, 2009, and 2010, which are delinquent, and except for tares foir2011, which are not yet due and payable. 3. There have been no improvements, alterations, or repairs since acquisition -by the Seller to the above described property for which the costs thereof'remain unpaid, that there are no claims for labor or material furnished for repairing or improving the same, which remain unpaid since the acquisition by Seller, and that there are no mechanic's, materialmen's, or l aborer's liens since acquisition by Seller against the above described property. 4. There have been no documents recorded in the Public Records of Miami -Dade County, Florida subsequent to February 17 2011, which affect title to the Property and Seller has not entered into any contracts for the sale, disposition or leasing of the Property since said date except as may have been disclosed to TEW CARDENAS LLP in writing, and Seller has no of any matter affecting title to the Property. 5. There are no matters pending against the Seller that could give rise to a lien that would attach to the property between the effective date of commitment and the recording of the interest to be insured. Seller has not and will not execute any instruments that would adversely affect the interest to be insured. b. Seller's title to, and possession and enjoyment of, the property have been open, notorious, peaceable and undisturbed, and have never been disputed nor questioned, subject to the leases disclosed in the Title Commitment. 7. Affiant has received no notice of any public hearing regarding assessment for improvements or changes in applicable zoning laws concerning said property within the past ninety (90) days. 8. There are no actions or proceedings now pending in any State or Federal Court to which the Seller is a party; including but not limited to, proceedings in bankruptcy, receivership or insolvency, nor are there any judgments, bankruptcies, liens or executions of any nature which constitute or could constitute a charge or lien upon said property. 9. There are no unrecorded easements, claims of easement or rights -of - affecting all or any portion of the property. 10. Seller understands that Section 1445 of the Internal Revenue Code provides that a Buyer of a United States real property interest must withhold tax if the Seller is a foreign person_ To .inform the Buyer that withholding of tax is not required upon purchase of the above described property, Seller certifies the following: a. Seller is not a nonresident alien individual, foreign corporation, foreign partnership, foreign trust or foreign estate for purposes of United States federal income taxation. b. Seller's U.S. Taxpayer Identification Number is: > �' --�f /�'� as to Nancy Ball Trust c. Seller's U.S. Taxpayer Identification Number is: ;�6 (PZ3i.333 as to Ball Trust File Number: BALN.0004 DoubleTime® d. Seller's address is: 18755 Park Maven Lane, Huntington Beach, CA 92648. . e. No.other persons or entities have a fee simple ownership interest in the above described property. Seller understands the Buyer of the described property intends to rely on the foregoing'representations in connection with the United States Foreign' Investment in Real Property Tax Act. (FIRPTA). Seller understands this certification may be disclosed to the Internal Revenue Service by the Buyer and that any false statements contained in this certification may be punished by fine, imprisonment or both. Seller has the authority to sign this affidavit as either individual Seller or .on behalf of an entity Seller. Under penalties of perjury, Seller'states that this declaration was carefully read and is true and correct. 11.. This affidavit is given for the purpose of clearing any possible question or objection to the title to the above. referenced property and, for the purpose of inducing TEW CARDENAS LLP and Old Republic National Title Insurance Company -to issue title insurance on the subject property, with the knowledge that said title companies are relying upon the statements set forth herein. Seller hereby holds TEW CARDENAS LLP and Old Republic National Title Insurance. Company harmless and fully.. indemnifies same (including but not limited to attorneys' fees, whether suit be brought or not, and at trial and all appellate levels, and court costs and other litigation expenses) with respect to the matters set forth herein. "Affrant ", "Seller" and "Buyer" include singular or plural as context so requires or admits. Seller further states that he /she is familiar with the nature of an.oath and with the penalties as provided by the laws of the' United States and the State of Florida for falsely.'swearing to statements made' in an instrument of this nature. Seller further certifies that he /she has read, or,heard read, the full facts of this Affidavit and understands its context. Under penalties of perjury I declare that I have read the foregoing Affidavit and that the facts stated in it are true. NANCY 4ALV t dividually, and as Trustee. of the Nancy Ball Trust date J ly 21, 2003 NANCY BALU1�973 ividually, and as �l rus`tee of the t Trust dated 5/2 as amend ed 1 W. ctn& - r5 Cl e State of California County of Orange The foregoing instrument was Sworn to and subscribed b efore me this day, y of April, 2011 by NANCY BAL Individually, and as Trustee of the NANCY BALL TRUST dated July 21, 2003, who [_l is personally known or [X] has produced a driver's license as identification. [Notary Seal] Notary Public _ Printed Name. NDLISH �.; Co�!tug � My Commission Expires: �—� > t#07A ORANGE CO UNTY ` OdY GOMM XP. JU 29, 2012 Closing Affidavit (Seller) - Page 2 File Number: BALN.0004 DoubleTime® r f State of California County of Orange f The foregoing instrument was Sworn to and subscribed before me this da y .of April, 2011 by NANCY "BALL , Individually, "and as Trustee of the RAY W. BALL AND MARGARET BALL TRUST dated 5/2/1973, as amended, who [j is personally known or [X] has produced a driver's license as identifp tion. [Notary Seal] Notary , ublic 1 CAGLlSH Printed Name:` Comm,# 1804892 X NOTARY PUBLIC CALIFORNIA C4 ORANGE COUNTY ,� My Commission Expires: Closing Affidavit (Seller) - Page 3 File Number: BALN.0004 DoubleTimee AFFIDAVIT AND CERTIFICATION. OF TRUST (Single Trustee - Individual) This Affidavit and Certification of Trust is made this day of April, 2011, by Nancy Ball, the undersigned, pursuant to and in accordance with Section - 736.1017, Florida Statutes; accordingly, said undersigned hereby certifies under oath the following: 1. That certain Trust known as the Nancy Ball Trust {hereinafter the "Trust") was duly executed and created by Nancy Ball Settlor, on Jul 21, 2003; and remains in full force and effect as of the date hereof. 2. The undersigned, whose address is 18755 Park Haven Lane, Huntington_ Beach CA 92648, is the current duly authorized and acting Trustee of the Trust. 3. That the undersigned is the currently vested Trustee of record. 4. The Trust grants the undersigned full power and authority to sell, lease, encumber, manage and otherwise dispose of any and all trust property including, without limitation, the following descibed. property: Lots 5, 7 and 9, Block 1, OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 5, Page 7, of the Public Records of Miami -Dade . County, Florida, less the Northerly 10.00 feet thereof for street widenening purposes. 5. The Trust authorizes the undersigned to execute any and all documents required in connection with any sale, lease mortgage or other transfer including, without limitation deeds, mortgages certifications, affidavits, closing statements and other related documents. 6. The Trust is Revocable and the power to revoke is held by Nancy Ball. 7. The Trust has not been revoked, modified or amended in any manner that would cause any representation or certification contained herein to be untrue or incorrect in any manner. 8. The undersigned hereby acknowledges and agrees that this Certification of Trust is being made pursuant to and in accordance with Section 736.1017, Florida Statutes, with full understanding that it will be relied upon to establish the truth' of the matters set forth herein as provided under said Section 736.1017, Florida Statutes. In Witness Whereof, the undersigned has duly executed and delivered this Affidavit and Certification of Trust the day and year first above written. NANCY BALL, T ee of the Nancy Ball Trust dated July 21, 2003 State of California County of Orange . The foregoing instrument was Sworn to and subscribed before me this day of April, 201 1, by NANCY BALL as Trustee of the NANCY BALL TRUST dated July 21, 2003, who L] is personally known or [X] has produced a driver's license as identification. ; [Notary Seal] Notary ublic M. C 1 L�5H ,: � Printed Name:. NOTARY pJQM- ORANGE �ovM lvly Commission Expires: — °— fAy 11 0Mki, 01 PAUNE 29, 2012 l 1.11111 BUR 11111 1111111811111111111111111111 it k �f f1 P-9s i�l .?,6 's_5I {g i ;'tu i^ r.; A R. '_ O�`DED I lk f 1 l �i_i y i 15 -. 46 n ,? HARVEY RUV h f CLERK OF . C OURT . IIIAMI -DARE ►_ O UNT`f f FLORIDA AND CERTIFICATION OF TRUST (Single Trustee - Individual) This Affidavit and Certification of Trust .is made this day of April, 2011, by Nancy Ball, the undersigned; pursuant to and in accordance with Section 736.1017, , Florida Statutes; accordingly, :said undersigned hereby certifies the following: 1. That certain Trust known as the Ray W. Ball and Margaret Ball Trust (hereinafter the "Trust ") was duly executed and created by Ray W. Ball and Margaret Ball, Settlors, on May 2, 1973, as amended, and remains in full force and effect as of the date hereof. 2. The undersigned, whose address is 18755 Park Haven Lane, Huntington Beach, CA 92648, is the " current duly authorized and acting Trustee of the Trust. 3. That attached hereto are true and correct copies of the pertinent pages of the Seventh Amendment to the Trust to establish the undersigned as the currently acting Successor Trustee of the Trust. 4. The Trust grants the undersigned full power and authority to sell, lease, .encumber, manage and _ otherwise dispose of. any and all trust property including, without limitation, the following descibed property: Lots 5, 7 and 9, Block 1, OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 5, Page 7, of the Public Records of Miami -Dade County, Florida, less the Northerly 10.00 thereof for street widenening purposes. 5. The Trust authorizes the undersigned to execute any and all documents required in o:onnection with any sale, Tease mortgage or other transfer including, without limitation, deeds, mortgages certifications, affidavits, closing statements and other related documents. 6. The Trust is not Revocable. 7. That title to all property of the Trust including,' without limitation, the above described property shall be titled as follows: Ray W. Ball and Margaret Ball Trust dated May 2, 19,73." 8. The Trust has not been revoked, modified or amended in any manner that would cause any representation or certification contained herein to be untrue or incorrect in any manner. 9. The undersigned hereby acknowledges and agrees that , this Certification of Trust is being made pursuant to and in accordance with Section 736.1017, Florida Statutes, with full understanding that it will be relied upon to establish the truth of the, matters set forth herein as provided under said Section 736.1017, Florida Statutes. In Witness Whereof, the undersigned has duly executed and delivered this Affidavit and Certification of Trust the day and year first above written. NANCY BALL, Truste,6 of the Ball Trust dated 5/2/1973 State of California County of Orange The foregoing instrument was Sworn to and subscribed before me this -1-5-fl--day of April, 2011 by NANCY BALL as Trustee(s) of the �` '— rTRUST dated July 88�- who [_] is personally known or [X] has produced a driver's license as identification. d (( 6 C Q � � l � � � 1 73 } [Notary.Seal] Notary Pudic ! Printed Name: �- K CA1IDIL►sh r Cott —# 1804B92 ( t I NOTARY PUBLIO- CAIJFORMA � My Commission Expires : ORANGE COUHTV ' my mot; ,;. ESP. JUNE 2 1 PAGE' 01 06/29/2010 13:30 714-- -963-- 9781 Ad'6`R`�, �.lY4L '?�etsu+YG� 0318 _. 0" ) >r C j A ,"joX OF TPUST BY RAY �. $ALA. AND AP-OAR0 . ALL 'lr W. BALL and �(,�,Rf�A,R��' BALL, h.usLd, and On t�/I I ' Trust with wife as I ecla ants, Gstab fished a cer a r� Revocable t � served unto themselves as in.itW Trustees anal wherein the sec reme ,m9eives the powex to amend cr• .revoke said Tru th A �mezzt. oezz�ent � Ar�.ez�drrsent t thereto The Settlors ; ended Txust '� ��, rem dated ,I a'eh # Q $ f ,. dated �'ebz�ua�'' �� by ,�u�n.endtnent I� thereto Tbird Amendme thereto dated Mach 2, x.992, which .s M am and recta as the em it �n its e ntirety ( �ierein after Y designated and reforred dx r s 1 �Restiaternex�t "} of the o�'ig al Derlaration of Trust cad � �� th.erta, an d wherein the 17eclarants wera . ^ieroa for l r wn a "Set Ire "; Fairth Arnendxnerrt thereto dated january 29, x 996; and by Fifth Amendm thereto doted September. 18, 1995. Setdor '. W'. 13ALL thereafter p assed away on NQVetnl�*r �, 1999, an izr zar�t to the Trustee provisions of said T MARGARFT BALL, lae�� solo Trustee there - Under. n Settlor there fter rnded. the trust a.gm( -rnent by Sim The sur 47C5, Amendmpiit thereto dated April therefore, survl ng settl Or MARGA,R5T BALL hereby wi %hes t9 Now, , almond the Restatement in the following manner; '[ The DeclaratiDn of Trust, is hereby m0dif e' d to the e�teilt l M and 1.2.1 necc� to rovcko Az-ti.c1everit�h coon 1 thex-cof inwixx� ire, place and stead themof sha11 hereafter be su�stt�u�d the fa11 g• IrW SB '1'1C? 'I'R Lj I�7N MA RGARE T . BALL and NANCY BALL art! the acting e �f ignation Trustees of this Trust On th e death, i��a��oi � ar shad serve as th sumvxng Settlor, NANCY BALL, ox hez` cce $ , reason. NANCY BALD �.nr�v sale Trustee hereun if fair tee, them the following inclividuals ses to S serve, or cea as 'rust , shall serve as co- Tmstee nth p,RQARI�' BALL or c sale Tl t 08/29./2810 13:3 71q -- 963 -9761 FEDEX OFFICE 0316 PAGE 02 case may be, in the order Ii '8ted below, each �ueCe�3�o� as the Y Tru e to serve upOD death, incapacity or re atiorti of t Trustee naffed to serve prior to die succcsso�~ Tru Si.J kN BALL t)AVTD ' W BALL. .A. design,e e of those fisted above, who axe then liv`cr�g with capapity, €�e1 o Paw At . and c o�T s c� . tirxze A �.. and . from tiMe tb time eitk�er der p oyTs ste �ct�ng he th�e . p0wer to delegate to the ether oo Trustee acting - hereun exercise any or all p o wers granted here tao , dfecrenarY or erwise and may revoke any such delegation at w611. 'l`hc oth such dole ation o f any such pawez's, and also the � oi'tin g an instrurnont in g delegation, shall be evidenced by executed by the delegating co. Trustee. ,�s l ong as any such dEleg Ilan is in effect, anY of the dolCgated PQ�ver'9 MaY exercised individually by the oa -T -0stee recely rig such dele atiox , vv ith the sarr�e force d effect as if the delegating coiTrustre had. rsana ZY ,loined in the exercise of such - power. sixatio Any Truste a,t MY time e - c under may resign at any try delivering written h ary xa.c� icc to the stizrti►•sving Settlor, if Living, other se to the bunef� a or a rnajori of the beneficiaries to vmhom the current pctzc inc of the trust estate is at the tine. avtharized. or rec ited to ' p or applied and who shall at the time have r d ma jority o p arent, guardiazt or conservator of any such bencfciary or p a beneficiaries . who ,arc minors or incapacitated. The per�ca� or persons erztlticd ' to such notice, or EL majority th ereof, m«xy, by a rltten instx'ument sigzxed and acknowledged by hi;r�., her or them, as the ca e m., ty be, and delivomd to the appoirst�e, may select a LL successCsr 'Trt�.stee to dill any v ix� the office of Trustee ;far. . arty which no prc�vjrion is otherwise made In this Agreement, If for the no appox tMent is made pursuant to the foregoing Ti ustel� may designate a successor. R0rnoyal of Tz'ukStec Arxy Trustee may at any time be removed, far good. cause, from office as Trustee he Rand by delivering to such Trustee a. written irf.strument sign aclfnca led ged by the person dr , persons having at the time the power to apga►irit a successor Tmstec as provided herein. If e Trustee shall be so removod, the Trustee Shall be entitled to st fees and comrrJssions as would have beon P a yable to it hard, every . I 08/29/201.0 13; 30 724 - 7953--9791 FEDEY OrFICE P3Is PAGE 0 Trost hereunder then t 1p , i - s Arid lxn u hies f .. 12cce. r Trust c. sexy sup cssar Trustee - have all the powers given the arigially narno - d Trustee. No successor Trtx�tee shat1 b liable f. r any act Cy r OMX$s ;on of any other Trustee ()r $ ccessox Tx�.�,stee rto a,��cessar. Tr�uetee be required to take �.ny s �p sh all any breach of trust which May whatsoever to i�tivesti.gate or redress any }gave any . from . .the administration cf the is by po Trustee, In addition; no successor Trustee shall ha any duty _i review .tY�e accounts of any prix Trustee or to answer asset; orl er .the those -listed and de9eribed. In the b ooks c� accauri ar ether. inventory of the tru8t.. ,. Waiver �of or�flioCs f I (crest with es t to . etia of . a Trustee Whcre the Trustee is rejz _ d to the su ,vzng �e 1or the surviving anticipates` t�h,at the Trustee mey have ' iness xn which. the to exercise powers th re,9peot to any bus Trustee will bc. individually .:interested as director, stcckhnlder, officer eMployEe, emditor, partner, or atherWine, and that the Trustee may ae a result dirQctly ox indirectly benefit theref om. The su�rvxvixzg Senior also. anticipates that it may be desirable fOr a, Trusive to snake .decisions, Qr'efrain from mng decis2ozxs, with .. respect to . intere5% in azxy . b usiness, Which: are adverse in some - ..._ . respects to . the - short-term interests of the ncorne be��fzcx�sy........... . : oeorciir3 ly, the. surviving Settlor fully a,u '�T thorl =E; the 71-1stce to pct w ith respect to any matters in which the True., may be. Interested . or. the. resolution of v�lich is in Svmc respocts adverse to the. short- tcrrz� interest of some Trust beneficiaries, and the action taken in these z-espCOts, absent: clear anal c evidence that e beyond e int r ss above Trust is intentjarza.Ily placing the 'rustee s own those of tfze Trust;, shall be conclusive as if no such r elationship or conflict of n.tcrest existed In additlon., a Trustee shall riot be re �l wired to aecourrt for any d1rect or indirect: porsonal benefit that such '1~z recelves end shall not be liablo f or any resulting los or dopr'et iation in value that results, in ether case unless such ` convincing evidence mists, u confirms In aYl other respects survivfng settl.c�x' Nr.plFZGAFI�'l'` �3,�laL b r�t�y the Trust Agreement, as amended, reserving unto herself the right i'uz-ther to amend or revoke the same and this amendmcn ther-etO. 0B/29/2010 13,30 724 -- 963--9781 FEDEX OFFICE 031U ' PAGE 04 �PX0 °.i�irARGA�ET BALL has sign th�� amendment a n A CAR T BAt L sTATE. OF ARIZONA fore m , aMd r i ncd try public, PCrSDrjajjy . appeamd - ARGARF BALL; who duly acknowledged to rno -that �� ex�c�.