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Entry Properties
Modified	1/13/2014 10:54:19 AM
Created	1/13/2014 10:47:02 AM
Path	\City Clerk\01 Resolutions\2000 - 2009 Resolutions\SUNSET HARBOUR See Reso 2008-26969\Sunset Harbor
Template
City Clerk
Fields
City Clerk - Doc Type	Agreement
Reso or Ord #	2008-26969
Comments	SRC Properties, LLC

The URL can be used to link to this page

Sunset Harbor OFFICE OF THE CITY ATTORNEY ?e" F L 0 R I D A JOSE SMITH [NCO ��91y Telephone: (305) 673-7470 City Attorney 2 Facsimile: (305) 673-7002 August 18, 2008 Martin A. Schwartz, Esquire Bilzin Sumberg Baena Price & Axelrod LLP 200 So. Biscayne Blvd., Suite 2500 Miami, Florida 33131 RE: Predevelopment Agreement City of Miami Beach/SRC Properties, LLC Dear Mr. Schwartz: i Enclosed please find two (2) original fully executed Agreements regarding the above-referenced. Should you have any questions or comments, please do not hesitate to contact me. Ve tr ours Raul J. Aguil Deputy City ttorney RJA/ed Encl. 1700 Convention Center Drive-- Fourth Floor -- Miami Beach, Florida 33139 ffi Sumberg ATTORNEYS AT LAW Martin A.Schwartz, Esq. Tel 305.350.2367 Fax 305.351.2255 mschwartz @bilzin.com August 14, 2008 VIA FEDERAL EXPRESS Raul J. Aguila, Esq. First Assistant City Attorney City of Miami Beach 1700 Convention Center Drive, 4th Floor Miami Beach FL 33139 Re: Predevelopment Agreement City of Miami Beach/SRC Properties, LLC Dear Raul: Enclosed please find five original signed copies of the Predevelopment Agreement on behalf of SRC Properties LLC. Please have them executed and dated on behalf of the City and return two of the fully executed copies to me. Very truly yours, art' S wa rtz MAS/d Encl. cc: Brian Tague, Esq. (via email) Scott Robins (via email) Philip Levine (via email) MIAMI 1623 23 7.1 7319009976 BILZIN SUMBERG BAENA PRICE & AXELROD LLP 200 S. Biscayne Boulevard,Suite 2500, Miami, FL 33131-5340 Tel 305.374.7580 Fax 305.374.7593 n;n ;.biizin. orr PREDEVELOPMENT AGREEMENT THIS AGREEMENT dated as of August , 2008 ("Agreement") between CITY OF MIAMI BEACH, a Florida municipal corporation ("City") and SRC PROPERTIES, LLC, a Florida limited liability company ("SRC"). City and SRC are collectively referred to as the "Parties" and individually as a "Party." RECITALS A.- SRC, through certain affiliates, controls certain properties ("Project Properties") located in Miami Beach, Florida in the. area bounded by 19th Street on the north, 18`h Street on the south, Bay Road on the east and Purdy Avenue on the east. B. City and SRC are exploring an arrangement for the purchase of the air rights over . some of the Project Properties by the City ("Purchase") and the construction by the City of a parking garage ("Project"). C. In order to determine the feasibility of the Purchase, the City has requested SRC to obtain approvals of the Project from the City Planning Board and the City Design Review Board (collectively, "Board Approvals"). D. In order to obtain the Board Approvals, it will be necessary to perform-certain predevelopment work ("Predevelopment Work") and- the City has agreed to share the cost of such Predevelopment Work ("Predevelopment Costs") with SRC; notwithstanding that the Parties have:not at this time entered into a formal agreement with respect to the Project Properties and the development thereof. NOW, THEREFORE, in consideration of the premises recited above, the undertakings of the Parties described below and $10.00 and other good and valuable consideration paid by each Party to the other,the City and SRC agree as set forth below. 1. Predevelopment Work. SRC shall perform the Predevelopment Work consisting of the following: (a) Obtain sufficient architectural . and engineering plans for the Board Approvals; b Obtain a traffic study;. (c) Obtain a concurrency report; (d) Use reasonable commercial efforts to obtain a proposed design/build contract from a contractor reasonably acceptable to the City for execution by the City providing for completion of the Project (exclusive of the build out of the first floor retail space) at a cost of approximately$15,805 (low) to $20,377 (high)per parking space in accordance with SRC's prior submission to the City without consideration of any changes that may be necessitated in such contract by reason of the Board Approvals; MIAMI 1 598569.6 7319009976 8/12/08 10:59 AM (e) Obtain such other materials as may be required by the Planning Board and/or the Design Review Board to obtain the Board Approvals, including the items described in Schedule A; and (f) Obtain approval from any other City Boards whose approval may be required for the initial design and site plan of the Project. 2. Predevelopment Costs Payments. • (a) SRC and the City agree to share Approved Predevelopment Costs. SRC shall be responsible for 35% of Approved Predevelopment Costs and the City shall be responsible for 65% of Approved Predevelopment Costs. Approved Predevelopment Costs shall mean those Predevelopment Costs up to the amounts described in Schedule A. (b) The limits on Approved Predevelopment Costs and any additional Predevelopment Costs shall be subject to change from time to time upon written approval between the City and SRC. (c) Both the City and SRC agree to pay their respective share of Approved Predevelopment Costs within 30 days of receipt of an invoice for an item of such Approved Predevelopment Costs together with such additional information with respect to such invoice as may be reasonably requested by any of the Parties. The Parties agree that either Party may, by agreement between the Parties, be the disbursing agent for any such invoice and, in such event, the allocable share of each Party for such invoice shall be paid to the disbursing agent. Upon payment of any invoice, the disbursing agent shall obtain evidence of payment and distribute such evidence to the nondisbursing Party. (d) Predevelopment Costs shall not include any costs incident to developing retail facilities on the first floor of the Project Properties. 3. Notices. Any and all notices required or desired to be given under this Agreement shall be in writing and shall be deemed to have been duly given when delivered by(i) hand, (ii) facsimile (provided a confirmation sheet is provided by the sending machine), (iii) any overnight courier service (such as Federal Express) or (iv) United States mail, registered or certified mail, return receipt requested, postage prepaid, and in any such case addressed to the address of the Party to be notified set forth below (or to such other address as either Party may subsequently specify by a notice given in accordance with this-Section 5 to the other Party). Any Party may change the address for notice purposes by giving written notice in accordance with this Section 5. The Parties designate the following as the respective places for giving of notice: FOR CITY: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: Jorge M. Gonzalez, City Manager Fax No.: 305-673-7782 2 MIAMI 1599569.6 7319009976 8/12/08 10:59 AM ' r With a copy to: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: Kevin Crowder Fax No.: 305-673-7033 For SRC: SRC Properties LLC 230 Fifth Street Miami Beach, Florida 33139 Attn: Scott Robins Fax No.: 305-674-0619 4. Captions. All captions in this Agreement are for convenience only and are not to be referred to in connection with the construction or interpretation of this Agreement or any of its provisions. 5. Attorneys Fees. In any litigation brought or maintained pursuant to, or arising out of, the terms of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees from the other Party. 6. Assignment. SRC may assign this Agreement to any entity meeting the following requirements: (a) Scott Robins has a direct or indirect ownership interest in the entity; (b) the entity has an ownership interest in any of the Project Properties; and (c) the entity assumes in writing all of SRC's obligations under this Agreement. Upon any such assignment, SRC shall remain jointly and severally- liable for all obligations under this Agreement. This Agreement and its obligations shall nt otherwise be assignable without the prior written consent of the non-assigning Party. Except as otherwise indicated in this Section, this Agreement shall be binding on the successors and assigns of the respective Parties. 7. Termination. Either Party may terminate this Agreement at any time by notice to the other Party. Such termination will not relieve either of the Parties of its payment obligation for Predevelopment Costs incurred or for which an obligation for payment has been incurred pursuant to any written or oral agreement entered into by either Party prior to the non- terminating Party's receipt of notice of termination. The obligation for payment of such Predevelopment Costs shall survive termination of this Agreement. 3 MIAMI 1598569.6 7319009976 8/12/08 10:59 AM 8. Complete Agreement. This Agreement contains the entire understanding of the Parties relating to the subject matter of this Agreement and cannot be changed or-terminated except by an instrument signed by both Parties. 9. No Joint Venture Nor Agreement to Purchase. This Agreement does not and shal I not be construed to create a partnership or j oint venture between the Parties. Neither Party shall be liable for any act or omission of the other Party. This Agreement does not constitute an agreement to sell or an agreement to purchase any portion of the Project Properties nor shall it bind either of the Parties to reach such agreement. To the extent the Parties reach any such agreement, it will be the subject of a further written agreement executed by the Parties. The failure of the Parties to reach an agreement for the sale and purchase of the Project Properties shall not relieve either Party of its payment obligations under this Agreement. 10. Governing Law. This Agreement has been entered into in the State of Florida, and the validity, interpretation and legal effect of this Agreement shall be governed by the laws of the State of Florida applicable to contracts entered into and performed entirely within the State of Florida. Jurisdiction and venue of any controversies regarding this Agreement, and any action or other proceeding which involves such a controversy will be brought in Miami=Dade County, Florida and not elsewhere. 11. Partial Invalidity. In the event any provision of. this Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legally constituted body having jurisdiction to make such determination, the remainder of the Agreement shall remain in full force and effect. 4 MIAMI 1598569.6 73I9009976 8/12/08 10:59 AM 12. Construction of Agreement. The Parties acknowledge that each has participated in and has been equally responsible for preparation of this Agreement, and that this Agreement or any possible ambiguities contained therein shall not be construed against either Party. 13. Agreement Subject to Ratification by City Commission. The Parties acknowledge that, pursuant to prior authorization of the City Commission with regard to the Project, the City has (as of the effective date of this Agreement) appropriated $50,000 toward the Predevelopment Costs, as set forth in Schedule A hereto. Accordingly, the balance of Predevelopment Costs shall be subject to appropriation by the City Commission. The City shall have no obligation to reimburse any Predevelopment Costs beyond $50,000 until such time as the balance of said Costs are approved by the City Commission. In the event that the City Commission does not approve the appropriation of the balance of the Predevelopment Costs by October 1, 2008, then this Agreement may be terminated by either party, upon three (3) days written notice to the other. In the event of a termination pursuant to this Section 13, the City shall compensate SRC for the City's portion of the Predevelopment Costs incurred up to the date of termination (up to a maximum of$50,000), and thereafter the Parties shall have no further liability to each other with regard to this Agreement. CITY OF MIAMI BEACH By: 7ROPERTIES,LLC By Scott Robins, Managing Member APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION 5 MIAMI 1598569.6 7319009976 8/12/08 10:59 AM City Attom ate SCHEDULE A PREDE'VELOPMENT WORK ITEM MAXIMUM COST 1. Architectural and Landscape Plans $952000 2. Traffic Study $22,100 I Renderings $6,000 4. Survey Preparation $11050 5. Environmental Reports $2,000 6. Application, Filing Fees and $20,000 Miscellaneous fees 7. Attorneys and Miscellaneous $20,000 Consultants Fees 166 150 MIAMI 1598569.6 7319009976 8/12/08 10:59 AM c _ PREDEVELOPMENT AGREEMENT THIS AGREEMENT dated as of August , 2008 ("Agreement") between CITY OF MIAMI BEACH, a Florida municipal corporation ("City") and SRC PROPERTIES, LLC, a Florida limited liability company ("SRC"). City and SRC are collectively referred to as the "Parties" and individually as a "Party." RECITALS A.- SRC, through certain affiliates, controls certain properties ("Project Properties") located in Miami Beach, Florida in the area bounded by 19t" Street on the north, 18t" Street on the south, Bay Road on the east and Purdy'Avenue on the east. B. City and SRC are exploring an arrangement for the purchase of the air rights over . some of the Project Properties by the City ("Purchase") and the construction by the City of a parking garage ("Project"). C. In order to determine the feasibility of the Purchase, the City has requested SRC to obtain approvals of the Project from the City Planning Board and the City Design Review Board (collectively, "Board Approvals"). D. In order to-obtain the Board Approvals, it will be necessary to perform certain predeveloprnent work ("Predevelopment Work") and the City has agreed to share the cost of such Predevelopment Work ("Predevelopment Costs") with SRC; notwithstanding that the Parties have not at this time entered into a formal agreement with respect to the Project Properties and the development thereof. NOW,.THEREFORE, in consideration of the premises recited above, the undertakings of the Parties described below and $10.00 and other good and valuable consideration paid by each Party to the other,the City and SRC agree as set forth below. 1. Predevelonnient Work. SRC shall perform the Predevelopment Work consisting of the following: (a) Obtain sufficient architectural .and engineering plans for the Board Approvals; (b) Obtain a traffic study;. (c) Obtain a concurrency report; (d) Use reasonable commercial efforts to obtain a proposed design/build contract from a contractor reasonably acceptable to the City for execution by the City providing for completion of the Project (exclusive of the build out of the first floor retail space) at a cost of approximately $15,805 (low) to $20,377 (high) per parking space in accordance with SRC's prior submission to the City without consideration of any changes that may be necessitated in such contract by reason of the Board Approvals; MIAMI 1598569.6 7319009976 8/12/08 10:59 AM .m (e) Obtain such other materials as may be required by the Planning Board and/or the Design Review Board to obtain the Board Approvals, including the items described in Schedule A; and (f) Obtain approval from any other City Boards whose approval may be required for the initial design and site plan of the Project. 2. Predevelopment Costs Payments. (a) SRC and the City agree to share Approved Predevelopment Costs. SRC shall be responsible for 35% of Approved Predevelopment Costs and the City shall be responsible for 65% of Approved Predevelopment Costs. Approved Predevelopment Costs shall mean those Predevelopment Costs up to the amounts described in Schedule A. (b) The limits on Approved Predevelopment Costs and any additional Predevelopment Costs shall be subject to change from time to time upon written approval between the City and SRC. (c) Both the City and SRC agree to pay their respective share of Approved Predevelopment Costs within 30 days of receipt of an invoice for an item of such Approved Predevelopment Costs together with such additional information with respect to such invoice as may be reasonably requested by any of the Parties. The Parties agree that either Party may, by agreement between the Parties, be the disbursing agent for any such invoice and, in such event, the allocable share of each Party for such invoice shall be paid to the disbursing agent. Upon payment of any invoice, the disbursing agent shall obtain evidence of payment and distribute such evidence to the nondisbursing Party. (d) Predevelopment Costs shall not include any costs incident to developing retail facilities on the first floor of the Project Properties. 3. Notices. Any and all notices required or desired to be given under this Agreement shall be in writing and shall be deemed to have been duly given when delivered by (i) hand, (ii) facsimile (provided a confirmation sheet is provided by the sending machine), (iii) any overnight courier service (such as Federal Express) or (iv) United States mail, registered or certified mail, return receipt requested, postage prepaid, and in any such case addressed to the address of the Party to be notified set forth below (or to such other address as either Party may subsequently specify by a notice given in accordance with this'Section 5 to the other Party). Any Party may change the address for notice purposes by giving written notice in accordance with this Section 5. The Parties designate the following as the respective places for giving of notice: FOR CITY: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: Jorge M. Gonzalez, City Manager Fax No.: 305-673-7782 2 MIAMI 1598569.6 7319009976 8/12/08 10:59 AM w s With a copy to: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: Kevin Crowder Fax No.: 305-673-7033 For SRC: SRC Properties LLC 230 Fifth Street Miami Beach, Florida 33139 Attn: Scott Robins Fax No.: 305-674-0619 4. Captions. All captions in this Agreement are for convenience only and are not to be referred to in connection with the construction or interpretation of this Agreement or any of its provisions. 5. Attorneys Fees. In any litigation brought or maintained pursuant to, or arising out of, the terms of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys'fees from the other Party. 6. Assignment. SRC may assign this Agreement to any entity meeting the following requirements: (a) Scott Robins has a direct or indirect ownership interest in the entity; (b) the entity has an ownership interest in any of the Project Properties; and (c) the entity assumes in writing all of SRC's obligations under this Agreement. Upon any such assignment, SRC shall remain jointly and severally liable for all obligations under this Agreement. This Agreement and its obligations shall not otherwise be assignable without the prior written consent of the non-assigning Party. Except as otherwise indicated in this Section, this Agreement shall be binding on the successors and assigns of the respective Parties. 7. Termination. Either Party may terminate this Agreement at any time by notice to. the other Party. Such termination will not relieve either of the Parties of its payment obligation for Predevelopment Costs incurred or for which an obligation for payment has been incurred pursuant to any written or oral agreement entered into by either Party prior to the non- terminating Party's receipt of notice of termination. The obligation for payment of such Predevelopment Costs shall survive termination of this Agreement. 3 MIAMI 1598569.6 7319009976 8/12/08 10:59 AM 8. Complete Agreement. This Agreement contains the entire understanding of the Parties relating to the subject matter of this Agreement and cannot be changed or terminated except by an instrument signed by both Parties. 9. No Joint Venture Nor Agreement to Purchase. This Agreement does not and shall not be construed to create a partnership or joint venture between the Parties. Neither Party shall be liable for any act or omission of the other Party. This Agreement does not constitute an agreement to sell or an agreement to purchase any portion of the Project Properties nor shall it bind either of the Parties to reach such agreement. To the extent the Parties reach any such agreement, it will be the subject of a further written agreement executed by the Parties. The failure of the Parties to reach an agreement for the sale and purchase of the Project Properties shall not relieve either Party of its payment obligations under this Agreement. 10. Governing Law. This Agreement has been entered into in the State of Florida, and the validity, interpretation and legal effect of this Agreement shall be governed by the laws of the State of Florida applicable to contracts entered into and performed entirely within the State of Florida. Jurisdiction and venue of any controversies regarding this Agreement, and any action or other proceeding which involves such a controversy will be brought in Miami-Dade County, Florida and not elsewhere. 11. Partial Invalidity. In the event any provision of this Agreement shall be determined-to be invalid or unenforceable by a court of competent jurisdiction or by any other legally constituted body having jurisdiction to make such determination, the remainder of the Agreement shall remain in full force and effect. 4 MIAMI 1 598569.6 7319009976 8/12/08 10:59 AM s 12. Construction of Agreement. The Parties acknowledge that each has participated in and has been equally responsible for preparation of this Agreement, and that this Agreement or any possible ambiguities contained therein shall not be construed against either Party. 13. Agreement Subject to Ratification by City Commission. The Parties acknowledge that, pursuant to prior authorization of the City Commission with regard to the Project, the City has (as of the effective date of this Agreement) appropriated $50,000 toward the Predevelopment Costs, as set forth in Schedule A hereto. Accordingly, the balance of Predevelopment Costs shall be subject to appropriation by the City Commission. The City shall have no obligation to reimburse any Predevelopment Costs beyond $50,000 until such time as the balance of said Costs are approved by the City Commission. In the event that the City Commission does not approve the appropriation of the balance of the Predevelopment Costs by October 1, 2008, then this Agreement may be terminated by either party, upon three (3) days written notice to the other. In the event of a termination pursuant to this Section 13, the City shall compensate SRC for the City's portion of the Predevelopment Costs incurred up to the date of termination (up to a maximum of$50,000), and thereafter the Parties shall.have no further liability to each other with regard to this Agreement. CITY OF MIAMI BEACH By: SRC 7.TIES,LLC By: Scott Robins, Managing Member APPROVED AS TO FORM &LANGUAGE &FOR EXECUTION 5 MIAMI 1598569.6 7319009976 8/12/08 10:59 AM �O ity ttorn ate a SCHEDULE A PREDEVELOPMENT WORK ITEM MAXIMUM COST 1. Architectural and Landscape Plans $951000 2. Traffic Study $22,100 3. Renderings $6,000 4. Survey Preparation $1,050 5. Environmental Reports $2,000 6. Application, Filing Fees and $20,000 Miscellaneous fees 7. Attorneys and Miscellaneous $20,000 Consultants Fees 166 150 MIAMI 1598569.6 7319009976 8/12/08 10:59 AM AGREEMENT BETWEEN CITY OF MIAMI BEACH AND ARQUITECTONICA INTERNATIONAL CORP. FOR PROFESSIONAL ARCHITECTURE AND ENGINEERING SERVICES FOR THE PURDY AVENUE GARAGE AND RETAIL PROJECT Resolution No. d o i TABLE OF CONTENTS DESCRIPTION ARTICLE 1 DEFINITIONS 1 1.1 City 1 1.2 City Commission 2 1.3 City Manager 2 1.4 Proposal Documents 2 1.5 Consultant 2 1.6 City Project Coordinator 2 1.8 Basic Services 2 1.9 The Project 2 1.9.1 The Project Cost 3 1.9.2 The Project Scope 3 1.10 Construction Cost 3 1.10.1 Construction Cost Budget 3 1.10.2 Statement of Probable Construction Cost 3 1.11 Force Majeure 3 1.12 Contractor 4 1.13 Contract Documents 4 1.14 Contract for Construction 4 1.15 Construction Documents 4 1.16 Contract Amendment 4 1.17 Additional Services 4 1.18 Work 5 1.19 Services 5 1.20 Base Bid 5 1.21 Schedules 5 1.22 Scope of Services 5 ARTICLE 2. BASIC SERVICES 2.1 Planning Services 6 2.2 Design Services 7 2.3 Bidding and Award Services 7 2.4 Construction Phase Services 7 2.5 Additional Services 7 2.6 Responsibility for Claims and Liabilities 7 2.7 Time 7 ARTICLE 3. THE CITY'S RESPONSIBILITIES 11 ARTICLE 4. RESPONSIBILITY FOR CONSTRUCTION COST 14 ARTICLE 5. ADDITIONAL SERVICES 15 ARTICLE 6. REIMBURSABLE EXPENSES 16 ii ARTICLE 7. COMPENSATION FOR SERVICES 16 ARTICLE 8. CONSULTANT'S ACCOUNTING RECORDS 18 ARTICLE 9. OWNERSHIP AND USE OF DOCUMENTS 18 ARTICLE 10. TERMINATION OF AGREEMENT 19 10.1 Termination for Lack of Funds 19 10.2 Termination for Cause 19 10.3 Termination for Convenience 20 10.4 Termination for Condition Precedent 20 10.5 Termination by Consultant 20 10.6 Implementation of Termination 21 10.7 Non-Solicitation 21 ARTICLE 11. INSURANCE 21 ARTICLE 12. INDEMNIFICATION 22 ARTICLE 13. VENUE 22 ARTICLE 14. LIMITATION OF LIABILITY 22 ARTICLE 15. MISCELLANEOUS PROVISIONS 23 ARTICLE 16. NOTICE 25 SCHEDULES: SCHEDULE A SCOPE OF SERVICES SCHEDULE B CONSULTANT COMPENSATION SCHEDULE C HOURLY BILLING RATE SCHEDULE D PROJECT SCHEDULE SCHEDULE E GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT SCHEDULE F INSURANCE AND SWORN AFFIDAVITS SCHEDULE G BEST VALUE AMENDMENT iii TERMS AND CONDITIONS OF AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND CONSULTANT ARQUITECTONICA INTERNATIONAL CORP. FOR PROFESSIONAL ARCHITECTURE AND ENGINEERING (A/E) SERVICES FOR THE PURDY AVENUE GARAGE AND RETAIL PROJECT 0 entered into this ? day of:AMsch 2009 b and between the CITY OF MIAMI This Agreement made and _ y Y BEACH, a municipal corporation existing under the laws of the State of Florida (hereinafter referred to as City), having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and Arquitectonica International Corp., a Florida corporation having its principal office at 801 Brickell Avenue, Suite 1100, Miami, Florida, 33131 (hereinafter referred to as Consultant). WITNESSETH: WHEREAS, the City intends to undertake a project within the City of Miami Beach, which is more particularly described in this Agreement and the attached Schedule "A", and wishes to engage the Consultant to provide architecture, landscape architecture, and engineering services for the Project at the agreed fees as set forth in this Agreement; and WHEREAS, the Consultant desires to contract with the City for performance of architectural, engineering, urban design, and landscape architectural, and related professional services relative to the Project, as hereinafter set forth; and NOW THEREFORE, City and Consultant, in consideration of the mutual covenants and agreement herein contained, agree as follows: ARTICLE 1. DEFINITIONS 1.1 CITY: The "City" shall mean the City of Miami Beach, a Florida municipal corporation having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139. 1.2 CITY COMMISSION: "City Commission" shall mean the governing and legislative body of the City. 1.3 CITY MANAGER: The "City Manager" shall mean the chief administrative officer of the City. The City Manager shall be construed to include any duly authorized designees, including the Project Coordinator and shall serve as the City's representative to whom administrative requests for approvals shall be made and who shall issue authorizations (exclusive of those authorizations reserved to the City Commission) to the Consultant. 1.4 PROPOSAL DOCUMENTS: "Proposal Documents" shall mean the documents dated August 01, 2008, and submitted to and approved by the Design Review Board for the Project. 1.5 CONSULTANT: The "Consultant" is herein defined as Arquitectonica International Corp., a Florida corporation having its principal offices at 801 Brickell Avenue, Suite 1100, Miami, FL 33131. When the term "Consultant" is used in this Agreement it shall be deemed to include any sub- consultants and any other person or entity acting under the direction or control of Consultant. Any subconsultants retained by Consultant pursuant to this Agreement and the Project shall be subject to prior written approval of the City. The following subconsultants are hereby approved by the City for Project: the Proj I� Structural Engineer: Donnell Duquesne Albarsa Engineers, PA. Landscape Architect: Arquitectonica GEO M/E/P: Fire Engineer: PGI Group Civil Engineer: Terra Civil Engineering 1.6 PROJECT COORDINATOR:The "Project Coordinator" shall mean the individual appointed by the City Manager who shall be the City's authorized representative to coordinate, direct, and review on behalf of the City, all matters related to the Project, except as otherwise provided herein. 1.8 BASIC SERVICES: "Basic Services" shall include the architectural and interior design, landscape architectural, and/or engineering and related professional services relative to the Project, as hereinafter set forth, including: planning, design, bidding/award, and construction administration for the Project, as described in Article 2 herein and in Schedule"A"entitled "Scope of Services" attached hereto. 1.9 PROJECT:The "Project" shall mean the City Capital Project that has been approved by the City Commission and as described in Schedule "A" attached hereto. 2 1.9.1 PROJECT COST: The "Project Cost", as established by the City, shall mean the total cost of the Project to the City including: Construction Cost, professional compensation, land cost, if any, financing cost, materials testing services, surveys, contingencies and other miscellaneous costs. 1.9.2 PROJECT SCOPE: The "Project Scope" shall mean the description of the Project contained in Schedule "A" attached hereto. 1.10 CONSTRUCTION COST: The "Construction Cost" for the Project shall mean the sum which is the total cost or estimated cost to the City of all elements of the Project designed or specified by the Consultant and approved by the City, including, at current market rates (with a reasonable allowance for overhead and profit), the cost of labor and materials and any equipment which has been designed, specified, selected or specifically provided for by the Consultant and approved by the City, and including a contingency allowance for unforeseen conditions, not to exceed ten percent (10%) of the construction cost for new construction, or twenty percent (20%) of construction cost for rehabilitation of historic buildings, and not including the compensation of the Consultant and any subconsultants, the cost of land, rights-of-way, surveys, testing, or other reimbursable expenses. For Work not constructed, the Construction Cost shall be the same as the lowest bona fide bid or competitive bid received and accepted from a responsible bidder or proposer for any and all of such Work. 1.10.1 CONSTRUCTION COST BUDGET: The "Construction Cost Budget" shall mean an amount budgeted by the City for Construction Cost, as specified in the Project Scope in Schedule "A" attached hereto. 1.10.2 STATEMENT OF PROBABLE CONSTRUCTION COST: The "Statement of Probable Construction Cost" shall mean a forecast of Construction Cost prepared by the Consultant, as defined in attached Schedule "A", entitled "Scope of Services", for the guidance of the City. For Work which bids or proposals have not been let, the Construction Cost shall be the same as the latest Statement of Probable Construction Cost. The City shall have the right to verify the Statement of Probable Construction Cost or detailed cost estimate by the Consultant. 1.11 FORCE MAJEURE: "Force Majeure" shall mean any delay occasioned by superior or irresistible force occasioned by violence in nature without the interference of human agency such as hurricanes, tornadoes, floods, loss caused by fire and other similar unavoidable casualties; or by changes in Federal, State or local laws, ordinances, codes or regulations, enacted after the date of this Agreement and having a substantial impact on the Project; other causes beyond the parties' control; or by any other such causes which the Consultant and the City decide in writing justify the delay; provided, 3 however, that market conditions, labor conditions, construction industry price trends and similar matters which normally impact on the bidding process shall not be considered a Force Majeure. 1.12 CONTRACTOR / CONTRACTORS: "Contractor" or "Contractors" shall mean those persons or entities responsible for performing the Work or providing the materials, supplies and equipment identified in the Bid and Construction Documents for the Project. 1.13 CONTRACT DOCUMENTS: "Contract Documents" shall mean this Agreement; the Agreement between the City and Contractor; Contract for Construction; Conditions of the Contract for Construction (General, Supplementary, and other Conditions); Construction Documents; and addenda issued prior to execution of the Contract for Construction. A modification is one of the following: (1) written amendment to this Agreement or the Contract for Construction signed by both parties; (2) an approved Change Order; (3) a Construction Change Directive; or (4) a written order for a minor change in the Work issued by the Consultant. 1.14 CONTRACT FOR CONSTRUCTION: "Contract for Construction" shall mean a legally binding agreement with Contractors. 1.15 CONSTRUCTION DOCUMENTS: "Construction Documents" shall mean the final plans, specifications, drawings, documents and diagrams submitted by the Consultant pursuant to Article 2.2 and Schedule "A" attached hereto. I, 1.16 CONTRACT AMENDMENT: "Contract Amendment" shall mean the written order to the Consultant approved by the City, as specified in this Agreement, and signed by the City's duly authorized representative, authorizing a change in the Project or the method and manner of performance thereof, or an adjustment in the fees and/or completion dates, as applicable. Contract Amendments shall be approved by the City Commission, if they exceed twenty-five thousand dollars ($25,000.00) or the City Manager if they are twenty-five thousand dollars ($25,000.00) or less in amount (or other such amount as may be specified by the City of Miami Beach Procurement Ordinance, as amended). Even for Contract Amendments for less than twenty-five thousand ($25,000.00), the City Manager shall retain the right to seek and obtain concurrence of the City Commission for the approval of any such Contract Amendment. 1.17 ADDITIONAL SERVICES: "Additional Services" shall mean those services described in Article 5 herein, which have been duly authorized in writing by the City Manager prior to commencement of same. 4 i 1.18 WORK: "Work" shall mean the work to be performed on the Project by the Contractor, pursuant to the applicable Documents, whether completed or partially completed, and includes labor and materials, equipment, and services provided, or to be provided, by the Contractor to fulfill its obligations. 1.19 SERVICES: "Services" shall mean the services to be performed on the Project by the Consultant pursuant to this Agreement, whether completed or partially completed, and includes other labor and materials, equipment and services provided, or to be provided, by Consultant to fulfill its obligations herein. 1.20 BASE BID: "Base Bid" shall mean the elements contained in the Construction Documents recommended by the Consultant and approved by the City as being within the Construction Cost Budget pursuant to the Statement of Probable Construction Cost provided by Consultant. "Base Bid" shall not include "Additive Alternates" or"Deductive Alternates". 1.21 SCHEDULES: "Schedules" shall mean the various schedules attached to this Agreement and referred to as follows: Schedule A— Scope of Services. Schedule B— Consultant Compensation: The schedule of compensation to the Consultant for Basic Services, and for Reimbursable Expenses, as defined, plus any Additional Services, as submitted by the Consultant and approved by the City. Schedule C — Hourly Billing Rate Schedule: The schedule of Hourly Compensation Rates to the Consultant as submitted by the Consultant and approved by the City. Schedule D — Project Schedule. Schedule E — General Conditions of the Construction Contract Schedule F — Insurance and Sworn Affidavits Schedule G — Best Value Amendment 1.22 SCOPE OF SERVICES: "Scope of Services" shall mean the Project Scope as described in Schedule "A", together with the Basic Services and any Additional Services approved by the City, as described in Articles 2 and 5, respectively herein. 5 ARTICLE 2. BASIC SERVICES The Consultant shall provide Basic Services for the Project as set forth hereafter. The Services for this Project will be performed by the Consultant upon receipt of a written Notice to Proceed issued by the City Manager, or his designee, and Consultant shall countersign the Notice to Proceed. A separate Notice to Proceed shall be required for commencement of each Task, as defined in attached Schedule "A" entitled "Scope of Services". The Consultant's Basic Services shall consist of five (5) Tasks (inclusive of planning, design, bidding/award, construction administration and additional services) as described in attached Schedule "A ", Scope of Services, and including, without limitation, any and all of consultant's responsibilities and obligations, as set forth in the General Conditions of the Construction Contract (Schedule "E"). The Consultant shall coordinate with subconsultants and other consultants, and conform to all applicable building codes and regulations. Consultant, as it relates to its Services, represents and warrants to the City that it is knowledgeable of codes, rules and regulations applicable in the jurisdictions in which the Project is located, including, local ordinances and codes (City of Miami Beach and Miami-Dade County), Florida Statutes, Administrative rules and regulations including, Federal laws, rules and regulations. The Consultant agrees to comply with all such laws, codes, rules, and regulations now in effect, and as may be amended or adopted at any time, and shall further take into account all known pending changes to the foregoing, of which it should reasonably be aware. The Consultant shall insert the provisions of all required laws, codes rules and regulations into the Contract Documents. The Consultant expressly agrees that all of its duties, services and responsibilities under this Agreement shall be performed in accordance with the standard of care normally exercised in the design of projects of this nature in South Florida. In addition, Consultant represents that it is experienced and fully qualified to perform the Services contemplated by this Agreement, and that it is properly licensed pursuant to the applicable laws, rules and regulations to perform such Services. Consultant warrants that it shall be responsible for the technical accuracy of its work, including without limitation the Design Documents contemplated in Section 2.1 below and the attached Schedule "A". 2.1 PLANNING SERVICES: Consultant shall prepare Planning services, as noted in attached Schedule "A" (Task 1) entitled "Scope of Services". 6 2.2 DESIGN SERVICES: Based on the approved Planning documents developed under Section 2.1, Consultant shall prepare Design Documents, as noted in attached Schedule "A", (Task 2) entitled "Scope of Services" 2.3 BIDDING AND AWARD SERVICES: Consultant shall provide bidding and award services as noted in attached Schedule "A" (Task 3) entitled "Scope of Services". 2.4 CONSTRUCTION ADMINISTRATION SERVICES: Consultant shall furnish construction administration services as noted in attached Schedule "A" (Task 4) entitled "Scope of Services". 2.5 ADDITIONAL SERVICES: If required and so approved by the City, Consultant shall provide Additional Services as noted in attached Schedule "A", (Task 5) entitled "Scope of Services". 2.6 RESPONSIBILITY FOR CLAIMS AND LIABILITIES: Approval by the City shall not constitute nor be deemed a release of the responsibility and liability of the Consultant, its employees, subcontractors, agents and consultants for the accuracy and competency of their designs, working drawings, specifications or other documents and services; nor shall such approval be deemed to be an assumption of such responsibility by the City for a defect, error or omission in designs, working drawings, specifications or other documents prepared by the Consultant, its employees, subcontractors, agents and consultants. However, the Consultant shall be entitled to reasonably rely upon the accuracy and validity of written decisions and approvals furnished by the City and its P Y Y employees. 2.7 TIME: It is understood that time is of the essence in the completion of this Project, and in this respect the parties agree as follows: 2.7.1 The Consultant shall perform the Services as expeditiously as is consistent with the standard of professional skill and care required by this Agreement and the orderly progress of the Work. 2.7.2 The parties agree that the Consultant's Services during all phases of this Project will be performed in a manner that shall conform with the approved Project Schedule, which is attached to this Agreement as Schedule "D". The Consultant may submit requests for an 7 adjustment to the Project Schedule, made necessary by undue time taken by the City to approve the Consultant's submissions, and/or excessive time taken by the City to approve the Services or parts of the Services. The City shall not unreasonably refuse to approve such adjustment(s) to the Project Schedule if the request is made in a timely manner and is fully justified. 2.7.3 In providing the Services described in this Agreement, the Consultant shall use its best efforts to maintain, on behalf of the City, a constructive, professional, cooperative working relationship with the Contractor(s), and others that have been contracted to perform Services and/or Work pertaining to the Project. While the Services to be provided by Consultant under this Agreement will be provided under the general direction of the City's Program Coordinator, it is the intent of this Agreement to allow the Consultant to coordinate the performance of all design and construction administration to the extent such coordination by the Consultant is permitted by the contracts for the design and construction administration. 2.7.4 It is further the intent of this Agreement that the Consultant shall perform its duties under this Agreement in a competent, timely and professional manner and that it shall be responsible to the City for any failure in its performance except to the extent that acts or omissions by the City or others make such performance impossible. 2.7.5 Whenever during the term of this Agreement, others are required to verify, review, or consider any work performed by Consultant, including but not limited to the design professionals, Contractors, and other consultants retained by the City, the intent of such requirement is to enable the Consultant to receive input from others professional expertise to identify any discrepancies, errors or omissions that are inconsistent with industry standards for design or construction of comparable public projects; or which are inconsistent with applicable laws, codes, ordinances, and regulations; or which are inconsistent with standards or decisions provided in writing by the City's Project Coordinator. Consultant will use reasonable care and skill in accordance with and i consistent with customary professional standards in responding to items identified as discrepancies, errors and omissions by others. Consultant shall receive comments from reviewers via a set of marked-up drawings and specifications. Consultant shall address comments forwarded to it in a timely manner. The term "timely" shall be construed to mean as soon as possible under the circumstances, taking into account the requirements of the Project Schedule. 2.7.6 The City shall have the right at any time, and in its sole and absolute discretion, to submit for review to consulting engineers or consulting architects or other consultants, engaged by the City at its own expense for that purpose, any or all parts of the services performed by the 8 Consultant, and the Consultant shall cooperate fully in such review at the City's request. 2.7.7 Consultant agrees to certify and warrant all estimates of Construction Cost prepared by Consultant. Said certifications shall be in a form and manner as approved by the City's Project Coordinator. 2.7.8 Consultant represents to City that all evaluations of the City's Project Budget, Consultant generated Statement of Probable Construction Cost, and detailed estimates represent Consultant's best judgment as a design professional familiar with the construction industry. Consultant cannot and does not guarantee that bids or negotiated prices will not vary from any estimate of Construction Cost or evaluation prepared or agreed to by Consultant. 2.7.9 Consultant agrees that, when the Services to be provided hereunder relate to a professional service which, under Florida Statutes, requires a license, certification of authorization, or other form of legal entitlement to practice such services, it shall employ and/or retain only qualified personnel to provide such services. 2.7.10 Consultant agrees to employ and designate in writing, within five (5) calendar days after receiving its initial Notice to Proceed, a qualified licensed professional to serve as the Consultant's project manager (herein after referred to as "Project Manager"). The Project Manager shall be authorized and responsible to act on behalf of Consultant with respect to directing, coordinating and administrating all aspects of Services to be provided and performed under this Agreement. The person selected by Consultant to serve as Project Manager shall be subject to approval and acceptance by City. Replacement (including reassignment) of said Project Manager shall not be made without the prior written approval of the City. 2.7.11 Consultant agrees, within fourteen (14) calendar days of receipt of written notice to do such from City, to promptly remove and replace Project Manager, or any other personnel employed or retained by Consultant, or any subconsultant or subcontractors engaged by Consultant, which request may be made by City with or without stating its cause. 2.7.12 Consultant herein represents to City that it has expertise in the type of professional services that will be performed and pursuant to this Agreement. Consultant agrees that all Services to be provided by Consultant pursuant to this Agreement shall be subject to City's review and approval and shall be in accordance with the generally accepted standards of professional practice in the State of Florida, as well as in accordance with applicable published laws, statutes, 9 ordinances, codes, rules, regulations and requirements of any governmental agencies having jurisdiction over the Project or the Services to be performed by Consultant hereunder. In the event of any conflicts in these requirements, Consultant shall notify City of such conflict and utilize its best professional judgment to advise City regarding resolution of each such conflict. 2.7.13 Consultant agrees not to divulge, furnish or make available to any third person, firm or organization, without City's prior written consent, or unless incident to the proper performance of Consultant's obligations hereunder, or in the course of judicial or legislative proceedings where such information has been properly subpoenaed, any non-public information concerning Services to be rendered by Consultant hereunder, and Consultant shall require its employees, agents, subconsultants and subcontractors to comply with the provisions of this paragraph. 2.7.14 The City and Consultant acknowledge that the Scope of Services does not delineate every detail and minor work task required to be performed by Consultant to complete the Project. If, during the course of the performance of the Services contemplated in this Agreement, Consultant determines that work should be performed to complete the Project which is, in the Consultant's opinion, outside the level of effort originally anticipated, whether or not the Scope of Services identifies the work items, Consultant shall notify the Project Coordinator, in writing, in a timely manner, and obtain said Project Coordinator's written consent, before proceeding with the work. The Project Coordinator must comply with Contract Amendment processing requirements as outlined in Article 1.16, prior to issuance of any written authorization to proceed with Additional Services to Consultant. If Consultant proceeds with additional Services without notifying and obtaining the consent of the Project Coordinator, said work shall be deemed to be within the original level of effort, and deemed included as a Basic Service herein, whether or not specifically addressed in the Scope of Services. Notice to the Project Coordinator does not constitute authorization or approval by the City to perform the work. Performance of work by Consultant outside the originally anticipated level of effort without the prior written consent of the City shall be at Consultant's sole risk, 2.7.15 Consultant shall establish and maintain files of documents, letters, reports, plans, etc. pertinent to the Project. Consultant shall provide City with a copy of applicable Project correspondence for City to file in its filing system. In addition, Consultant shall provide electronic Project document files to the City, at the completion of the Project. 2.7.16 It is further the intent of this Agreement that the Consultant shall perform its duties under this Agreement in a competent, timely and professional manner and that it shall be 10 responsible to the City for any failure in its performance except to the extent that acts or omissions by the City or others make such performance impossible. 2.7.17 In the event Consultant is unable to timely complete the Project because of delays resulting from untimely review by City or other governmental authorities having jurisdiction over the Project, or such delays which are caused by factors outside the control of Consultant, Consultant shall provide City with immediate written notice stating the reason for such delay and a revised anticipated schedule of completion. City, upon review of Consultant's submittal and such other documentation as the City may. require, may grant a reasonable extension of time for completion of the Project and may provide reasonable compensation, if appropriate. 2.7.18 The Consultant covenants with the City to furnish its Services hereunder properly, in accordance with the standards of its profession and in conformance with applicable construction, building and health codes and other applicable Federal, State and local rules, regulations and laws, of which it should reasonably be aware, throughout the term of this Agreement. The City's participation in the design and construction of the Project in no way relieves the Consultant of its professional duties and responsibilities under applicable law and under the Contract Documents ARTICLE 3. THE CITY'S RESPONSIBILITIES 3.1 The City shall designate in writing a Project Coordinator to act as the City's representative with respect to the services to be rendered under this Agreement (herein after referred to as Project Coordinator). The Project Coordinator shall have authority to transmit instructions, receive information, interpret and define City policies and decisions with respect to Consultant's Services on this Project. However, the Project Coordinator is not authorized to issue any verbal or written orders or instructions to Consultant that would have the effect, or be interpreted to have the effect, of modifying or changing in any way whatsoever, unless approved by the City (Manager and/or City Commission in compliance with Article 1.16 requirements, including but not limited to the following: a) The Scope of Services to be provided and performed by Consultant hereunder; b) The time the Consultant is obligated to commence and complete all such Services; or c) The amount of compensation the City is obligated or committed to pay Consultant. 3.2 The City shall assist Consultant by placing at Consultant's disposal all information that the City has available pertinent to the Project, including previous reports and any other data relative to design or construction of the Project. It shall be fully understood that City, in making such reports, site ]1 information, and documents available to the Consultant is in no way certifying representing and/or warranting as to the accuracy or completeness of such data. Any conclusions or assumptions drawn through examination thereof shall be the sole responsibility of the Consultant and subject to whatever measure it deems necessary to final verification essential to its performance under this Agreement. Additional Services required due to inaccurate, incomplete or incorrect information supplied by the City may be undertaken by the Consultant as an Additional Service to this Agreement. Consultant shall notify the Project Coordinator, in writing, in a timely manner and obtain said Project Coordinator's written consent, before proceeding with the work. If Consultant proceeds with the Additional Services without notifying and obtaining the consent of the Project Coordinator, said work shall be deemed to be within the original level of effort and deemed included as a Basic Service herein. 3.3 The City has established a Construction Cost Budget for the Project, as stated in Schedule A. 3.4 In the City's sole discretion, the City may furnish legal, accounting and insurance counseling services as may be required at any time for the Project, including such auditing services as the City may require to verify the Consultant's applications for payment or to ascertain that Consultant has remitted payment due to sub consultants or vendors working on this Project for which properly P Y Consultant has received payment from the City. 3.5 If the City observes or otherwise becomes aware of any fault or defect in the Project or non- conformance with the Contract Documents, the City shall give prompt written notice thereof to the Consultant. 3.6 The City shall furnish required information and services and render approvals and decisions in writing as reasonably expeditious as necessary for the orderly progress of the Consultant's Services and of the Work. No approvals required by the City during the various phases of the Project shall be unreasonably delayed or withheld; provided that the City shall at all times have the right to approve or reject any proposed submissions of Consultant for any reasonable basis. 3.7 The City Commission shall be the final authority to do or to approve the following actions or conduct by passage of an enabling resolution or amendment to this Agreement. 3.7.1 The City Commission shall be the body to consider, comment upon, or approve any amendments or modifications to this Agreement, except when noted otherwise (i.e., where delegated to the City Manager or his designee) in this Agreement. 12 3.7.2 The City Commission shall be the body to consider, comment upon, or approve any assignment, sale, transfer or subletting of this Agreement or any interest therein and any subcontracts made pursuant to this Agreement. Assignment and transfer shall be defined to include sale of the majority of the stock of a corporate Consultant. 3.7.3 All required City Commission approvals and authorizations shall be expressed by passage of an appropriate enabling resolution and, if an amendment, by the execution of an appropriate amendment to this Agreement. 3.7.4 The City Commission shall hear appeals from the administrative decision of the City Manager's appointed designee(s), upon the Consultant's written request, in which case the Commission's decision shall be final. 3.7.5 The City Commission shall approve or consider all Contract Amendments that exceed the sum of twenty five thousand dollars ($25,000.00) (or other such amount as may be specified by the City of Miami Beach Procurement Ordinance, as amended). 3.8 The City Manager or his designee(s) shall serve as the City's representative to whom administrative requests for approvals shall be made and who shall issue authorizations (exclusive of those authorizations reserved to the City Commission) to the Consultant. These authorizations shall include, without limitation: reviewing, approving, or otherwise commenting upon the schedules, plans, reports, estimates, contracts and other documents submitted to the City by the Consultant. 3.8.1 The City Manager shall decide, in his professional discretion, matters arising pursuant to this Agreement which are not otherwise expressly provided for in.this Agreement, and shall attempt to render administrative decisions promptly to avoid unreasonable delay in the progress of the Consultant's Services. The City Manager, in his administrative discretion, may consult with the City Commission concerning disputes or matters arising under this Agreement regardless of whether such matters or disputes are enumerated herein. 3.8.2 The City Manager shall be authorized, but not required, at the request of the Consultant, to reallocate monies already budgeted toward payment of the Consultant, provided, however, that the Consultant's compensation or other budgets established by this Agreement cannot be increased. 3.8.3 The City Manager, or his designee, shall be the sole representative of the City 13 authorized to issue a Notice to Proceed, as referenced in Article 2 and the attached Schedule "A" entitled "Scope of Services". 3.8.4 The City Manager may approve Contract Amendments which do not exceed the sum of twenty five thousand dollars ($25,000.00) (or other such amount as may be specified by the City of Miami Beach Purchasing Ordinance, as amended) and which do not increase any of the budgets established herein. 3.8.5 The City Manager may, in his sole discretion, form a committee or committees, or inquire of or consult with persons for the purpose of receiving advice and recommendations relating to the exercise of his powers, duties and responsibilities under this Agreement. ARTICLE 4. RESPONSIBILITY FOR CONSTRUCTION COST 4.1 The Construction Cost Budget, as established by the City and stated in Schedule "A", shall not be exceeded without fully justifiable, extraordinary and unforeseen circumstances, such as Force Majeure, which is beyond the control of the parties. Any expenditure above this amount shall be subject to prior City Commission approval by passage of an enabling resolution and amendments to the appropriate agreements relative to the Project, prior to any modification of the Construction Cost. Provided further, however, that even in the event of a Force Majeure, as defined in Article 1.11. the City shall have no obligation to approve an increase in the Construction Cost Budget limitations i established herein, and, if such budget is exceeded the City Commission ma y, at its sole option and discretion, terminate this Agreement without any further liability to the City. 4.2 If the lowest bona fide base bid exceeds the Construction Cost Budget by more than five percent (5%), the City Commission shall, at its sole discretion, have any of the following options: (1) give written approval of an increase in the Construction Cost Budget; (2) reject all bids or proposals, authorize rebidding, or (if permissible) authorize a renegotiation of the Project within a reasonable time' 3 abandon the Project and terminate the Consultant's Services for the Project covered by this , O J Agreement without further liability to the City; (4) select as many Deductive Alternatives as may be necessary to bring the award within the Construction Cost Budget; or (5) cooperate with the Consultant in reducing the Project scope, construction schedule, and sequence of Work, as may be required to reduce the Construction Cost Budget. in the event the City elects to reduce the Project Scope, the Consultant shall provide such revisions to the Construction Documents, and provide rebidding services, as many times as reasonably requested by the City, as a Basic Service, with no 14 additional cost to the City, in order to bring the bids within five percent (5%) of the Construction Cost Budget. ARTICLE 5. ADDITIONAL SERVICES 5.1 Additional Services for this Project will only be performed by the Consultant following receipt of a written authorization by the Project Coordinator prior to commencement of same. Such authorization shall contain a description of the Additional Services required; an hourly fee, as provided in Schedule "C" with an "Not to Exceed" amount on additional Reimbursable Expenses (if any); the amended Construction Cost Budget (if applicable); and an amended completion date for the Project (if any). "Not to Exceed" shall mean the maximum cumulative hourly fees allowable, which the Consultant shall not exceed without specific written authorization from the City. The "Not to Exceed" amount is not a guaranteed maximum cost for the services requested by the City and all costs applied to such shall be verifiable through time sheet and reimbursable expense reviews. 5.2 The term "Additional Services" includes services involving the Consultant or any subconsultants whether previously retained for the Services or not or whether participating as members with Consultant or not, subject to the City's right to previously approve any change in Consultants as set forth in this Agreement. 5.3 Additional Services may consist of the following: 5.3.1 Serving as an expert witness in connection with any public hearing, arbitration proceeding or legal proceeding unless such preparation has arisen from the failure of the Consultant to meet the Standard of Care set forth in Article 2. 5.3.2 Preparing documents for Change Orders, or supplemental Work, initiated at the City's request and outside the scope of the Work specified in the Construction Documents, after commencement of the construction phase. 5.3.3 Providing such other professional services to the City relative to the Project which arises from subsequent circumstances and causes (excluding circumstances and causes resulting from error, inadvertence or omission of the Consultant) which do not currently exist or which are not contemplated by the parties at the time of execution of this Agreement. 5.3.4 Assistance in connection with bid protests, rebidding or renegotiating contracts., 15 l for construction, materials, equipment or services, except as otherwise expressly provided for herein. ARTICLE 6. REIMBURSABLE EXPENSES 6.1 Reimbursable Expenses are an allowance set aside by the City and are not in addition to the compensation for Basic and Additional Services but include actual expenditures made by the Consultant in the interest of the Project. The Reimbursable Expenses allowance as specified in Schedule "B," belongs to the City and must be approved in advance by the City's Project Coordinator. Unused portions will not be paid to the Consultant. All Reimbursable Expenses pursuant to this Article, in excess of $500, must be authorized in advance in writing by the Project Coordinator. Invoices or vouchers for Reimbursable Expenses shall be submitted by the Consultant to the City, along with supporting receipts, and other back-up material reasonably requested by the City, and Consultant shall certify as to each such invoice that the amounts and items claimed as reimbursable are "true and correct and in accordance with the Agreement. 6.2 Expenses subject to reimbursement in accordance with the above procedures may include the following: 6.2.1 Expense of reproduction, postage and handling of drawings, specifications and other documents, excluding reproductions for the office use of the Consultant and sub- consultants. Courier and postage between the Consultant and its sub-consultants are not reimbursable. 6.2.2 Expenses for reproduction and the preparation of graphics for community workshops 6.2.3 Expenses for fees for all necessary permits. ARTICLE 7. COMPENSATION FOR SERVICES 7.1 The Consultant shall be compensated the not to exceed, cost reimbursable fee listed in Schedule "B" for Basic Services, based on the "Hourly Rate Schedule" presented in Schedule "C." Payments for Basic Services shall be made within thirty (30) working days of receipt and approval of an acceptable invoice by the City Project Coordinator. Payments shall be made in proportion to the Services 16 satisfactorily performed in each Phase so that the payments for Basic Services for each Phase shall not exceed the progress percentage noted in the Consultant's Progress Schedule, submitted with each invoice. No markup shall be allowed on subcontracted Basic Services. The City and the.Consultant agree that the Consultant's fee will be $348,475.00 for the provision of Basic Services as described in the Agreement and Schedule "A" attached hereto, with a reimbursable expense allowance of$66,390.00 as detailed in Schedule "B." 7.2 Additional Services authorized in accordance with Article 5 will be compensated using the hourly rates forth in Schedule "C". Request for payment of Additional Services shall be included with the monthly Basic Services payment request noted in Article 7.1 above.' All Additional Services must be approved by the Project Coordinator, in writing, prior to commencement of same, as noted in Article 5. Under no circumstances shall the "Not to Exceed" amount noted in Schedule "B" be exceeded without prior written approval from the City Project Coordinator. No markup shall be allowed on subcontracted Additional Services. 