�feci the. I fare oin irz�ztsttm t her free and vob=tary 8.Ct, fOr the uses an . : purposes g thercin stated, : III WITNTSS Y hereby Bed . mY hand and: offitial o . OF NotaFy Public ? � Seal and co" M i15siar� expiration: :. r� 1 t THIRD AMENDMENT AND COMPLETE RESTATEMENT OF DECLARATION OF TRUST BY RAY W. BALL AND MARGARET BALL DATED MAY 2, 1973 WHEREAS, on the 2nd day of May, 1973, RAY W. BALL, a /k /a .RAYMOND W. BALL, and MARGARET BALL, a /k /a MARGARET ILER BALL, husband and wife, as Declarants, established. a certain Revocable Declaration of Trust wherein RAY-W. BALL and MARGARET BALL were named as initial Trustees, and wherein Declarants' three (3) children, namely., SUSAN BALL,, NANCY BALL and DAVID W. BALL, were named as Successor Trustees;, and WHEREAS, in accordance with the provisions of SECTION VI, 6 -6 thereof, the Declarants reserved unto themselves the right and power at any time or times during their lifetime by .instrument in writing delivered to the Trustee, to amend or revoke said Declaration in whole or in part'as to the property set aside in each Declarant's separate trust. WHEREAS, the Declarants thereafter amended said Decla- ration of Trust by Amendment I dated the 25th day of February, 1982; and again by Amendment II dated the 10th day of March, 1988. NOW, THEREFORE., in accordance with said reserved right and power to amend or revoke, the Declarants hereby desire to further amend their original Declaration of Trust dated May 2, 1973; by amending and restating same in its entirety, including both amendments thereto; and for convenience of interpretation and administration of the trust estate by having to refer to only one document, the Declarants hereby substitute in place and stead of the original Declaration of Trust and Amendments; I and .II, the following new instrument of Trust, which shall take the form of a "Trust Agreement," wherein the Declarants shall be known as "settlors," and which new trust provisions shall here - after read as follows, to -wit: THIS "THIRD AMENDMENT AND _COMPLETE RESTATEMENT OF DECLARATION OF TRUST BY RAY W. BALL AND.MARGARET BALL DATED MAY an 2 1973 is made this day of i�� .t_s f , 19 /�,, between RAY W. BALL and MARGARET BALL, husband and wife, as set- tlors,.and RAY W. BALL and /or MARGARET BALL, as trustees. INITIAL TRUST PROPERTY - REFERENCE TO SCHEDULES The settlors have previously transferred to the trus- tees the property listed in Schedules A and B attached to the original Declaration of Trust, referred to under SECTION I of said Declaration of Trust and made a part hereof by this specific reference thereto as if fully set 'forth herein, which property was heretofore held by the Declarants in accordance with the laws of the State of Florida in the form of tenancy by the entirety; and which property. shall hereafter be deemed to be held by the 2 i The rights of beneficiaries to withdraw trust property are personal and may not be exercised by a guardian, conservator, attorney -in -fact or others. SECTION 3: ACCRUED INCOME Income received after the last income.payment date-an,d undistributed at the termination of any. estate or interest shall, together with any accrued income, be paid by the trustees as income to the persons entitled to the next successive interest in the proportions in which they take that interest; except that upon the death of the deceased settlor, the accrued and undis- tributed income shall be paid to the surviving settlor. SECTION 4: COMMON FUND AND CONSOLIDATION For convenience of administration or investment, the trustees may hold the several trusts as a common fund, dividing the income proportionately among them, assign undivided interests to the several trusts, and make joint investments of the funds belonging to them. The trustees may consolidate any separate trust with any other trust with similar provisions for the same beneficiary or beneficiaries SECTION - 5: POWERS The trustees shall hold, manage, care for and protect the trust property and shall have the following powers and, except to the extent inconsistent herewith, those now or hereafter conferred by law: 19 (a) To retain any property orig- inally constituting the trust or subsequently added thereto, although not of .a type, quality or diversification considered proper for trust investments; (b) To invest and reinvest the trust property in bonds, stocks, mortgages, notes, bank deposits, options, futures con- tracts, precious metals, limited partnership interests, shares of registered investment companies, or other property of any kind, real or personal, domestic or foreign, suitable for the investment of trust funds; (c) To cause any property, real'or personal, belonging to the trust, to be held or registered in the trustees ° names or in the name of a nominee or in such other form as . the trustees deem best, without disclosing the trust relationship; (d) To vote in person or by general or limited proxy, or refrain from voting any corporate securities for any purpose, except. that any security as to which the trustees' possession of voting discretion would subject the issuing company or the trustees to any law, rule or regulation adversely affecting 20 either the company or the trustees' ability to retain or vote company securities, shall be voted as directed by the beneficiaries then entitled to receive or have the benefit of the income from the trust; to exercise or sell any subscription or conversion rights; to consent to and join in or oppose any voting trusts, reorganizations, consolidations, mergers, foreclosures and liquidations, and in connec- tion therewith to deposit securities and accept and hold other property received therefor; (e) To lease trust property for any period of time though commencing in the future or extending beyond the term of the trust; (f). To borrow money f rom any lender, extend or renew any, existing. indebted ness, and mortgage or pledge any property in the trust (g) To sell at public or private sale, contract to sell, convey, exchange, transfer and otherwise deal with the trust property and any reinvestments thereof, including but not limited to the preparation, execution and delivery of deeds to real estate; and to sell put and covered call 21 options, from time to.time for such price and upon such terms as the trustees see fit; .(h) To employ agents, attorneys and proxies, and to delegate to them such powers as the. trustees consider desirable, and to I esignate a deputy for a checking account, savings account, or safe deposit box;. (i) To compromise, contest., prosecute or abandon claims in' favor of or. against the trust; (j) To distribute income and principal in cash or in kind or partly in each, and,to allocate or distribute undivided. interests or different assets or dispropor- tionate interests ' in assets, and no adjustment shall. be made to compensate for a dispropor- tionate allocation of unrealized gain for federal income tax purposes; to value the trust property, and to sell any part or all. thereof in order to make allocation or dis- tribution, and no action taken by the trustees pursuant to this paragraph shall be subject to question by any beneficiary; provided, how- ever, that this shall include the ability to make non pro rata distributions of community property between trusts; 22 (k) To deal with,, purchase assets from or make loans to the fiduciary of any trust made by the settlors or either of them, or any member of his or her family, or a trust or estate in which any beneficiary under this Agreement has an interest, though a trustee hereunder is the fiduciary, and to retain any property so 'purchased; to deal with a corpo- rate trustee hereunder individually or a parent or affiliate company; (1) To maintain or to terminate any life insurance policy included in the trust property, to pay premiums thereon (but only from principal) , and to exercise all incidents of ownership in connection therewith; km) To purchase U.S. Government obligations known as "flower bonds," and in the event the trustees hold any such "flower bonds," the trustees must use such bonds to the extent possible to pay federal estate taxes; (n) To elect, pursuant to the terms of any employee benefit plan, individual retirement plan or insurance contract; the mode of distribution of the proceeds thereof, and no adjustment shall be made in the 23 k interests of the beneficiaries to compensate for the effect of the election; (o) To buy, sell and trade in securities of any nature, including short sales on margin, and for such purposes may maintain and operate margin accounts with brokers, and may pledge any securities held or purchased -by the trustee with such brokers, as security for loans and advances made to the trustee; (p) To trans f er the s itus of any trust property to any other jurisdiction as often as the trustees deem it advantageous to the trust, and if necessary, appoint a substi- tute trustee to themselves to act with, respect thereto, and in connection therewith, to dele- gate to the substitute trustee any or all of the powers, discretionary or otherwise, given to the trustees, who may elect to act as advisors to the substitute trustee, and shall receive reasonable compensation for so acting, and to remove any such substitute trustee and appoint another, or reappoint themselves, at will; (q) To develop, improve, lease, partition, abandon, subdivide, dedicate as 24 parks, streets and alleys, and grant easements and rights -of -way with respect to any real property or improvements of the trust estate; and to improve,, construct, repair, alter, reconstruct or demolish any such improvements; (r) To retain and. continue any business in which the settlors have an interest as shareholder, partner or otherwise, even though. it may constitute all or a large portion of the trust estate; participate in the conduct of any such business, or employ others to do so; execute partnership agree- ments and amendments thereto; participate in any incorporation, reorganization, merger, consolidation, recapitalization, liquidation or dissolution of any business, and Mold the stock as a trust asset; elect or employ direc- tors, officers, employees and agents, and compensate them for their services; sell or liquidate any such business interest; carry out the provisions of any agreement entered into by the settlors prior to death for the sale of any such business or, the stock there- in; all of which powers may be exercised regardless of whether a trustee is interested in an individual capacity in any such business; 25 (s) To establish out of income and. .credit to principal reasonable reserves for depletion, but reserves for depreciation shall not be established except to the extent that the trustees determine that readily marketable assets in the principal of the trust will.be insufficient for any renovation, maj or repair, improvement or replacement of trust property which the trustees deem advisable; and (t) To perform other acts necessary or appropriate for the proper administration of the trust, execute and deliver necessary instruments, give full receipts and dis- charges, and have all powers granted pursuant to A.R.S. §14 -7233 SECTION 6: RESTRICTION'OF INTERESTED TRUSTEE Any provision herein to the contrary notwithstanding, if no election is made by the then acting trustee as provided under Section 5 of Article SIXTH above, then upon the death of the deceased settlor, if the surviving settlor is acting as sole trustee hereunder, he or she shall not exercise or participate in the exercise of discretion with respect to distributions of principal from the Ball Family Trust to or for the benefit of such unless such distribution is limited by an ascer- 26 THIRTEENTH° TERMINOLOGY Any words herein used in the singular shall denote the plural as the context so requires, and when used herein in the plural shall denote the singular as the context . .so requires-. Pronouns used herein, whether masculine, feminine or newter, shall be interpreted as the context requires. TESTIMONIUM IN WITNESS WHEREOF, RAY W. BALL and MARGARET BALL, husband and wife, as settlors and as acting trustees, have executed this "THIRD AMENDMENT AND COMPLETE RESTATEMENT OF DECLARATION OF TRUST BY RAY W. BALL AND MARGARET BALL DATED MAY 2,,1973" as of the day and year first above written. RAY W BALL, Settlor /Trustee MARt.ARErt BALL, Settlor /Trustee V ACKNOWLEDGMENT STATE OF ARIZONA ) ss. County of Maricopa ) I HEREBY CERTIFY that RAY W. BALL and MARGARET BALL, known to me to be the persons described in and who executed the foregoing Third Amendment and Complete Restatement,. appeared 41 ^ , c3 ' T F ° before me this day in person and acknowledged that they executed said instrument as their free and voluntary act, for the uses and purposes. therein stated. GIVEN UNDER my hand and official seal , this day of 19�� - - P�Wic e W. C. WAHL., JR. F f 7 iGr U otary Stag a� • ° MARiC4PA COtIMY NOTARY PUBLIC My C mission Expires: 42 0 Stat o Florida Department of State I certify from the records of this office that AMERICAN RIVIERA REAL ESTATE COMPANY is a corporation organized under the laws of the State of Florida, .filed on August 6, 1992. The. document number of this corporation is V56566. I further certify that said corporation has paid all fees due this office through December 31, 2010, that its most recent annual report was filed on February 2, 2010, and its status is active. .I further certify that said corporation has not filed Articles of Dissolution. Given under my hand and the Great Seal of Florida, at Tallahassee, the Capital, this the Nineteenth day of April, 2011 Secretaiy of State . * * ' Authentication ID: 400202859594 - 041911- V56566 x To authenticate this certificate, visit the following site, enter this ID, and then follow the instructions displayed. https:// efile .sunbiz.org /certauthver.htmi RESOLUTION OF THE BOARD OF DIRECTORS AND ALL OF THE SHAREHOLDERS OF AMERICAN RIVIERA REAL ESTATE COMPANY a Florida corporation Requirement B -1(10) I, Ronald Bloomberg, do hereby certify that I, Ronald Bloomberg,' am the duly elected and acting President of AMERICAN RIVIERA REAL ESTATE COMPANY, a; Florida corporation, and that I am the keeper of the corporate records and the seal of the corporation. Pursuant to Section 607.1202, Florida Statutes, the following is a true and correct copy of the Resolution adopted at a Special Meeting of the all of the Shareholders and Directors of the corporation held on May 18, 2010 for the sale of all or substantially all of the Corporation's assets not in the ordinary course of business. Upon the proposal of the Board of Directors, all of the Shareholders of the ..Corporation unanimously consented to the following Resolution which was duly adopted, and the same has not in any way been modified or rescinded, but is in full force and effect; and that the said Shareholders an Directors of the corporation have duly ratified and affirmed the same in the form hereinafter set forth. RESOLVED, that Ronald Bloomberg, as President of AMERICAN RIVIERA REAL , ESATTE COMPANY, a Florida Corporation, be and same is hereby directed to execute any and all documentation that may be required to effectuate the sale and ` transfer of the property described below to City of Miami Beach, Florida, a Florida municipal corporation, pursuant to the Agreement for Sale and Purchase dated April 14, 2010 (the "Contract ") for the sale and transfer of the property (the "Property ") described as: Lots 5, 7 and 9, less the northerly 10.0 feet for street widening purposes, in Block 1 of AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, according to the Plat thereof, recorded in Plat Book 5, at Page' 7, of the Public records of Miami -Dade County, Florida, including but not limited to any assignment of sublease, assignment of Chevron Indemnity Agreement, Assignment of Plans, execution of certificates, and indemnification agreement. FURTHER RESOLVED, that the proposed sale by AMERICAN RIVIERA REAL ESATTE COMPANY, a Florida corporation of the Property pursuant to the Contract is hereby authorized and all actions taken in furtherance thereof are hereby ratified. IN WITNESS WHEREOF, I have hereto subscribed my name as President, and affixed the corporate seal of the corporation, this ' 1 5 day of April 2011. (Corporate Seal) RONALD w 014 RG, Presl ent of AMERICAN RIVIERA REAL ESTATE COMPANY SHAREHOLDERS: � it KJ a __DONNA BLOOMBERG SELLER'S AFFIDAVIT STATE OF FLORIDA ) COUNTY OF MIAMI -DADS ) - ` Ronald Bloomberg (the "Affiant "), being duly sworn, deposes and says: 1. Affiant is the president of American Riviera Real Estate Company, Inc., a Florida corporation ( "ARRE ") and has personal knowledge of the. matters stated herein 2. ARRE is the sublessee of the certain property (hereinafter referred to as the "Property" and described on Exhibit "A ") located in Miami Beach, Florida under, a Sublease (as defined in Exhibit ��. The Property is free and clear of all liens, taxes, encumbrances and claims of every kind, nature - and description whatsoever, except for real property taxes for the year 2011 and those matters contained in Attorney's Title Insurance Fund Services, LLC title commitment number' 01- 2010 - 004487 -A8 ( "Title Commitment "): 4. There have been no improvements, alterations, additions or repairs to the Property within the. past ninety (90) days for which the costs thereof remain unpaid; no material, labor or services have been contracted to be furnished, perfonned or supplied in connection with the Property; and there have been no claims for labor, materials or services furnished, perfonned or supplied for repairing or improving the Property which remain unpaid and would constitute a lien on the Property. There are no mechanic's, materialmen's or laborer's.liens encumbering the Property. 5. There are no matters pending against the Affiant or Trust that could give rise to a lied that would attach to the Property between Ave -1 , 2011, the date of the last examination of the title to the Property, and the date of the recording of the Warranty Deed - giving rise to the interest of the City of Miami Beach, Florida, a Florida municipal corporation (the "Purchaser ") in the Property which interest is being insured by Attorneys' Title Fund Services (the "Title Company "). In the event it, is determined any such lien exists, ARRE will immediately dispose of same as a lien or encumbrance- on the Property (by bonding, satisfaction, release or otherwise) at ARRE's sole cost and expense and will indemnify and hold harmless the Purchaser, the Title Company and Tew Cardenas LLP, as Agent for the Title Company, against all damages, claims and demands of ever) nature arising as a result of such liens. 