7.3 Reimbursable Expenses, as defined in Article 6, shall be paid up to the "Not to Exceed" amount noted in Schedule "B" (approved at $24,390.00 Request for payment of Reimbursable Expenses shall be included with the monthly Basic Services payment request noted in Article 7. Proper backup must be submitted with all reimbursable requests. No markup or administrative charges shall be allowed on Reimbursable Expenses. 7.4 The City and the Consultant agree that: 7.4.1 If the scope of the Project or the Consultant's Services is changed substantially and materially, the amount of compensation may be equitably adjusted by mutual agreement of the parties. 7.4.2 Commencing on January 1, 2009 the Hourly Billing Rate Schedule shown in Exhibit "C" may be adjusted annually based upon the Miami — Fort Lauderdale Consumer Price Index issued by the U.S. Department of Labor, Bureau of Labor Statistics. Such adjustment shall be calculated by multiplying the ratio of the April index divided by the previous year's index by the Hourly Rate Schedule to define the new Hourly Rate Schedule. The maximum increase will be limited to three percent (3%). 17 7.5 No retainage shall be made from the Consultant's compensation on account of sums withheld from payments to Contractors. 7.6 Method of Billing and Payment. With respect to all Services, Consultant shall submit billings on a monthly basis in a timely manner. These billings shall identify the nature of the work performed; the total hours of work performed by employee category and the respective hourly billing rate associated with the employee category from the Hourly Rate Schedule. In the event subconsultant work is accomplished utilizing the lump sum method, the percentage of completion shall be identified. Billings shall also itemize and summarize Reimbursable Expenses by category. Where written approval of the City is required for Reimbursable Expenses, a copy of said approval shall accompany the billing for such Reimbursable. When requested, Consultant shall provide backup for past and current invoices that records hours for all Services by employee category and reimbursable by category. 7.7 The City shall pay Consultant within thirty (30) working days from receipt of Consultant's proper statement. 7.8 Final payment of the Consultant upon Project completion must be approved by the Mayor and City Commission. ARTICLE 8. CONSULTANT'S ACCOUNTING RECORDS 8.1 Consultant shall keep such records and accounts and require any and all Consultant and i subconsultants to keep such records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to the Project, and any expenses for which Consultant expects to be reimbursed. All books and records relative to the Project will be available at all reasonable times for examination and audit by City and shall be kept for a period of three (3) years after the completion of all work to be performed pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be grounds for City's disallowance of any fees or expenses based upon such entries. All books and records which are considered public records shall, pursuant to Chapter 119, Florida Statutes, be kept by Consultant in accordance with such statutes. ARTICLE 9. OWNERSHIP AND USE OF-DOCUMENTS 9.1 Electronic files of all documents, including, but not limited to, tracings, drawings, estimates, specifications, investigations and studies completed or partially completed, shall become the property of the City upon completion, termination, or abandonment of the Project. Consultant shall deliver the 18 above documents to the City within thirty (30) days of completion of the Project, or termination of this Agreement, or termination or abandonment of the Project. (Reference attached Schedule "A", entitled "Scope of Services"for additional requirements). 9.2 Any re-use of documents by City without written verification or adaptation by Consultant for the specific purpose intended will be without liability to Consultant. ARTICLE 10. TERMINATION OF AGREEMENT 10.1 Termination For Lack Of Funds. The City is a governmental entity and is subject to the appropriation of funds by its legislative body in an amount sufficient to allow continuation of its performance in accordance with the terms and conditions of this Agreement. In the event there is a lack of adequate funding for the Project, the Project may be abandoned or terminated, and the City may cancel this Agreement as provided for herein without further liability to the City. 10.2 Termination For Cause. The City may terminate this Agreement for cause in the event that the Consultant (1) violates any provisions of this Agreement or performs same in bad faith or (2) unreasonably delays the performance of the Services or does not perform the Services in a timely and satisfactory manner, upon written notice to the Consultant. In the case of termination by the City for li cause, the Consultant shall be first granted a thirty (30) day cure period after receipt of written notice from the City. 10.2.1 In the event this Agreement is terminated by the City for cause, the City, at its sole option and discretion, may take over the Services and complete them by contracting with another consultants or otherwise. In such event, the Consultant shall be liable to the City for any additional cost incurred by the City due to such termination. "Additional Cost" is defined as the difference between the actual cost of completion of such incomplete Services, and the cost of completion of such Services which would have resulted from payments to the Consultant hereunder had the Agreement not been terminated. 10.2.2 Payment only for Services satisfactorily performed by the Consultant and accepted by the City prior to receipt of.a Notice of Termination, shall be.made in accordance with Article 7 herein and the City shall have no further liability for compensation, expenses or fees to the Consultant, except as set forth in Article 7. 10.2.3 Upon receipt of a written Notice of Termination, the Consultant shall promptly 19 assemble and submit to the City, as provided herein or as required in the written notice, all documents, including drawings, calculations, specifications, correspondence, and all other relevant materials affected by such termination. 10.2.4 In the event of a termination for cause, no payments to the Consultant shall be made (1) for Services not satisfactorily performed and (2) for assembly of submittal of documents, as provided above. 10.3 Termination For Convenience. The City, in addition to the rights and options to Terminate for Cause, as set forth herein, or any other provisions set forth in this Agreement, retains the right to terminate this Agreement, at its sole option, at any time, for convenience, without cause and without penalty, when in its sole discretion it deems such termination is in the best interest of the City, upon notice to Consultant, in writing, fourteen (14) days prior to termination. In the event City terminates Consultant's services for its convenience, as provided herein, Consultant shall be compensated for all Services rendered up to the time of receipt of said written termination notice, and for the assembly and submittal to the City of documents for the Services performed, in accordance with Article 7 herein, and the City shall have no further liability for compensation, expenses or fees to the Consultant, except as set forth in Article 7. 10.4 Termination For Condition Precedent. The City, in addition to the rights and options to Terminate for Cause and/or Terminate for Convenience, as set forth herein, or any other provision set forth in this Agreement, retains the right to terminate this Agreement, at its sole discretion, in the event that the "Second Closing" as defined in Section 8.1(c) of the Agreement between Scott Robins Companies, Inc., Purdy Partners, LLC., Purdy Partners 1919, LLC., and 1849 Purdy Partners, LLC., and the City does not occur, the City may terminate this Agreement. In the event the City terminates Consultant's services as provided herein, Consultant shall be compensated for all Services rendered up to the time of receipt of said written termination notice, and for the assembly and submittal to the City of documents for the Services performed, in accordance with Article 7 herein, and the City shall have no further liability except for compensation, expenses, of fees to the consultant, except as set forth in Article 7. 10.5 Termination By Consultant. The Consultant may only terminate this_Agreement for cause in the event that the City willfully violates any provisions of this Agreement or unreasonably delays payment for the Services, upon written notice to the City, thirty (30) days prior to termination. In that event, payment for Services satisfactorily performed by the Consultant and accepted by the City prior to receipt of a Notice of Termination shall be made in accordance with Article 7 herein. In the case of 20 i termination by Consultant for cause, the City shall be granted a thirty (30) day cure period after receipt of written notice from the Consultant. 10.5.1 The Consultant shall have no right to terminate this Agreement for convenience of the Consultant. 10.6 Implementation of Termination. In the event of termination, either for cause or for convenience, the Consultant, upon receipt of the Notice of Termination, shall (1) stop the performance of Services under this Agreement on the date and to the extent specified in the Notice of Termination; (2) place no further orders or subcontracts except for any that may be authorized, in writing, by the Project Coordinator, prior to their occurrence; (3) terminate all orders and subcontracts to the extent that they relate to the performance of the Services terminated by the Notice of Termination; (4) promptly assemble and submit, as provided herein, all documents for the Services performed, including drawings, calculations, specifications, correspondence, and all other relevant materials affected by the termination; and (5) complete performance of any Services as shall not have been terminated by the Notice Of Termination, and as specifically set forth therein. 10.7 Non Solicitation. The Consultant warrants that it has not employed or retained any company or person, other than an employee working solely for the Consultant, to solicit or secure this Agreement, and that it has not paid, nor agreed to pay any company or other person any fee, commission, gift or other consideration contingent upon the execution of this Agreement. For breach or violation of this warranty, the City has the right to terminate this Agreement without liability to the Consultant for any reason whatsoever. ARTICLE 11. INSURANCE 11.1 The Consultant shall comply throughout the term of this Agreement with the insurance requirements stipulated herein. It is agreed by the parties that the Consultant shall not commence with work on this Project until satisfactory proof of the following insurance coverage has been furnished to the City. The Consultant will maintain in effect the following insurance coverage: (a) Professional Liability Insurance in the amount of One Million ($1,000,000.00) Dollars per occurrence, with a maximum deductible of $150,000 per occurrence, $450,000 aggregate. Consultant shall notify City in writing within thirty (30) days of any claims filed or made against the Professional Liability Insurance Policy. I 21 (b) Comprehensive General Liability Insurance in the amount of $1,000,000.00 Single Limit Bodily Injury and Property Damage coverage for each occurrence, which will include products, completed operations, and contractual liability coverage. The City must be named as an additional insured on this policy. (c) Worker's compensation and employer's liability coverage within the statutory limits of the State of Florida. 11.2 The Consultant must give thirty (30) days prior written notice of cancellation or of substantial modifications in the insurance coverage, to the Project Coordinator. 11.3 The insurance must be furnished by an insurance company rated B+:VI or better, or its equivalent, according to Bests' Guide Rating Book and must additionally be furnished by insurance companies duly authorized to do business in the State of Florida and countersigned by the company's Florida resident agent. 11.4 Consultant shall provide to City a Certificate of Insurance or a copy of all insurance policies required above. City reserves the right to require a certified copy of such policies upon request. All certificates and endorsements required herein shall state that the City shall be given thirty (30) days notice prior to expiration or cancellation of the policy. ARTICLE 12. INDEMNIFICATION Consultant herein agrees to indemnify and hold harmless the City, and its officer and employees, from liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Consultant and other persons employed or utilized by the Consultant in the performance of the Agreement. This Article 12, and Consultant's indemnification contained herein, shall survive the termination and expiration of the Agreement. ARTICLE 13. VENUE 13.1 This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein. Exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. 22 This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, CONSULTANT AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. ARTICLE 14. LIMITATION OF LIABILITY 14.1 The City desires to enter into this Agreement only if in so doing the City can place a limit on City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the amount of the fees for Services agreed upon under the terms of the Agreement, less any amount(s) paid to Consultant thereunder. Consultant hereby expresses its willingness to enter into this Agreement with Consultant's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of the fee for Services agreed upon under the terms of the Agreement, less the amount of all funds actually paid by the City to the Consultant Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant hereby agrees that the City shall not be liable to Consultant for money damages due to an alleged breach by the City of this Agreement in an amount in excess of the amount of fee under any this Agreement, which amount shall be reduced by the amount actually paid by the City to Consultant for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City's liability as set forth in Section 768.28, Florida Statutes. ARTICLE 15. MISCELLANEOUS PROVISIONS 15.1 The laws of the State of Florida shall govern this Agreement. 15.2 Equal Opportunity Employment Goals: Consultant agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, religion, sex, age, national origin, disability or sexual orientation and will take affirmative steps to ensure that. 23 applicants are employed and employees are treated during employment without. regard to sexual orientation, race, color, religion, sex, age, national origin, or disability. This provision shall include, but not be limited to, the following: employment upgrading, demotion or transfer; recruitment advertising, layoff or compensation; and selection for training, including apprenticeships. Consultant agrees to furnish City with a copy of its Affirmative Action Policy. 15.3 Public Entity Crimes Act: In accordance with the Public Entity Crimes Act (Section 287.133, Florida Statutes), a person or affiliate who is a consultant, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not bids or leases of real property to the City, may not be awarded or perform work as a contractor, supplier, subcontractor, or subconsultant under a contract with the City, and may not transact business with the City in excess of the threshold amount provided in Section 287:017, Florida Statutes, for Category Two for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this Section by Consultant shall result in cancellation and may result in Consultants debarment. 15.4 No Contingent Fee: Consultant warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm other than a bona fide employee working solely for Consultant any fee, commission,_percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, City shall have the right to terminate the Agreement without liability at its discretion, to deduct from the contract price, or otherwise recover, the full amount i of such fee, commission, percentage, gift, or consideration. 15.5 The Consultant represents that it has made and will make reasonable investigation of all sub- consultants to be utilized in the performance of work under this Agreement to determine that they possess the skill, knowledge and experience necessary to enable them to perform the services required. Nothing in this Agreement shall relieve the Consultant of its prime and sole responsibility for the performance of the work under this Agreement. 15.6 The Consultant, its consultants, agents and employees and sub contractors, shall comply with all applicable Federal, State and County laws, the Charter, related laws and ordinances of the City of Miami Beach, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies as they relate to this Project. 24 15.7 This Agreement, or any interest herein, shall not be assigned, transferred or otherwise encumbered by Consultant, under any circumstances, without the prior written consent of City. 15.8. This document incorporates and includes all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein; and the parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. ARTICLE 16. NOTICE .1 All written notices given to City b Consultant shall be addressed to: 16 g Y Y City Manager's Office c/o Assistant City Manager Tim Hemstreet City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 With a copy to: Director Capital Improvements Projects Office City of Miami Beach Miami Beach, Florida 33139 All written notices given to the Consultant from the City shall be addressed to: Timothy Reedy 801 .Brickell Ave Miami, FL 33131 All notices mailed to either party shall be deemed to be sufficiently transmitted if sent by certified mail, return receipt requested. 25 IN WITNESS WHEREOF, the parties hereto have hereunto caused these presents to be signed in their names by their duly authorized officers and principals, attested by their respective witnesses and City Clerk on the day and year first hereinabove written. Attest CITY OF MIAMI BEACH CITY CLERK MAYOR CONSULTANT Attest Arquitectonica International Corp. AW Signa e/Secretary Signature/President vtrvi A0 �. Print Name Print Name 2 APPROVED AS TO FORM&LANGUAGE R,EXECUTION 26 i r Attorney Da e ; SCHEDULE A PURDY AVENUE GARAGE AND RETAIL PROJECT SCOPE OF A/E CONSULTANT SERVICES CONSULTANT: Arquitectonica International Corp. BACKGROUND On December 10, 2008, the Mayor and City Commission approved Resolution No. 2008-26969, approving and authorizing the Mayor and City Clerk to execute an agreement between the City and Scott Robins Companies, Inc., Purdy Partners, LLC., Purdy Partners 1919, LLC., and 1849 Purdy Partners, LLC., for the purpose of purchasing air rights and certain portion of the land for the development of an approximately 458-space parking garage with ground floor retail. SCOPE OF SERVICES The Consultant shall provide the architectural, engineering, master planning, landscape architecture, and surveying, as necessary, for the Project. The work shall include, but not be limited to, conceptual drawing(s), planning, survey, design development, and estimate(s) of probable cost, construction documentation, permitting, bidding l award, and construction administration services for the Project. Project Description: The Project includes approximately 458-space parking garage with ground floor retail. TASK 1 — PLANNING SERVICES Planning Services were completed under separate agreement Sunset Harbor Parking Garage Schedule A TASK 2 —DESIGN SERVICES The purpose of this Task is to establish requirements for the preparation of Contract Documents for the Project. Note that Task 2.1, requires that the CONSULTANT perform a variety of forensic tasks to verify, to the extent practicable, existing conditions and the accuracy of any available as-built drawings and base maps to be used for development of the contract drawings. Task 2.2, discusses requirements for the preparation of Contract Documents, inclusive of drawings, specifications and front-end documents. Task 2.3, establishes requirements with regard to constructability and value engineering reviews to be performed by others. Task 2.4, establishes requirements for the preparation of opinions of total probable cost by the CONSULTANT. Task 2.5, specifies requirements for review of Contract Documents with jurisdictional permitting agencies prior to finalization. Task 2.6, establishes requirements for developing final (100%) Contract Documents. To facilitate the implementation of a Public Information Program, the CONSULTANT shall provide electronic files of all Project documents, as requested by the CITY The CONSULTANT shall provide the electronic files for the front-end documents, technical specifications, and construction drawings in MS-Word, AutoCAD and Adobe Acrobat file format. Task 2.1 - Verification of Existing Conditions: The CONSULTANT shall obtain all available As-Built drawings, perform structural evaluation of the structures, perform a detailed topographic survey of the existing Project site. The survey shall be performed by a Professional Land Surveyor in the State of Florida, and shall meet the minimum technical standards identified in Chapter 61G17-6, FAC. All survey files shall be prepared in AutoCAD Version 2000, or latest version, with a layering system as directed by the CITY. As a minimum, the survey shall address the following: • Baseline of survey shall be tied into the right-of-way and sectionalized land monuments. Right-of-way information shall be obtained from available records by the CONSULTANT. • The CONSULTANT shall set benchmarks at convenient locations along the site to be used during both the design and construction phases of the project. • An Elevation Certificate of the existing buildings. Page 2 of 21 Sunset Harbor Parking Garage Schedule A The CONSULTANT shall locate and identify existing surface improvements / topographic features that are visible within the Project site, including but not limited to, the following: Marking of all property corners, location and details of the existing buildings including overall dimensions and finished floor elevations. ® Existing valve boxes, water/ electrical meter boxes, electrical pull boxes, telephone / cable risers, fences, hydrants, etc. ® Aboveground and underground utilities invert elevations of accessible underground utilities, wood / concrete utility poles, culverts, guardrails, pavement limits, headwalls, endwalls, manholes, vaults, mailboxes, driveways, side streets, trees, landscaping, traffic signage and any other noted improvements. Survey shall identify fence material / height, and driveway construction materials. Landscaping materials with a trunk diameter greater than 6 — inches in diameter shall be identified individually. Materials with smaller diameters shall be illustrated in groupings. ® Survey limits shall include the entire Project site and an additional overlap to encompass all adjoining areas potentially impacted by the Project. Survey Topographic survey / base map shall be prepared in AutoCAD Version 2000 or latest, and submitted on recordable Compact Disk with three (3) signed and sealed copy on 24-inch by 36-inch bond paper. Note that all standards from the DSM shall apply to the development of the survey document. In addition, the CONSULTANT shall submit 3 copies of a preliminary Draft Survey for CITY review and comment. The CONSULTANT shall prepare a final survey submittal package based on addressing any / all comments submitted through this review process, to the satisfaction of the CITY. All CAD mapping shall be performed to a scale of 1:1 in the World Coordinate System. Text size shall be 100 Leroy for a final product at 1=20 units. Upon completion and acceptance of the final survey, the CONSULTANT shall forward same to the following agencies with a request to mark / identify respective utilities on the survey base map. The CONSULTANT shall coordinate this effort with each agency in an effort to identify the location of all existing underground utilities. The CONSULTANT Page 3 of 21 Sunset Harbor Parking Garage Schedule A shall incorporate utility owner markups / edits into its survey base map file. The CONSULTANT shall contact the following entities and request that they each verify locations of their existing improvements in the affected areas: Florida Power and Light Company BellSouth Miami-Dade Water and Sewer Authority Charter Communications (Atlantic Broadband) ® Natural Gas provider • City of Miami Beach Public Works Department ® Others as deemed necessary by the CONSULTANT The CONSULTANT shall also request information regarding any future proposed improvements by each agency. To facilitate tracking of the progress made in this work effort, the CONSULTANT shall copy the CITY on all correspondence with each agency. In addition, the CONSULTANT shall keep a readily accessible and properly labeled / collated file of all correspondence and markups provided to it by the various agencies for reference use by the CITY and/or CONSULTANT, during construction. The CONSULTANT shall become familiar with the Project site through frequent site visits, research, and examination of any record drawings, as applicable, and shall notify the CITY of any field, onsite, or off-site conditions not shown or incorrectly shown on record drawings, as may have been reasonably discovered. At the CONSULTANT's request, the CITY shall facilitate the CONSULTANT's access to the Project site and or facilities for investigative purposes. These site visits are part of the CONSULTANT's Basic Services, are considered due diligence, and the CONSULTANT shall receive no additional compensation for such design phase site visits and meetings. Provided that the CONSULTANT has conducted a good faith investigation, the CONSULTANT and CONSULTANT's sub-consultants shall not be responsible or held liable for undiscovered hazardous conditions or materials. Page 4 of 21 Sunset Harbor Parking Garage Schedule A Based on the collected data, the CONSULTANT shall develop detailed design base maps for the project. The maps shall include an overall key map and partial plans scaled at 1-inch equals 20 feet or a scale that better suits the project requirements. CONSULTANT shall illustrate proposed improvements on the site plan and shall prepare final site plan based on the information gathered herein. Copies of base maps shall be distributed to CITY. Deliverables: - Perform work as noted to develop final survey. Deliver three (3) draft and five (5) final signed and sealed surveys to CITY. Schedule: - See Exhibit D— Project Schedule Task 2.2 — Detailed Design: The CONSULTANT shall prepare detailed design documents consisting of architectural, structural, civil, mechanical, electrical, landscape, and irrigation drawings, as applicable. All Contract Documents are to be provided in accordance with the applicable architectural and engineering design standards, and in accordance with the requirements of all applicable state, local and federal regulatory agencies having jurisdiction over the Project. The CONSULTANT shall use CITY standard details as provided by CITY, and as deemed appropriate by CONSULTANT. The CONSULTANT shall provide additional sections that may be required, and are not already provided through the CITY standards, as it deems necessary, to provide CITY with a complete work product. All drawings shall be prepared using AutoCAD Version 2000 software, or latest, with a layering system as approved P 9 by CITY. Technical specifications shall be prepared in conformance with Construction Specifications Institute (CSI) formats. The CITY shall furnish the CONSULTANT with standard CITY specification outlines for Divisions 1. Any supplier listings required by specifications shall include a minimum of two (2) named supplier's, and shall meet all applicable CITY and State of Florida procurement codes. Specifications shall be provided to the CITY , and or CONSULTANT in "Microsoft MS-Word" format. In addition, the CONSULTANT shall use the same software in all project related work. The CONSULTANT shall utilize base front-end documents provided by the CITY. The CONSULTANT shall edit accordingly to result in a project specific document. Any requirements for Supplementary General Conditions shall be subject to review and acceptance by the CITY. Page 5 of 21 Sunset Harbor Parking Garage Schedule A The CONSULTANT shall attend monthly Design Progress Meetings with CITY and/or CMR staff, as applicable. CONSULTANT shall provide, and maintain a design progress schedule in Microsoft Project Planner. CONSULTANT shall update the schedule and review Project status at each progress meeting. Should the CITY determine that the CONSULTANT has fallen behind schedule; the CONSULTANT shall provide a recovery schedule that shall accelerate work to get back on schedule. The CONSULTANT shall submit monthly invoice requests for its services, accompanied by an updated design progress schedule, as requested by the CITY. Invoices shall be prepared in a format as provided by the CITY. For purposes of this Scope of Services, the following will be considered the minimum effort-to be provided by the CONSULTANT for establishing detail design milestone submittals. Note that CITY review procedures, and CONSULTANT'S responsibilities associated with such, are discussed under Task 2.3: The 50% design completion stage milestone shall consist of the completed survey, work products of the previously outlined Tasks, with all proposed improvements identified in approved BODR, illustrated in plan and elevation views, at a scale of 1-inch equals 20 feet, and with applicable sections and details. In addition, the CONSULTANT shall include draft technical specifications and a draft schedule of prices bid (bid form) identifying the items to be bid by the prospective contractors with the submittal. Also, this submittal shall include the CONSULTANT'S "Budget" level opinion of probable cost as defined by the American Association of Cost Engineers. The CONSULTANT shall submit the 50% design to the Historical Preservation Board (HPB) for full design approval. Comments from the HPB and/or Planning Department shall be incorporated into the 90% design submittal. Prior to the preparation of the 50% design completion stage drawings, the CONSULTANT shall incorporate changes to its design based upon its existing as-built / existing conditions verification efforts and review comments received, as noted in Task 2.3 below. ® The 100% design completion stage milestone shall consist of a final construction document set including the front-end documents (general and supplemental Page 6 of 21 Sunset Harbor Parking Garage Schedule A conditions), technical specifications and construction drawings for all work proposed to be completed. The CONSULTANT shall include detailed construction sequencing restrictions, and special conditions for the CITY'S review with this submittal. Prior to the preparation of the 100% design completion stage drawings, the CONSULTANT shall incorporate changes to its design based upon review comments received, as noted in Task 2.3, below. In addition, the CONSULTANT shall provide its "Definitive" level opinion of probable cost as defined by the American Association of Cost Engineers with this submittal. Documents shall also include all constructability and design review comments, City of Miami Beach Building Department permitting pre-approval comments as may be provided by the C ITY and/or jurisdictional review agency. Deliverables: - Furnish sets of design documents as requested by the CITY pursuant to Article 6 of the Agreement. - Prepare