6. No judgment or decree has been entered in any court of this State or the, United States against the Property and which remains unsatisfied. There are no actions or proceedings threatened or now pending in any State or Federal Court to which the Affiant or ARRE is a* party including, but not limited to proceedings -in bankruptcy, receivership or which, constitute or -could constitute a charge or 'lien upon said _Property. 7. Pursuant to the Sublease, ARRE has had fiill, continuous, open, exclusive, peaceful and undisputed possession of said Property since the. effective date of the, Sublease; and there are no facts known to Affiant, which could rise to a claim being adversely asserted to the Property. Except for the fee owner of the Property and the Sublessor under the Sublease, no person other than the ARRE has any right, claim or demand to possession whatsoever. 8: ARRE has entered into no abreement, contract, or commitment for the sale, .lease; mortgage, option or creating of any other encumbrance on said Property or the Sublease. Neither ARRE's title to nor possession and enjoyment of the Sublease has ever been disputed or questioned except as provided in the Title Commitment, nor is Affiant aware of any fact by which title or possession of the Property might be questioned or of any claim to the Property. that might be adversely asserted. 9. ARRE has not and hereby agrees that it will riot execute any instruments, nor do any act that in any way would affect the title to the Property or Sublease, including, but not limited to. . mortgaging or conveying the Property or. any interest in the Property, or causing or allowing any liens to be recorded against the Property or ARRE. 10. This Affidavit is made and given for the purpose of inducing: (a) the Purchaser to purchase. the ARRE's interest in the Sublease from ARRE and (b) the Title Company to insure the Purchaser's title to the Property. 11. Affiant further states that he is familiar with the nature of an oath and with the penalties -as provided by the laws of the State aforesaid for falsely swearing to statements made in an., instrument of this nature. Affiant further certifies that he has read the full facts of this Affidavit and understands its contents. FURTHER AFFIANTS SAYETH NAUGHT / f}' r ie�t -► y S �'�'� Qy � _ STATE OF FLORIDA COUNTY OF MIAMI -DADS ) The foregoing instrument was acknowledged before me this 18 day of April 2011 by Ronald Bloomberg' as president of American Riviera Real Estate Company, Inc., a Florida corporation, who is personally known. My commission expires: Notary Public - State of Florida Name: NOWTi' PUBLIC -STATE OF FLORIDA [Seal] ;,��,,,,,,, Rafael A. Perez, } - c #DD682 Expires: AUG, 1.3, 2011 U��;iiJt:.l • ri, i c . ,;,rV"I'IC B0:`M1DING CO., l I Exhibit A PROPERTY: Lots 5, 7 and 9, less the northerly 1,0.0 feet for.street widening purposes, in Block l of AMENDED , y MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, according to the Plat thereof, recorded in Plat Book 5, at Page 7, of the Public records of Miami -Dade County, Florida SUBLEASE: Ninety -four year lease by between Nedia M. Dallett , as Lessor and Standard Oil Company, as Lessee, dated January 1, 1948,filed April 5,1948 in Deed Book 2995 at Page 476, and amended in Deed Book 2995, at page 508, and as amended by instrument recorded in Official, Records Book 4264, at Page .529 and in Official Records Book 4268, Page 84 and in Official Records Book 4425, at Page 623 and in Official Records Book 17754, Page 129' ) and as assigned by instrument recorded in Official Records Book 14' )28, at page 3771 and in Official Records Book 14600, at page 2633 of the Public . Records of Miami -Dade County, Florida. 1 ' NON - FOREIGN CERTIFICATION (Section 8.30)) 1 Section 1445 of the Internal Revenue Code provides that a transferee of a United States real property interest must withhold tax if the transferor is a foreign .person. 2. In order to inform City of Miami Beach, (the "Transferee ") that withholding of tax is not required upon the disposition by American Riviera Real Estate Company, a Florida corporation (the "Transferor") of the United States real property more particularly described as follows (the "Property "): Ninety -four year Lease by between Nedia M. Dallett , as Lessor,and Standard Oil Company, as Lessee, dated January 1, 1948,filed April 5,1948 in Deed Book 2995 at Page 476, and amended in Deed Book 2995, at page 508; and as amended by instrument recorded in Official Records Book 4264, at Page 529 and in Official Records Book 4268, Page 84 and in Official Records Book 4425, - at Page 623 and in Official Records Book 17754, Page 1293 and as assigned by instrument recorded in Official Records Book-1 at page 3771 and in Official Records Book 146.00, at page 2633 of the Public Records of Miami -Dade County, Florida. the Transferor certifies and declares by means of this certification, the following: a. Transferor is a United States person and not a foreign person for purposes of United States income taxation. b. Transferor's United States taxpayer identification numbers. is '65: 0469954. C. Transferor's address is 309 23 Street, #203, Miami Beach, FL 33139. d. There are, no other persons who have an. ownership interest in the Property. e. Transferor understands that this.certification may be disclosed to the Internal Revenue Service by 'Transferee and that any false statement contained in this certification may be punished by fine, imprisonment or Under penalties of perjury the undersigned, on behalf of Transferee, declares th he has examined carefully, this certification and it is true, correct and complete. LEFT INTENTIONALLY BLANK 1 - EXECUTION PAGE FOLLOWS Executed'as of this 1 day of /` c 2011 at Miami -Dade County, Florida. AMERICAN RIVIERA REAL ESTATE COMPANY, a Florida corporation By: ame: -R. - -i�- onrnber Title: President Date: STATE OF FLORIDA ) )SS COUNTY OF MIAMI -DADS ) The foregoing instrument was acknowledged before me this � SS day of 1 2011 by Ronald Bloomberg on behalf of and as president of American Riviera Real Estate Company, who is personally known to me or who produced as identification. My commission expires: Notary Public - Sae of Florida Name: O J1F STf�'CE OF I LORIDFi o R;'Urael A, Oerez t Q -- Commission # D.Df B2C73 Expires: AU . 13, 2011 BONDED THRU ATi,nMIC BOY DI \'G ca., rti , 2 WARRANTY OF TITLE (Section 8.3(f)) THIS GENERAL WARRANTY OF TITLE (the "Assignment ") is made as of the 18 day of April, 2011 by American Riviera Real Estate Company, Inc., a Florida corporation ( "Warrantor ") in favor of the City of Miami Beach, Florida, a Florida municipal corporation ( "Purchaser "). WHEREAS, Purchaser and Warrantor have entered into an Agreement for Sale and Purchase of Real Property dated April 14, 2010 (the "Sales Agreement ") for certain property located in Miami Beach, Miami -Dade County, Florida as further described on Exhibit "A" attached hereto. WHEREAS, Warrantor is not the fee owner (the "Fee Owner ") of the, Property and the Property will be deeded directly to the Purchaser by the present fee: owner of the Property. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Warrantor hereby covenants with the Purchaser that the Fee Owner is the lawful owner of the Property; that the Property is free of all encumbrances - except those listed in Exhibit `B" attached hereto (the "Permitted Exceptions");. that the Fee Owner has good right to. sell the Property as aforesaid; that the Warranty Deed executed by Fee Owner to Purchaser is effective to convey to. Purchaser good, marketable and insurable title to the Property, subject only to the Permitted Exceptions and ' that Warrantor will warrant and defend the same against the lawful claims and demands of all persons. WARRANTOR: AMERICAN RIVIERA REAL ESTATE COMPANY, a Florida corporation Name: Ronald oomberg Title: President Date: i EXHIBIT A PROPERTY: Lots 5, 7 and 9, less the northerly I0._0 feet for street widening purposes, in Block 1 of AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, according to the Plat thereof, recorded in Plat Book 5, at Pages 7, of the Public records of Miami -Dade County, Florida EXHIBIT B Permitted Exceptions 1, Order recorded in O.R. Book 18932, Page 4868, Public Records of Miami -Dade County, Florida; 2. Covenants, Conditions and Restrictions recorded December 30 1926 in Deed Book 1033, Page 317, Public Records of, Miami- Dade County, Florida; .3. Covenants,, "Conditions and Restrictions recorded December 30, 1926 in Deed Book 1033, Page 315, Public Records of Miami - Dade County, Florida-,; 4. Covenants, I Conditions and Restrictions recorded September 11, 1928 in Deed Book 1251, Page, 329, Public Records of Miami Dade County, Florida; CERTIFICATE OF REPRESENTATIONS AND WARRANTIES (Section 8.3(h)) THIS CERTIFICATE (the "Certificate ") is made as of the 18 day of April, 2011 by American Riviera Real Estate Company, Inc., a Florida corporation ( "Seller ") in favor of the City of Miami Beach, Florida, a Florida municipal corporation ( "Purchaser "). WHEREAS, Purchaser and Seller have entered into an Agreement. for Sale and Purchase of Real Property dated April 14, 2010 (the "Sales Agreement ") for certain property located in Miami Beach, Miami -Dade County, Florida as, further described on Exhibit " A " attached hereto (the "Property"). WHEREAS, this Certificate is provided pursuant to Section 8.3(h) of the Sales Agreement. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned, president of Seller, hereby certifies as follows (unless otherwise defined, capitalized terms used herein shall have the .same meaning as in the Sales Agreement): 1. The representations and warranties of Seller contained in the Sales Agreement are true as of the date of this Certificate in all material respects; 2. There are no unpaid bills for labor, materials or services to the Land (as defined in the Sales Agreement) or Improvements (as defined in the Sales Agreement) and no labor, services or materials have been undertaken or supplied which could be the basis for any claims against the Property; 3. Seller is' in sole and exclusive possession of .the Property and no other person or entity has any right or claim to possession thereof; 4. There have been no improvements, alterations, additions or repairs to the Property within the past ninety (90) days for which the. costs thereof remain unpaid; no material, labor or services have been contracted to be furnished, performed or supplied in connection with the Property; and there have been no claims for labor, materials or services furnished, performed or supplied for repairing or improving the Property which remain unpaid and would constitute a lien on the Property. There are no mechanic's, materialmen's or laborer's liens encumbering the Property. 5. There are no matters pending against Seller that could give rise to a lien that would attach to the Property between , the date of the last examination of the title to the Property, and the date of the recording of the instruments giving rise to the interest of Purchaser in the Property which interest is being insured by Attorneys' Title Fund Services (the "Title Company "). In the event it is determined any such lien exists',. Seller will immediately dispose of same as a lien or, encumbrance on the Property (by bonding, satisfaction, release or otherwise) at Seller's sole cost and expense and will indemnify and hold harmless the Purchaser, the Title Company and , Tew Cardenas LLP, as Agent for the Title ' Company, against all damages, claims and demands.of every nature arising as a result of such liens. 6. No judgment or decree has been entered in any court of this State or the "United States, against the Property and which remains unsatisfied. There. are no actions or proceedings threatened. or now pending in any State or Federal Court to which the Seller is a party including, but not limited to proceedings in bankruptcy, receivership or which constitute or could constitute a. charge or lien upon said Property. 7. After the effective date of the Sales Agreement, the Seller has entered into no agreement, contract, or commitment for the" sale, lease, mortgage, option or creating of any other encumbrance on said Property. 8. Seller has not and hereby agrees that it will not execute any instruments, nor do any act that in any way would affect the title to the Property, including, but not limited to mortgaging or conveying the Property or any interest in the Property, or causing or allowing any liens to be recorded against the Property or the Company. 9. This Certificate is made and given for the purpose of . inducing: (a) 'the Purchaser to purchase the Property from Company and (b) the Title Company to insure the Purchaser's title to the Property. SELLER: AMERICAN RIVIERA REAL ESTATE COMPANY, a Florida corporation By: Na e Rot a - 4 Bloomberg Title: President Date: EXHIBIT A PROPERTY: Lots 5, 7 and 9, less the northerly 10.0 feet for street widening purposes, in Block 1 of AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH. IMPROVEMENT COMPANY, according to. the Plat thereof, recorded in Plat Book .5, at Pages 7, of "the Public records of 'Miami -Dade County Florida - ASSIGNMENT OF CHEVRON INDEMNITY AGREEMENT (Section 8.3(p)) THIS ASSIGNMENT OF Chevron Indemnity Agreement (the "Assignment ") is made as of the ) day of �. 1 , 2011 by American Riviera Real Estate Company, Inc., a Florida corporation ( "Assi nor ") in favor of the City of Miami Beach, Florida, a Florida municipal corporation ( "Assignee "). WHEREAS, American Riviera Real Estate Company and Standard oil Company .. d /b /a CHEVRON USA, Inc., a Pennsylvania corporation ("Chevron"). entered into an Assignment and Assumption Agreement dated August 4, 1997 and recorded in Official Records Book 17754, Page 1285 of the Public Records of Miami -Dade County, Florida, a true and complete copy of which is attached hereto as Exhibit "A" (the `.`Assumption Agreement "). Exhibit B to the Assumption Agreement .is an Indemnity Agreement between American Riviera Real .Estate Company and Chevron recorded in Official Records Book 17754, Pages 1290 to 1292 (the "Indemnity Agreement"). NOW THEREFORE, for good and valuable consideration, the' receipt and sufficiency of which are hereby acknowledged, Assignor- hereby grants, bargains, sells, assigns, transfers and sets over unto Assignee, any and all right, title and interest of- Assignor in the Indemnity Agreement. Assignor hereby represents and warrants to Assignee that (a) the Indemnity Agreement is in full force and effect, (b) Assignor has full right, power and authority to transfer and assign the Indemnity to the .Assignee and (c) Assignor has not defaulted in the performance of any of its obligations under the Indemnity Agreement. This Assignment shall inure to the benefit of, and be binding on, the parties hereto and their respective successors and assigns. IN. WITNES'S WHEREOF, Assignor has caused this Assignment to be executed by its duly authorized officer as of the date first above written. ASSIGNOR: AMERICAN RIVIERA REAL ESTATE COMPANY, a Florida corporation By: rrrT -- - on mberg Tile PT'resident Date: STATE OF FLORIDA ) )SS COUNTY OF MIAMI -DADE ) The foregoing instrument was acknowledged before me this 1S day of o-er_ L I. 2011 by Ronald Bloomberg on behalf of and as president of American Riviera Real 'Estate Company, who is personally known to me or who produced as identification. My - commission expires: Notary Public - St to of Florida Name: NOTIM I'UBLIC -STATE OF FLORIDA - Rafael A. Perez Commission # DD682673 '- Expires: AUG. 13,'2011 BONDED THRU ATLANTIC BONDING CO., INC. 4 ASSIGNMENT OF PLANS (Section 8.3(k)) THIS ASSIGNMENT OF PLANS (the "Assignment ") is made as of the 18"' day of April, 2011 by American Riviera Real Estate Company; Inc. a Florida corporation ( "Assignor" or "Sublessee ") .in favor of the City of Miami Beach, Florida, a Florida municipal corporation ("Assignee"). WHEREAS, Assignor is the sublessee under the Sublease, which Sublease enctumbers certain Property located in Miami Beach, Miami -Dade County, Florida. The terms "Property' and "Sublease" are defined on Exhibit "A" attached hereto. WHEREAS, Assignor has engaged the service of ADD, Inc: ( " Architect") to . prepare preliminary architectural plans for the development of a mixed use parking garage and retail structure on the Property. In 2008 and 2009, the Architect Assignor with preliminary architectural. plans only (i.e. no structural, MEP or other types of plans were prepared) referred to as the "Plans,' . NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby aelmowledged,_Assignor hereby grants, bargains, sells, assigns, transfers and sets over unto Assignee, any and all right, title and interest of Assignor in the Plans,. Assignor represents and warrants unto Assignee that (a) Assignor has fiill right, power and authority to transfer and assign its right title and interest to the Plans, if any to Assignee and (b) Assignor has paid for the Plans and no balance is owed Architect as of the date of this Assignment. This Assignment shall inure to the benefit of, and be binding on, the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed by its duly authorized officer as of the date first above written. LEFT INTENTIONALLY BLANK EXECUTION PAGE FOLLOWS ASSIGNOR: AMERICAN RIVIERA REAL ESTATE COMPANY, a Florida corporation Name: Rona oom e Title: President Date: STATE OF FLORIDA ) )SS COUNTY OF MIAMI -DADS ) ..The foregoing instrument was acknowledged before me this 18 day of April 2011 by Ronald Bloomberg on behalf of and as president , of American Riviera Real Estate Company, who is. personally known to me or who produced as identification. ffiF U oxmA t ;•,,,,,,,,, Raf ►el A. Perez Commission # DD682673 Notary Public - State d Florida r Exrjires: AUG. 13 20 DONDGD THRV Nf%,r` -MC EON"DING CO., INC. Name: CONSENT BY ADD, INC ADD_ , Inca hereby consents to this Assignment ADCo., assachusetts corporation By Name.1V Title: 'Pki PAL Date: q,20 Oi STATE OF FLORIDA ) )SS 4 COUNTY OF MIAMI -DADS ) The foreg instrument was acknowledged before me this day of April 2011 by g g Lt. on behalf of and as president of ADD, Inc., who is personally known to me . or who produced ' as identification. My commission expires: �,� a Q// 14ilos- / //hu Notary. P is - tat lorida Name: , ,,, " „ DEBRA J. VANZANT O:Y RVr ' MY COMMISSION # DD 708540 EXPIRES: August 26, 2011 '7 p: 'oF o , Bonded Thru Notary Public Underwriters EXHIBIT A PROPERTY: Lots 5, 7 and 9, less the northerly 10.0 feet for street widening purposes, in Block 1 of AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, according to the Plat thereof, recorded in Plat Book 5, at Page 7, of the Public records. of Miami -Dade County, Florida SUBLEASE: Ninety -four year lease by between Nedia M. 'Dallett , as Lessor and Standard Oil Company, as Lessee, dated January 1, 1948,filed April 5,1948 in Deed Book 299.5 at Page 476, and amended in Deed Book 2995, at page 508, and as amended by instrument recorded in Official Records Book 4264, at Page 52 and in Official Records Book 4268, Page 84 and in Official Records Book 4425, at Page 623 and in Official Records Book 17754, Page 1293 and as assigned by instrument recorded in Official Records Book 14'28, at page 3771 and in Official Records Book 14600, at page 2633 of the Public of Miami -Dade County, Florida. RELEASE Effective as of . April l8, 2011 ( "Effective Date ") American Riviera'' Real Estate Company, a Florida. corporation, ( "Seller ") for itself and, its officers, directors, shareholders and principals, and Ronald. Bloomberg, individually, (all of the foregoing "Seller Parties") -hereby fully and unconditionally release City of Miami. Beach, Florida and its commissioners, employees, administrative executives, staff, and attorneys and their respective successors and assigns..( "Releasees ".) from any and all manner of actions, causes- of action,'' contracts, _ agreements, covenants, controversies, claims, and demands whatsoever, whether legal - . or equitable, known or unknown, fixed or contingent, relating to the "Agreement." (as hereafter defined) or the "Property" (as hereafter defined) or " Everbank" (as hereafter defined) or any discussions with Everbank from the beguiling of the world until the Effective Date hereof,.. except for City's obligation to complete the closing of the Agreement if and only if all conditions , and requirements of the Agreement had been, met. (but any default.. by.,.City. with, respect, thereto shall be limited . to liquidated damages as specified in Section 11.1 of the Agreement).. This Release is in addition to and .not in lieu of the Release contained in Section 9 of the Second Amendment to the Agreement. As used herein " Agreement " means that certain Agreement for Sale and Purchase of Real Property by and between American. Riviera Real Estate Company, a Florida corporation, as Seller and City of Miami Beach, Florida as Buyer dated April 14, 2010 as amended by. First Amendment to Sale and Purchase of Real Property dated. August 2, 2010 and by Second Amendment to Sale and.Purchase Agreement ( "Second Amendment ") dated March 9, 2011; and " Property " has the same meaning as ascribed to that term in the Agreement; and " Everbank " means Everbank, a federal savings bank, which has a lien upon, and has filed a foreclosure action with respect to, a subleasehold interest in the Property held by. American Riviera Real Estate Company. In Witness Whereof this Release has been executed as of the Effective Date. AMERICAN RIVIERA REAL ESTATE Witnesses: COMPANY, a Florida Corporation Print Nan Q: C. �� ( c y'' By: - -- Rona &. mberg, President Print a Ze: 3 Ronald Bloo er d vidually 551865.1 c c . PARKING PERMIT AGREEMENT THIS PARKING PERMIT AGREEMENT ( "Parking Permit Agreement ") is entered. into by and between City of Miami Beach, a Florida municipal corporation ( "City ") and American Riviera Real Estate Company, a Florida corporation ( "Permittee ") as of the day of April, 2011 . ( "Effective Date"). RECITALS A. City is the owner of that certain parcel of real property legally described on Exhibit "A" hereto ( "Land ") and the improvements. thereon (the "Improvements," and together with the Land, the "Property"); B. Permittee desires to obtain permits to use the Property for the purposes and on the terms set forth in this Parking Permit Agreement; NOW, THEREFORE, for and in consideration of the covenants contained herein and other good and valuable consideration, the parties hereto agree as follows: l: Recitals The Recitals are incorporated herein and made a part hereof by reference. 2. Grant of Permits City hereby grants unto Permittee, and Permittee hereby accepts, a non - assignable right to use the Property for the Term (as hereafter defined) and subject, to the provisions set forth in this Parking Permit Agreement. This Parking Permit Agreement does not create a leasehold interest in, nor confer any right to use or occupy the Property for any purpose other than the Permitted Use (as such term is defined in Section 4 below). Term The rightsgranted hereby shall commence on the 'Effective Date ( "Commencement Date ") and shall end on the date ( "Termination Date ".), that City issues a Notice to Proceed to a general contractor for construction of new improvements on the Land or the adjacent parcel owned by City or on such earlier date as provided in this Parking Permit Agreement. 4. Permitted Use Permittee may use the Property only for the following purposes ( "Permitted Use ") and for no other purpose: To allow tenants of The Palm Court and their employees to park up to forty -three (43) automobiles at a time; provided, however, that such use shall be allowed only during the periods that Permittee has obtained all required governmental approvals (including zoning and other regulatory approvals). Without limiting the generality of the foregoing, Permittee recognizes that the Conditional Use approval to allow parking on the Land has expired and that new approvals will be required. - City makes no represeritation, express or implied, that any 'such approvals will be granted and nothing contained herein shall obligate City in its regulatory capacity to grant such approvals (it being understood that this Parking Permit Agreement is executed by City only in its proprietary capacity). 5. Fee During the Term hereof, Permittee shall pay to City, a permit Tee as follows: (a) no permit fee shall be required unless this Parking Permit Agreement continues for.more than eighteen (18) months from the. Effective Date; (b) in the event the Term of this Parking Permit 541567.1] j Agreement continues beyond eighteen (18) months, Permittee shall.pay to City:a monthly fee for each parking space located on the Land equal to the then prevailing monthly parking permit charges established pursuant to Section 106 -55 of the Miami Beach . City Code, plus any applicable- tax thereon and shall be subject to the same terms and procedures Section 106 -55 of the Miami Beach Code. For purposes of calculating the monthly fee, the parties hereby stipulate : that there are forty -three (43) parking spaces on the Land: The use fee .(and any tax thereon) shall be due. in advance on the first day of each calendar month during the Term beyond eighteen (18) .months from the Effective Date. 6.� Maintenance Permittee accepts the Property in "as -is, where is condition. City shall have no obligation to make any repairs or renovations whatsoever. Permittee shall maintain . the Property in at least as good a condition as ' exists on the Commencement Date. Permittee shall not make any additions or improvements to the Property without City's prior written consent; provided, however, City (in its proprietary capacity) will not unreasonably withhold consent to any . improvements required to use the .Property for the Permitted Use. 7. Lel4al Requirements Permittee shall comply with all laws, codes, and other legal requirements applicable to the Property and the Permitted. Use (including obtaining and maintaining any permits or approvals necessary .to allow the Permitted Use and including making any improvements required by any governmental authority). 8. Taxes; CarryinIZ Costs Permittee shall pay, if and when due; all real estate taxes and assessments if any are imposed against the Property attributable to the Term of this Parking Permit Agreement. Permittee shall also pay . all other costs of the Property during the Term, including all costs of maintaining, insuring and operating the Property and of using the Property for the Permitted Use. 9. Insurance Permittee, at its sole cost, shall obtain and maintain in full force and effect at all times .throughout the period of this Parking Permit Agreement, the following insurance coverage: Commercial General liability insurance on a Comprehensive. General liability coverage form, or its equivalent, including premises, operations and contractual coverage against all claims, demands or actions for bodily injury, personal injury, death or property damage occurring in or about the Property with , such limits as may be reasonably requested by City from time to time but not less than $2,000,000 per occurrence combined single limit for bodily injury and property damage. City shall be named as additional insured on the policy or policies of insurance. The City's Department of Risk Management reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Permittee. The. Permittee shall provide any other insurance reasonably required by the City. The policy or policies of insurance required shall be written so that the policy or policies may not be canceled or materially changed without thirty (3 0) days advance written notice to the City and the deductibles shall be approved by City in its reasonable opinion. -2- .541567.11 A current policy. of insurance evidencing the aforesaid required insurance coverage shall be supplied to the City at the Commencement Date of this Parking Permit Agreement and a'policy shall be supplied at least twenty (20) days prior to the expiration of each such policy. Insurance policies shall be issued by companies. authorized to do business under the laws-of the State of Florida, with the following qualifications as to management and financial strength'. the. Company must be rated "A" as to management, and. no less than class "X as to financial strength; in accordance with the latest edition of Best's.Key Rating Guide. Receipt of any documentation of insurance by the City or by any . of its representatives that indicates less coverage than required does not constitute a waiver of Permittee's obligation to fulfill the insurance requirements herein. In the event Permittee shall fail to procure and place such insurance, the City may, but shall not be obligated to,- procure and place same, in which event the amount of the premium paid by City shall. be promptly reimbursed by Permittee to City as an. additional fee. upon demand. Permittee shall bear all risk of loss with respect to all equipment, furniture, and all. other personal property in or about the Property: 10. No Liability; Indemnification City shall have no liability for any automobiles or other personal property brought onto the Property by Permittee or by those who Permittee authorizes to enter upon the Property. Permittee -shall indemnify and hold City and its agents, contractors,. and employees harmless from. and against all claims, actions, liabilities, losses, damages and expenses (including those incurred at trial and all levels of appeal) arising from (i) Permittee's and its invitees' use of the Property; (ii) any act or omission of Permittee or Permittee's agents, employees, contractors, or invitees; or (iii) Permittee's breach this Parking Permit Agreement. The provisions of this Section 10 shall survive, expiration or .termination of this Parking Permit Agreement. 11. Access City and its agents and contractors shall have access and right of entry to the Property at all times to: (a) inspect the Property; (b) perform any obligations of Permittee hereunder that Permittee has failed to perform (but City shall have no obligation to do so); (c) determine Permittee's compliance with this Parking Permit Agreement; (d) facilitate City's intended future .development (including conducting inspections, tests, and measurements); and (e) for such other purpose as may be . deemed necessary by City's City Manager; provided, however, City shall use diligent efforts to give Permittee prior notification. City shall have no liability for any such entry. 12. City's Termination Right City shall have the right to, terminate this Parking Permit Agreement upon the occurrence. of any of the following: (a) .upon Permittee's failure to pay ' any amounts that Permittee is required to pay hereunder if such failure continues for more than five (5) days after written notice from City; or (b) upon Permittee's failure to comply with any other provision of this Parking Permit Agreement if such failure continues for more than thirty (30) days after written notice from City; or (c) upon City's issuance of Notice to Proceed to its general - contractor. -3- 541567.11 t 13. Public Records Permittee understands, that the public shall have access at all reasonable times to City contracts, subject to the provisions of Chapter 119., Florida Statutes, and agrees, to allow access by the City and the public to all documents subject to disclosure under:'.. applicable law. 14. Nondiscrimination Permittee represents and warrants to the City that Permittee does not and will not engage in discriminatory. practices and that there., shall be no discrimination in connection with Permittee's use of the Property on account of race, color, sex, religion, age, handicap, marital status, national origin, or sexual orientation. 15. Conflict of Interest Permittee is aware of the conflict of interest laws of the City of Miami Beach, Miami -Dade County, Florida (Miami -Dade County Code, Section .2 -11.1 et. seq.) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terms of said laws and any future amendments thereto. Permittee further covenants that no person or entity under its employ,' presently exercising any functions or responsibilities in connection with this Parking Permit Agreement has any personal financial interest, direct or indirect, with the City. Permittee further covenants that; in the performance of this Parking Permit Agreement, no person or entity having such conflicting interest shall be utilized in respect -to services provided hereunder.. Any such conflict of interest(s) on the part , of Permittee, . its employees or associated persons, or entities must be disclosed in writing to the City. _ 16. Waiver of Jury Trial. The parties . hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Parking Permit Agreement, or arising out of, under.or in connection with this Parking Permit Agreement or any amendment or modification of this Parking Permit Agreement, or any other agreement executed by and between 'the parties in connection with this Parking Permit Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and Permittee entering into the subject transaction. 17. Notices All. notices or other communications that shall or may be given pursuant to this Parking Permit Agreement shall be' in writing and shall be, delivered by hand, telecopy, or registered mail addressed to the other. party at the address indicated herein. Such notice shall be deemed given 'on the day on which hand delivered, faxed or, if by mail, on the third day after, being posted or the date of actual receipt, whichever is earlier. If to City of Miami Beach: City Manager City of Miami Beach 1700 Convention. Center Drive Miami Beach, Florida 33139 Telephone: (305) 673 -7010 With a copy to: City Attorney City of Miami Beach _4_ 541567.11' f 1700 Convention Center Drive Miami Beach, Florida. 33139 Telephone: (305) 673 -7010 If to Permittee: Ronald. Bloomberg, President American Riviera Real Estate Company 309 2-) Street, Suite 203. Miami Beach Florida 33,139 With a copy to: George McArdle, Esq. McArdle & Perez, P.A. 806 South Douglas Road, Suite 625 Coral Gables, Florida 33134 Telephone: (305) 442 -221.4 18. Advertisiniz Permittee shall not permit any signs or advertising matter, to be placed on the Property without having first obtained the approval of the City Manager or his designee, which approval may be withheld for any or no reason, at his sole discretion. Permittee shall, at its sole cost and expense, install,. provide, maintain such sign; decoration, advertising matter or other things as may be permitted hereunder in good condition and repair at all. times. Upon the cancellation of this Parking Permit Agreement, .Permittee shall at its sole-.cost and expense remove any sign, decoration, advertising matter or other thing permitted hereunder from the Property. If anypart of the Property is in any way damaged by the removal of such items, the damage shall be repaired by Permittee at its sole cost and expense. 19. Waiver Any waiver by either party or any breach by either.party of any one or more of the. covenants, conditions. or provisions of this Parking Permit Agreement shall not be construed to be a waiver of any subsequent or other breach of the same or any covenant, condition or provision of this Parking Permit Agreement, nor shall any failure on the part of the City to require or exact full and complete compliance by Permittee with any of the covenants, conditions or provisions of this Parking Permit Agreement be construed. as in any manner changing the .terms hereof to prevent the City from enforcing in full the provisions hereto nor shall the terms of this Parking Permit Agreement be changed or altered in any manner whatsoever other than by written agreement of the City and Permittee. .20. Compliance With - Environmental Laws Permittee represents and covenants that during the term of this Parking Permit Agreement, it will not use or employ all or any portion of the Property to handle, transport, store or dispose of any hazardous waste. or substances and that it will not conduct any activity at the Property in violation of any applicable environmental laws or other requirements. 21. Miscellaneous (a) Invalidity In the event any provision of this Parking Permit Agreement shall be held.to be invalid for any reason, such invalidity shall not affect the remaining .portions of this Parking Permit Agreement and the same shall "remain in full force and effect. -5- 541567.11 3 i (b) No Interpretation A14ainst Draftsmen The parties agree that no provision of this Parking Permit Agreement shall be construed against any particular party and each party shall be deemed to have participated in drafting this Parking Permit Agreement. (c) Third Party Beneficiary This Parking Permit Agreement is solely for the benefit.of the parties hereto and no third party shall be entitled to claim or, enforce any rights hereunder. (d) No Partnership Nothing contained herein shall be construed to make any party a principal, agent, partner or joint venturer of the other.. '(e) Amendments No alterations, amendments or modifications hereof shall be valid unless executed by an instrument. in writing by the parties with the same formality as this Parking Permit Agreement. Neither this Parking Permit Agreement nor any term hereof may be changed, modified, or abandoned, in whole or in part, except by instrument in writing, and no subsequent oral agreement shall have any validity whatsoever. (f) Headings Title and paragraph headings are for convenient reference and are not a part of this Parking Permit Agreement. (g) Entire Agreement This Parking Permit Agreement represents the entire understanding between the parties hereto as to the subject matter hereof, and supersedes all prior :written oral. negotiations, representations, warranties., statements or agreements between. the parties hereto as to the same.. There are no promises, terms and conditions, or obligations other than those contained herein, and no party has relied upon the statements or promises .of the representatives of any party hereto. (h) Radon Gas Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. (i) , Authorit : Each of the parties hereto. acknowledges it is duly authorized to enter into this Parking Permit Agreement and that the signatories below are duly authorized. to execute this Parking Permit Agreement on their respective behalf. (j) Personal Property All personal property located on the Property as of the Effective Date shall -continue to belong to Permittee. Permittee shall remove such personal property from the Property prior to expiration of this Parking Permit Agreement. [The remainder of this page is intentionally left blank] [Signatui °es appear° on next pages] _ 541567.11 IN WITNESS' WHEREOF, the parties hereto have caused this Parking Permit Agreement to be duly executed and delivered by their respective officers and hereunto duly authorized as of the date first above written. WITNESSES: PERMITTEE; AMERICAN RIVIERA REAL ESTATE COMPANY, a Florida corporation By: y: Ar r,, 4, OF . o ame mberg Print N: Co,r Title: President By: Print Name: Fc�.Q'- - Pt e- Z- [Corporate Seal] 541567.11 i 4 ATTEST: CITY OF MIAMI BEACH, a municipal corporation of the State of Florida Alt 1 . 