and update project invoices and schedule tracking spreadsheets, on a monthly basis. - Attend progress meetings with CITY staff, HPB, and CMR firm, as applicable. Schedule: - See Exhibit D — Project Schedule - Note: The above 50% and 100% design documents completions shown in calendar days are contingent upon CITY's reviews occurring within the timeframe allowed for final completions of each task. Task 2.2.1 —Geotechnical Evaluation: See Task 6.4 Task 2.3 — Design / Constructability Review: To verify that the CONSULTANT is in compliance with the required BODR and CITY's requirements, the CITY and CMR shall perform reviews of all Project design documents, including cost estimates, at the 50 and 100% design completion stage submittals. Note that the 100% design completion stage submittal will incorporate the pre-approval review comments from the Building Dept. and will be used to procure permits from jurisdictional review agencies, and/or may be utilized to obtain pricing. Page 7 of 21 Sunset Harbor Parking Garage Schedule A The purpose of these reviews shall be to verify that the documents are consistent with the design intent. These documents shall be furnished as bound 8-1/2-inch by 11-inch technical specifications and full-size (24-inch by 36-inch) and half size (11-inch by 17-inch) scaled drawings as requested by the CITY and as noted in the Task 2.2 deliverables. The CMR and applicable CITY staff shall perform reviews on these documents and provide written comments (in "Excel" spreadsheet format) back to the CONSULTANT within the timeframes specified in Project Schedule - Exhibit D. Following receipt of comments by the CONSULTANT, a meeting may be scheduled between the CITY, the CONSULTANT and CMR, to discuss the requirements, intent and review of the comments. The CONSULTANT shall prepare a written memorandum to address how each comment was resolved. Such written memorandum shall be prepared and submitted to CITY for review / approval, within ten (10) working days after the review session. The responses shall be in the spreadsheet format provided to the CONSULTANT. In addition, the CONSULTANT shall revise its documents to address all review comments accordingly, to the satisfaction of the CITY. In addition, the CITY and CMR shall perform constructability reviews of the design documents relative to value, construction sequencing / schedule, and bid format. These reviews shall be based upon 50 and. 100% design submittals received from the CONSULTANT and shall be conducted concurrently with the 60 and 100% design reviews. These constructability review meetings shall be held with the CONSULTANT, CITY, and CMR representatives to discuss review comments, as required. A detailed review of CONSULTANT's proposed construction sequencing restrictions will be performed by CITY and CMR at the 50 and 100 % completion stages. The CONSULTANT shall note that the CITY and CIVIR's review of the Contract Documents does not relieve the CONSULTANT from its responsibility to the CITY with regard to the quality of its contract documents. Deliverables: - Attend meetings with the CITY and/or CMR staff, as applicable, to review and discuss design constructability and value comments. Page 8 of 21 Sunset Harbor Parking Garage Schedule A Prepare written responses to comments made during reviews. Schedule: - Complete concurrently with Design Schedule Task 2.4— Cost Opinions: The CONSULTANT shall prepare opinions of probable construction costs for the 50 and 100 percent design completion stage submittal. The accuracy of the cost estimate associated with the 50 percent completion stage shall be +30% to —15% "Budget" Level as defined by the American Association of Cost Engineers. The accuracy of the cost estimate associated with the 100 percent completion stage submittals shall be a +15% to —5% "Definitive" Level Estimates as defined by the American Association of Cost Engineers. All estimates shall be submitted in Microsoft "Excel" format in accordance with the template supplied by CITY. All estimates shall be furnished bound in 8-1/2-inch by 11-inch size. The CONSULTANT shall advise the CITY immediately when the Project cost estimate exceeds the budget established by the CITY. Based upon the CONSULTANT's cost estimate, the CITY will advise the CONSULTANT if portions of the project need to be deleted, phased and/or bid as alternate bid items to satisfy existing budgetary and fiscal constraints. In this effort, the CONSULTANT may be required to attend a series of meetings and develop alternative cost savings options for CITY consideration, if the estimates show that the projected project cost will exceed the target budget. The CONSULTANT shall revise the contract documents to reflect necessary revisions to meet budget parameters at no additional cost accordingly. Deliverables: Prepare opinions of probable costs at the 50 and 100% completion stage. Page 9 of 21 i r Sunset Harbor Parking Garage Schedule A - Attend meetings with the CITY and CMR staff to review and discuss cost estimates. This Task includes development of any required cost savings alternatives, and implementation / revision of documents to address such items, as necessary to meet established budget parameters. Schedule: - Complete concurrently with Design Schedule. Task 2.5 — Community Design Review Meeting The CONSULTANT shall attend and participate in one final Community Design Review Meeting (CDRM) to review the design progress and concept. The CITY shall schedule, find location for, and notify residents of said meeting. The CONSULTANT shall prepare draft meeting minutes and forward them to the CITY and CMR, who shall review, provide comments and distribute, accordingly. The CONSULTANT shall prepare for, attend and present its documents at this meeting. Meeting shall be scheduled at the 100% design completion stages. Note that presentation format shall consist of a brief Power Point presentation to review Project status, plus review of actual full size plans for the project. The CONSULTANT shall provide sufficient staff at the meeting to address concerns by residents at two (2) plan stations. It is anticipated that the CONSULTANT will attend one Pre-CDRM meeting with CITY staff to review the proposed format of the presentation.. Task 2.6 - Document Revisions: Based upon the input provided by the residents at the CDRM, the CONSULTANT shall incorporate necessary contract document revisions, as approved by the CITY. Task 2.7 — Permitting Reviews: The CONSULTANT shall prepare applications and such documents and design data as may be required to procure approvals from all such governmental authorities that have jurisdiction over the Project. The CITY shall pay all permit fees. The CONSULTANT shall participate in meetings, submissions, resubmissions and negotiations with such authorities. The CONSULTANT shall respond to comments by such authorities within ten working days of receipt of comments unless a different time is agreed to by CITY. It is the intent of this scope of,services that the CONSULTANT be the responsible party for formally transmitting and receiving permits to and from the respective jurisdictional Page 10 of 21 Sunset Harbor Parking Garage Schedule A authorities. However, since the CITY will track and monitor progress on the preparation and review of permits and subsequent requests for information, the CONSULTANT shall copy the CITY on all permit related correspondence. This includes CONSULTANT generated minutes from meetings held with related parties. It is recognized by CITY that the time period required for obtaining permits is beyond the control of the CONSULTANT, except with regard to issues concerning the permittability of the proposed design and the CONSULTANT's ability to respond to permitting agency requests for information in a timely manner. At the time of scope preparation, the following governmental authorities that have or may have jurisdiction over Project have been identified: ■ United States Environmental Protection Agency ■ U.S. Army Corps of Engineers e Florida Department of Transportation ■ -Florida Department of Environmental Protection 0 South Florida Water Management District Miami-Dade Water and Sewer Authority 6 Miami-Dade Department of Public Works ® Miami-Dade Department of Health and Rehabilitative Services ■ Miami-Dade Department of Environmental Resource Management The City of Miami Beach Building Department ■ The City of Miami Beach Planning Department C The City of Miami Beach Historic Preservation Board O The City of Miami Beach Public Works Department ■ The City of Miami Beach Fire Department Page 11 of 21 Sunset Harbor Parking Garage Schedule A Note that the CITY's failure to identify governmental authorities that have jurisdiction over Project at this time does not relieve the CONSULTANT from the responsibility to procure all requisite permits. Deliverables: - Correspond with jurisdictional authorities to establish permitting requirements. - Revise documents and respond to permitting inquiries as required. - Attend meetings with the CITY, CMR, and permitting agency staff, as required, to review, discuss and finalize permit procurement Schedule: - Complete concurrently with the design schedule Task 2.8 — The CONSULTANTs QAIQC of Design Documents: The CONSULTANT shall establish and maintain an in-house Quality Assurance / Quality Control (QA/QC) program designed to verify and ensure the quality, clarity, completeness, constructability and bid ability of its contract documents. To this end, the CONSULTANT shall provide the CITY and CMR with a written narrative detailing its QA/QC program tasks and how it is to be implemented over the course of this Project. The CITY, at its discretion, may require that the CONSULTANT attend meetings to review the status and present results of its QA/QC efforts. TASK 3 —BIDDING AND AWARD SERVICES The Tasks below address the level of service to be performed by the CONSULTANT. The CONSULTANT's services shall include, but not be limited to, the following. Y Review / Assist the CITY in the preparation of Request for Qualifications (RFQ) for a Construction Manager at Risk Firm (CMR) to provide Pre-construction services. ® Review / evaluate bids received in response to the RFQ solicitation • Participate in negotiation meetings with the selected CMR ® Review CMR's cost proposal(s) / Guaranteed Maximum Price (GMP) Page 12 of 21 Sunset Harbor Parking Garage Schedule A Task 3.1 - Construction Contract Document Review: The CONSULTANT shall assist the CITY in the bidding and award of the construction contract. The CONSULTANT shall advise and evaluate bids and the GMP Amendment(s) as required in the CMR's Pre-Construction Services Agreement, Agreement attached as Exhibit E incorporated herein by reference. The contract documents prepared by the CONSULTANT shall be transmitted to the CITY's Risk Management, Legal and Procurement Departments for verification of appropriate insurance, form and bonding capacity requirements. The CONSULTANT shall assist the CITY in this process by providing three copies of each Construction Contract Document and participating in meetings, submissions, resubmissions and discussions with these departments, as necessary. The CONSULTANT shall respond to CITY comments within ten calendar days of receipt of comments unless a different time schedule is agreed to by the CITY. The CONSULTANT's compensation includes meeting with these departments. Task 3.2 - Bid Document Delivery: The CONSULTANT shall provide the CITY with reproducible, sets of contract documents, including digital plot files, as required, for the preparation of Request for Qualifications (RFQ) for a Construction Manager at Risk Firm (CMR) to provide Pre-construction services. The CONSULTANT shall provide CITY and CMR with reproducible, camera ready, sets of permit approved Construction Documents, as required, for subcontract bid document delivery. These documents shall include responses to all comments obtained during permit reviews and shall incorporate all corrections.required by the permitting agencies. Task 3.3 - Pre-Bid Conference: The CITY shall conduct one pre-bid conference for the CMR selection. CMR shall conduct one or more pre-bid conferences for subcontractor selection. CONSULTANT shall attend the pre-bid conference for CMR selection. CONSULTANT shall review bids and advise the CITY accordingly. Task 3.4 - Addenda Issuance: The CONSULTANT shall provide, through CITY, timely responses to all inquiries received by the CITY from prospective bidders. These responses shall be prepared as written addenda, with the format for such addenda as provided to the CONSULTANT by CITY. These queries and responses shall be documented and a record of each shall be transmitted to the CITY on a same day basis. The CONSULTANT shall prepare necessary addenda as requested by CITY. Page 13 of 21 Sunset Harbor Parking Garage Schedule A Task 3.5 — CMR Bid Evaluation and Bid Opening: CITY will forward Bids received pursuant to CMR selection to the CONSULTANT, who in turn shall evaluate bids for completeness and full responsiveness and shall make a formal written recommendation to the CITY regarding the award of the contract. Non-technical bid requirements shall be evaluated by others Task 3.5.1 — Sub-contractors) Bid Evaluation and Bid Opening: Bids shall be evaluated by the CMR who shall make a recommendation to the CITY regarding the acceptance and award of bids to qualified responsive and responsible subcontractors. Copies of sub- contractors bids will be provided to CONSULTANT for review and comment, as applicable. This scope of services includes no allowance for the CONSULTANT's time to assist the CITY in the event of a bid protest. To the proportionate extent the CONSULTANT's services are required in the event of a bid protest, due to a direct action or lack thereof by the CONSULTANT, the CONSULTANT shall participate in such activities at no additional cost to the CITY. Task 3.6 — Guaranteed Maximum Price (GMP) Construction Contract Award: The CONSULTANT shall provide sets of Construction Contract Documents for.execution by CITY and CMR within five (5) calendar days of request by the CITY pursuant to Article 6 of the Agreement. Task 3.7 — As- Bid Contract Documents: After GMP contract award and prior to the preconstruction conference, the CONSULTANT shall prepare As-Bid construction contract documents, which incorporate the following items: CMR's submittals, including but not limited to, bid proposal, insurance, licenses, etc. Amend / modify front-end documents and / or technical specifications to incorporate changes made via contract addenda. Revise construction documents to include modifications / revisions incorporated via contract addenda as well -as the previously incorporated permit review comments. Page 14 of 21 Sunset Harbor Parking Garage Schedule A The CONSULTANT shall prepare As-Bid Construction Documents and reproduce sets, as requested, for distribution to CITY within ten (10) calendar days after City Commission approval / contract execution. Deliverables- - Attend and participate in Pre-bid conferences and bid openings. - Respond to questions from prospective bidders and prepare Addenda for distribution by others. - Prepare recommendation of award letter. - Prepare As-Bid Contract Documents, reproduce sets and forward to CITY. Schedule: - See Exhibit D — Project Schedule TASK 4—CONSTRUCTION ADMINISTRATION SERVICES perform the following tasks related to the construction administration The CONSULTANT shall g p of the Project. These tasks shall be performed for the duration of the construction of the Project. and guidelines for managing The CONSULTANT shall follow uniform procedu res g g g the interface between the CITY, CMR, and CONSULTANT staffs. The CITY shall provide the CONSULTANT with sample management manuals, as required. CONSULTANT's compensation is based upon a construction period of approximately 8 months. Task 4.1 — Pre-Construction Conferences: The CONSULTANT shall attend one pre- construction conference for the Project. The CONSULTANT shall prepare and distribute meeting minutes to all attendees and other appropriate parties. At this meeting, it is anticipated that the CITY will issue a Limited Notice to Proceed. A final Notice to Proceed shall be issued upon receipt and approval of a construction schedule, schedule of values, submittal schedule and procurement of all applicable construction permits from the CMR. Deliverables: - Attend and participate in one pre-construction conference for the project and prepare meeting minutes. Page 15 of 21 Sunset Harbor Parking Garage Schedule A Schedule: - As scheduled by CITY after receipt of Task 4, Notice to Proceed. Task 4.2 — Bi-Weekly Construction Meetings: The CONSULTANT shall attend bi-weekly construction meetings with the CMR and applicable CITY representatives, as required. The purpose of these meetings shall be to review the status of construction progress, shop drawing submittals and contract document clarifications and interpretations. In addition, the CONSULTANT shall review the CMR furnished two-week look ahead work schedule to allow for proper coordination of necessary work efforts. These meetings shall also serve as a forum for discussion of construction issues, potential changes / conflicts and any other applicable matters. The meetings may include site visits to visually observe / address construction related concerns. The site visits shall be separate and distinct from the "Specialty Site Visits" discussed under Task 4.6. The CONSULTANT shall prepare and distribute meeting minutes to all attendees and other appropriate parties. Deliverables: - Attend and participate in Bi-weekly construction progress meetings, as required, and prepare meeting minutes. Schedule: - Bi-Weekly throughout the project duration. Task 4.3 — Requests for Information / Contract Document Clarification (RFIs / CDCs): The CONSULTANT shall receive, log and process all RFIs / CDCs. Whenever an RFI involves the interpretation of design issues or design intent, the CONSULTANT shall prepare a written response within the timeframe specified in the construction contract and return it to the CMR. The CONSULTANT shall distribute and update the RFI log at each progress meeting. In addition, the CONSULTANT may be requested by the CITY to prepare and forward CDCs should certain items within the contract documents require clarification. Deliverables: - Respond to those RFI's that involve design interpretations and return to CMR and CITY's office. Prepare RFI log and distribute at meetings. Issue CDCs as required. Schedule: - Ongoing throughout project construction duration. Page 16 of 21 i. Sunset Harbor Parking Garage Schedule A Task 4.4 — Requests for Changes to Construction Cost and/or Schedule: The CONSULTANT shall receive, log, evaluate all requests for project cost and/or schedule changes from the CMR, and report such, to the CITY at progress meeting. The CONSULTANT shall distribute and update the Change Order log at each progress meeting. Changes may be the result of unforeseen conditions, interferences identified by the CMR during the routine progress of work, inadvertent omissions (betterment) issues in the contract documents or additional improvements requested by the CITY or CONSULTANT after approval of the GMP Amendment(s) by the City Commission. Regardless of the .source, the CONSULTANT shall evaluate the merit of the request, as well as the impact of the change in terms of project cost and schedule. CONSULTANT shall review claims and / or change order requests with CITY. No legal claims assistance is included under this Task. Deliverables: - Perform independent review of request for cost increase and/or time extension. - Coordinate and participate in meetings, as required, with the CITY and CMR to resolve and/or negotiate the equitable resolution of request. - Prepare and execute change order documentation (AIA form) - Prepare and update change order log and distribute at progress meetings. Schedule: - Ongoing throughout project construction duration. Task 4.5 — Processing of Shop Drawings: The CONSULTANT will receive, log and distribute shop drawings, as appropriate, for their review. The CONSULTANT shall have 14 calendar days or,the number of calendar days specified in the construction contract, (whichever is lesser) from the date of receipt in its office, to review and return shop drawings to CMR and CITY's office. Deliverables: - Review Shop Drawings and return them to CMR and CITY. . - Prepare and update shop drawing log and distribute at progress meetings. Page 17 of 21 Sunset Harbor Parking Garage Schedule A Schedule: - Ongoing throughout project construction duration. Task 4.6 — Field Observation Services: The CONSULTANT shall provide specialty site visits by various design disciplines (civil, structural, mechanical, electrical, plumbing, landscaping, etc...) on an as requested basis. For the purposes of this scope of services, it is assumed that specialty site visits are included in the Scope or Services, and will be provided by the CONSULTANT as required by the Project. Specialty site visits are assumed to include one or more of the CONSULTANTs Team attendance, as may be requested by the CITY, to review, discuss, resolve field conditions and issues at the job site. Attendance shall be as requested, although a minimum of 24 hour notice will be provided when possible. In cases where conditions require immediate action, the CONSULTANT shall make itself available in the field, as soon as possible, to review / respond to necessary issues. Deliverables: - Provide specialty site visits as required. Schedule: - Ongoing throughout project construction duration. Task 4.7 — Project Closeout: Upon receiving notice from the CMR advising the CONSULTANT that a Project is substantially complete, the CONSULTANT, in conjunction with appropriate CITY staff, shall conduct an overview of the Project. The overview shall include development of a "punch list" of items needing completion or correction prior to consideration of final acceptance. The CONSULTANT shall develop the Substantial Completion Punch list. The list shall be forwarded to the CMR for corrective action. CONSULTANT shall forward copy of said list to the CITY. For the purposes of this Task, Substantial Completion shall be deemed to be the stage in the construction of the Project where the Project can be utilized for the purposes for which it was intended, and where minor items may not be fully completed, but all items that affect the operational integrity and function of the Project are capable of continuous use. Upon notification from the CMR that all remaining "punch list" items have been resolved, the CONSULTANT, in conjunction with appropriate CITY staff, shall perform a final review of the finished Project. Based on successful completion of all outstanding work items by the CMR, the CONSULTANT shall assist in closing out the construction contract. This shall include, but not limited to, preparation of record drawings based on markups forwarded by CMR and certification of record drawings to the various affected permitting authorities. This certification shall be based on the CONSULTANT having received and reviewed all applicable test data, daily Page 18 of 21 Sunset Harbor Parking Garage Schedule A observation reports, record drawing markups, submittals, change orders, and performed final walk through of the completed work during substantial and final completion punch list walk through(s). Deliverables:- Attend field meetings to review substantial and final completion and assist in development of the applicable "punch lists". Schedule: - At the Substantial and Final completion of the project. TASK 5 —ADDITIONAL SERVICES No additional services are envisioned at this time. However, if such services are required during the performance of the Work such as work related to structural testing and evaluation, structural engineering / forensic engineering, environmental evaluation, environmental engineering, they shall be requested by CITY and negotiated in accordance with contract requirements. Note that a separate Notice to Proceed is required prior to performance of any Work not expressly required by this Scope of Services. If CONSULTANT proceeds without proper authorization, it does so at its own risk. TASK 6 - REIMBURSABLES Task 6.1 — Reproduction Services: The CONSULTANT shall be reimbursed at the usual and customary rate for reproduction of reports, contract documents and miscellaneous items, as may be requested by the CITY. Unused amounts in this allowance shall be credited back to the CITY at the completion of the project. Refer to Schedule B. Task 6.2 —Travel and Subsistence: Not allowed. Task 6.3'— Surveying: The CONSULTANT shall arrange for and coordinate the efforts of licensed surveyors to prepare a topographical survey within the project limits to meet the intent of the approved project Scope outlined in Task 1 - Planning Services and Task 2 - Design Page 19 of 21 Sunset Harbor Parking Garage Schedule A Services. Unused amounts in this allowance shall be credited back to the CITY at the completion of the project. Refer to Schedule B. Task 6.4 - Geotechnical Evaluation: The CONSULTANT shall contract the services of a professionally licensed geotechnical firm to perform boring / test excavations as necessary to adequately define the soil characteristics for the purposes of design. Actual boring / test excavations shall be as directed by CONSULTANT. Unused amounts shall be credited back to the CITY at the completion of the project. Refer to Schedule B. Task 6.5 — Underground Utility Verification: CONSULTANT shall employ the services of an underground utility location service, upon approval by the CITY, in an effort to better identify existing underground conditions where work is to be performed. Soft-Dig underground identification services may be implemented. Actual locations shall be as directed by CONSULTANT. Unused amounts shall be credited back to the CITY at the completion of the project. Refer to Schedule B. Task 6.6 — Design Sub Consultants: CONSULTANT shall arrange for and coordinate the efforts of design sub consultant expertise as such expertise is needed and determined by the evolution of the project program requirements and/or site conditions. A not-to-exceed fee amount of all such design sub consultant costs is included in Schedule B, to be drawn upon as needed. CONSULTANT'S compensation shall be a reimbursement of actual costs for design sub-consultants. Minimum Drawing Requirements The composite set of drawings to be produced shall contain sufficient information and detail to clearly define all proposed improvements in terms of quantity, quality and location. All drawings and details shall be to a scale sufficient to be legible. The CONSULTANT shall propose a drawing list to be reviewed and approved by the CITY. Site Plans Existing Conditions — Site Survey — to include property lines, sidewalks, pavement areas, landscaping, existing site improvements, buildings, dimensions of buildings, fencing, lighting, overhead and underground utilities, etc. Page 20 of 21 Sunset Harbor Parking Garage Schedule A Demolition — Clearly depict existing conditions to be demolished or modified. Proposed Improvements — Clearly depict all new design elements including sidewalks, pavement areas, landscaping, buildings, recreational courts and fields, fencing lighting, utility modifications, replacements, and additions, etc. Enlarged Site plans - Where necessary to clearly define Project requirements, provide enlarged site plans for specific areas of improvement. Building Drawings All buildings to be demolished, renovated or constructed shall be detailed in the Project drawings in sufficient detail to clearly and thoroughly depict the intended improvements or modifications and shall at a minimum include drawings form all involved disciplines: Architectural, Civil, Structural, Mechanical, Electrical, Plumbing, and Landscape Architecture. Drawings shall be organized by building and by discipline. Page 21 of 21 SCHEDULE B: PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH & STANDARD A& E AGREEMENTS CONSULTANT COMPENSATION Please refer to attached schedule and see below Schedule of Payments: Schedule of Payments Retail (28%) Garage (72%) Planning Services * n/a n/a**** Design Services-* $655861.60 $169,358.40 Bidding and Award Services $7,317.80 $18,817.20 Construction Administration ** $24,393.60 $629726.40 Reimbursable Allowance*** $185589.20 $47,801.80 Historic Preservation Board / Design Review Board (if required) n/a n/a**** Note*: These services will be paid lump sum based on percentage complete of each phase as identified in the individual tasks. Note**: Construction Administration will be paid on a monthly basis. It is anticipated that construction duration will be 15 months, therefore, once construction starts Consultant will be paid $7,620.00 (Retail $2,032.80/Garage $5,486.40) for 12 months. In the event that, through no fault of the Consultant, construction administration services are required to be extended, which extension shall be at the sole discretion of the City, the Consultant agrees to extent said services for $7,260.00 (Retail $2,032.80/Garage $5,486.40) per month for the duration required to complete the Project. Note***: The Reimbursable Allowance belongs to the City of Miami Beach and must be approved in advance by the Project Coordinator. Unused portions will not be paid to the Consultant. Note****: Completed under separate agreement 28 SCHEDULE C PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH & STANDARD A & E AGREEMENTS HOURLY BILLING RATE SCHEDULE Classification Hourly Billing Rate (FY 2008) Principal /Architect of Record $5�D-Caper hour Principal MEP Engineer of Record per hour Project Manager Q per hour Senior Architect/Engineer Ms. per hour Engineer/Architect $f sp.oaper hour Staff Engineer $I 1®.()v per hour Designer $ 9 .roper hour Civil Engineer $12s doper hour CADD Operator $Ikibx per hour Clerical $&D•00 per hour 29 SCHEDULE D PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH & STANDARD A & E AGREEMENTS SEE ATTACHED PROJECT SCHEDULE 30 SCHEDULE E PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH & STANDARD A & E AGREEMENTS See attached General Conditions of the Construction Contract 31 SCHEDULE F PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH & STANDARD A & E AGREEMENTS See Attached Insurance and other Sworn Affidavits. 32 SCHEDULE G PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH & STANDARD A & E AGREEMENTS Best Value Amendment The Consultant agrees to abide by all the required documentation of the City's Performance Information Procurement System and submit the weekly reports. F:\PURC\$ALLIOLGA\A& E Agreement-Boiler Plate\A E Agreement-Standard Boiler Plate.doc 33 ASSIGNMENT OF CONTRACT This ASSIGNMENT OF CONTRACT ("Assignment") is made as of the 31" day of March 2009 ("Effective Date") by and between SCOTT ROBINS COMPANIES, INC., a Florida corporation ("SRC"), CITY OF MIAMI BEACH, a Florida municipal corporation ("City"), and ARQUITECTONICA INTERNATIONAL CORP., a Florida corporation ("Arquitectonica"). RECITALS A. SRC and Arquitectonica entered into that certain letter agreement for architectural services dated December 4, 2008, a true and complete copy of which is attached hereto as Exhibit A("Existing Contract"). B. SRC desires to assign unto City all of SRC's rights under the Existing Contract effective as of the Effective Date and City has agreed to accept such assignment on the terms and conditions hereof. C. Arquitectonica has approved the assignment of the Existing Contract to City; and D. Simultaneously herewith City and Arquitectonica have agreed to amend and restate the Existing Contract in its entirety. NOW, THEREFORE, in consideration of the premises and other valuable consideration, receipt of which is hereby acknowledged, SRC, City and Arquitectonica agree as follows: 1. All of the Recitals are correct and are incorporated herein and made a part hereof by reference. 