1 01 City Clerk rge nzalez ity anager APPROVED AS TO INSURANCE REQUIREMENTS: Director Department of Risk Management APPROVED AS TO FORM AND, CORRECTNESS: Jose S ith Cl /Attorney APPROVED AS TO I FORM & LANGUAGE & FOR EXECUTION I . - C ity At ornew�- ate 541567.8 PARKING RIGHTS AGREEMENT t } � This Parking Rights Agreement (the ``Parking Rights Agreement ") is executed as of the 20 day of April 2011 by and between City of Miami Beach, a Florida municipal corporation ( "City ") and American Riviera Real Estate Company, a Florida corporation ( "ARRE ") RECITALS A. Simultaneously with execution of this Parking Rights Agreement, City has . acquired title to that certain parcel of real property legally described on Exhibit A hereto (`-'the Land"); B. City may in the future construct a municipal public parking garage on the Land and an adj acent parcel; C. Palm Court at 23 Street Ltd., a Florida limited partnership, an affiliate of ARRE, is the present owner and holder of a leasehold estate to the land described on Exhibit B hereto and the improvements thereon ( "The Palm Court"); D. City and ARRE have agreed to enter into this Parking Rights Agreement setting forth certain rights and obligations of the parties: NOW', therefore, in consideration of the covenants contained herein .and, other valuable considerations, City and ARRE agree as follows: 1. Incorporation of Recitals The Recitals are incorporated herein and made a part hereof by reference. 2. Parking Rights in New Garage In the event that City constructs a new municipal public parking garage on the Land and adjacent parcel, then and in that event the following provisions shall be applicable: (a) ARRE or its "Permitted Assignee" (as hereafter defined) shall be entitled to purchase up to fifty (50) parking permits within the municipal public parking garage, which permits shall be purchased on an annual or monthly basis at' the prevailing rates, and subject to the terms, rights and procedures, established from time to time in the City of Miami Beach Parking System pursuant to Section 106 -55 of the Miami Beach City Code (or if such procedure is discontinued, then as established by they City's successor procedure). During the period ( "Initial Period ") commencing upon the date that the municipal public parking .garage opens for parking as evidenced by TCO or CO, whichever is earlier ( "Opening Date ") and continuing until eighteen (18) months thereafter ( "Initial Period Expiration Date "), ARRE or its Permitted Assignee shall purchase not less than twenty -five (25) permits but may at any time increase the number of parking permits that it purchases up to its full fifty .(50) parking permit allotment. _ After the Initial Period, ARRE or its Permitted Assignee may purchase any number of parking permits it desires up to its full fifty (50) parking permit allotment. If, however, at any time after the Initial Period ARRE or its Permitted Assignee is purchasing less than its full fifty (50) permit allotment, ARRE or its Permitted Assignee may thereafter increase its number of parking permits (up to the full 50 permit allotment) only as and when permits in the municipal public parking garage become available for purchase (in accordance with City's then applicable normal procedures for sale of permits for the garage). The parking permits purchased by ARRE or its X41733.9 Permitted Assignee -may only be used,by tenants of The Palm Court and their employees. As used herein, "Permitted Assignee" shall mean Palm Court at 2' )' d Street Ltd. or any assignee of its leasehold estate in The Palm Court; and (b) Provided City, in its sole discretion, elects to have valet storage in the new municipal public parking garage, there shall be not less than fifty (50) spaces in the municipal public parking garage available for valet storage use. City shall from time to time determine which valet service operator(s) is/are' entitled to use those spaces and shall upon request notify . ARRE or its Permitted Assignee of its determination. ARRE or its Permitted .Assignee shall not be precluded from negotiating with such valet service operator to provide. valet service to The Palm Court (but the valet service operator in its sole discretion may elect to provide or not to provide, service to The Palm Court).. The parking rights set forth in (a) and (b) above shall be available only during periods in which the municipal public parking garage is available for use by the general .public, City may from. time to time close the municipal public parking garage for construction, maintenance, repairs or any other reason, or may restrict use of the garage during certain periods for special events. City may, also close the garage for any other reasons City may, in its sole discretion, deem necessary or desirable. The parking rights set forth in (a) and (b) above shall become void and of no further force or effect if City discontinues the operation of a municipal public parking garage on the Land (and if terminated, such rights shall not thereafter become effective again regardless of whether City thereafter constructs or operates a garage on the Land): 3. Temporary Parking. Rights Commencing on the date that City has issued a Notice to Proceed to its general contractor for construction of the municipal public parking garage on the Land ( "Commencement Date ") and ending on the date ( "Termination Date ") that the municipal public parking garage has been completed on the Land and is available for use, ARRE shall be entitled to the following temporary parking rights: ARRE or its Permitted Assignee shall be entitled to purchase at prevailing rates (as determined from time to time pursuant to Section 106 -55 of the Miami Beach City Code or any successor procedure) and subject to the terms, rights and procedures established in Section 106 - 55 (or its successor) up to fifty (50) parking permits for use in other public parking facilities owned by City. The parking permits purchased by ARRE or its Permitted Assignee may �only.be used by tenants of The Palm Court and their employees. City shall use best efforts to provide ,the parking permits within close proximity to The Palen Court but no farther than the parking facility located at 27 Street and Collins Avenue. If City does not have parking permits available within the aforesaid area, City shall use commercially reasonable efforts to provide permits for use as close to such area as possible. The temporary parking rights set forth in this paragraph 3 shall become void and of no further force and effect on the Termination Date. 4. Miscellaneous (a) Invalidity In the event any provision of this Agreement shall be held to be invalid for any reason, such invalidity shall not affect the remaining portions of this Agreement and the same shall remain in full force and effect. 541733.9 Page 2 of . (b) No Interpretation Against Draftsmen The parties agree that no provision of this Agreement shall be construed against any particular party and each party shall be deemed to have participated in drafting this Agreement. (c) Third Party Beneficiary This Agreement is solely for the benefit of the parties hereto and no third party shall be entitled to claim or enforce any rights hereunder. (d) No Partnership Nothing contained herein shall be construed to make any party a principal,. agent,. partner or joint venturer of the other: (e) Amendments No alterations, amendments or modifications hereof shall be valid unless executed by an instrument in writing by the parties with the same formality as this Agreement. Neither this Agreement nor any term hereof may be changed, modified, or abandoned, in whole or in . part, except by instrument in writing, and no subsequent oral ,agreement shall have any, validity whatsoever. {f) Headings Title and paragraph headings are for convenient reference and are not ,a part of this Agreement. (g) Entire Agreement This Agreement represents the entire understanding - between the parties hereto .as to the subject matter hereof, and supersedes all prior written oral negotiations, representations, warranties, statements or agreements between the parties hereto as to the same. There are no promises, terms and conditions, or, obligations other than those contained herein, : and no party has relied upon the statements or promises of the representatives of any party hereto. (h) Radon Gas Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to. persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. (i). Authority Each .of.the parties hereto acknowledges it is duly authorized to enter into this Agreement and that the signatories below are duly authorized to execute this Agreement on their respective behalf. N WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers and hereunto duly authorized as of the date first above written. [The remainder of this page is intentionally left blank] [Signatures, appear on next:pages] 5417 ')3.9 Page 3 of 5 WITNESSES: AMERICAN RIVIERA REAL ESTATE COMPANY, a Florida corporation B Print Name: �U ` `� /� �/ cPr�- A�arr� Bloomber Title: President B �t Y Print Name: / ' e o [Corporate Seal] 541733.9 Page 4 of 5 A'T'TEST: CITE' OF MIAMI BEACH, a municipal corporation of the State of Florida City Clerk J r e Go lez, City Mana r APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION City Att ne to 541733,8 Page 5 of 5 `THIS INSTRUMENT PREPARED BY: Rafael A. Perez, Esq. McArdle & Perez, P.A. 806 -S. Douglas Road, Suite 625 Coral Gables, Florida 33134 305- 442 -2214 ESTOPPEL AFFIDAVIT STATE OF FLORIDA ) COUNTY OF MIAMI -DADS ) MICHAEL F. DALLETT, IV (the "Affiant "), being duly sworn, hereby deposes and says: 1. Affiant is the owner of a sublease (the "Sublease ") on property described as: Lots 5, 7 and 9, less the northerly 10.0 feet for street widening purposes, in Block 1 of AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, according to the Plat thereof, recorded in Plat Book 5, at Page 7, of the Public records of Miami -Dade County, Florida 2. Regarding the Sublease, Avant affirms: a. Exhibit A is a true and correct copy of the Sublease, and the Sublease has not been amended; b. There are no other subleases which affect the subject property; C. Tenant has not assigned this Sublease; d. The Sublease is in good standing; e. American Riviera Real Estate Company, the "(Tenant ") is not in default under the Sublease; f. Landlord is not holding any security deposit; �\ g. Rent has been paid through April z�$f3; I LK 3 This affidavit is made with the understanding that the purchaser of the Sublease interest will rely thereon. . FURTHER AFFIANT SAYETH NAUGHT. Executed this day of April 2O11 at Miami, Florida. MICHAEL F. DALLETT, IV Sworn to (or affirmed) and sub crbed - be€ his day of Apnl 201.1 by Michael F. Dallett, IV, who is . personally known to me or who produced en i c on. My commission expires: N u jic of Florida iA [SEAL] Name: ti - - 'NOTARYPUBLIC- STA1ROP"' • C Vid ltli� 7i:1j )F L Expires. FEB. 18,2M BONDED THRU ATLANnC BONDING CO., INC. INDEMNIFICATION AGREEMENT (Section 8. 3 (e)) THIS INDEMNIFICATION AGREEMENT is -made and entered into'as of the' day of 6-P r 2011, by American Riviera Real ' Estate Company,, Inc:, a Florida corporation ( "Indemnitor ") for the benefit of City of Miami Beach, Florida, a Florida municipal corporation ('!Indemnitee''). RECITALS A. Indemnitee and Indemnitor have entered into an Agreement for Sale and Purchase dated April 14, 2010 whereby the Indemnitee will acquire the fee interest (the "Acquisition ") in certain real property (the "Property ") located in Miami -Dade County, Florida. The Property is more particularly described in Exhibit A attached hereto. -B. Indemnitors and Indemnitees will also enter into agreements to terminate aground lease (the "Ground Lease"') and a sublease (the "Sublease ") that encumber the Property. The terms Ground Lease and Sublease are more particularly described in Exhibit A attached hereto. C. This Indemnification Agreement is made.for the purpose of inducing the Indemnitee to engage in the Acquisition. NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements, hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, Indemnitor and Indemnitee, agree as follows: 1. Recitals The Recitals contained herein are true and correct and made a part of this Agreement. 2. Indemnification Indemnitor hereby indemnifies and agrees to defend and hold Indemnitee harmless from, and against, any and all claims, demands, suits, losses, damages, assessments, fines, penalties, costs or other expenses, actual orthreatened, (including attorney's fees and court costs) arising from, or any way related to, the Ground Lease or -the Sublease, including, without limitation, any financial liability which may arise as a result of the order of closings contemplated' in the Sale Agreement, or of the assignment and termination of the Sublease and the Ground Lease. 3. Indemni T Obligations The indemnity obligations of Indemnitor shall include, indemnifying the Indemnitee for all reasonable attorney's fees and expenses (including if suit is instituted those incurred at trial and all levels of appeal) incurred by the Indemnitee to enforce the terms of this Indemnification Agreement. The Indemnitor shall atso indemnify, defend, and hold - Indemnitee harmless from (a) all real estate.taxes and personal property taxes from all period to April 21, 2011; and (b) for all documentary stamps surtax. (and all penalties and. interest due thereon) due _ 1 . _ with respect to Indemnitee's acquisition of title to the Property and termination of the Ground Lease and Sublease. IN WITNESS WHEREOF, this Indemnification Agreement has been executed and delivered as of the date first written above. Witnesses: INDEMNITOR AMERICAN RIVIERA REAL ESTATE F a iP P e COMPANY, a Florida .corporation o-or-ribb�i -- -° Title: President Date: 4 EXHIBIT A Lots 5, 7 and 9, less the northerly 10.0 feet for street widening purposes, in Block 1 of AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY; according to the Plat thereof, recorded in Plat Book 5, at Page 7, of the Public records of Miami -Dade County, Florida _. 3 _ r. c- r. er ; OR L ; 1766 ,-�,�:. its,._,; —. 1 ►''PE4S 1-11ARVEY RUVINY CLERK OF COURT ASSIGNMENT OF SUBLEASE INTEREST CiIs �1I- -C��aG�E C:C�4 #hdT'r P FLORIDA BY SUBLESSEE (Section 8.3(a)); Requirement B -I(24) . THIS ASSIGNMENT OF SUBLEASE INTEREST (the "Assignment ") is made as of the day of April 2011 by American Riviera Real Estate Company, Inc., a Florida corporation ( "Assignor" or "Sublessee ") in favor of the City of Miami Beach, Florida,'a Florida municipal corporation ( "Assignee "). WHEREAS, Assignor represents that Assignor is the sole possessor of the Sublessee Interest in the Sublease, which Sublease encumbers certain Property located in Miami Beach, 'Miami-Dade County, Florida. The terms Property, Sublease and Sublessee Interest are defined on Exhibit "A" attached hereto. NOW THEREFOREJor good and valuable, consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor hereby grants, bargains sells, assigns, transfers and sets over unto Assignee, any and all right title and interest of Assignor in the Sublease The result of this Assignment shall be that the entire Sublessee Interest will be assigned to the Assignee, and Assignor shall have no further interest in the Sublease. Assignee shall assume no liability under the Sublease. Assignor hereby represents and warrants to Assignee that (a) the Sublease is in full force and effect, (b) Assignor has full right, power and authority to assign the Sublease to Assignee, and (c) Assignor has not defaulted in the performance of any of its obligations under the Sublease. Assignor hereby represents and warrants that there are no further sublessee interests under the Sublease and there are no encumbrances upon the Sublease estate and no parties in possession of the Sublease premises. Assignee does not assume any obligations under the Sublease. This Assignment shall inure to the benefit of, and be binding on, the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed by its duly authorized officer as of the date first above written. LEFT INTENTIONALLY BL.IANK EXECUTION PAGE FOL,LOW,S ASSIGNOR/SUBLESSEE: AMERICAN RIVIERA REAL ESTATE. COMPANY, a Florida corporation xName: Ronal om erg Title: President Date: STATE OF FLORIDA ) �` )SS COUNTY OF MIAMI -DADS ) The foregoing instrument. was acknowledged before me this S day of April .2011 by Ronald Bloomberg on behalf of and as president of American Riviera Real Estate Company, who is personally known to me o who produced as identification. My commission expires: Notary Public - State o lorida Name: E OF FLORIDA ar el A. Perez a imis , � D ➢632673 kY i;:pres; AUG.13, 2011 ` ;TJi,D T IRU ATLAIQTIC BONDING CO3, SIC. 2_k' H "`4 B _ ? ,�, 6 ,jf , �_. -.. ti �_, � 1 .iii.. i EXHIBIT A PROPERTY: Lots 5, 7 .and 9, less the northerly 10.0 feet for street widening purposes, in Block 1.. of AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, according to the Plat thereof recorded in Plat Book 5, at Page 7, of the Public records of Miami -Dade County, Florida. SUBLEASE: •Ninety -four year lease by between Nedia M.