2. SRC hereby assigns the Existing Contract to City and City accepts the assignment as of the Effective Date. 3. Arquitectonica hereby consents to and approves the assignment of the Existing Contract to City. 4. Arquitectonica acknowledges that SRC has performed all obligations and paid all amounts required under the Existing Contract through the Effective Date. Neither SRC nor City shall have any obligations under the Existing Contract for matters arising prior to the Effective Date. 5. Simultaneously herewith Arquitectonica and City shall execute a contract in the form of Exhibit B hereto ("New Contract"). From and after the Effective Date, (a) the Existing Contract shall be deemed amended and restated in its entirety and superseded by the New Contract; (b) Arquitectonica and City shall be governed by the New Contract and not by the Existing Contract. 1 5 In Witness Whereof, SRC, Arquitectonica and City have caused this Assignment to be executed and delivered as of the Effective Date. SCOTT ROBINS COMPANIES, INC., a Florida corporation By: Name: S cft t-% Title: [Signatures continue on the next two pages] '. -2 - Assignment of SRC contract 2009-03-27 i i ARQUITECTONICA INTERNATIONAL CORP. a Florida corpor tion By: Name:-., Title: Ce f2S [Signatures continue on the next page] -3 - Assignment of SRC contract 2009-03-27 I E CITY OF MIAMI BEACH, a municipal corporation of the State of Florida By: Name: Matti Herrera Bower Title: Mayor ATTEST: By: [SEAL] Robert Parcher, City Clerk APPROVED AS TO FORM&LANGUAGE FO CUTION 3 3a v9 City ttomey Date 5224161 _ a 11.a 4.9111111111111111111111111111111111111111 OR Bk 26315 Fss JOG 3735; (60epss) RECORDED 1 f/03,F2i�i I9 HARVEY RUVI N P CLERK OF rnURT MIAMI-DARE COUNT`r P FLORIDA This instrument prepared by and when recorded return to: Martin A. Schwartz,Esq. Bilzin Sumberg Baena Price&Axelrod LLP 200 South Biscayne Boulevard, Suite 2500 Miami,Florida 33131 (For Recorder's Use Only) DECLARATION OF CONDOMINIUM ®f PURDY AVENUE COMMERCIAL CONDOMINIUM MIAMI 1746636.8 7829330796 6q I TABLE OF CONTENTS Page 1. INTRODUCTION AND SUBMISSION .......................................................................... 1 1.1 The Land................................................................................................................ 1 1.2 Submission Statement............................................................................................ 1 1.3 . Name...................................................................................................................... 1 2. DEFINITIONS................................................................................................................... 1 "Act" ...................................................................................................................... 1 "Articles"................................................................................................................ 1 "Assessment" or "Assessments" ............................................................................ 1 "Association" ....................................... ................................................................ 1 "Association Property............................................................................................. 2 "Board of Directors" or "Board"............................................................................2 "BRP Unit"............................................................................................................. 2' "Building.. ..............................................................................................................2 "By-Laws"..............................................................................................................2 "City Ci Unit" .............................................................................................................2 "Collection Costs'...................................................................................................2 CommonElements" .............................................................................................2 "Common Expenses" .............................................................................................2 "Common Surplus"................................................................................................3 "Condominium"..................................................................................................... 3 "Condominium Documents".................................................................................. 3 "Condominium Parcel".......................................................................................... 3 "Condominium Property.. ...................................................................................... 3 "County "Declaration" or "Declaration of Condominium".................................................. 3 "Developer"............................................................................................................ 3 Improvements.. ..................................................................................................... 3 "Institutional Mortgagee"....................................................................................... 3 "Interest Rate"........................................................................................................3 "Land".................................................................................................................... 3 MIAMI 1746636.8 7829330796 _i_ f TABLE OF CONTENTS (continued) Page "Legal Requirements"............................................................................................ 3 "Owner" or "Unit Owner"......................................................................................4 "Person" .................................................................................................................4 "Project"................................................................................................................. 4 "Special Assessments"...........................................................................................4 "Unit".....................................................................................................................4 "Utility Facilities" ..................................................................................................4 "Utility Services" ...................................................................................................4 3. DESCRIPTION OF CONDOMINIUM.............................................................................4 3.1 Identification of Units............................................................................................ 4 3.2 Unit Boundaries..................................................................................................... 5 3.3 Easements .............................................................................................................. 5 4. COMMON ELEMENTS, COMMON SURPLUS, COMMON EXPENSES AND VOTINGRIGHTS............................................................................................................. 8 4.1 Percentage Ownership and Shares......................................................................... 8 4.2 Restraint Upon Separation and Partition of Common Elements ........................... 8 4.3 Voting .................................................................................................................... 8 5. 'AMENDMENTS ............................................................................................................... 8 5.1 By the Association................................................................................................. 8 5.2 By Developer......................................................................................................... 9 5.3 Execution and Recording....................................................................................... 9 5.4 Restrictions on Amendments................................................................................. 9 5.5 Scrivener's Errors................................................................................................. 10 6. MAINTENANCE AND REPAIRS................................................................................. 10 6.1 By Owner............................................................................................................. 10 6.2 By Association..................................................................................................... 10 6.3 Association's Right of Access to Units................................................................ 10 6.4 Miscellaneous ...................................................................................................... 11 7. ADDITIONS, ALTERATIONS OR IMPROVEMENTS............................................... 11 7.1 By the Association............................................................................................... 11 MIAMI 1746636.8 7829330796 -11- i TABLE OF CONTENTS (continued) Page 7.2 By Owners ........................................................................................................... 11 8. OPERATION OF THE CONDOMINIUM BY THE ASSOCIATION.......................... 11 8.1 Powers and Duties................................................................................................ 11 8.2 Limitation Upon Liability of Association............................................................ 13 8.3 Restraint Upon Assignment of Shares in Assets................................................. 13 8.4 Approval or Disapproval of Matters.................................................................... 13 8.5 Acts of the Association........................................................................................ 13 9. ASSESSMENTS AND OTHER CHARGES.................................................................. 13 9.1 Determination of Common Expenses and Assessments...................................... 13 9.2 Liability for Payment........................................................................................... 14 9.3 Unpaid Assessments and Other Charges ............................................................. 14 9.4 Institutional Mortgagee........................................................................................ 14 9.5 Possession of Unit................................................................................................ 14 9.6 Certificate of Unpaid Assessments...................................................................... 14 9.7 Special Assessments ............................................................................................ 14 10. INSURANCE................................................................................................................... 15 11. RECONSTRUCTION OR REPAIR AFTER FIRE CASUALTY................................. 15 11.1 Election By Owner............................................................................................... 15 11.2 Election to Restore............................................................................................... 15 11.3 Nonrestoration of City Unit................................................................................. 15 11.4 Nonrestoration of BRP Unit................................................................................. 16 11.5 Restoration After Election Not to Restore........................................................... 16 12. CONDEMNATION......................................................................................................... 16 12.1 Deposit of Awards with Insurance Trustee.......................................................... 16 12.2 Determination Whether to Continue Condominium............................................ 16 12.3 Taking of Unit...............................................................:...................................... 16 12.4 Taking of Common Elements.............................................................................. 16 12.5 Amendment of Declaration.................................................................................. 17 13. OCCUPANCY AND USE RESTRICTIONS ................................................................. 17 13.1 Use of City Unit................................................................................................... 17 MIAMI 1746636.8 7829330796 -111- i TABLE OF CONTENTS (continued) Page 13.2 Use of BRP Unit.................................................................................................. 17 13.3 Rules .................................................................................................................... 18 13.4 Conduct of Work.................................................................................................. 18 13.5 Plans Availability................................................................................................. 18 13.6 Compliance with Legal Requirements................................................................. 18 13.7 Cooperation.......................................................................................................... 19 13.8 Odors.................................................................................................................... 19 13.9 Hazardous Materials ............................................................................................ 19 13.10 Government Compliance...................................................:................................. 19 14. SELLING, LEASING OR TRANSFERRING OF UNITS............................................. 20 15. COMPLIANCE AND DEFAULT................................................................................... 20 15.1 Negligence ........................................................................................................... 20 .15.2 Costs and Attorneys' Fees.................................................................................... 20 16. TERMINATION OF CONDOMINIUM......................................................................... 20 17. ADDITIONAL PROVISIONS........................................................................................ 20 17.1 Additional Rights of Institutional Mortgagees .................................................... 20 17.2 Assignment of Developer's Rights.............................................................. 17.3 Limitation of Liability.......................................................................................... 21 17.4 Covenant Running With the Land....................................................................... 21 17.5 Notices ................................................................................................................. 22 17.6 No Time-Share Estates ........................................................................................ 22 17.7 Exhibits................................................................................................................ 22 17.8 Taxes.................................................................................................................... 22 17.9 Signature of President and Secretary................................................................... 22 17.10 Governing Law.................................................................................................... 23 17.11 Severability..........................................................................................................23 17.12 Waiver.................................................................................................................. 23 17.13 Ratification........................................................................................................... 23 17.14 Gender; Plurality.................................................................................................. 23 17.15 Captions............................................................................................................... 23 MIAMI 1746636.8 7829330796 -iv- i TABLE OF CONTENTS (continued) Page 17.16 Statutory Warranty Liability................................................................................ 23 17.17 Force Majeure Events.......................................................................................... 23 EXHIBIT A Legal Description EXHIBIT B Survey EXHIBIT C Allocation of Shares of Common Elements, Common Expenses and Common Surplus EXHIBIT D By Laws EXHIBIT E Articles of Incorporation MIAMI 1746636.8 7829330796 _V_ 1 ' DECLARATION OF CONDOMINIUM OF PURDY AVENUE COMMERCIAL CONDOMINIUM This Declaration of Condominium ("Declaration") made as of this day of , 2009, by BAY ROAD PARTNERS, LLC, a Florida limited liability company having an address c/o Scott Robins Companies, 230 5th Street, Miami Beach, Florida 33139 ("BRP") and CITY OF MIAMI BEACH, a municipal corporation having an address at 1700 Convention Center Drive, Miami Beach, Florida 33139 ("City"). BRP and City are collectively referred to as "Developer". Developer declares as follows: 1. INTRODUCTION AND SUBMISSION. 1.1 The Land. Developer owns the fee title to land located in Miami-Dade County, Florida described in Exhibit "A" ("Land"). 1.2 Submission Statement. Developer submits the Land and all improvements erected or to be erected thereon, all easements, rights and appurtenances and all other property intended for use in connection therewith and located on the land (excluding all public and private Utility Facilities as defined below), to the condominium form of ownership and use in the manner provided by the Florida Condominium Act, Chapter 718, Florida Statutes as it exists on this date. 1.3 Name. The name b which this condominium is to e identified i P y b s. URDY AVENUE COMMERCIAL CONDOMINIUM ("Condominium"). 2. DEFINITIONS. The following terms when used in this Declaration and in its exhibits, as they may subsequently be amended, shall have the meaning indicated in this Article, except where the context clearly indicates a different meaning: "Act" means the Condominium Act (Chapter 718, Florida Statutes) as it exists on this date and as it may subsequently be renumbered. "Articles" means the Articles of Incorporation of the Association attached at Exhibit "E", as they may be amended from time to time. "Assessment" or "Assessments" means a share of the funds required for the payment of Common Expenses which from time to time is assessed against an Owner, including Special Assessments. "Association" means Purdy Avenue Commercial Condominium Association, Inc., a not for profit Florida corporation, the entity responsible for the operation of the Condominium in accordance with the terms of this Declaration. MIAMI 1746636.8 7829330796 I j i i I "Association Property" means any real or personal property owned or leased by, or dedicated by plat to, the Association for use and benefit of the Owners. "Board of Directors" or "Board" means the Board of Directors of the Association. "B12P Unit" means the Unit described in Section 3.1(a). "Buildinjz" means the structures intended to be erected on the Land. "By-Laws" means the By-Laws of the Association attached as Exhibit "D", as they may be amended from time to time. "City Unit" means the Unit described in Section 3.1(b). "Collection Costs" includes all costs and expenses reasonably incurred in enforcing the applicable obligation(s) under this Declaration, including, without limitation, reasonable attorneys' and paralegals' fees at all tribunal levels, in connection with all proceedings, and whether or not suit is instituted. "Common Elements" means and includes: (a) those portions of the Condominium Property consisting of the surface of the Land, all below surface interests, the air space above'500 feet above ground level and the foundation and footings of any Building constructed on the Condominium Property; (b) those portions of the Condominium Property not included within the Units; (c) an easement of support in every portion of a Unit which contributes to the support of the Building; (d) any electrical vault constructed in the Building and furnishing service to the entire Building; and (e) any other parts of the Condominium Property designated as Common Elements in this Declaration. "Common Expenses" means all expenses incurred by the Association on behalf of the Association or on behalf of the Condominium, including, without limitation: (a) expenses of administration, management, operation, maintenance, repair or replacement of the Common Elements; (b) costs of carrying out the powers and duties of the Association and for administration and management of the Association; and (c) any other expenses designated as Common Expenses by the Act or the Condominium Documents. 2 MIAMI 1746636.8 7829330796 i i f f "Common Surplus" means the excess of all receipts of the Association collected on behalf of the Condominium, including, but not limited to, Assessments, rents, profits and revenues on account of the Common Elements, above the amount of Common Expenses. "Condominium" has the meaning indicated in Section 1.3. "Condominium Documents" means collectively this Declaration, the Articles, the By- Laws and the rules and regulations of the Condominium. "Condominium Parcel" means a Unit together with the undivided share in the Common Elements which is appurtenant to that Unit; when the context permits, the term includes all other appurtenances to the Unit. "Condominium Property" means the Land, the Improvements, all easements and rights appurtenant intended for use in connection with the Condominium and all other property, real, personal and mixed made subject to this Declaration. "County" means the County of Miami-Dade, State of Florida. "Declaration" or "Declaration of Condominium" means this instrument, as it may be amended from time to time. "Developer" means BRP and City and their respective successors and assigns to which all of the rights of either as Developer are specifically assigned; neither BRP or City may partially assign their respective rights as Developer.. "Improvements" means all structures and artificial changes to the natural environment (exclusive of landscaping) located on the Condominium Property. "Institutional Mortgagee" means any of the following holding a first mortgage on a Condominium Parcel: a bank, savings and loan association, insurance company, real estate or mortgage investment trust, pension fund, an agency of the United States government, mortgage banker, any other lender generally recognized as an institutional-type lender, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Government National Mortgage Association and Developer. "Interest Rate" means a rate per annum equal to 2% above the "Prime Rate" as it varies from time to time as reported from time to time in the "Money Rates" section of The Wall Street Journal, as published and distributed in New York, New York, or its successor, or if it has no successor, a newspaper or other publication of similar stature, or if such rate shall cease to be published, such other rate as shall at the time be representative of the rates announced by major U.S. money center banks as the typical rate of interest charged on unsecured corporate loans. "Land" has the meaning indicated in Section 1.1. "Legal Requirements" means (a) all present and future laws, ordinances, orders, rules, regulations and requirements of all federal, state, county and municipal governments, i 3 MIAMI 1746636.8 7829330796 i t r i departments, commissions, boards and courts, and rules and regulations of any insurance rating organization or any other body exercising similar functions, foreseen or unforeseen, ordinary as well as extraordinary, which may be applicable to the Condominium Property or the sidewalks and curbs adjoining the Condominium Property or to the use or manner of use of the Condominium Property by the Owners, tenants, or occupants thereof, including the Americans with Disabilities Act; (b) the requirements of all public liability, fire and other policies of insurance at any time. in force with respect to the Condominium Property; and (c) the provisions of any restrictive covenants now or subsequently affecting the Condominium Property. "Owner" or "Unit Owner" means a record owner of legal title to a Condominium Parcel as shown by the real estate records in the office of the Clerk of the County, including Developer, and any one or more persons, firms, associations, corporations or other legal entities holding legal title. "Owner" shall not mean or refer to (i) the holder of a mortgage or security deed, its successors or assigns, unless and until such holder has acquired title pursuant to foreclosure proceedings or deed in lieu of foreclosure; or(ii) any lessee or tenant of an Owner. "Person" means an individual or individuals, firm, corporation, partnership, association, trust or other legal entity or any combination of any of the foregoing. "Project" means the construction of a 458 space parking garage as approved by the City's (i) Design Review Board on October 6, 2008 under File No. 21861, and (ii) Planning Board on September 23, 2008 under File No. 1896. "Special Assessments" has the meaning indicated in Section 9.7. "Unit" means a portion of the Land which is subject to exclusive ownership. "Utility Facilities" means and includes private and public utility lines, systems, or facilities of any type or nature, including wires, pipes, mains, conduits, valves, air handling units, switches, control boxes, breakers, risers, cables, fiber optic lines, shafts, ducts, master antenna, satellite dishes and reception devices which supply or are used in the supply of domestic cold and hot water, sanitary sewer service, storm sewer service, chilled water, condenser water, steam, steam condensate, natural gas, compressed air, conditioned and non conditioned air, ventilation and exhaust air, electricity, fire alarm, emergency communications, systems control and automation, video and other security monitoring, telephone, television, other telecommunications and information transmission systems, and other mechanical, electrical, and life safety systems, and including all meters for any of the foregoing. "Utility Services" shall include, but not be limited to, electric power, domestic water, heating, air conditioning, trash removal, sewerage, master antenna, cable television, telephone and security systems and data transmission. 3. DESCRIPTION OF CONDOMINIUM. 3.1 Identification of Units. The Condominium Property includes two Units. 4 MIAMI 1746636.8 7829330796 i (a) The BRP Unit consists of the airspace on the Land from ground level to an elevation of 16 feet above ground level and is shown in Exhibit "B" and shall be owned by BRP, City conveys and quitclaims all of its interest in the BRP Unit to BRP. (b) The City Unit consists of the airspace on the Land above the elevation of 16 above ground level to an elevation of 500 feet above ground level and is shown in Exhibit "B" and shall be owned by City, BRP conveys and quitclaims all of its interest in the City Unit to City. (c) The designation of each Unit is set forth on Exhibit "B". Exhibit "B" consists of a survey of the Land, a graphic description of the Units, and a plot plan thereof. Exhibit "B" together with this Declaration identify the Common Elements and each Unit and the relative locations and approximate dimensions. Upon completion of the Project, the Owners will reconfigure the description of the Units to reflect the as-built location of the City Unit and the BRP Unit as previously approved by the City Design and Review Board and Planning Board and as indicated in the definition of the "Project.". (d) There shall pass with a Unit as appurtenances: (i) an undivided share in the Common Elements and Common Surplus; (ii) the exclusive right to use such portion of the Common Elements as may be provided in this Declaration; (iii) any Improvements which may from time to time exist on the Unit; (iv) membership in the Association with full voting rights; and (v)other appurtenances as may be provided in this Declaration. 3.2 Unit Boundaries. Each Unit shall include a fee simple interest in that part of Land lying within the boundaries of the Unit. 3.3 Easements. The following easements are created (in addition to any easements created under the Act): (a) Maintenance. Easements in favor of the Association, its employees, agents and contractors over the Units to perform its maintenance functions of the Association indicated in Section 6. (b) Utility Services, Utility Facilities and Drainage. (i) Easements for Utility Facilities and Utility Services, and drainage are reserved for the benefit of each Owner under, through and over the Condominium Property as may be required from time to time for all or portions of the Condominium Property. An Owner shall do nothing on the Unit that interferes with or impairs, or may interfere with or impair, the provision of such Utility Services, other services or drainage facilities or the use of these easements. (ii) Each Owner or its designee shall have access to each other Unit to inspect, maintain, repair or replace the Utility Facilities, Utility Services, drainage facilities and Common Elements, if any, contained in the Unit or elsewhere in the Condominium Property, and to remove any Improvements interfering with or impairing such facilities or easements. Except in the event of an emergency, such right of access shall not unreasonably interfere with 5 MIAMI 1746636.8 7829330796 i an Owner's permitted use of a Unit, and shall not permit entry to any Unit on less than one days' prior notice. (iii) A non exclusive right and easement is reserved for the benefit of each Owner for the existence, use, enjoyment, repair, replacement, and (to the extent expressly permitted by this Declaration) the relocation and the installation of all Utility Facilities which (y) serve such Owner's Unit and (z) are located (in whole or in part) within, or pass through or under, any other Unit or any Common Elements. Each Unit and the Common Elements are subjected to the rights and easements for all Utility Services and Utility Facilities granted by this Section 3.3(b). Such easements shall exist for all Utility Services and Utility Facilities as presently located within the Condominium Property and as the same may subsequently be located or relocated in accordance with the provisions of this Section 3.3(b) and shall be deemed to include rights of access to such Utility Facilities and the use of such additional spaces and areas around such Utility Facilities reasonably necessary to serve the purposes of such easements. (iv) The rights and easements described in Sections 13(b) and 3.3(f) are expressly made applicable to any Utility Services or other services which are or may become necessary in the future for the proper operation of an Owner's Unit, so long as the easements described in Sections 3.3(b) and 3.3(f) and the use of such easements do not interfere with the use and occupancy of another Owner's Unit. (v) City, BRP or the Association (on its behalf and on behalf of the Owners) each has the right to grant such additional easements for the installation and use of Utility Facilities, and for the relocation of any existing Utility Facilities in any portion of the Condominium Property, the Improvements and the Common Elements, as City, BRP and/or Association shall deem necessary for the proper operation and maintenance of the Condominium Property, or any portion thereof, or for the general health or welfare of the Owners, or for the purpose of carrying out any provisions of this Declaration. Such easements or the relocation of existing easements (1) will only be performed after 30 days' prior written notice to the Owners, (2) will not unreasonably interfere or diminish the service being supplied to the Unit(s) (excepting reasonable, temporary interference when relocation is necessary), (3) will only be performed during non-business hours, unless performance during business hours cannot be reasonably avoided (it being intended that "business hours" will be different as applied to each Unit, according to when normal use is highest for such Unit), (4) will, to the extent practicable, be located in the public roads and in the Common Elements, and (5) will otherwise comply with the requirements of this Declaration. Any Owner that requires the creation or relocation of such easement(s) shall bear the expense of such creation and/or relocation. (c) Encroachments. If(a) any portion of the Common Elements encroaches upon any Unit; (b) any Unit encroaches upon any other Unit or onto any portion of the Common Elements; or (c) any encroachment shall subsequently occur onto the Common Elements or any Unit as a result of (i) construction of any of the Improvements; (ii) settling or shifting of the Improvements; (iii) any alteration or repair to the Common Elements made by or with the consent of the Association, or (iv) any repair or restoration of the Improvements or the Building (or any portion thereof) after damage by fire or other casualty or any taking by condemnation or eminent domain proceedings of all or any portion of any Unit or the Common Elements, then, in 6 MIAMI 1746636.8 7829330796 r I any such event, a valid easement shall exist for such encroachment and for its maintenance so long as the Building or Improvements exist. (d) Ingress and Egress. A non-exclusive easement is created in favor of each Owner and occupant, their guests and invitees, for pedestrian traffic over, through and across sidewalks, streets, paths, walks, other rights of way and other portions of the Common Elements (but excluding the Units) as from time to time may exist and be intended and designated for such purpose and use. (e) Construction; Maintenance; Repair and Restoration. City (including its designees, contractors, successors and assigns) shall have the right, in its sole discretion, from time to time, to enter the Condominium Property and the BRP Unit and take all other action necessary or convenient for the purpose of(i) completing the construction of the Project and (ii) after reasonable prior written notice to BRP and subject to the rights of any occupants of the BRP Unit, repairing, replacing or maintaining the Improvements located on the BRP Unit which support the Improvements on the City Unit. BRC (including its designees, contractors, successors and assigns), after completion of the City Unit and after prior written notice to City, shall have the right, in its discretion, from time to time, to enter the Condominium Property and the City Unit and take all other action necessary or convenient for the purpose of(i) completing the construction of the BRP Unit and (ii) after reasonable prior written notice to City and subject to the rights of any occupants of the City Unit, repairing, replacing and maintaining the BRP Unit. The Association (including its designees and contractors) shall have the right from time to time to enter the Condominium Property, including the individual Units and any Improvements, and to perform the Repairs and Alterations which may be performed by the Association pursuant to.Articles 6 and 7. Any activity described in this paragraph shall not prevent or unreasonably interfere with the use or enjoyment by Owners of their Units. (f) Communications Systems. City and BRP each reserves for itself, its successors, assigns, contractors, designees and nominees, (i) ownership of any closed circuit, master antenna, community antenna, cable television voice or data system or the like (including any and all related conduits, wires, amplifiers, antennas, towers and other apparatus and equipment) which it (or one of its successors, assigns, designees or nominees) installs in part or whole on the Condominium Property (any such system and its related apparatus and equipment is referred to as the "Communications System"), (ii) a perpetual easement over, through and across the Condominium Property for the installation, servicing, maintenance, repair, replacement and removal of the Communications System or any part thereof, and (iii) the right to connect the Communications System to whatever receiving source the owner of the Communications System deems appropriate. (g) Support. An easement of support and of necessity is reserved for the benefit of each Unit and each Unit shall be subject to an easement of support and necessity in favor of the other Unit and the Common Elements. (h) Encroachments. If(a) any portion of the Common Elements encroaches upon any Unit; (b) any Unit encroaches upon any other Unit or upon any portion of the Common Elements; or (c) any encroachment shall subsequently occur as a result of(i) construction of the Improvements; (ii) settling or shifting of the Improvements; (iii) any alteration or repair to the Common Elements made by or with the consent of the Association, or (iv) any repair or 7 MIAMI 1746636.8 7829330796 II restoration of the Improvements (or any portion thereof) or any Unit after damage by fire or other casualty or any taking by condemnation or eminent domain proceedings of all or any portion of any Unit or the Common Elements, then, in any such event, a valid easement shall exist for such encroachment and for its maintenance so long as the Improvements exist. (i) Additional Easements. Developer and the Board, on their behalf and on behalf of the Association, and all Owners, each shall have the right to grant such additional electric, gas, water distribution or waste water collection or other utility or service or other easements, or relocate any existing easements or drainage facilities in any portion of the Condominium Property, and to grant access easements or relocate any existing access easements in any portion of the Condominium Property, as Developer or the Association shall deem necessary or desirable for the proper operations and maintenance of the Improvements, or any portion thereof, or for the general health or welfare of Owners, or for the purpose of carrying out any provisions of this Declaration or otherwise. Such easements or the relocation of existing easements will not prevent or unreasonably interfere with the reasonable use of the Units. The Board has the authority, without the joinder of any Owners, to grant, modify or move any easement, subject to the provisions of the easement, if the easement constitutes part of, or crosses, the Common Elements. 4. COMMON ELEMENTS, COMMON SURPLUS, COMMON EXPENSES AND VOTING RIGHTS. 4.1 Percentalze Ownership and Shares. The undivided percentage interest in the Common Elements and Common Surplus, and the percentage share of the Common Expenses appurtenant to each Unit, is set forth in Exhibit "C". 4.2 Restraint Upon Separation and Partition of Common Elements. The undivided share in the Common Elements and Common Surplus which is appurtenant to a Unit: (a) shall not be separated from the Unit but shall pass with the title to the Unit, whether or not separately described, and (b) shall remain undivided and cannot be conveyed or encumbered except together with the Unit. No action for partition of the Common Elements, the Condominium Property, or any part, shall lie, except as provided upon termination of the Condominium. 4.3 Votin . The BRP Unit shall be entitled to 35 votes, and the City Unit shall be entitled to 65 votes to be cast by its Owner in accordance with the By-Laws and the Articles on all matters which Owners are entitled to vote. Each Owner shall be a member of the Association. 5. AMENDMENTS. Except as specifically otherwise provided, this Declaration may be amended only as follows: 5.1 By the Association. Notice of the subject matter of a proposed amendment shall be included in the notice of any meeting at which it will be considered. A resolution to adopt the amendment may be proposed either by a majority of the Board of Directors or by not less than one-third of the members of the Association. Directors not present in person and members not present in person or by proxy at the meeting considering the amendment may express their 8 MIAMI 1746636.8 7829330796 1 approval in writing, provided that such approval is delivered to the secretary at or prior to the meeting. Except as elsewhere provided in this Declaration: (a) An amendment may be adopted and approved by Owners and/or the Board of Directors as follows: (i) Owners owning in excess of 75% of the votes allocated to all of the Units; or (ii) 75% of the Board of Directors. (b) Except as specifically otherwise provided in this Declaration, no amendment shall (i) change the configuration or size of any Unit in any material fashion, (ii) materially alter or modify the appurtenances to any Unit, or (iii) change the percentage by which the Owner shares the Common Expenses and owns the Common Elements and Common Surplus, unless, in any such case, all affected record Owners, mortgagees and other lien holders join in the execution of the amendment. If an amendment will change the configuration or size of any Unit in any material fashion, materially alter or modify the appurtenances to or voting interest of any Unit, or change the percentage by which an Owner of a Unit shares the Common Expenses and owns the Common Elements and Common Surplus, then the record Owner(s) thereof, and all record owners of mortgages or other liens thereon, shall join in the execution of the amendment. In addition, such amendment must be approved by 75% or more of the voting interests of Owners. The acquisition of property by the Association, material alterations or substantial additions to such property or the Common Elements by the Association and installation, replacement, operation, repair and maintenance of approved hurricane shutters, if in accordance with the provisions of this Declaration, shall not be deemed to constitute a material alteration or modification of the appurtenances of the Units, and accordingly, shall not be deemed included in this paragraph (b). 5.2 By Developer. This Declaration does not include all of the land anticipated to be included in the Project. In addition, no Improvements to the Land will have been undertaken by Developer upon the recording of this Declaration. When and if Improvements are to be commenced on the Land, Developer anticipates recording an amendment to this Declaration to add additional property and Improvements to this Declaration and re-describe the two Units. 5.3 Execution and Recording. An amendment, other than amendments made solely by Developer pursuant to the Act or this Declaration, shall be evidenced by a certificate of the Association identifying the Declaration with its recording data. The certificate shall be executed in the form required for the execution of a deed. Amendments by Developer shall be made by written instrument in recordable form but no Association action is required. Any amendment of the Declaration is effective when recorded in the Public Records of the County. 5.4 Restrictions on Amendments. (a) Proposals to amend this Declaration shall contain the full text of the provision to be amended; new words shall be indicated by underlining and deletions shall be indicated by lining through the material to be deleted with hyphens or otherwise clearly indicating the deleted material. No amendment may be proposed or adopted solely by reference 9 MIAMI 1746636.8 7829330796 i to the title of the provision being amended. If a proposed change is so extensive that the procedure set forth in this Section 5.4(a) would hinder rather than assist the understanding of the proposed amendment, it shall not be necessary to use underlining and hyphens as indicators of words added or deleted but instead a notation shall be inserted immediately preceding the proposed amendment in substantially the following language: "substantial rewording of declaration; see provision for present text." Non-material errors or omissions in the amendment process shall not invalidate an otherwise properly promulgated amendment. No amendment may eliminate, modify, prejudice, abridge or otherwise adversely affect any rights, benefits, privileges or priorities granted or reserved to Developer or mortgagees of Units without the consent of Developer or such mortgagees in each instance. The Sections entitled "Insurance", "Reconstruction or Repair after Casualty" and "Condemnation" shall not be modified unless all Instihrtional Mortgagees of record shall join in the amendment. 5.5 Scrivener's Errors. If, through scrivener's error, all of the Common Expenses or interest in the Common Surplus or all of the Common Elements have not been distributed in this Declaration so that the sum total of the shares of Common Elements which have been distributed or the shares of the Common Expenses or ownership of Common Surplus fails to equal 100%; or, through error, more than 100% of the Common Elements or Common Expenses or ownership of the Common Surplus shall have been distributed; or, if through scriveners' error, a Condominium Parcel has not been designated an appropriate undivided share of the Common Elements, Common Expenses or Common Surplus; or, if there is an omission or error in this Declaration or in any of the related documents required by law to establish this Condominium, the Association may correct the error and/or omission by an amendment to this Declaration and/or any related documents by simple resolution of the Board of Directors approved by 75% of the Board or by 75% of all votes of the Owners voting at a meeting of the Association called at least in part for the purpose, at which a quorum is present. Any amendment approved pursuant to this Section which modifies the shares of Common Expenses, Common Elements or Common Surplus appurtenant to one or more Units, shall not be effective unless the Owners of and holders of liens upon the Units affected consent in writing to the amendment. For the purpose of this Section and Section 5.2(b), no Owner's property rights shall be deemed to be materially adversely affected nor shall his share of the Common Elements, Common Expense or Common Surplus be deemed modified by reason of the modification of the shares of Common Expense, Common Elements or Common Surplus appurtenant or attributable to another Unit. 6. MAINTENANCE AND REPAIRS. All maintenance, repairs and replacements (collectively "Repairs") to the Condominium Property shall be performed as follows: 6.1 By Owner. Except as otherwise expressly provided, an Owner shall make all Repairs to the Owner's Unit. 6.2 By Association. The Association shall maintain and trim all landscaping on the Land and all sprinkler irrigation systems. The Association shall also be responsible for repainting the exterior portions of the Building at such times as determined by the Board. Except as otherwise provided, the Association shall make all Repairs to the Common Elements and Association Property. The cost of such maintenance and Repairs described in this Section 6.2 shall be charged to all Owners as a Common Expense except to the extent arising from or 10 MIAMI 1746636.8 7829330796 i necessitated by the negligence, misuse or neglect of any specific Owner, in which case such cost shall be paid solely by such Owner. . 6.3 Association's Riffht of Access to Units. The Association has the irrevocable right of access to each Unit during reasonable hours when necessary for Repairs to any Common Elements or of any portion of a Unit to be maintained by the Association pursuant to this Declaration, or for making emergency Repairs to the Unit or any of the Building which are necessary to prevent damage to the Common Elements or to any other Unit or to any of the Building. Association's right of access to any Building shall be effected only after at least five days prior written notice to the Owner except in case of emergency when no notice shall be required. 6.4 Miscellaneous. All work performed on any portion of the Condominium Property shall be in compliance with all Legal Requirements. 7. ADDITIONS, ALTERATIONS OR IMPROVEMENTS. 7.1 By the Association. Any additions, alterations or improvements (collectively "Alterations"), as distinguished from repairs and replacements, costing in excess of$10,000 in the aggregate in any calendar year, shall be made by the Association only after the prior approval of 75% of the votes allocated to all of the Units represented at a meeting at which a quorum is attained. Any Alterations to the Condominium Property costing in the aggregate $10,000 or less in a calendar year may be made by action of the Board without approval of the Owners. The costs of any such Alterations shall constitute Common Expenses and shall be assessed to the Owners. 7.2 By Owners. An Owner shall not make any Alterations in or to the Common Elements or Association Property without obtaining prior written consent from the Board of Directors, which consent may be withheld for any reason at the sole discretion of the Board, including, without limitation, for purely aesthetic reasons. Consent shall not be granted if it is determined that the Alterations would detrimentally affect the architectural design of the Condominium Property, but shall not be withheld in a discriminatory manner. The Board shall be deemed to have denied the request if it fails to take any action within 30 days after the later of (i) receipt of such request, or (ii) receipt of all additional information requested by the Board within such 30 day period. Any Alterations by an Owner shall be made in compliance with all Legal Requirements and with any conditions imposed by the Association relating to design, structural integrity, aesthetic appeal, construction details, lien protection or otherwise. Any Owner making or causing to be made any such Alterations shall be deemed to have agreed, for such Owner and Owner's heirs, personal representatives, successors and assigns, to hold the Association and all other Owners harmless from any liability or damage to the Condominium Property and expenses arising therefrom, and shall be solely responsible for the maintenance, repair and insurance of such Alterations from and after that date of installation or construction as may be required by the Association. The Association's rights of review and approval of plans and other submissions under this Declaration are intended solely for the benefit of the Association. 11 MIAMI 1746636.8 7829330796 1 8. OPERATION OF THE CONDOMINIUM BY THE ASSOCIATION. 8.1 Powers and Duties. The Association shall be responsible for the operation of the Common Elements of the Condominium and the Association Property. The powers and duties of the Association shall include those set forth in the By-Laws and Articles. In addition, the Association shall have all the powers and duties set forth in the Act and in this Declaration, including,without limitation: (a) The irrevocable right to have access to each Unit from time to time during reasonable hours as may be necessary for maintenance, repair or replacement of any Common Elements or of any portion of a Unit to be maintained by the Association pursuant to this Declaration, or at any time and by force, if necessary, for emergency repairs necessary to prevent damage to the Common Elements or to any other Unit or Units, or to determine compliance with the terms and provisions of this Declaration, its exhibits and the rules and regulations adopted pursuant to such documents, as the same may be amended from time to time. (b) The power to make and collect Assessments and other charges and surcharges against Owners and to lease, maintain, repair and replace the Common Elements and Association Property. (c) The duty to maintain accounting records according to good accounting practices, which shall be open to inspection by Owners or their authorized representatives at such reasonable times as established from time to time by the Board. (d) The power to enter into contracts with others (whether or not affiliated with the Association or Developer), for a valuable consideration, for maintenance and management of the Condominium Property and Association Property and, in such connection, to permit others to make and collect Assessments and other charges against Owners, and perfect liens for non-payment thereof on behalf of the Board. (e) The power to borrow money, execute promissory notes and other evidences of indebtedness and to give as security mortgages and security interests in property owned by the Association, provided that such actions are approved by a majority of the Board of Directors and of Owners represented at a meeting at which a quorum has been attained, or by such greater percentage of the Board or Owners as may be specified in the By-Laws with respect to certain borrowing. (f) When authorized by a majority of Owners represented at a meeting at which a quorum has been attained, the power to acquire and enter into agreements for the acquisition of fee interests, leaseholds, memberships and other possessory or use interests in lands or facilities, whether or not contiguous to the lands of the Condominium, intended to be provided for the use or benefit of Owners (whether or not on an exclusive basis). The expenses of ownership (including the expense of making and carrying any mortgage related to such ownership), rental, membership fees, operation, replacements and other expenses and undertakings in connection therewith shall be Common Expenses. (g) The power to (i) grant bills of sale for items of personal property owned or governed by the Association and (ii) take any other action on behalf of itself and all Owners (as 12 MIAMI 1746636.8 7829330796 i attorney-in-fact for all Owners) to satisfy any requirement of a company or governmental agency to which equipment, facilities or materials used in connection with Utility Services are to be transferred. (h) The duty to notify Owners within a reasonable time of the institution of any action or proceeding against the Association in which the Association may be exposed to liability in excess of insurance coverage; any Owner shall have the right to intervene in and furnish additional defense for the Association. (i) To contract for the management and maintenance of the Condominium Property and to authorize a management agent (which may be an affiliate of Developer) to assist the Association in carrying out its powers and duties by performing such functions as the submission of proposals, collection of Assessments and other charges, preparation of records, enforcement of rules and maintenance, repairs and replacement of the Common Elements with funds as shall be made available by the Association for such purposes. The Association shall, however, retain at all times the powers and duties granted by this Declaration, the Articles, By- Laws and the Act, including but not limited to the making of Assessments, and other charges, promulgation of rules and execution of contracts on behalf of the Association. 0) The power to levy reasonable fines against a Unit for failure of the Owner or its occupant,.licensee or invitee to comply with any provision of this Declaration, the By- Laws or the rules and regulations. (k) All of the powers which a corporation not for profit in the State of Florida may exercise. 8.2 Limitation Upon Liability of Association. Notwithstanding the duty of the Association to maintain and repair parts of the Condominium Property and the Association Property, the Association shall not be liable to Owners for injury or damage, other than for the cost of maintenance and repair, caused by any latent condition of the Condominium Property or the Association Property. 8.3 Restraint Upon AssitZnment of Shares in Assets. An Owner's share in the funds and assets of the Association cannot be assigned, hypothecated or transferred in any manner except as an appurtenance to such Owner's Unit. 8.4 Approval or Disapproval of Matters. Whenever the decision of an Owner is required upon any matter, whether or not the subject of an Association meeting, that decision shall be expressed by the. same individual who would cast the vote for the Unit if at an Association meeting, unless the joinder of record Owners is specifically required by the Declaration or By-Laws. Any decision by the City or document execution by the City as the City Owner under the Condominium Documents shall be made and will be effective if made or executed by the City Manager or by his or her designee. 8.5 Acts of the Association. Unless approval or action of Owners or a specific percentage of the Board is specifically required by the Condominium Documents, or applicable law, all approvals or actions required or permitted to be given or taken by the Association shall be given or taken by the Board of Directors, without the consent of Owners. The Board may so 13 MIAMI 1746636.8 7829330796 i approve and act through the proper officers of the Association without a specific resolution. Whenever an approval or action of the Association is to be given or taken, such action or approval may be conditioned in any manner the Association deems appropriate or the Association may refuse to take or give such action or approval without the necessity of establishing the reasonableness of such conditions or refusal. 9. ASSESSMENTS AND OTHER CHARGES. 9.1 Determination of Common Expenses and Assessments. The Board of Directors shall from time to time, and at least annually, prepare a budget for the Condominium, determine the amount of Assessments payable by Owners to meet the Common Expenses and allocate and assess such expenses among Owners in accordance with the provisions of this Declaration and the By-Laws. The Board, promptly following its determination, shall advise all Owners in writing of the amount of Assessments payable by each Owner and shall furnish copies of the budget, on which such Assessments are based, to all Owners and (if requested.in writing) to their respective mortgagees. Any budget adopted shall not contain reserves for capital expenditures and deferred maintenance. Any budget adopted may be changed at any time to cover actual expenses. Any such change shall be adopted consistent with the provisions of the By-Laws. 9.2 Liability for Payment. Each Owner, regardless of the manner in which title is acquired, including, without limitation, purchase at a judicial, sale, or deed in lieu of foreclosure, shall be liable for all,Assessments and other charges due with respect to that Unit while an Owner. Except as otherwise indicated in this Article, an Owner shall be jointly and severally liable with the previous Owner of a Unit for all unpaid Assessments and other charges against the Unit coming due to the time of the transfer of title. Such liability shall be without prejudice to any right the Owner may have to recover from the previous Owner any payment made. The liability for Assessments may not be avoided by waiver of the use or enjoyment of any Common Elements or by the abandonment of the Unit for which the Assessments are made or otherwise. 9.3 Unpaid Assessments and Other Charl4es. Assessments and other charges paid within 10 days after the due date shall not bear interest but all sums not paid within such period thereafter shall bear interest at the Interest Rate from the original due date until paid. The Association may charge an administrative late fee, in addition to such interest, in an amount not to exceed the greatest of (i) $25.00, (ii) five percent of each delinquent payment or (iii) such maximum amount as may be permitted by the Act. In addition, the Association may accelerate any unpaid Assessments in accordance with the By-Laws. Any payment received by the Association shall be applied first to any interest accrued by the Association, then to any administrative late fee, then to any costs and reasonable attorney's fees incurred in collection, and then to the delinquent Assessment, (and/or other charges, to the extent allowed by law). The foregoing shall be applicable notwithstanding any restrictive endorsement, designation, or instruction placed on or accompanying a payment. A late fee shall neither be subject to the provisions of Florida's interest and usury laws nor the provisions of the Condominium Act dealing with the levy of fines against a Unit. 9.4 Institutional MortIzagee. If an Institutional Mortgagee files suit to foreclose its mortgage the Association shall not be named as a defendant. 14 MIAMI 1746636.8 7829330796 i 9.5 Possession of Unit. Any Person who acquires an interest in a Unit shall not be entitled to occupancy of the Unit or enjoyment of the Common Elements until such time as all unpaid Assessments and other charges due and owing by the former Owner, if any, have been paid. 9.6 Certificate of Unpaid Assessments. Within 15 days after written request by Owner,or holder of a mortgage on a Unit, the Association shall provide a certificate stating all Assessments and other moneys owed to the Association by the Owner with respect to the Unit. Any person other than the Owner who relies on such certificate shall be protected thereby. 9.7 Special Assessments. In addition to Assessments to meet annually budgeted Common Expenses, the Board may levy Assessments for nonrecurring costs or capital improvements ("Special Assessments"). The specific purpose or purposes of any Special Assessment approved in accordance with the Condominium Documents shall be set forth in a written notice of such Special Assessment sent or delivered to each Owner. The funds collected pursuant to a Special Assessment shall be used only for the specific purpose or purposes set forth in such notice, or returned to the Owners. Upon completion of such specific purpose or purposes, any excess funds shall be considered Common Surplus. 10. INSURANCE. Each Owner shall provide casualty and liability coverage for its Unit as described in this Section. City shall be entitled to self-insure pursuant to its plan of funded self insurance. Insurance coverage provided by any individual Owner shall provide that the coverage afforded by such policies is primary and without rights of subrogation against the Association or any other Owner. (a) Casualty. The Improvements in each Unit, including all fixtures, machinery and installations installed and all alterations and additions made by an Owner (collectively, "Insured Property"), shall be insured in an amount not less than 100% of full insurable replacement value, excluding foundation and excavation costs, against loss or damage by fire and other hazards covered by a standard extended coverage endorsement and such other risks including, but not limited to, vandalism and malicious mischief, and windstorm as from time to time are customarily covered with respect to buildings and improvements similar to the Insured Property in construction, location and use. Such policies may contain reasonable deductible provisions. (b) Liability. Commercial liability and automobile liability insurance covering loss or damage resulting from accidents or occurrences on or about or in connection with the Insured Property or adjoining driveways and walkways, or any work, matters or things related to the Insured Property, with such coverage as shall be required by prevailing market conditions, but with combined single limit liability of not less than $1,000,000. 11. RECONSTRUCTION OR REPAIR AFTER FIRE CASUALTY. 11.1 Election By Owner. Each Owner shall be responsible for the repair and/or restoration of such Owner's Unit but neither Owner shall be obligated to make such repairs and/or restoration. Should an Owner elect not to restore it shall remove such of the damaged portion of the Unit and restore same to the extent the Unit is in a self contained and neat and clean appearance. 15 MIAMI 1746636.8 7829330796 f 11.2 Election to Restore. Within 90 days following any damages to any Unit, the Owner of the Unit will advise each other Owner whether it has elected to restore or not restore the damage. In the event of any restoration any Owner shall have access to the Condominium Property and the other Unit for the purpose of effecting any repair or restoration in accordance with Section 3.3(e). Failure to provide such notice shall be deemed an election not to restore. If the City elects to restore the City Unit, BRP shall reimburse the City for its share of any restoration costs described in Section 11.4. 