- Dallett , as Lessor and. Standard Oil Company, as Lessee, dated January I, 1948,filed April 5,1948 in Deed Book 2995 at Page 476, and amended in Deed Book 2995, at page 508, and as amended by instrument recorded in Deed Book 4264, at Page 529 and in Deed Book 4268, Page 84 and in Deed Book 4425, at Page 623 and in Official Records Book 17754, Page 1293 and as assigned by instrument recorded in Official Records Book 14328; at page 3771 and in Official Records Book 14600, at page 2633 of the Public records of Miami -Dade County, Florida. SUBLESSEE INTEREST: Assignor's interest in the: Sublease by virtue of the Assignment and Assumption. Agreement between Standard- Oil Company d /b /a CHEVRON USA,., INC., as assignor and American Riviera real Estate Company, as assignee, dated August 4,• 4: 1997 and recorded in Official Records Book 17754, at Page 1285, as amended by Amendment to Indenture of Lease dated December 20,1996, Filed August 15;1997 in Official Records Book .17754, at Page 1293, and affected by Option Agreement recorded in Official Records Book 17754, page 1300 of the Public records of Miami- Dade County, Florida. 11111 11111 pill 1111 OR N! 27661 F9s 0155 ' 157 (3p9s) RECORD 01:` `20/ 011 a5 A' �L n.2 ° ryRVE`r Fi ' F UVI N y CLERK OF COURT ASSIGNMENT OF SUBLEASE INTEREST MIAMI. -DARE CO UNTY P' FLORIDA BY SUBLESSOR Requirement B4(23) THIS ASSIGNMENT OF SUBLEASE INTEREST (the "Assignment ") is made as of the �1 day of April 2011 by Michael Dallett, IV ( "Assignor" or "Sublessor ") in favor of 340 h oldings, LLC, a Florida limited liability. company ("Assignee"). WHEREAS, Assignor represents that Assignor is the sole possessor ofthe Sublessor' Interest in the Sublease ( "Sublessor Interest "), which Sublease encumbers certain Property located in Miami Beach, Miami -Dade County, Florida. The terms Property and Sublease are defined on Exhibit "A" . attached hereto. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor hereby, grants, bargains, sells, assigns, transfers and sets over unto Assignee, any and all right, title,and interest of Assignor in the Sublease. The result of this Assignment shall be that the entire Sublessor Interest will be assigned to the Assignee and Assignor shall have no further interest in the Sublease. Assignor hereby represents and warrants to Assignee that the Sublease is in full force. and effect and Assignor has not defaulted in the performance of any of its obligations under the Sublease. Assignor hereby represents and warrants that there are no encumbrances upon the Sublease estate and no parties in possession of the . Sublease premises except American Riviera Real Estate Company, Inc. This Assignment shall inure to the benefit of, and be binding on, the parties hereto and their respective successors and assigns. 1 IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed by its duly authorized officer as of the date first above written. LEFT INTENTIONALLY BLANK EXECUTION PAGE FOLLOWS 1 ASSIGNOR/SUBLESSOR: Michael F. Dallett, IV STATE OF FLORIDA ) )SS COUNTY OF MIAlMiI -DADS ) The, foregoing instrument was ackqa e this', day, of April 2011 by- Michael F. Dallett; IV, who is sonaily known to me or who produced iden tification. My commission expires: P tate of Florida Name : NOT ARY pUBUc -STATE of FroruDA Casey mils C0M nis8i0n # DD'sg7 6 Ev BOND 18, 20 2 - 7661 PG - EXHIBIT A PROPERTY: Lots 5,'7 and 9; less the northerly'] 0.0 feet for street widening purposes, in Block 1 of AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, according to ,the Plat thereof, recorded in Plat Book 5, at Page 7, of the Public records of Miami: -Dade County, Florida ; SUBLEASE: Ninety -four year lease by between Nedia M. Dallett , as Lessor' and Standard Oil Company, as Lessee, dated January 1, 1948,filed April 5,1948 in Deed Book 2995 at Page 476, and amended in Deed Book 2995, at page 508, and as amended by instrument. recorded in Deed Book 4264, at Page 529 and in Deed Book Book 4268, Page 84 and in Deed Book 4425, at Page 623 and in Official Records Book. - 17754, Page 1293 and as assigned by instrument recorded in Official Records Book.14328, at page 3771 and in Official Records Book 14600, at page 2633 of -the Public Records of Miami -Dade County,. Florida. 1I. till 11111111111111111111111111111111111-1111 RECORDED 011'i./20/21 C a ! n 22 HARVEY RUVINY CLERK OF COURT ASSIGNMENT OF GROUND TEASE INTERESI --DARE COUNT`f r FLORIDA BY GROUND LEASE LESSEE Requirement B4(30) HIS ASSIGNMENT OF GROUND LEASE INTEREST (the "Assignment ") is made.as of the day of April , 2011. by Michael F. Dallett, IV ( "Assignor" or "Lessee ") in favor of 340 Holdings, LLC, a: Florida limited liability company ("Assignee"). WHEREAS, Assignor represents that Assignor is the sole possessor of the Ground Lessee interest in the Ground Lease ( "Ground Lessee Interest "), which Ground Lease encumbers certain Property located in Miami Beach, Miami -Dade County, Florida. The terms Property and Ground Lease are defined on Exhibit "A" attached hereto. NOW THEREFORE, for good and valuable . consideration, the receipt and . sufficiency of which are hereby acknowledged, Assignor hereby grants, bargains, sells, assigns, transfers and sets over unto Assignee, any and all right, title and interest of Assignor in the Ground Lease. The result of this Ass gnment.shall be that the entire Ground Lessee Interest will be assigned to the Assignee and Assignor shall have no further interest in the Ground Lease. Assignor hereby represents and warrants to Assignee that the Ground Lease in full force and effect and Assignor has not defaulted. in the performance of any of its obligations under the Ground Lease. Assignor hereby represents and warrants that there are no encumbrances upon the Ground Lease estate and no parties in possession of the Ground Lease premises except American Riviera Real Estate Company, Inca This Assignment. shall inure to the benefit of, and. be binding on, the parties hereto and. their respective successors and assigns. IN WITNESS. WHEREOF, Assignor has caused this Assignment to be executed by its duly authorized officer as of the date first above written. LEFT INTENTIONALLY BLANK EXECUTION PAGE FOLLOWS l ASSIGNOR/GROUND LESSEE: vL l l�k "Y4 Michael F. Dallett IV STATE OF FLORIDA ) )SS COUNTY OF MIANII -DADE ) The foregoing instrument was acknowle s day of April 2011 by Michael F.-: Dallett, JV, who is rsonally known me or who .produced. ' entl ication. My commission expires: N taffy Pub ' - to of Florida Name: NOTARY PUBLIC -STATE Or FLORIDA W Mills - .• �-: Casey - a = Commission * DD75973 "'��•,,,.••' Expires: FEB. III, 2012 BONDED Trxu ATLAn aic abN co,, iNc. :ii lam° 8 A �'; ° G 016 F -) EXHIBIT A PROPERTY: Lots 5, 7 and 9, less the northerly 10.0 feet for street widening purposes, in Block 1 of AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, according to the Plat thereof, recorded in Plat Book 5, at Page 7, of the Public records of Miami -Dade County, Florida. GROUND LEASE Lot 5 Lease Agreement entered into by Matilda Miller ( "MM ") and Michael ( "MD Sr. ") and Nedia Dallet ( "ND ") dated as of April 17, 1943, recorded in Deed Book 2315 Page 80 of the Public Records of Miami =Dade County, Florida, as amended, for Lot 5, Block . 1 of the OCEAN FRONT PROPERTY of the Miami Beach Improvement Company, a Subdivision of part of Government Lot Four (4), in fractional Section 26, Township 54 South, Range 42 East, according to amended plat thereof, recorded in Plat Book 5, at Page 7, of the Public Records . of Miami - Dade County, Florida. GROUND LEASE Lot 7 Lease Agreement entered into by Charlotte and John Staiger ( "CJS ") and ND dated as of February 19, 1944, recorded in Deed Book 2390, Page 296 of the Public Records of Miami- Dade County, Florida, as amended, forLot 7, Block 1 of the OCEAN FRONT PROPERTY of the Miami Beach Improvement Company, a Subdivision of part of Government Lot Four (4), in fractional Section 26; Township 53 South, Range 42" East, according to amended plat thereof, recorded in Plat Book 5, 'at Page 7, of the Public Records of Miami -Dade County, Florida. GROUND LEASE Lot 9 Lease Agreement entered into by MM and MD Sr. and ND dated as of April 17, 1943, recorded in Deed Book 2315, Page 72 of the Public Records of Miami -Dade County, Florida, as amended, for Lot 9, Block 1 of the OCEAN FRONT PROPERTY of the. Miami Beach Improvement Company, a Subdivision of part of Government Lot Four (4), in fractional Section 26, Township 53 South, Range 42 East, according to amended plat thereof, recorded in Plat Book 5, at Page 7, of the Public Records of Miami -Dade County, Florida. GROUND LEASE: The term Ground Lease shall refer collectively to Ground Lease Lot 5, Ground Lease Lot 7; and Ground Lease Lot 9. 3 ' - �� 'l {{ � { .^ II pp tt C 2 Co . 1 A. 4 T -0 ..Ili. 1 & j 1....(� ^—. 2 .. - SJ 1 G� k i. f 6 I P s i �i �..; .0 {_� 1. "" 1 6 t 1 . 4 J =5 i .. � �� C' o f v .. REC�i]I� RED 114 21.. i 1._� � � 6. _Y RLIVINY C11 ERK OF COURT THIS INSTRUMENT PREPARED BY: Rafael A. Perez, Esq. McArdle & Perez, P.A. 806 S. Douglas Road, Suite 625 Coral Gables, Florida 33134 305- 442 =2214 TERMINATION OF SUBLEASE AGREEMENT (Section 8.3(c)) THIS TERMINATION OF SUBLEASE AGREEMENT (this " Termination ") is entered into effective the 18"' day of April 2011, by and between 340 Holdings,. LLC, a Florida. limited liability company ( "Sublessor ") and City of Miami Beach, Florida, a Florida municipal corporation ( "Sublessee" ). RECITALS. A. The Sublease encumbers certain land located in the City of Miami Beach, Miami - Dade County, Florida (the "Property"). The terms "Sublease" and "Property" are defined on Exhibit "A" attached hereto. B. The Sublessor is the Sublessor under the Sublease. C. The Sublessee is the sublessee under the. Sublease. C.' Sublessee and Sublessor desire to terminate the Sublease as set forth hereinafter. NOW, THEREFORE, in consideration of the foregoing Recitals and other good and valuable consideration, the receipt. and sufficiency of which are. hereby acknowledged, the parties do hereby agree as follows: TERMS 1. Recitals The foregoing Recitals are true and correct and are hereby incorporated herein by reference. 2. Termination of Sublease Effective as of the date of this Termination, the Sublease is hereby terminated and shall be of no further force and effect. 3 . Release of Liability Each party hereby releases ' and forever discharges the other party its, successors and assigns of ` and from all action's, causes of action, damages, claims and demands whatsoever, which the said party had,, now have. or which the said party and its assigns or any of them - hereafter can, shall or may have related 'to -the Sublease for all . time periods through the effective date of Termination: IN WITNESS WHEREOF, the parties hereto have caused this Termination to be executed by their respective authorized representatives as of the date first hereinabove written in several counterparts, each of which shall be deemed an original, but all of which constitute only one agreement. Sublessor: 340 HOLDINGS, LLC, a Florida limited Liability company Name: Ro al - omberg Print Na �. e1 Ra L 0 er'e - 7— Title: Manager { Print ame: _� l ,r ' >k�c STATE OF FLORIDA ) )SS COUNTY OF MIAMI -DADS ) The foregoing instrument 'was acknowledged before me this. I - day of April 2011 by Ronald Bloomberg on behalf of and as manager of 340 Holdings, LLC, who is personally known to me or who produced as identification. My commission expires: Notary Publi - State of Florida NOTARI' P"JBI IC -STATE OF . � �, FLORIDA Name: .,cl A,. Pe O,� -� mission #T_?DE82.6?3 Expirm ?ov% Fili u. 13, 20 OD THRUATL:jNyjjCI Oti'DI:�GCG ' C Sublessee CITY OF MIAMI BEACH FLORIDA a Florida municipal corporation By: Nam Title: eY Date: APPROVED AS TO F AND LANGUAGE FOR ECUTION City Attorne Date: STATE OF FLORIDA ) )SS COUNTY OF MIAMI -DADS ) The foregoing instrument was acknowledged before me this y p g g g � �� "da of April 2011 by on behalf of and as C of .the City of Miami Beach,. F orida, who is personally known t me or who produced as identification. f� My commission expires: Notary Public - State of Florida NAIMA DE PINEDO Name: MY COMMISSION # DD 99567 EXPIRES: September 26, 2014 Bonded Thru Notary Public Underwriters APPROVED AS TO FORM & LANGUAGE FOR EXECUTION omey J DA ". 3 - — T PAGE EXHIBIT A PROPERTY: Lots 5, 7 and 9, less the northerly 10.0 feet for street widening purposes, in Block 1 of AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, according to the Plat thereof, recorded in Plat Book 5, at Page 7, of the Public records of Miami -Dade County, Florida SUBLEASE: Ninety -four year lease by between Nedia °M. Dallett , as Lessor and Standard Oil Company, as Lessee, dated January 1, 1948,filed April 5,1948 in Deed Book 2995 at Page 476, and amended in Deed Book 2995 ' at page 508, and as amended by instrument recorded in Deed Book 4264, at Page 529 and in Deed Book Book 4268, Page 84 and in Deed Book 4425, at Page 623 and in Official Records Book 17754,.. Page 1293 and as assigned by instrument recorded in Official Records Book 14328, at page 3771 and in Official Records Book 14600, at page 2633 of the Public Records of Miami -Dade County, Florida. 4 n i R ; ' { - 1 h' 27t I 11'x' �._E 2!5- ff �p 0 . J �(1 ii1�CIC; I.I�.65 -- 16t 1 P (�F�{i O R�.C- C.IRDEG' 1.I'' +/2►_I/2i_11.1. 15 n `.,t, u ;.2 I-101"'VE'r RLWINY t:LEfE:N. OF ±:C14 }E�:T THIS INSTRUMENT PREPARED BY: Rafael A. Perez,,Esq. McArdle & Perez, P.A. 806 S. Douglas Road, Suite 625 Coral Gables, Florida 33134 305- 442 -2214 TERMINATION OF GROUND LEASE AGREEMENT (Section 8.3(b)); Requirement B-1(3 1) THIS TERMINATION OF GROUND LEASE AGREEMENT (this " Termination ") is entered into effective the 18"' day of April, 2011, by and between 340 Holdings, LLC., a Florida limited liability company ( "Ground Lessee ") and City of Miami Beach, Florida, a Florida municipal corporation ('.'City"). RECITALS A. The Ground- possesses the exclusive lessee interest under three ground leases (collectively the "Ground Lease ") which encumber certain land located in the City of Miami Beach, Miami -Dade County, Florida (the "Property "). The terms "Ground Lease" and "Property are defined on Exhibit "A" attached hereto. B. City holds the fee simple to the Property and has succeeded to the interest of the ground lessor under the Ground Lease. C. Ground Lessee and City desire to terminate the Ground Lease as set forth hereinafter. NOW, THEREFORE, in consideration of the foregoing Recitals and other good and valuable consideration, the receipt and sufficiency of which are .hereby acknowledged, the parties do hereby agree as follows: t T ERMS 1. Recitals The foregoing Recitals are true and correct and are hereby incorporated herein by reference. 2. Termination of Ground Lease Effective as of the date of this Termination, the Ground Lease is hereby terminated and :shall be of no further force and effect. 3. Release of Liability The Ground Lessee hereby releases and forever discharges the City its, successors and assigns of and from all actions, causes of action, damages, claims and demands whatsoever, which the Ground Lessee had, now have or which the Ground Lessee and its assigns or any of them hereafter can, shall or may have related to the Ground Lease. and /or the Property for all time periods through the effective date of this Termination. IN WITNESS WHEREOF, the parties hereto have caused this Termination to ' be executed by their respective authorized representatives as of the date first hereinabove written in several counterparts, each of which shall be deemed an original, but all of which constitute only one agreement. Ground Lessee: 340 HOLDINGS, LLC, a Florida limited Liability co any Y . Name ad d to erg Print Na : fie Py e A- eltr-e z Title: Manager. Print `ame: STATE OF FLORIDA ) )SS - ,'COUNTY OF MIAMI -DADS ) The foregoing instrument was acknowledged before me this 5 day of April 2011 by Ronald Bloomberg on behalf of and as manager of 340 Holdings, LLC, who i personally known to me or who produced as identification. My commission expires: �3) A °_ -i Lid P OF FLORID Notary Publi - State of Florida .. ...... r Name: Rafriel n. Perez Coi #I`D682673 DOND U THRU ATLAIN71C BONDING ro,, 2 City: CITY OF MIAMI BEACH, FLORIDA a Florida municipal corporation By: Nam J oY c 6001? e Title: Date: APPROVED AS TO FORM AND LANGUAGE FOR / EXECUTION City Attorney Date: STATE OF FLORIDA ) )SS COUNTY OF MIAMI -DADE ) The foregoing instrument was acknowledged before me this day of April 2011 by �; l on behalf of and as 4 ' of the City of Miami Beach Florida, who is personally known 'Jto me or who produced as identification. My commission expires: Notary Public*- State of Florida Name. � PIN EDO _ S IOhJ r DD 995887 )ter;7ber 26, 2014 ,ry Public Underwriters NAIMA DE PINEDO .MY COMMISSION # DD 995887 o;= EXPIRES: Septembe�26, 2014 Bonded Thru Notary Public Underwriters APPROVED AS TO FORM & LANGUAGE FOR EXECUTION ,... tt me ®a a 3 EXHIBIT A PROPERTY: Lots 5, 7 and 9, less the northerly 10.0 feet for street widening purposes, in Block 1 of AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, according to the Plat thereof, recorded in Plat Book 5, at Page 7, of the Public records of Miami -Dade County, Florida GROUND - LEASE Lot 5 Lease Agreement entered into by Matilda Miller ( "MM ") and Michael ( "MD Sr. ") and Nedia Dallet ( "ND ") dated as of April 17, 1943, recorded in Deed Book 2315, Page 80 of the Public Records of Miami -Dade County, Florida, as amended, for Lot 5, Block 1 of the OCEAN FRONT PROPERTY of the Miami Beach Improvement Company, a Subdivision of part of Government Lot Four (4), in fractional Section 26, Township 54 South, Range 42 East, according to amended plat-thereof, recorded in Plat Book 5, at Page 7, of the Public Records of Miami -Dade County, Florida.. GROUND LEASE Lot 7 Lease Agreement entered into by Charlotte and John Staiger ( "CJS ") and'ND dated as of February 19, 1944, recorded in Deed Book.2390, Page 296 of the Public Records of Miami -Dade County, Florida, as amended, for Lot 7, Block I of the OCEAN FRONT PROPERTY of the Miami Beach Improvement Company, a Subdivision of part of Government Lot Four (4), in fractional Section 26, Township 53 South, Range 42 East, according to amended plat thereof, recorded in Plat Book 5, at Page 7, of the Public Records of Miami -Dade County, Florida. GROUND LEASE Lot 9 Lease Agreement entered into by MM and ' MD Sr. and ND dated as of April 17, 1943, recorded in Deed Book 2315, Page 72 of the Public Records of Miami -Dade County, Florida, as . amended, for Lot 9, Block 1 of the OCEAN FRONT PROPERTY of the Miami Beach Improvement Company, a Subdivision of part of Government Lot Four (4), in fractional Section 26, Township 53 South, Range 42 East, according to amended plat thereof,' recorded in Plat Book 5, at Page 7, of the Public Records of Miami -Dade County, Florida. GROUND LEASE: The term Ground Lease shall refer collectively to Ground Lease Lot 5, Ground Lease Lot 7, and. Ground Lease Lot 9. 4 01. E RE C OR D ED 04/2 F'qw CIS 1;� -- 1.75 (4psis) .. RE O RD E V 04c' 2 - 2 0 1. 1. .1. 