11.3 Nonrestoration of City Unit. If the City Unit is damaged and such damage affects the operation of the BRP Unit and City has elected or deemed to have elected not to restore the damage, the BRP Unit Owner may, at its expense, take such actions as it deems reasonably necessary to render its Unit a self contained operating structure. Such actions may include, without limitation, the erection, repair or replacement of a roof over the BRP Unit and the enclosure of any building openings on the City Unit. City grants BRP easements of access to the City Unit to make such alterations and grants BRP the right to make appropriate alterations to the Improvements on the City Unit consistent with this Section 11.3. Should City provide notice that it elects to restore as provided in Section 11.2 but fails to commence such restoration within 180 days after such notice or ceases for a period of at least 60 days in any restoration work once commenced, then such actions shall be deemed an election by City not to restore its Unit. 11.4 Nonrestoration of BRP Unit. If the BRP Unit is damaged and such damage affects the operation of the City Unit and BRP has elected or deemed to have elected not to restore the damage, the City Unit Owner may, at its expense, take such actions as it deems reasonably necessary to render its Unit a self contained operating structure. Such actions may include, without limitation, enclosure of any building openings on the BRP Unit. Should such restoration include repairs to or replacement of the footings, foundations and any other below grade structure, first floor columns or the floor slab for second floor ("Shared Components"), BRP will reimburse City in such event for 35% of(i) the cost of such repairs to or restoration of the Shared Components and (ii) all soft costs appropriately related thereto. To the extent the repairs or restoration also involves other portions of the Improvements on the City Unit, Owners shall equitably apportion the costs of the work to the Shared Components and to the balance of the other work. BRP grants City easements of access to the BRP Unit to make such repairs and restoration and grants City the right to make appropriate alterations to the Improvements on the BRP Unit consistent with this Section 11. Should BRP provide notice that it elects to restore as provided in Section 11.2 but fails to commence such restoration within 180 days after such notice or ceases for a period of at least 60 days in any restoration work once commenced, then such actions shall be deemed an election by BRP not to restore its Unit. 11.5 Restoration After Election Not to Restore. If any Owner has elected or deemed to have elected not to restore the Improvements on such Owner's Unit but such Owner subsequently seeks to restore, such restoration may be undertaken only if it does not interfere in any material respect with the conduct of business on any Unit in which business is being conducted and all work involved in such restoration, including work affecting another Unit, is accomplished at the sole cost of the restoring Owner. 16 MIAMI 1746636.8 7829330796 i i 12. CONDEMNATION. 12.1 Deposit of Awards with Insurance Trustee. For purposes of this Declaration, the taking of portions of the Condominium Property by the exercise of the power of eminent domain or purchase in lieu thereof("Taking") shall be treated as a casualty. 12.2 Determination Whether to Continue Condominium. The determination whether to terminate the Condominium after the taking of a substantial portion of the Common Elements will be made by an affirmative vote of 75% of the votes allocated to all of the Units as provided for termination of the Condominium. 12.3 Taking of Unit. If the Taking is of all or a portion of one or more Units then the award for the Taking shall be allocated by the condemning authority between the Units and then, as to each Unit, paid to the extent available from the award allocated to such Unit: first, to the applicable Institutional Mortgagees in amounts sufficient to satisfy their mortgages on such Unit on which a taking has occurred; second, to the Association for any due and unpaid Assessments; third,jointly to the affected Owners and other mortgagees of their Units. 12.4 Taking of Common Elements. Awards for the Taking of Common Elements shall be used to render the remaining portion of the Common Elements useable in the manner approved by the Board of Directors. If the cost of such work shall exceed the balance of the funds from the awards for the Taking, the work shall be approved in the manner elsewhere required for capital improvements to the Common Elements and shall be paid by the Owner of the Unit for which the work is necessary. The balance of the awards for the Taking of Common Elements, if any, shall be distributed to the Owners in the shares in which they own the Common Elements after adjustments to these shares by reason of the Taking. If there is a mortgage on a Unit, the distribution shall be paid jointly to the Owner and the mortgagees of the Unit. 12.5 Amendment of Declaration. The changes in Units, the Common Elements and in the ownership of the Common Elements and the adjustment to the shares in the Common. Expenses and Common Surplus that are effected by the Taking shall be evidenced by an amendment to this Declaration approved by, and executed at the direction of, a majority of the Board. 13. OCCUPANCY AND USE RESTRICTIONS. In order to provide for congenial occupancy of the Condominium Property and for the protection of the values of the Units, the use of the Condominium Property shall be restricted to and shall be in accordance with the following provisions: 13.1 Use of City Unit. Upon substantial completion of the Project, the City Unit shall be used for parking uses and access thereto and/or any other permissible use under applicable law. At all times during which the City Unit is operated as a municipal parking garage at least 130 parking spaces shall be made available to the general public during the hours of 9:00 a.m. and 8:00 p.m. 13.2 Use of BRP Unit. Upon substantial completion of the Project, the BRP Unit may be used only for retail and commercial uses to the extent permitted by applicable Legal Requirements. The following uses shall be prohibited on the BRP Unit: 17 MIAMI 1746636.8 7829330796 ( (a) "Adult" bookstores or cinemas or establishments for the sale of drug- related paraphernalia. For purposes of this subparagraph: "Adult" bookstores or cinemas shall mean and include any establishments which sell or offer for sale or display any merchandise which is distinguished or characterized by emphasis on matter depicting, describing or related to (i) sexual activities or (ii) fondling or erotic touching of the body; and "establishments for the sale of drug-related paraphernalia" shall mean and include establishments which sell or offer for sale any merchandise which is commonly used or intended for use with or in the consumption of any narcotic, dangerous drug or other controlled substance; (b) Pawn shops; (c) Soup kitchen, homeless shelter or other similar facility; (d) Mental health facility, substance abuse facility or other rehabilitation center; (e) Gambling or bingo facility; (f) Auction or"flea market" facility; (g) Funeral home; (h) Laundromat (excluding any laundromats with a secondary use such as the "suds and duds" operation) or dry cleaners with on premises cleaning plants or facilities; (i) Automobile, recreational vehicle or mobile home sales, rentals or repairs, excluding luxury or so-called "exotic" automobile sales; or 0) Manufacturing facilities. Furthermore, in no event shall any business or retail operation in the BRP Unit exceed 15,000 feet of gross leasable area. Without limiting the generality of the foregoing, the BRP Unit shall at all times be divided into spaces, none of which exceed 15,000 square feet of gross leasable area; and there shall be no interior connections between two or more spaces if the total gross leasable area of such spaces would exceed 15,000 square feet of gross leasable area in the aggregate. The provisions of this Section 13.2 shall survive any termination of this Condominium and shall remain in full force and effect. 13.3 Rules. Reasonable nondiscriminatory and consistently enforced rules and regulations may be established by the Association. 13.4 Conduct of Work. From and after completion of the Project, all work performed by any Unit Owner shall be performed in a prompt, good, workmanlike, lien-free manner, and in a manner which minimizes disruption of or interference with the operation of the other Units. Once commenced, such work shall be performed continuously and with due diligence, and, promptly upon completion thereof, the area in which the work was performed, and any other areas affected thereby, shall be restored to at least as good condition that they were in prior to the 18 MIAMI 1746636.8 7829330796 performance of such work. Except only when expressly provided to the contrary in this Declaration, each Owner will be responsible for maintenance, repair and replacement of all portions of the Condominium Property within its Unit. Any construction activity in the Unit shall be performed in a manner that minimizes inconvenience to and disruption of the operation of the other Units. 13.5 Plans Availability. Each Owner shall retain all plans and specifications for any work performed by it, and shall make same available to all other Owners from time to time upon reasonable request therefor (and any other Owner may duplicate any such materials, at its cost). The foregoing is agreed to in recognition of the fact that such materials may facilitate the maintenance, repair and replacement of facilities within the Condominium Property. Each Owner disclaims any representation or warranty as to the accuracy of any such materials. 113.6 Compliance with Lel4al Requirements. Each Owner shall at all times promptly and fully comply with all Legal Requirements that pertain to its Unit, whether or not any such Legal Requirements shall necessitate structural changes or improvements to or interfere with the use and enjoyment of the Condominium Property. Each Owner further agrees to cooperate with all reasonable requests of any other Owner in respect of resolving issues pertaining to compliance with Legal Requirements. Either Owner shall have the right to contest any Legal Requirements, or their applicability, through all available lawful means, and may defer compliance with any Legal Requirement while it is so contesting same in good faith and diligently, so long as the contesting Owner takes all steps reasonably required to stay any enforcement action or otherwise prevent material adverse impact to any other Owner or the Condominium Property. 13.7 Cooperation. All easements granted in this Declaration, and the use thereof, shall be deemed to be limited to the extent reasonably necessary to accomplish the purposes for which such easements are granted. Each Owner agrees to cooperate with the reasonable requests of any other Owner in furtherance of the spirit and intent of the matters addressed in this Declaration. 13.8 Odors. No Owner shall permit any offensive odors to exist on the Condominium Property. All Owners recognize and agree that it is difficult to control odors within the loading and compactor/trash areas due to the nature of the use of those areas and, although reasonable steps to minimize odors from those areas will be taken, the provisions of this Section 13.8 shall be interpreted to give due consideration to the difficulty in controlling odors in these areas. 13.9 Hazardous Materials. Each Owner agrees that it will not generate, use, store or dispose of any hazardous materials or substances on any portion of the Condominium Property except in full compliance with all Legal Requirements. Hazardous substances or materials for purposes of the foregoing shall mean any substances or materials that are from time to time designated as such by, or whose generation, use, storage or disposal is regulated pursuant to, any Legal Requirements. If any Owner receives any notice of the release of a hazardous material or substances affecting the Condominium Property, it shall promptly notify all other Owners, and each Owner shall cooperate with all reasonable requests of any other Owner in respect of remediation, at no cost to the Owner being requested to cooperate except to the extent such Owner breached the provisions of the first sentence of this Section 13.9. 19 MIAMI 1746636.8 7829330796 i i .13.10 Government Compliance. (a) Each Owner acknowledges and agrees that the City (in its regulatory capacity and not as an Owner of a Unit) or other applicable governmental authorities may require the joinder by all Owners in applications for permits to perform work within the Condominium Property. Each Owner desiring to perform work shall, if so required, submit any such applications to all other Owners for review, approval and joinder, which will not be unreasonably withheld, delayed or conditioned, provided the work for which the permit is being sought is in accordance with the terms of this Declaration (including compliance with all Legal Requirements, including approvals required by the City in its regulatory capacity). Each Owner further acknowledges being aware that, in connection with permitting pertaining to any portion of the Condominium Property, the Owner applying for such permit may have to submit plans for the entire Condominium Property and, if this is required by applicable governmental authorities, each Owner shall cooperate with all others, at no cost to the cooperating Owner, in accomplishing this in a manner that minimizes delay in the application process. (b) Each Owner shall, within five business days of receipt, furnish to any other Owner a copy of any notices received from any governmental authority pertaining to any violation of Legal Requirements, compliance with respect to which is or may be the responsibility of any other Owner. 14. SELLING, LEASING OR TRANSFERRING OF UNITS. There shall be no restriction on selling, leasing or otherwise transferring any Unit in whole or in part. Each Owner shall have the right to mortgage its Unit without restriction. 15. COMPLIANCE AND DEFAULT. Each Owner, occupant of a Unit and the Association shall be governed by and shall comply with the terms of the Condominium Documents, as the same may be amended from time to time. The Association (and Owners, if appropriate) shall be entitled to the following relief in addition to the remedies provided by the Act. 15.1 Nealiaence. An Owner shall be liable for the expense of any maintenance, repair or replacement made necessary by such Owner's negligence or by that of such Owner's invitees, employees, agents or lessees, but only to the extent such expense is not met by the proceeds of insurance actually collected in respect of such negligence by the Association. 15.2 Costs and Attorneys' Fees. In any proceeding arising because of an alleged failure of an Owner to comply with the requirements of the Act, or Condominium Documents, as the same may be amended from time to time, the prevailing party shall be entitled to recover the costs of the proceeding and such reasonable attorneys' fees (including appellate attorneys' fees) as may be awarded by the court. 16. TERMINATION OF CONDOMINIUM. The Condominium shall continue until (i) terminated by condemnation or eminent domain, as more particularly provided in this Declaration, or (ii) such time as withdrawal of the Condominium Property from the provisions of the Act is authorized by a vote of Owners owning at least 75% of the votes allocated to all of the Units in the Condominium and by any Institutional Mortgagee. 20 MIAMI 1746636.8 7829330796 f 17. ADDITIONAL PROVISIONS. 17.1 Additional Rights of Institutional Mortgagees. (a) In addition to all other rights set forth, Institutional Mortgagees shall have the right, upon written notice to the Association, to: (i) Examine the Association's books and records during normal business hours; (ii) Receive an unaudited financial statement of the Association within 90 days after the end of its fiscal year; (iii) Receive notice of Association meetings and attend such meetings; (iv) Receive notice of an alleged default by any Owner upon whose Unit such mortgagee holds a mortgage, which is not cured within 60 days after notice of default to such Owner; (v) Receive notice of any substantial damage or loss to any portion of the Condominium Property; and (vi) Any proposed action that would require the consent of a specified percentage of Institutional Mortgagees. Any Institutional Mortgagee giving notice pursuant to this Article shall serve its notice .upon the Association, by registered or certified mail, return receipt requested, which notice shall: (1) identify each Unit upon which each such Institutional Mortgagee holds any mortgage; and (2) designate the place to which notice are to be given by the Association to such Institutional Mortgagee. (b) Whenever consent or approval of any holder(s) of any mortgage(s) encumbering any Condominium Parcel(s) or Condominium Property is required by the Condominium Documents to any amendment of the Condominium Documents, or to any action of the Association or to any other matter relating to the Condominium, such consent may not be unreasonably withheld. The Association may request such consent or approval of such holder(s) by written request sent certified mail, return receipt requested (or equivalent delivery evidencing such request was delivered to and received by such holders). Any holder receiving such request shall be required to consent to or disapprove the matter for which the consent or approval is requested, in writing, by certified mail, return receipt requested (or equivalent delivery evidencing such request was delivered to and received by the Association), which response must be received by the Association within 30 days after the holder receives such request. If such response is not timely received by the Association, the holder shall be deemed to have consented to and approved the matter for which such approval or consent was requested. Such consent or approval given or deemed to have been given, where required, may be evidenced by an affidavit signed by an officer of the Association. Such affidavit, where necessary, may be recorded in the Public"Records of the County and shall be conclusive evidence that the applicable consent or approval was given as to the matters therein contained. These provisions shall not apply where 21 MIAMI 1746636.8 7829330796 i i i an Institutional Mortgagee is otherwise required to specifically join in an amendment to this Declaration. 17.2 Assignment of Developer's Rights. Developer may assign the whole or any portion of Developer's rights set forth in the Condominium Documents. In the event of a partial assignment, the assignee shall not be deemed "Developer" but may exercise any rights of Developer assigned to it. Any such assignment may be made on a non-exclusive basis. 17.3 Limitation of Liability. The liability of each Owner for Common Expenses shall be limited to the amounts assessed against the Owner from time to time in accordance with the Condominium Documents. Each Owner shall be liable for injuries or damages resulting from an accident in its own Unit to the same extent or degree that any other property owner would be liable for such an occurrence. 17.4 Covenant Running With the Land. All provisions of the Condominium Documents shall, to the extent applicable and unless otherwise expressly provided to the contrary, be perpetual covenants running with the Land and with every part and interest therein, and all of the provisions shall be binding upon and inure to the benefit of Developer and subsequent owner(s) of the Land or any part or interest therein, and their respective heirs, personal representatives, successors and assigns. This Section is not intended to create nor shall it be construed as creating any rights in or for the benefit of the general public. All present and future Owners, tenants and occupants of Units shall be subject to and shall comply with the provisions of the Condominium Documents, as they may be amended from time to time. The acceptance of a deed or conveyance, or the entering into of a lease, or the entering into occupancy of any Unit, shall constitute an adoption and ratification of the provisions of the Condominium Documents, as they may be amended from time to time, by such Owner, tenant or occupant. 17.5 Notices. All notices to the Association required or desired under this Declaration or the.By-Laws shall be sent by certified or registered mail (return receipt requested), express courier service (such as Federal Express) or hand delivery to the Association at its address listed with the Florida Secretary of State, or to such other address or in such other manner as the Association may designate from time to time by notice in writing to all Owners. Except as otherwise specifically provided in the Act or this Declaration, all notices to any Owner shall be sent by first class mail (return receipt requested), express courier service (such as Federal Express) or hand delivery to the Condominium address of such Owner, or such other address or in such.other manner as may have been designated by an Owner from time to time, in writing, to the Association. All notices to mortgagees of Units shall be sent by first class mail to their respective addresses, or such other address as may be designated by them from time to time, in writing, to the Association. All notices shall be deemed to have been given when received or, if mailed, within three days following mailing in a postage prepaid sealed wrapper. 17.6 No Time-Share Estates. No time-share estates will or may be created with respect to any Unit. 17.7 Exhibits. There is incorporated into this Declaration any materials contained in the Exhibits which under the Act are required to be part of the Declaration. 22 MIAMI 1746636.8 7829330796 17.8 Taxes. City and BRP acknowledge that, due to City's ownership of the City Unit City should be entitled to an exemption from real estate and personal property taxes and assessments. Each Unit Owner agrees to cooperate with City, at no cost to such Unit Owner , in attempting to realize said exemption. The foregoing shall include modifying this Declaration to the extent necessary. Each Unit Owner (other than City) shall pay prior to delinquency all taxes and assessments, real and personal, whether general or special, levied against its Unit. The foregoing shall not preclude either City or any other Unit Owner from contesting taxes, so long as appropriate steps are taken to prevent a sale of the Unit on account of non-payment thereof. The Owner appealing taxes shall be responsible for the full costs for any such appeal. Each Owner agrees to cooperate with all reasonable requests of the other in an attempt to have any portion of the Condominium Property reasonably requested by the other, or any component thereof, separately assessed for tax purposes. 17.9 Sil4nature of President and Secretary. Wherever the signature of the President or the Secretary of the Association is required, the signature of a vice-president may be substituted for the President, and the signature of the assistant secretary substituted for the Secretary but the same person may not execute any single instrument on behalf of the Association in two separate capacities. 17.10 GoverninjZ Law. Should any dispute or litigation arise between any parties whose.rights or duties are affected or determined by the Condominium Documents, as the same may be amended from time to time, said dispute or litigation shall be governed by the laws of the State of Florida. 17.11 Severability. The invalidity in whole or in part of any covenant or restriction, or any article, section, subsection, sentence, clause, phrase or word, or other provision of the Condominium Documents, as the same may be amended from time to time, shall not affect the validity of the remaining portions thereof which shall remain in full force and effect. 17.12 Waiver. No provisions contained in this Declaration shall be deemed to have been waived by reason of any failure to enforce the same, without regard to the number of violations or breaches which may occur. 17.13 Ratification. Each Owner, by reason of having acquired ownership (whether by purchase, gift, operation of law or otherwise), and each occupant of a Unit, by reason of his occupancy, shall be deemed to have acknowledged and agreed that all of the provisions of the Condominium Documents are fair and reasonable in all material respects. 17.14 Gender; Plurality. Wherever the context so permits, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be deemed to include all or no genders. 17.15 Captions. The captions contained in the Condominium Documents are inserted only as a matter of convenience and for ease of reference and in no way define or limit the scope of the particular document or any provision thereof. 17.16 Statutory Warranty Liability. BRP assumes all warranty liability imposed by the Act with respect to the BRP Unit and releases City from all such liability. City assumes all 23 MIAMI 1746636.8 7829330796 warranty liability imposed by the Act with respect to the City Unit and releases BRP from all such liability. 17.17 Force MVlajeure Events. Except in the event of any emergency requiring immediate action, whenever a period of time is prescribed in this Declaration for the taking of any action by an Owner, such Owner shall not be liable or responsible for, and there shall be excluded from the computation of such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, governmental laws, regulations or restrictions, or any other cause whatsoever beyond the control of such Owner. IN WITNESS WHEREOF, Developer has executed this Declaration as of the date indicated above. Signed, sealed and delivered CITY OF MIAMI BEACH, FLORIDA, a municipal in the presence f: corporation r . Sign Name: Print Name:-L\k. m 4- 1 By: Sign Name: , Print Name: jP(v-k ATTEST: B 6U APPROVED AS TO FORM&LANGUAGE FOR UTiON mey Date 24 MIAMI 1746636.6 7829330796 t l Sign Name:_ Print Name C BAY ROAD PARTNERS, LLC Sign Name: , Print Name: By: —SAY ERS BRP, LLC, anager By: Scott Robins, Managing Member MARTIN A SCHWARTZ :4 _* - MY COMMISSION#DD 524331 EXPIRES:March 26 2010 Bonded Thru Pichard Insurance Agency 25 MIAMI 1746636.8 7829330796 ACKNOWLEDGMENTS STATE OF FLORIDA ) COUNTY OF.MIAMI-DADS ) The forego g Declaration of Condominium was acknowledged before me this l day of , 2004 by Scott Robins, as Managing Member of Bay Road Partners BRP, L C, a Florida limited liability company as manager of Bay Road Partners, LLC, a Florida limited liability company, on behalf of such limited liability companies. is per ly known to me or has produced a Florida driver's license as identification. Sign Nam .. Print Name: MAI-ri n A NOTARY PU LIC STATE OF FLORIDA Print Name %1 A S MY COMMISSION EXPIRES: ,�;►F`pu�c I MARTIN A.SCHWARTZ MY COMMISSION#DD 524331 �: po= EXPIRES:March 26,2010 %�f��• Bonded Thru Pickard Insurance Agency 26 MIAMI 1746636.8 7829330796 I f j STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE ) The foregoing was acknowledged before me this day of March, 2009 by Matti H. Bower, as Mayor of the City of Miami Beach, a municipal corporation of the State of Florida, on behalf of such municipal corporation. She is personally known to me or has produced a Florida driver's license as identification. Sign Name: lv�,1114z Print Name: n Y Y NOTARY PU LIC, STATE OF FLORIDA Print Name: IL2 Y r ��-+� 4 �✓� My Commission Expires: KERRY HERNANDEZ MY COMMISSION#DD 626373 EXPIRES:May 3,2011 '181F F,.•` Bonded Thru Notary Pubfc Underwriters 522451_1 I j JOINDER PURDY AVENUE COMMERCIAL CONDOMINIUM ASSOCIATION, INC., a Florida corporation not for profit, agrees to accept all the benefits and all of the duties, responsibilities, obligations and burdens imposed upon it by the provisions of this Declaration and Exhibits attached. IN WITNESS WHEREOF, PURDY AVENUE COMMERCIAL CONDOMINIUM ASSOCIATION, INC., has caused these presents to be signed in its name by its proper officer and its corporate seal to be affixed this day of m A r" , 2009. Signed, sealed and delivered PURDY AVENUE COMMERCIAL in the presence of: CONDOMINIUM ASSOCIATION, INC., a Florida not t corporation Sign Nam By: Print Namec ,,;,/I— President Sign Name: Print Name: STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE) S � The foregoing joinder was acknowledged before me this i( day of RW26h by Se ;U, zo, asyNesident of PURDY AVENUE COMMERCIAL CONDOMINIUM ASSOCIATION, INC., a Florida corporation not for profit, on behalf of said corporation. He/She is personally known to me or has produced a Florida driver's license as identification. i, Sign Name: Print Name: NOTARY PUBLIC, STATE OF FLORIDA Print Name MY COMMISSION EXPIRES: .�Y°Y'• CHARLES H.RATHER I :*: MY COMMISSION#DD 715591 a EXPIRES:September 17,2011 Bonded Thru Notary Public Underwriters 28 MIAMI 1746636.8 7829330796 i r• j i PURDY AVENUE Commercial Condominium LEGAL DESCRIPTION: All of Lot 1 and Lot 2, Less the North four (4) feet of the East 1/2 of said Lot 2, Block 14—A, ISLAND VIEW ADDITION, according to the plat thereof, as recorded in Plat Book 9 at Page 144, and together with the East 1/2 of Lot 7 and all of Lot 8, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, according to the plat thereof, as recorded in Plat Book 6 at Page 115, both being recorded in the Public Records of Miarni—Dade County, Florida. CL I 0 0 rn 0 \ 0 n v c IL v v O O O Mm 0 3 0 U ro N N O O O Z LEGA L U 1<1P�'I0�I U 6 U EXHIBIT A SHEET 1 OF 1 PURDY AVENUE' Commercial Condominium STATE OF FLORIDA SS COUNTY OF MIAMI-DADE BEFORE ME, the undersigned authority duly authorized to administer oaths and take acknowledgments, personally appeared DANIEL C. FORTIN, by me well known and known to me to be the person hereinafter described, who being by me first duly cautioned and sworn, deposes and says on oath as follows, to wit: 1. That he is duly registered and duly licensed land surveyor authorized to practice under the laws of the State of Florida. 2. Affiant hereby certifies that Exhibit B, together with the provisions of the Declaration of Condominium describing the Condominium Property, is an accurate representation of the location and dimensions of the improvements and so that the identification, location, and dimensions of the common elements and of each unit can be determined from these materials. 3. That the elevations shown for each floor are relative to the National Geodetic Vertical Datum of 1929. 4. This Certification made this day 31 of March, 2009, by the undersigned surveyor is made pursuant to the provisions of Florida Statues 718.104 and is a certification that this survey and legal description attached are such that these materials, together with the provision of the Declaration describing the Condominium property, represent an accurate representation of the location and dimensions of the units and common elements so that the identification, location and dimensions of the common elements and each unit can be determine from these materials. 5. 1 am a duly licensed and practicing professional surveyor and mapper in the State of Florida and, under my supervision, this survey was made and is true and correct to the best of my knowledge and belief, and this survey meets the minimum technical standards set forth by the Florida Board of Land Surveyors pursuant to Section 472.027 Florida Statues. FU ER AF IANT SAYETH NAUGHT. , . _t;� �.;.�s ms F RTI VY I , INC. 653 461' �j. . ,� w 4Y Daniel C. Fortin, For The Firm PROFESSIONAL SURVEYOR AND MAPPER LS2853 CL State of Florida ` �• j ;, �".' O 'r I w o STATE OF FLORIDA 0 SSA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this March 31, 2009 by DANIEL C. FORTIN, who is personally known to me and who did not take an oath. a- 4) ° --------------------------- ° NOTARY PUBLIC— State of Florida FORTIN, LEAVY, S KILES, INC, CONSULTING ENGINEERS, SURVEYORS & MAPPERS 3 FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER: 00003653 180 Northeast 168th. Street /North Miami Beach, Florida. 33162 ao Phone: 305-653-4493 / Fax 305-651-7152 / Email fls@flssurvey.com N O O z Date March 30, 2009 Dwg. No. 6009-004 Job. No. 090258 ° U EXHIBIT B SHEET 1 OF 6 i PURDY AVENUE Commercial Condominium LEGAL DESCRIPTION: All of Lot 1 and Lot 2, Less the North four (4) feet of the East 1/2 of said Lot 2, Block 14—A, ISLAND VIEW ADDITION, according to the plat thereof, as recorded in Plat Book 9 at Page 144, and together with the East 1/2 of Lot 7 and all of Lot 8, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, according to the plat thereof, as recorded in Plat Book 6 at Page 115, both being recorded in the Public Records of Miami—Dade County, Florida. The above described perimetrical boundary for the BRP Unit lies between an elevation of 4.8 feet and 20.8 feet, relative to the National Geodetic Vertical Datum of 1929. and The above described perimetrical boundary for the City Unit lies between an elevation of 20.8 feet and 500.0 feet, relative to the National Geodetic Vertical Datum of 1929. SURVEYOR'S NOTES: — This site lies in Section 33, Township 53 South, Range 42 East, City of Miami Beach, Miami—Dade County, Florida. — Bearings hereon are referred to an assumed value of N D0*00'00" E for the East right of way line of Sunset Harbour Drive (Purdy Avenue). — Lands shown hereon containing 22,950 square feet, or 0.527 acres, more or less. — Sheets 5 and 6 are not a "Land Survey" but only a graphic depiction of the description shown hereon. — Dimensions shown hereon are based on Fortin, Leavy, Skiles, sketch #1009-018. a 0 0 rn 0 0 M r7 V C IL O O O } M 0 3 0 V co 0 LEGAL DESCRIPTION & 0 C; 'D SURVEYOR'S NOTES EXHIBIT B SHEET 2 OF 6 PURDY AVENUE Commercial Condominium ................. ------ ........... CANAL i 35 1 34 133 32 1 31 1 30 29 1 28 1 27 1 26 1 36 1 1 1 I'MIND P!Pt�tr C*--,, LEMS3(11/14/07, IN, 1 0 1 1 '-;70UNr NA;L&DIU LB-M53(1;/14/07) Uj FWN3 i/j-PIFE a r-Ap - 20TH STREET Z LLJ Fou 40 112.PIPE K--ov-40 1A PIPE 6 5 W W 1_-/' 37 5 < 2! < UWJ 4 14 7 38 10 4 W >I - - :a > U) 8 13- 3 39 co _77777717� 2 9 2 U) LLJ 40 0 70 1 LL 3: C' 8 I 7 6 9 6 5 10 5 - 13 10 0 4 4 12 I .3 2- - 2 9 13 I 14 N93'r)rj'Cf)"E 220DU 18TH STREET "-f0UNrJ CUT NA-1 CD P .................... .................................... .................................................................................................................. 