5 a �'6 a 22 F1�iRVE'r 1`.U4'IFiP CLERf. OF :O1Jfi'T MIAMI--DADE COUNTY? FLORIDA THIS INSTRUMENT PREPARED BY: Rafael A. Perez, Esq. McArdle & Perez, P.A. 806 S. Douglas Road, Suite 625 Coral Gables, Florida 33134 305- 442 -2214 TERMINATION OF OPTION AGREEMENT Requirement B -I(3) THIS TERNIA NATION OF OPTION AGREEMENT (this " Termination ') is entered into effective the day of April, 2011 11 by and between Michael F. Dallett, IV as successor in interest to Patsy Dallett, as successor to Nedia M. Dallett, ( "Lessor ") and Centaur Realty Organization, Inc., a Florida corporation ( "Lessee "). RECITALS A. Patsy Dallett, as successor to Nedia M. Dallett and Lessee entered into an option agreement dated December 20, 1996 and recorded August 15, 1997 in Official Records Book 17754 Page 1300 of the Public Records of Miami -Dade County, Florida (the "Option Agreement ") with respect to the Property and Sublease described in Exhibit "A." B. Michael F. Dallett IV, pursuant to the Final Judgment rendered in Michael F. Dallett, IV v. Marsha Victoria Linder, et. al. (Case No. 10 -55087 CA -04 in the Eleventh Judicial Circuit in and for Miami -Dade County, Florida), is the successor in interest to Patsy " Dallett, as successor to Nedia M. Dallett. C. Lessee and Lessor desire to terminate the Option Agreement as set ` forth hereinafter. NOW, THEREFORE, in consideration of the foregoing Recitals and other good and. valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: 1 TERMS 1. Recitals The foregoing Recitals are true and correct and are hereby incorporated herein by reference. 2. Termination to Option Agreement Effective as of the date of this Termination, the Option Agreement is hereby terminated and shall be of no further force and effect. 3. Release of Liability Each party hereby releases and forever discharges the other, party its, successors and assigns of and from all actions, causes of action, damages, claims and demands whatsoever, which the said party had, now have or which the said party and its assigns or any of them hereafter can, shall or may have related to the Option Agreement for all time periods through the effective date of this Termination. IN WITNESS. WHEREOF, the parties hereto have caused this Termination to . be executed by their respective authorized representatives as of the date first hereinabove written in several counterparts, each of which shall be deemed an original, but all of which constitute only one agreement. LESSOR Print Name: Michael F. Dallett, IV A ° Date= ,April, 2011 Print Nam --. i STATE OF FLORIDA ) )SS COUNTY OF MIAMI -DADE ) The foregoing instrument was ackno efore me this _ day of April 2011 by Michael F. Dallett, IV who is Oersonally kn to me or wh oduced .. a . ficat�on. My commission expires: N Lary P State of Florida Name: NOTARY PUBLIC -STATE OF FLORIDA Casey W Mills Commission # DD759736 Expires FEB. 18, 2012 BONDED THRU ATLANTIC BONDING Co, iris, 2 Lessee: r CENTAUR REALTY Print me: Wc, P, P_ L A - He r-e- zf ORGANIZATION, INC. 6- L a Florida co �- Pr t Name: `= � �:5 �--� �'._ ...... .._. _ Name: mberg . wm_. Title: President Date: STATE - OF' FLORIDA ) )SS COUNTY OF MIAMI -DADS ) The foregoing instrument was acknowledged before me this S day of April 2011 by Ronald Bloomberg on behalf of and as president of Centaur Realty Organization, Inc., who is personally known to me or who produced as identification. My commission expires: , Notary Public - St of Florida NOTR I >v, j,j -STATE OF FLORIDA Name: A r, R ifuel .A.. Perez '` ab C om mi ssion #DD682673 .A u&,:13, 2011 BONDED TI:R(7TLAAI fIC BONDING CO., Ii`IC. 3 EXHIBIT A PROPERTY: Lots 5, 7 and 9, less the northerly 10.0 feet for street widening purposes, in- Block 1 of AMENDED MAP OF THE OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, according to the Plat thereof, recorded in Plat Book 5, at Page 7, of the Public recoids of Miami -Dade County, Florida SUBLEASE: Ninety -four year lease by between Nedra M. Dallett , as Lessor and Standard Oil Company, as Lessee, dated January 1, 1948,filed April 5,1948 in Deed Book 2995 at Page 476, and amended in Deed Book 2995, at page 508, and as amended by :instrument recorded in Deed Book 4264, at Page 529 and in Deed Book Book .4268, Page 84 and in Deed Book 4425, at Page 623 and in Official Records Book 17754, Page 1293 and as assigned by instrument recorded in Official Records Book 14328, at page 3771 and in Official Records Book 14600, at_ page 263.3 of the Public Records of Miami -Dade County, Florida. 4 CIS N 2O 11 RO259909 OR B'k 27661 Ps'ls 4663 - 46644 (2p9s) RECORD - C��rl2i� 2311 12: HARVEY RUVIN? CLERK OF COURT MIANI -DARE COUNTY FLORIOA This instrument prepared by: Katherine Amador- Fortuny, Esq. Infante, Zumpano, Salazar. & Miloch, LLC 500 S. Dixie Highway, Suite 302 Coral Gables, FL 33146 SATISFACTION OF MORTGAGE KNOW ALL MEN BY THESE PRESENTS: THAT the undersigned EVERBANK, a Federal Savings Bank, the owner and holder of the following: 1) that certain Mortgage and Security Agreement executed by American Riviera Real Estate Company, a Florida corporation and Ronald Bloomberg and Donna . Bloomberg, ' husband and wife, in favor of Bank of Florida, recorded in O.R. Book 22132, Page 3894, re- recorded in O.R. Book 22452, Page 732, as modified in. O.R. Book 24812, Page 3362, O.R. Book 26494, Page 3229, O.R. Book 26800, Page 3749 and affected by O.R. Book 24812, Page 3368, all of the Public Records of Miami -Dade County, Florida, given to secure a certain Note in the original principal amount of One Million.One Hundred Eighty Thousand and 00/100 Dollars ($1,180,000.00) and 2) that certain Florida Real Estate Mortgage, Assignment of Leases and Rents and Security Agreement from American Riviera Real Estate Company, a Florida Corporation to Bank of Florida- Southeast dated December 7, 2006, and recorded in O.R. Book 25247, Page 4266, as modified in O.R. Book 26494, Page 3242, O.R. Book 26798,- Page 3650, and affected by O.R. Book 25323, Page 4143, all of the Public Records of Miami -Dade County, Florida, given to secure a certain Note in the original principal amount of One Million and 00/100 Dollars ($1,000,00.00) upon the properties situate in Miami -Dade County, Florida and legally described as follows: Lots 5, 7 and 9, Block 1, of the OCEAN FRONT PROPERTY OF THE MIAMI .BEACH IMPROVEMENT COMPANY SUBDIVISION, according to the Plat thereof, as recorded. in Plat Book 5 Page 7, of the Public Records of Miami -Dade County, Florida. Less the Northerly 10.00 feet thereof for Street widening purposes And The South. 105 feet of the North half of the Northeast Quarter of the Southeast Quarter of the Southwest Quarter, less the East 35 feet and less the West 237.49 feet thereof, Section 4, Township 52 South, Range 42 East lying and being in Miami -Dade County, Florida LAST PAGE THIS DOCUMENT ALSO SATISFIES THE FOLLOWING INSTRUMENTS: 1. Assignment of Rents, Leases, Profits, and Contracts recorded March 19, 2004, in O.R. Book 22132, Page 3907, Public Records of Miami -Dade County, Florida, 2. Financing Statement recorded July 24, 2008, in O.R. Book 26494; Page 3253, Records of Miami -Dade County, Florida; 3. Financing, Statement recorded July 24, 2008, in O. R. Book 26494, 'Page 3259, :Public Records of Miami -Dade County, Florida HEREBY acknowledge full payment and satisfaction of said instruments and. surrenders the same as canceled, and hereby direct the clerk of the office to cancel the same of record. IN WITNESS WHEREOF, EVERBANK; a Federal'savings, bank, has caused these presents to be executed in its name, by its proper officers - thereunto authorized, on .this day of April, 2011. Signed, sealed and delivered in the presence of: EVERBANK, a Federal Savings Bank 501 Riverside Avenue, 12 Floor - ,,:F Jacksonville FL 32202 Witness- , (`..1 C �- :; , ; ems g f - _. 1 William I. Gulliford, - Witness _fit As Vice - President of EverBank, a -F -ceder avi -ngs= Baxaak— Federal savings bank STATE OF FLORIDA ) COUNTY OF �`�' ) THE FOREGOING INSTRUMENT was acknowledged before me.this ` a 9 � Y of April, 2011, by William I. Gullford, III, as Vice- President of EverBank, a Federal Savings Bank, on behalf of EverBank, who is personally known to me or ( ) produced as identification and did /did not take an oath. My Commission Expires: j NOTARY PUBLIC AT STATE OF FLORIDA ,`•�� ° �e'- DEBRA S. COLEMA Notary Public - State of Florida w, s ec filly Comm. Expires Dec 1, 2013 commission # DD 943459 11111 IN 1111 CFN 291 RO 1 x 5991 CR OR U 27 i 1 �` s u s -- tr . c }p:s s `r IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI -DADE COUNTY, FLORIDA EVERBANK, a Federal Savings Bank, ) CASE NO.: 10 -45401 CA 04 successor in interest to Bank of Florida- Southeast ) Plaintiff, ) V. ) ` AMERICAN RIVIERA REAL ESTATE ) COMPANY, a Florida company;.- RONALD BLOOMBERG,' individually; . ) and DONNA BLOOMBERG, individually; CENTAUR REALTY ORGANIZATION, ) �; INC., a Florida corporation, and MIAMI= ) DADE COUNTY BUILDING )` DEPARTMENT, ) ) Defendants: ) DISCHARGE OF LIS PENDENS NOTICE IS HEREBY GIVEN that the Notice. of Lis Pendens recorded in Official Records ..Book 27397, Page 1543, of the Public Records of- Miami -Dade County, Florida, in the above captioned case, upon the properties situate in Miami- Dade County, Florida and legally described below, is hereby released. Parcel One: The South 105 feet of the North half of the North half of the Northeast Quarter of the ' Southeast .Quarter of the Southwest Quarter, less the East 35 feet and less the West 237.49 feet thereof, in Section 4, Township 52 South, Range 42 East, lying and being in Miami -Dade County, Florida. and Parcel Two Leasehold Estate created by that certain Lease by and between Nedia M. Dallet, as Lessor' and Standard Oil Company, as Lessee, 'dated u January 1, 1948, for a term of 94 years, 3 months and 15 days, from January 1, 1948, filed April 5, 1948 in Deed Book 2995, at Page 476, 1 . OR B K 27661 PG 4666 i and as amended in Deed Book 2995, at Page 508, and as amended in instrument recorded in Official Records Book 4264, at Page 529 and in Official Records Book 4268, at Page 84 and in Official Records Book 4425, at Page 623 and as assigned by instruments recorded in Official Records Book 14328, at Page 3771 and in Official Records Book 14600 at Page 2633. Said Lease was assigned to American Riviera Real Estate Co., a Florida Corporation, by Assignment and Assumption Agreement dated August'4, 1997, filed August 15, 1998 in Official Records Book 17754, at Page 1285, as amended by Amendment to Indenture. of Lease dated December 20, 1996, filed August 15, 1997 in Official Records Book 1.7754, at Page 1293, and affected by Option Agreement recorded in Official Records Book 17754, at Page 1300, for the real property described as follows: Lots 5, 7 and 9, in Block 1. of AMENDED MAP OF. THE OCEANFRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY, ' according to the Plat thereof, recorded in Plat Book 5, at pages 7 and 8 of the Public Records of Miami -Dade County, Florida. Including the building, appurtenances, and fixtures located thereon. .Dated April 20, 201 INFANTE, ZUMPANO Attorneys for EVERBANK 500 South Dixie Highway, Suite 302 Coral Gables, Florida 33146 Telephone: (305) 503 -2990 Facsimile: (305) 774 -5908 By: , A , KATHERI ` FORTUNY Florida Bar No.: 121789 LUIS SALAZAR Florida Bar No.: 147788 VANESSA M. BERTRAN Florida Bar No.: 0085729 L G G 7 } fJ! iS !rLr // d Correct � Iclj� th 11U T Del _ Clerk 7. ; CF N 2 1 i 3.. RC825991 1 OR fk _ Ps s 4667 -' 46'8; (2p 7 s ) R E;1DRDED 04/ 21 /2011 /2011 12 = 37 ' 56 HIi`•tRVE t RUVIN F CLERK OF COURT flTAMI- -DARE c_OUNTYf FLORIDA IN THE CIRCUIT COURT OF THE 11 JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA EVERBANK, a Federal Savings Bank, GENERAL JURISDICTION DIVISION successor in interest to Bank of Florida Southeast CASE NO.: 10 -45401 .CA 04 Plaintiff, v. AMERICAN RIVIERA REAL ESTATE COMPANY, a Florida company; RONALD BLOOMBERG, individually; DONNA BLOOMBERG, individually; CENTAUR REALTY ORGANIZATION, INC.,' a Florida .- < corporation; and MIAMI -DADE COUNTY _ BUILDING DEPARTMENT, Defendants. NOTICE OF VOLUNTARY DISMISSAL Pursuant to Florida Rule of Civil Procedure 1.420, Plaintiff, EVERBANK, a Federal Savings Bank, by and through their undersigned counsel, hereby file their voluntary dismissal of this action with prejudice. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 20 day of April, 2011, a true and correct copy of the foregoing was furnished via facsimile and U.S. Mail to Xavier A. Franco, Esq., Gutierrez, Zarraluqui & Franco, LLP, and George McArdle, Esq., McArdle & Perez, P.A., Douglas Entrance, South .Tower, 806 Douglas Road, Suite 625,. Coral Gables, FL 33134. INFANTE, ZUMPANO Attorneys for EVERBANK bw F1 500 South Dixie Highway, Suite 302 Coral Gables, Florida 33146 Telephone: (305) 503 -2990 F csim'le:. (305) 774 -5908 y KA HtRINE AMADOR- FORTUNY, � 121.7 9 Florida Bar No.: 8 LUIS SALAZAR Florida Bar No.: 147788 VANESSA M. BERTRAN Florida Bar No.: 0085729 r'c: 0R 2 ...' T PA GE r= EXHIBIT "A" Lo is 5 7 and 9 Block 1, of the OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 5 Page 7, of the Public Records of Miami -Dade County, Florida. Less the Northerly I0.00.feet thereof for Street widening purposes r s 3 e� .riWT�L.3 _ (American Land Tit' '- ssociation Owner's Policy_ — TO-4 7-92) (With F 'Ja Modificatons) l "-'e public N ational T*t1e Insurance Compan OWVER'S TITLE INSURANCE POLICY Issued: Through Attorneys' Title Fund Services, LLC SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND LATIONS, OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, a Minne- sota corporation, herein called the Company, insures,, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of: 1. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title; 4. Lack of a right of access to and from the land. The Company will also pay -the costs, attorneys' fees and expenses incurred in defense: of the title, as insured, but only to the extent provided in the Conditions and. Stipulations. In Witness Whereof, OLD REPUBLIC NATIONAL TITLE INSURANCE COMPAl`vTYhas caused this policy to be signed and sealed as of Date of Policy shown in Schedule A, the policy to -become valid when countersigned by an authorized signatory. OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY A Stock Company 400 Second Avenue South, Minneapolis, IMinnesota 55401 (612) 371 -1111 By President 6 Attest Secretary SERIAL �P FORM OPM (rev. 07/09) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not, pay loss or damage., costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not to building and zoning lays, ordinances, or regulations) restricting, regulating, prohibiting or relating to (1) the occupancy, nse, or enjoyrnent. of the land; (ii) the character, dimensions or location of any improvement now or.hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part.; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation orallegect violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not exc hided by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resultingfrorp a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy: 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the pnbiic records at, Date of Policy, but. not excluding From coverage any taking which has occnrred prior to Date of Policy which would be binding the rights of a purchaser for value without: knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assnrned or agreed to by the insured claimant; (b) not known to the Company, not recorded in the pnblic records at Date of Policy, bent known to the insnred claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant.; (d) attaching or created subsequent. to Date of Policy; or (e) resulting in loss or damage which would not. have been sustained if the insured claimant had paid value -for the estate or interest insured by,this policy. 4. Any claim, which arises out of the transaction vesting in the insured the estate or interest insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on: (a) the transaction creating the estate or interest. insured by this policy being deemed a fratidulent conveyance or frandulent transfer; or (b) the transaction creating the estate or interest insnred by this policy being deemed a preferential transfer except where the preferential transfer results from the failure: (i) to timely record the instrument of transfer; or (ii) of such recordation to Impart notice to a purchaser for value or a jttdginent or lien creditor. CONDITIONS AND STIPULATIONS 1. Definition of Terms interest in the land, or holds an indebtedness secured by a purchase The following terms when used iii this policy mean: money mortgage given by a purchaser from the insured, or only so long (a) `insured ": the insured named in Schedule A and, subject to any as the insured shall have liability by reason. of covenants of warranty rights or defenses the Company would have had against the named made by the insured in any transfer or conveyance of the estate or insured, those who succeed to the interest of the named insnred by interest. This policy shall not continue Ili force in favor ofany purchaser .operation of law as distinguished from purchase including, but not from the irrsrtred of either (i) all estate or interest in the !arid, or (ii) all limited to, heirs, distributees, devisees, survivors, personal represents- indebtedness secured by a purchase money mortgage given to the tives, next of kin, or corporate or fiduciary successors insured. (b) "insured claimant ": an insured claiming loss or damage. 3. Notice of Claim To Be Given by Insured Claimant (c) "knowledge" or "known ": actual knowledge, not constructive The insured shall notify the Company promptly in writing (i) in case of knowledge or notice which may be imputed to an insured by reason of arrylitigat.ion asset forth in Section 4(a) below, (ii) in case knowledgeshall the pt.tblic records as defined in this policy or any other records which come to an insured hereunder of any claim of title or interest tivhich is impart constructive notice of matters affecting the land. adverse to the.title to the estate or interest, as insured, and which might. ( " land ": the land described or referred to Ili Schedule A, and cause loss or damage for which the Company may be liable by virtue of improvements affixed thereto which by law constitute real property this policy; or (iii) if title to the estate or interest, as insured, is rejected The term "land" does not include any property beyond the lines of the as unmarketable. If prompt notice shall riot be given to the Company, area described or referred to in Schedule A, or any right, title. interest, then as to the insured all liability of the Company shall terminate with estate or easement in abutting streets, roads, aventres, allevs,lanes, ways regard to the matter or matters for which prompt notice is required; or waterways, bt.tt nothing herein shall modify or limit the extent to provided, however, that failure to notify the Company shall in no case which a right of access to and from the land is insured by this policy. pr e 'Lidice tire rights of any insn red tinder thispol icy unless the Company (e) "mortgage ": mortgage, deed of trust, trust deed, or other shall be prejudiced by the failure and then only to the extent of tile security instrument prejudice. (f)- `.`public records ": records established under state statutes at 4. Defense and Prosecution of Actions; Duty of Insured Claimant date of Policy for the purpose of imparting constructive notice of To Cooperate matters relating to real property to purchasers for value and with (a) Upon written request by the insnred and subject to tile options, knowledge. With respect to Section I(a)(iv) of the Exclusions from contained in Section G of these Conditions and Stipulations, the Corn - Coverage, "public records" shall also include environmental protection pang, at its own cost acid without inireasonable delay, shall provide for liens Filed in the records of the clerk of the United States district conrt the defense of an insnred in litigation in which any third par a for the district in which the land is located. claim adverse to the title or interestas insured, httt only as to those stated (g) "itnmarketability of the title ": an alleged or apparent matter causes of action alleging defect, lien or encumbrance or other matter affecting the title to the land, not excluded or excepted from coverage, insnred against by this policy. The Company shall have the right to select which would entitle a purchaser of the estate or interest described in counsel of its choice (subject to the right of the insnred to object for Schedule A to be released from the obligation to purchase by virtue of reasonable cause) to represent the insnred as to those stated causes of a contractual condition requiring the delivery of marketable title. action and shall not be liable for and will not pay the fees of any other 2. Continuation of Insurance After Conveyance of Title counsel. The.'Cormpany will not pay any fees, costs or expenses inct►rrecl The coverage of this policy shall continue in force as of Date of Policy by the insnred in the defense of those causes of action which allege in favor of an insured only so long as the ed retains an estate or matters not insured a A by this policy. ®LD REPUBLIC NA TI®NAL TITLE INSURANCE COMPANY Schedule A Policy No.: OPM- 4002630 Effective Date: Aug. 30, 2011 File No. 79496 -008 at 10:07 a.m. .Amount of Insurance: $ 4,87500.00 1. Name of Insured: City of Miami Beach, a Florida Municipal Corporation 2. The estate or interest in the land described herein and which is covered by this policy is a fee simple (if other, specify same) and is at the effective date hereof vested in the named insured as shown by instrument recorded in Official Records Book ' 27661 at Page 131, Public Records of Miami -Dade County, Florida. 3. The land referred to in this policy is described as follows: Lots 5, 7 and 9, Block 1, of the OCEAN FRONT PROPERTY OF THE MIAMI BEACH IMPROVEMENT COMPANY SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 5 Page 7, of the Public. Records of Miami -Dade County, Florida. Less the Northerly 10.00 feet thereof for Street widening purposes. ISSUED BY Tew Cardenas, LLP 20598 NAME OF AGENT AGENT NO AGENT'S SIGNATURE 1441 Brickell Avenue 15` Floor _ Miami Florida 3313 MAILING ADDRESS CITY STATE ZIP X54311.1 l ®LI) REPUBLIC NATIONAL TITLE INSURANCE. COMPANY Schedule B Policy No.: OPM- 4002630 This policy does not insure against loss or. damage by reason of the following exceptions: 1. Covenants, conditions and restrictions recorded December 30, 1926, in Deed Book 1033, Page 317, Public Records of Miami -Dade County, Florida. 2. Covenants,' conditions and restrictions recorded December 30, 1926, in Deed Book 103 3, Page 315, Public Records of Miami -Dade County, Florida. 3. Covenants, conditions and restrictions recorded September 11, 1928 in Deed Book 1251, Page 329, Public Records of Miami -Dade County, Florida. 4. Covenants, conditions and restrictions recorded January 4, 2000, ini O.R. Book 18932, Page 4868, Public Records of Miami -Dade County, Florida. 5. Planning Board Order recorded in O.R. Book 27457, Page 2860, Public Records.of Miami -Dade County, Florida. 6. Taxes for the year 2011, which are not yet due and payable: END OF SCHEDULE B 554311.1 ( b) TheCompanyshal l have the right, at its own cost, toinstitttteaiId _ together with any costs; attornevs' fees and expenses incurred by the - pr-osectrte anv action or proceeding or to do any other act which in its insrtred claimant, whin - li were authorized by the Company, up to the tiFne opinion mai be necessary or desirable to establish the title to the estate of payment_ or tender of payment. and which the Company is obligated or- interest, as insured, or to prevent or reduce loss or damage to file to pay. insured. The Cornpany may take any appropr iat.e action underthet.errns Upon the exercise b% the Company of this option, all liability and Of fills }policy, whether or it shall be liable hereunder, and shall not obligations to the insured tinder this policy, other than to make the thereby concede liability or waive anv provision of this policy. If the - pay meet required, shall terminate, including any liability or obligation Company Shall exercise its rights tinder this paragraph, it shall do so to defend, prosecute, or continue any litigation, and the policyshall be diligently, surrendered to tyre Company for cancellation. (c) Whenever the Company shall have brought art action or inter- (b) To Pay or Otherwise Settle With Parties Other than the posed a defense as recgttired or perrrlitted by the provisions of this policy, Insured or With the Insured Claimant. theConipany may pi any litigation to Final detei bVaCOLIFt (i) to pay or otherwise settle with other parties for or in the of cornpete.nt jtrrisdict.iori and expressly reserves the right, in its sole name of an insured claimant any claim insured against trnder'this discretion, to appeal frorn anv adverse judgment or order. policy, togetherwith any attornevs' fees and expenses incurred by (d) In ail eases where.this policy permits or requires the Company tyre insured claimant which were authorized by the Company up to the to prosecute or providefor the defense of any action or proceeding, the tune of payr7rent and which the Cornliany is obligated to pay; or i FISH Fed sl`ralI secrtre to the Compatly the rig l - rt toso l)rosectite or provicte (it) to pay or otherwise settle with the insured claimant the loss defense in the action or proceeding, and all appeals therein, and or damage provided for under this policy, together with any costs, - permit the Company to ttse, at its option, the name of the instirecl for attorneys' fees and expenses incurred by the insured claimant which this purpose. Whenever requested by the Company, the insured, at the were authorized by the Company up to the tune of l,�avrnent and which Corpany's expense, shall give the Company all reasonable aid (i) in anv the Company is obligated to pay. ' action or proceeding, securing evidence, obtaining witnesses, prosecut- Upon the exercise by the Company of either of the options provided for inn ordefendingtlieactioIIorproceeding ,oreffect.ino settlenient,and in paragrapils (b) or (ii), the Company's obligations to the insured (ii) fit anvotherlawful act which in the opinion of-the Courpany may be under this policy for tire claimed loss ordarnage , other than the payments necessary or desirable to establish the title to the estate or interest as required to be made, shall terminate, including anv liability or obliga- insured: If the Cornpanv is prejudiced bV the failure of the insured to t.ion to defend, prosecute or continue an.� litigation. furnish the required cooperation, the Company's obligations to the 7. Determination, Extent of Liability and Coinsurance Insured under tyre policy shall terminate, including any liability or This policy is a contract of Indemnity against actual monetary loss or obligation t.o defend, prosecute, or continue any ht.igation, with regard damage sustained or incurred by the. instired claimant,dio hassuffered to the. matter or matters requiring such cooperation. loss or damage by reason of matters insured against by this police and 5. Proof of Loss or Damage only -to the extent herein described. In addition to and after the notices regttired under Section 3 of these (a) The liability of the Compam° under this policy shall not exceed Conditions and Stipulations have been provided the Company, a proof the- least. of: - of loss or damage signed and sworn to by the insured claimant. shall be (1) the Aniourtt of Instnance stated in Schedule A; or, fItrilished to the Conipanywithin 90 days after the. Insured clainiantshall (ii) the difference between the valtie'of the inSm estate or ascertain the facts giving rise to the-loss or damage. The proof of loss interest as insured and the value of the insured estate or interest subject or damage shall describe the defect in, or lien or encumbrance on the to the defect, lien or encumbrance insured against by this policy. title, or. otherrnatt. erinstireclagainstby this policywhich constitutes tile (b) (This paragraph dealing with Coinsurance was reinovedf om Florida basis of loss or damage and shall state, to the extent possible, the basis policies.) of calculating the amount of the loss or damage. If the Company is (c) The .Company will pa only those costs, attornevs' fees and pr by the faihtre of the insisted claimant to provide the expenses incttrredinacc. ordancewith Section 4of these Conditionsand regni,red proof of loss or damage, the Company's obligations t.o the Stipulations insured under the policy shall .terminate, including any liability or 8. Apportionment obligation to defend, prosecute, or continue any litigation, with regard If, the land described in Scheditie A consists of two or more parcels to the matter or matters requiring such proof of loss or damage. which are not used as a single site, and a loss is established affecting one In addition, the insured claimant -rnay reasonably be required to subr or Inore of the parcels but not all, the loss shall be computed and settled to examination under oath by any authorized represent.ati��e of the on a pro rata basis as if tale anrourit of- nisurauce under this policy was Company and shall produce for exaniniation, inspection and copying, divided pro rata as to the value on Date of Policy of each separate parcel at such reasonable tinies and places as may be designated by a lly to the whole, exclusive of'anv improvements made stbseque.nt to Date authorized representative of the Company, all records, books, ledgers, of Policy, unless a. liability or valne'.has otherwise been agreed upon as checks, correspondence and memoranda, whether bearing a date to each parcel by the Company and the insured at the time of tire issuance before or after Date of policy, which reasonably pertain to the loss or of this policyand shown by - an express statement or by an endorsement. damage. Further, if requested by any authorized representative of the attached. to tills police. Company, the insur , III writing, for 9. Limitation of Liability any authorized representative of the Company to examine, Inspect and (a) If the Company establishes the title, or rentoves the alleged copy all records, books, ledgers, checks, correspondence and memo- defect, lien or encumbrance, or cures the lack of a right of access to or randy in the custody or control of a third party, �vhich front th eland, orcttrestheclaimof urttnarketabilityoftitle ,aliasinsitred, pertain tothe loss OF daniage. All information designated as confidential - inareasonablvd iligentmannet bvanvmer hod,includinglitigationand by the insured claimant provided to the Company pursnant to this the completion of any appeals therefrom, it shrill ha%e fillv performed Section. sl.tall not be disclosed to others unless, in the reasonable its obligations with respect to that matter and shall not be liable for arty jUdgnient of the Company,, it is necessary in the administration of the loss or clantage caused thereby. claim. Failure of the insured claimant to submit for examination under (b) In the event ofam lingation, includinglitigation h� the Company oath, produce other reasonably requested information orgrantpei - or with the Company s consent, the Company shall have no liability for sign to secure reasonably necessary inforrnanon from third parties as loss or damage until there has been a final determination bv a court of regnired in this paragraph shall terminate any liability of the Company competent jurisdiction, and disposition of all appeals therefrom, ad- uncler this policy as to chat. claim. verse to the title as insured. 6. Options To Pay or Otherwise Settle Claims; 'Termination of. (c) T1�eCompailyshallnotheliableforlossordamagetoarlyinsttred Liability for liability voluntarily assured by the insured in settling am: claim or In case of a claim under this policy, the Company shall have the suit without the prior uv'ritten consent of the Company. following additional options: 10. Reduction of Insurance; Reduction or Termination of Liability (a) To Pay or . Tender Payment of the Amount of Insurance. All payments tinder this polir\, except pavnlent.s made for costs. To pay or tender paytrnent of the amount of insurance ender this policy attornevs' fees and expenses, shall reCluce the amount of the instu pro tanto. (b) The Company's Rights Against Non - insured Obligors. 11. Liability Noncumulative The Company's right of subrogation against non - insured obligors shall It is expressly understood that, the amount of insurance wider this exist and shall include, without limitation, the rights of the insured to , policyshall be reducedbv any amouut. Company may pay underany inde.rnnities, guaranties, other policies of insurance or bonds, notwith- policy Insutring a mortgage to which exception is taken in Schedule B stanch ngany terms oi contained in those instrumerits which _ or to which the insured has agreed, assuriaecl, or taken subject, orxvhich - provide for subrogation rights by reason of this policy. is hereafter executed by all insured andwhich is a charge or lien oil the 14 Arbitration estate or interest described or referred to in Schedule A, and the Unless prohibited by applicable law, arbitration pursuant to the Title Insur- amount so paid shall be deemed a payment under this policy to the ance Arbitration .pules of the American Arbitration Association may be i nsu red owner. demanded ifagreed to by both the Company and the insured. Arbitrable matters 12. Payment of Loss may include, but are not limited to, any controversy or claim between the (a) No payment shall be made without producing this policy for Company and the insured arising out of or relating to this policy, and service endorsement of the payment unless the policy has been lost or de- of the Company in connection with its issuance or the breach of a policy stroyed, in which case proof of loss or destruction shall be furnished to provision or other obligation. Arbitration pursuant to this policy and under the satisfaction of the Company. the Rules in effect on the date the demandfor arbitration is made or, at the option (b) "'hen liability and the extent of loss or damage has been of the insured, the Rules in effect at Date of Policy shall be binding upon the definitely fixed in accordance with these Conditions and Stipulations, parties. The award may include attorneys' fees only if the laws of the state in the loss' or damage shall be payable within 30 days thereafter. wh. ichthelandislocatedperrnitacourttoawardattorneys 'feestoaprevailing 13. Subrogation Upon Payment or Settlement party.Judgment upon the award renderedbv the Arbitrator (s) may be entered (a) The Company's Right of Subrogation. in any court having jurisdiction thereof. 'V1`henever.the Company small have settled and paid a claim tinder this The law of the sites of the land shall apply to an arbitration under the policy, all right of subrogation shall vest in the Company unaffected by Title Insurance Arbitration Riules. any act of the insured claimant. A copy of the Rules may be obtained.from the Company upon request.. The Company shall be subrogated to and be entitled to all rights and 15. Liability Limited to this Policy; Policy Entire Contract remedies which the insured claimant would have had against any (a) This policy together with all endorsements, if any, attached person or property in respect to the claim had this policy not been hereto by the Company is the entire policy and contract between the issued. Ifrequested.by the Company, the insured claimant shall transfer insured and the Company. hn interpreting any provision of this policy, to the Company all rights and remedies against any person or property this policy shall be construed as a whole. necessary in order to perfect this right of subrogation. The insured (b) Any claim of loss or damage, whether or not based on negli- claimant shall permit the Company to sue, compromise or settle in the Bence, and which arises out of the status of the title to the estate or name of the insured claimant and to use the name of the insured interest covered hereby or by any action asserting.such claim, shall be claimant in anv transaction or litigation involving these rights or restricted to this policy. remedies. (c) No amendment of or endorsement to this policy can be made If a payment on account of a claim does not fully cover the loss of the except by a writing endorsed Hereon or attached hereto signed by insured claimant, the Company shall be subrogated to these rights and either the President, a Vice President, or Agent of the Company. remedies in the proportion which the Company's payment hears to the 16. Severability whole amount of the loss. In' the eventany provision of the policy is held invalid or unenforceable If loss should result from any act of the insured claimant, as stated under applicable law, the policy shall be deemed not to include that. above, that act shall not void this policy, but the Company, in that event, provision and all other provisions shall remain in full force and effect. shall be required to pay only that part of any losses insured against by 17. Notices, Where Sent this policy which shall exceed the amount, if any, lost to the Company All notices required to he given the Company and any statement in by reason of the impairment, by the insured claimant of the Company's writing required to be furnished the Companyshall include the number right of subrogation. of this policy:and shall be addressed to the Company at itsprincipal office at400SecondA venueSoutll ,Vlinneapolls,Miiinesota�)5401, ((312) 371- 1111.. 9� �'. n o G rn CA cp rzj z CA �. `r r ® ' y 1 -4 � ® a = a r G ,* s ® O r- n ° r J CD x