0 This site lies in Section 33, Township 53 South, Range 42 East, City of Miami Beach, Miami-Dade County, Florida. n- 0 N NOT TO SCALE V) 100 O O O O Z O LOCATION SKETCH EXHIBIT B SHEET 3 OF 6 PURDY AVENUE Commercial Condominium fl , I1t1a LIM�Y�_.i i I ISLAND VIEW ADDITI N I fl P A AC3 � E 14 1 ' I Dos R17sPAMY MWIIOU` �® RN EL40D Of cm ...W, y�{EL' ..._........ ... iI ��►��Ir y� x07 WHY OF'NAT WHY or WA PLAY ROOK N PLAT ROOK N ALO PACE IM PACE 141 41 OF WAY RIGHT w wAY - K 9 PLAT ROOK 9 144 PACE 1+4 '_.._ 182 S I OW BUILUING b r-FOUND 3 4'IRON PIN TRUE CORNER "b w171s / INACCESSIBLE 3 / S.WW..CORNER ac�75�) (3/17/09) ,. FOUND PK NAIL 1v NO I.D.(3/17/09) 'S?STORY RUO D WG FLOOR OEVA>toN Ste ;:1919 c L> urArz FLOOR 1a ., n '-ws..-..., - ;b _ 77 F, .. - m,OUI __`i ll•(-4,J:r:1'i-. -, •t^.:J'� /J I1 J - SET NAIL$DI51[. "Y�t° Hopes a H1TNf55 ORNCR :D EoNinc - 1.00'OFFWT. LQT% gT NAIL a1 a9i' 13 . p yy _` LB 3053(3/17/09) Q I j I v 6� ,p_ Dot S 7WIM wm eAre� :r ``-c1 ASPHALT 0 � ? 1• ��' •.r ., boa+tanatnNNl �- � TENCE' .._.......... ................. _. u ft: ...qqq KSr ROHri OF WAY LNE W DAl ROAD I..0T I a'nNON GLAMLIVR Wam POWWGI FENCE POLE(T1'P•)r:, �, yy fASi RIGHT OF WAY UNE M 3 C! Q-URDV AVENUE) 71 PLAT E+::r(;iiC 9 PAGE 1.44 � -z 7 - _.._. ..__.._...._... _........._•_. _..__.._._ ......._........ ._........._.. I' .........._...._ _................ ...._.........._. METMO L.AT 1300K G PA E 116 C odd]lll i LO,r F .�. swTH USE ggE ._ .OT LOf! .D t la UGHr POLE y .- r1P E y'ij R r OF w.Y r4oH7 or w Q. P�0` PLAY FOUND REBAR FOUND 1/ PIPE o NO Imo.43/17/09) NO I.D.(3/1 7 1109) I.W.MR ER a Lor R D�ma.a I Ull CP :i O ASPHALT JSDO' JSLO' 1 11 (POOR CONDHRON) NCSS OF WAY RIGHT OF WA PUT BOIS r000k PAGE 11 W PACE 115 R J C d % r 5 �� ;.: K y IL D /l ECU1N USE :- `• - Cr Lor Y [I-M101 CNA"K DIMP POU: - f FENCE I SET 1/2'PIPE dE CAPJ LB3653(3/17/09) FOUND 1/2'PIPE I O i r/�� osN•NO KSTCW NO I.D.CR.19 09) (IEANING WEST) sE cwxu OP LO7 l �� nO ID. o I r--I IT M -- THE ALT(., BEACH REALTY COMPANY'S o aGl PI...AT r--.,F ISLAND VIEW SURDIVISION GRAPHIC SCALE P1 AT BOOK F PAGE 115 0 20 40 BO IT) cV ° N En ° ( IN FEET ) 0 1 inch = 40 ft. Z BOUNDARY SURVEY 0 U EXHIBIT B SHEET 4 OF 6 PURDY AVENUE Commercial Condominium ISLAND VIEW ADDITIC I PLAT BOOK 9 PAGE 144 ' LOT 3 S90°00'00"E 75.00' NORTH: LINE.. N.W. CORNER OF LOT 2 S90°00'00"E 75.00' W I OF LOT 2 800.00'00"W. O N 4.00,11 OJ LOT 2 - _ F- Of LL O O Z. f� W o° EAST :1/2 OF LOT..2 L.L N O 7 - - _ 00 Q a W O Q LL m > 0 WEST RIGHT OF WAY.LINE I- _ n OF BAY ROAD _ (D �J LOT i [L LLJ C U � J J O O m o ST RIGHT :OF`WAY.LINE OF.::' a SUNSET HARBOUR DRIVE m a� W z :(PURDY:.AVENUE ). rr�� vJ �- w SOUTH LINE: U t.OF:LOT:8: . . LOT e V 1 O �00001001'w 75.00' S.W. CORNER—/ ° 0 OF LOT 8 o °o O cn o O , t` 35.00' 35.00' RIGHT OF WAY RIGHT OF WAY o PLAT BOOK 6 I _ PLAT BOOK 6 PAGE 115 I LO LU EAST 1/2 OF LOT 7 PAGE 115 a ° .SOUTH LINE I o o Q 0 Z OF LOT 7 LO-6 NW00'00"W 75.001 0 I THE ALTON BEACH REALTY COMPANY'S I S.E. CORNER o PLAT OF ISLAND VIEW SUBDIVISION OF LOT 7 } PLAT BOOK 6 PAGE 115 I M NOTES: o The perimetrical boundary of the BRP Unit lies between GRAPHIC SCALE an elevation of 4.8 feet and 20.8 feet and is relative to the National Geodetic Vertical Datum of 1929. 0 is 30 60 N Common Element below elevation of 4.8 feet. N a°, ( IN FEET ) ° LEGEND: 1 inch = 30 ft. z° CONDOMINIUM UNIT 0 BOUNDARY LINE T�f TNIT U BRP EXHIBIT B SHEET 5 OF 6 PURDY AVENUE Commercial Condominium ISLAND VIEW ADDITIC PLAT BOOK 9 PAGE 144 I Lora S90°00'00"E 75.00' NORTH LINE N.W. CORNER �? OF LOT 2 S90000,00'E 75.00'. W OF LOT 2 S00°00'00''W o N 4.0011. o LOT D'Li 00, . °o, EAST 1/2-OF LOT 2 LL N O } W LL Q LL CO > 0 WEST RIGHT OF WAY LINE OF BAY ROAD: 0 Q � LOT 1 fL W U O J = J O %/- ST O o RIGHT OF WAY LINE OF r o SUNSET HARBOUR DRIVE, m n z (PURDY AVENUE) V1 , 0— SOUTH LINE: .' :L0T. OF .8 U LOr V/ O a°oa'oo°w 75.00' o S.W. CORNER-/ 0 OF LOT 8 o a ° U) 0 r` 35.00' 35.00' o RIGHT 0 F WAY RIGHT OF WAY PLAT BOOK 6 © PLAT BOOK 6 PAGE 115 I LO-7 W EAST 1/2 OF LOT 7 PAGE 115 C3 o I � . C) SOUTH LINE z OF LOT °7 Lo-6 N90200'00"W 75.00' o THE ALTON BEACH REALTY COMPANY'S 1\\-S.E. CORNER o I PLAT OF ISLAND VIEW SUBDIVISION OF LOT 7 } PLAT BOOK 6 PAGE 115 I M NOTES: o The perimetrlcal boundary of the City Unit lies between GRAPHIC SCALE an elevation of 20.8 feet and 500.0 feet and is relative to the National Geodetic Vertical Datum of 1929. 0 15 30 60 LO Common Element below elevation of 4.8 feet. N ( IN FEET ) ° LEGEND: 1 inch = 30 ft. z° CONDOMINIUM UNIT 0 BOUNDARY LINE U CITY UNIT EXHIBIT B SHEET 6 of 6 EXHIBIT C Allocation of Shares of Common Elements= Common Expenses and Common Surplus The undivided share in Common Elements, Common Expenses and Common Surplus ("Undivided Share") for each Unit shall be as follows: Unit Share of Common Elements, Common Expenses and Common Surplus City Unit 65% BItP Unit 35% MIAMI 1746636.8 7829330796 EXHIBIT D By Laws MIAMI 1746636.8 7829330796 I i BY-LAWS OF PURDY AVENUE COMMERCIAL CONDOMINIUM ASSOCIATION, INC. A corporation not for profit organized under the laws of the State of Florida 1. Identity. These are the By-Laws of PURDY AVENUE COMMERCIAL CONDOMINIUM ASSOCIATION, INC. ("Association"), a corporation not for profit incorporated under the laws of the State of Florida and organized for the purpose of administering that certain condominium located in Miami-Dade County, Florida and known as PURDY AVENUE COMMERCIAL CONDOMINIUM ("Condominium"). 1.1 Principal Office. The principal office of the Association shall be at 1700 Convention Center Drive, Miami Beach, Florida, or at such other place as may be subsequently designated by the Board of Directors. All books and records of the Association shall be kept at its principal office. 1.2 Fiscal Year. The fiscal year of the Association shall be a calendar year. 1.3 Seal. The seal of the Association shall bear the name of the corporation, the word "Florida", the words "Corporation Not For Profit", and the year of incorporation. 2. Definitions. For convenience, these By-Laws shall be referred to as the "By-Laws" and the Articles of Incorporation of the Association as the "Articles." The other capitalized terms used in these By-Laws shall have the same definition and meaning as those set forth in the Declaration of Condominium for the Condominium or the Articles, unless otherwise provided in these By-Laws, or unless the context otherwise requires. 3. Members. 3.1 Annual MeetinIt. The annual Members' meeting shall be held on the date, at the place and at the time determined by the Board of Directors from time to time. There shall be an annual meeting every calendar year and, to the extent possible, no later than 13 months after the last preceding annual meeting. The purpose of the meeting shall be, except as otherwise provided, to elect or appoint Directors and to transact any other business authorized to be transacted by the Members, or as stated in the notice of the meeting sent in advance to Owners. 3.2 Special Meetings. Special meetings of Members shall be held at such places as provided for annual meetings. Special meetings may be called by the President or by a majority of the Board of Directors of the Association, and must be called by the President or Secretary upon receipt of a written request from a Member of the Association. The business conducted at a special meeting shall be limited to that stated in the notice of the meeting. 3.3 Participation by Owners. Each Owner shall be a Member of the Association. Subject to the following and such further reasonable restrictions as may be adopted from time to MIAMI 1759573.3 7829330796 r time by the Board, Owners may speak at annual and special meetings of Members, committee meetings and Board meetings with reference to all designated agenda items. 3.4 Notice of Meetinp_; Waiver of Notice. Notice of a meeting of Members stating the time and place and the purposes for which the meeting is called shall be given by the President or Secretary. A copy of the notice shall be posted at a conspicuous place on the Condominium Property. The notice of the annual meeting shall be sent by mail to each Owner, unless the Owner has waived in writing the right to receive such notice. The delivery or mailing shall be to the address of the Member as it appears on the roster of Members. Where a Unit is owned by more than one person, the Association shall provide notice, for meetings and all other purposes, to a single address initially identified for that purpose as one or more of the Owners of the Unit shall so advise the Association in writing, or, if no address is given, if the Owners disagree, or if the Association is reasonably unsure as to where to send notice for any reason, notice shall be sent to the address for the Owner as set forth on the deed of the Unit. The posting and mailing of the notice shall be effected not less than 14 nor more than 60 continuous days prior to the date of the meeting. Proof of mailing of the notice shall be given by retention of post office receipts or by affidavit. The Board shall adopt by rule, and give notice to Owners of, a specific location on the Condominium Property upon which all notices of Members' meetings shall be posted. Notice of specific meetings may be waived before or after the meeting and the attendance of any Member (or person authorized to vote for such Member) shall constitute such Member's waiver of notice of such meeting, except when such Member's (or his authorized representative's) attendance is for the express purpose of objecting at the beginning of the meeting to the transaction of business because the meeting is not lawfully called. 3.5 Quorum. A quorum at Members' meetings shall be attained by the presence, either in person or by proxy, of Persons entitled to cast at least 75% of the votes of Members at such meeting. 3.6 VotinLr. (a) Number of Votes. An Owner shall be entitled to cast one vote for each , Unit owned. (b) Majority Vote. The acts approved by a majority of the votes at a meeting at which a quorum shall have been attained shall be binding upon all Owners for all purposes except where otherwise provided by law or the Condominium Documents. As used in these By- Laws, the Articles or the Declaration, the terms "majority of the Owners" and "majority of the Members" shall mean those Owners having more than 50% of the then total authorized votes voting at any meeting of the Owners at which a quorum shall have been attained. Similarly if some greater percentage of Members is required in these By-Laws or in the Declaration or Articles, it shall mean such greater percentage of the votes of Members voting and not of the Members themselves. (c) Voting Member. By-Laws 2 MIAMI 1759573.3 7829330796 i (i) If a Unit is owned by one individual, such individual's right to vote shall be established by the roster of Members. If a Unit is owned by more than one individual, any individual Owner shall be entitled to cast the vote for the Unit unless a specific individual shall be designated by a certificate signed by all of the record owners of the Unit according to the roster of Owners and filed with the Secretary of the Association. Such designated individual need not be an Owner, nor one of the joint owners. If more than one co-owner is present in person or by proxy and the co-owners cannot agree on a particular vote then the right to vote on that subject matter shall be forfeited. (ii) If a Unit is owned by the City of Miami Beach, the vote for such Unit shall be cast by the City Manager or his or her designee pursuant to a written instrument executed by the City Manager. (iii) If a Unit is owned by a corporation, limited liability company, or a partnership, the individual entitled to cast the vote for the Unit shall be designated by a certificate signed by an appropriate officer of the corporation, appropriate signatory of the limited liability company or a general partner of the partnership and filed with the Secretary of the Association. Such individual need not be an Owner. Those certificates shall be valid until revoked or until superseded by a subsequent certificate or until a change in the ownership of the Unit concerned. A certificate designating the person entitled to cast the vote for a Unit may be revoked by any record owner of an undivided interest in the Unit. If a certificate designating the person entitled to cast the vote for a Unit for which such certificate is required is not on file or has been revoked, the vote of the Owner(s) of such Unit shall not be considered in determining whether a quorum is present, nor for any other purpose. In such case, the total number of authorized votes in the Association shall be reduced accordingly until such certificate is filed. (iv) If a Unit is owned jointly by a husband and wife, they may, without being required to do so, designate a voting Member in the manner provided above. Such designee need not be an Owner. In the event a husband and wife do not designate a voting Member, the following provisions shall apply: (x) If both are present at a meeting and are unable to concur in their decision upon any subject requiring a vote, they shall lose their right to vote on that subject at that meeting, and their vote shall not be considered in determining whether a quorum is present on that subject at the meeting (and the total number of authorized votes in the Association shall be reduced accordingly for such subject only). (y) If only one is present at a meeting, the person present shall be counted for purposes of a quorum and may cast the Unit vote just as though he or she owned the Unit individually, and without establishing the concurrence of the absent person. By-Laws 3 MIAMI 1759573.3 7829330796 (z) If both are present at a meeting and concur, either one may cast the Unit's vote. 3.7 Proxies. Votes may be cast in person or by proxy. Except as specifically otherwise provided, Owners may not vote by general proxy, but may vote by limited proxies. Limited proxies shall be permitted for votes taken to: waive or reduce reserves; waive financial statements; amend the Declaration, Articles or By-Laws; or, except as indicated below, for any other matter requiring or permitting a vote of Owners. General proxies may be used for other matters for which limited proxies are not required and may also be used in voting for nonsubstantive changes to items for which a limited proxy is required and given. A proxy may be made by any person entitled to vote, but shall only be valid for the specific meeting for which originally given and any lawful adjourned meeting. In no event shall any proxy be valid for a period longer than 90 days after the date of the first meeting for which it was given. Every proxy shall be revocable at any time at the pleasure of the person executing it. A proxy must be filed in writing, signed by the individual authorized to cast the vote for the Unit (as above described) and filed with the Secretary at least 24 hours before the appointed time of the meeting, or before the time to which the meeting is adjourned. Holders of proxies need not be Owners. Each proxy shall contain the date, time and place of the meeting for which it is given and, if a limited proxy, shall set forth the matters on which the proxy holder may vote and the manner in which the vote is to be cast. There shall be no limitation on the number of proxies which may be held by any person. If a proxy expressly provides, any proxy holder may appoint in writing, a substitute to act in his or her place. If such provision is not made, substitution is not permitted. 3.8 Adjourned Meetings. If any proposed meeting cannot be organized because a quorum has not been attained, the Members present, either in person or by proxy, may adjourn the meeting from time to time until a quorum is present, provided notice of the newly scheduled meeting is given in the manner required for the giving of notice of a meeting. Unless revoked by a Member for any reason, proxies given for the adjourned meeting shall be valid for the newly scheduled meeting. 3.9 Order of Business. If a quorum has been attained, the order of business at annual Members' meetings, and, if applicable, at other Members' meetings, shall be: (a) Call to order by President; (b) Appointment by the President of a chairman of the meeting (who need not be a Member or a director); (c) Proof of notice of the meeting or waiver of notice; (d) Reading of minutes; (e) Reports of officers; (f) Reports of committees; (g) Determination of number of Directors to be elected or appointed; By-Laws 4 MIAMI 1759573.3 7829330796 t f r 1 (h) Election or appointment of Directors; (i) Unfinished business; (j) New business; (k) Adjournment. Such order may be waived in whole or in part by direction of the chairman. 3.10 Minutes of Meeting. The minutes of all meetings of Members shall be kept in a book available for inspection by Owners or their authorized representatives and Board Members at any reasonable time. The Association shall retain these minutes for a period of not less than seven years. 3.11 Action Without A Meeting. To the extent lawful and not inconsistent with the Act or the Declaration, any action required or permitted to be taken at any annual or special meeting of Members, may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the Members (or persons authorized to cast the vote of any such Members) having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting of Members at which a quorum is obtained. Any action by written consent shall not be effective unless signed by Members having the requisite number of votes necessary to authorize the action within 60 days of the date of the earliest dated signature and receipt by the Association. Any written consent may be revoked prior to the date the Association receives the required number of consents to authorize the proposed action. A revocation is not effective unless in writing and until received by the Secretary of the Association, or other authorized agent of the Association. Within 10 days after obtaining any action by written consent, notice shall be given to Members who have not consented in writing. The notice shall fairly summarize the material features of the authorized action. 4. Directors. 4.1 Membership. The affairs of the Association shall be governed by a Board of five Directors. Directors need not be Owners. 4.2 Election of Directors. Election of Directors shall be held at the annual meeting of Members, except as provided in these By-Laws to the contrary. The Class A Member shall elect or appoint three directors and the Class B Member shall elect or appoint two directors. 4.3 Vacancies and Removal. The Directors elected or appointed by the Class A Member may be removed only by the Class A Member. The Directors elected or appointed by the Class B Member may be removed only by the Class B Member. Vacancies created by resignation or removal may be filled only by the Member responsible for the election or appointment of such Directors. 4.4 Term. Except as provided to the contrary in these By-Laws, the term of each Director's service shall extend until the next annual meeting of the Members, or until the By-Laws 5 MIAMI 1759573.3 7829330796 r , Director is removed in the manner elsewhere provided. If no person is designated to replace a Director whose term is expiring, such Director shall be automatically reappointed to the Board of Directors and need not stand for reelection or reappointment. A Director charged with a felony theft or embezzlement offense involving the Association's funds or property shall be removed from office, creating a vacancy in the office to be filled in accordance with these By-Laws. If a person has any such criminal charge pending, he or she may not be appointed or elected to a position as a Director. However, should the charge be resolved without a finding of guilt, the person shall be reinstated for the remainder of his or her term of office, if any. 4.5 Orl4anizational Meeting. Except for the Directors designated in the Articles, the organizational meeting of newly-elected or appointed Members of the Board of Directors shall be held within 20 days of their election or appointment at such place and time as shall be fixed by the Directors at the meeting at which they were elected or appointed. Notice of the organizational meeting shall be provided in accordance with Section 4.6. 4.6 Meetinl4s. Meetings of the Board of Directors may be held at such time and place as shall be determined, from time to time, by a majority of the Directors. Notice of meetings shall be given to each Director, personally or by mail, telephone, fax, email or telegraph, and shall be transmitted at least three days prior to the meeting. Meetings of the Board of Directors and any committee of the Board shall be open to all Owners. Notice of Board meetings shall be posted conspicuously on the Condominium Property at least 48 continuous hours in advance for the attention of the Members of the Association, except in the event of an emergency. Written notice of any meeting of the Board at which regular or non-emergency special Assessments, or at which amendment to rules regarding Unit use will be proposed, discussed or approved, shall specifically state such purpose and, with respect to Assessments, indicate the nature, estimated cost and description of the purpose for such Assessments. Such notice shall be mailed or delivered to all Owners and posted conspicuously on the Condominium Property not less than 14 continuous days prior to the meeting. Evidence of compliance with this 14 day notice shall be made by an affidavit executed by the Secretary of the Association and filed among the official records of the Association. The Board shall adopt by rule, and give notice to Owners of, a specific location on the Condominium Property upon which all notices of Board and/or committee meetings shall be posted. Special meetings of the Directors may be called by the President and must be called by the President or Secretary at the written request of one-third of the Directors. 4.7 Owner Participation. Any Owner may tape record or videotape meetings of the Board, in accordance with the rules of the Division. The right to attend such meetings includes the right to speak at such meetings with respect to all designated agenda items. The Association may adopt reasonable rules governing the frequency, duration and manner of Owner statements. If at least 35% of the voting interest petition the Board to address any item relating to the Condominium, the Board shall at the next regular meeting or at a special meeting of the Board held in either event not later than 60 days of the Board's receipt of the petition, place the item on the agenda for the meeting. 4.8 Waiver of Notice. Any Director may waive notice of a meeting before or after the meeting and that waiver shall be deemed equivalent to the due receipt by such Director of notice. Attendance by any Director at a meeting shall constitute a waiver of notice of such By-Laws 6 MIAMI 1759573.3 7829330796 meeting, except when such Director's attendance is for the express purpose of objecting at the beginning of the meeting to the transaction of business because the meeting is not lawfully called. 4.9 Quorum. A quorum at Directors' meetings shall consist of the entire Board of Directors. The acts approved by a majority of those present at a meeting at which a quorum is present shall constitute the acts of the Board of Directors except when approval by a greater number of Directors is specifically required by the Declaration, the Articles or these By-Laws. After a quorum has been established at a meeting, the subsequent withdrawal of members, so as to reduce the number of voting interests entitled to vote at the meeting below the number required for a quorum, shall not affect the validity of any actions taken at the meeting or any adjournment. Notwithstanding the above, when some or all of the Board of Directors or members of a Committee meet by telephone conference, those Board of Directors or members of a Committee attending by telephone conference may be counted toward obtaining a quorum and may vote by telephone. A telephone speaker shall be utilized so that the conversation of those Board of Directors or members of a Committee attending by telephone may be heard by the Board of Directors or members of a Committee attending in person, as well as by any Owners present at the meeting. 4.10 Adjourned Meetings. If at any proposed meeting of the Board of Directors there is less than a quorum present, the majority of those present may adjourn the meeting from time to time until a quorum is present, provided notice of such newly scheduled meeting is given as required under these By-Laws. At any re-scheduled adjourned meeting, any business that might have been transacted at the meeting as originally called may be transacted without further notice. 4.11 Joinder in Meeting. Any Director may attend a meeting by telephone if a speaker-phone is available at the meeting so that other Directors and Owners can hear the Director participating by telephone and such.Director can hear the meeting. Any Director so participating by telephone shall be counted toward the quorum and shall be entitled to vote by telephone. The joinder of a Director in the action of a meeting by signing and concurring in the minutes of that meeting shall constitute the approval of that Director of the business conducted at the meeting, but such joinder shall not allow the applicable Director to be counted as present for the purpose of determining a quorum or used as a vote for or against the action taken. 4.12 Presiding Officer. The presiding officer at the Directors' meetings shall be the President (who may, however, designate any other person to preside). In the absence of the presiding officer, the Directors present may designate any person to preside. 4.13 Order of Business, Voting. (a) If a quorum has been attained, the order of business at Directors' meetings shall be: (i) Proof of due notice of meeting; (ii) Reading and disposal of any unapproved minutes; (iii) Reports of officers and committees; By-Laws 7 MIAMI 1759573.3 7829330796 (iv) Election of officers; (v) Unfinished business; (vi) New business; (vii) Adjournment. Such order may be waived in whole or in part by direction of the presiding officer. (b) A Director present at a meeting shall be presumed to have assented to the action taken unless he or she votes against such action or abstains from voting. A Director who abstains from voting on any action taken on any matter shall be presumed to have taken no position with regard to the action. Directors may not vote by proxy or by secret ballot except for election of officers. 4.14 Minutes of Meetings. The minutes of all meetings of the Board of Directors shall be kept in a book available for inspection by Owners, or their authorized representatives, and Board Members at any reasonable time. The minutes shall record any vote of absention for each Director. The Association shall retain these minutes for a period of not less than seven years. 5. Powers and Duties. The Board of Directors shall have the powers and duties necessary for the administration of the affairs of the Condominium. The Board may take all acts, through the proper officers of the Association, in exercising such powers, except such acts which, by law, the Declaration, the Articles or these By-Laws, may not be delegated to the Board of Directors by the Owners. Such powers and duties of the Board of Directors shall include, without limitation (except as may be otherwise limited in these By-Laws), the following: (a) Operating and maintaining the Common Elements and Association Property. (b) Determining the expenses required for the operation of the Condominium and the Association. (c) Collecting Assessments from Owners. (d) Employing and dismissing personnel necessary for maintenance and operation of the Common Elements and Association Property. (e) Adopting and amending rules and regulations concerning details of operation and use of the Condominium Property and Association Property, subject to a right of the Owners to overrule the Board as provided in Article 13. (f) Maintaining bank accounts on behalf of the Association and designating the signatories required. By-Laws 8 MIAMI 1759573.3 7829330796 i i (g) Purchasing, leasing or otherwise acquiring title to, or an interest in, property in the name of the Association, or its designee, for the use and benefit of its Members; the power to acquire personal property shall be exercised by the Board and the power to acquire real property shall be exercised as described in these By-Laws and in the Declaration. (h) Purchasing, leasing or otherwise acquiring property in the name of the Association or its designee. (i) Enforcing obligations of Owners, allocating profits and expenses and taking such other actions as shall be deemed necessary and proper for the sound management of the Condominium. (j) Borrowing money on behalf of the Association or the Condominium when required in connection with the operation, care, upkeep and maintenance of the Common Elements or the acquisition of property, and granting mortgages on and/or security interests in Association Property. The consent of all Owners shall be required for any borrowing. If any sum borrowed by the Board of Directors pursuant to this subparagraph is not repaid by the Association, an'Owner who pays to the creditor such a percentage of such sum equal to such Owner's percentage interest in the Common Elements shall be entitled to obtain from the creditor a release of any judgment or other lien which said creditor shall have filed or shall have the right to file against or which will affect such Owner's Unit. (k) Exercising (i) all powers specifically set forth in the Declaration, the Articles, these By-Laws, and in the Act, and (ii) all powers incidental thereto, and all other powers of a Florida corporation not for profit. 6. Officers. 6.1 Executive Officers. The executive officers of the Association shall be a President, a Vice President, a Treasurer, a Secretary and an Assistant Secretary (none of whom need be Directors), all of whom shall be elected or designated by the Board of Directors. All officers may be peremptorily removed at any meeting by concurrence of a majority of all of the Directors. A person may hold more than one office, except that the President may not also be the Secretary or Assistant Secretary. No person shall sign an instrument or perform an act in the capacity of more than one office. The Board of Directors from time to time shall elect such other officers and designate their powers and duties as the Board shall deem necessary or appropriate to manage the affairs of the Association. Officers need not be Owners. 6.2 President. The President shall be the chief executive officer of the Association with all of the powers and duties usually vested in the office of president of an association. 6.3 Vice President. The Vice President shall exercise the powers and perform the duties of the President in the absence or disability of the President. He also shall assist the President and exercise such other powers and perform such other duties as are incident to the office of the vice president of an association and as shall otherwise be prescribed by the Directors. By-Laws 9 MIAMI 1759573.3 7829330796 i i 6.4 Secretary. The Secretary shall keep the minutes of all proceedings of the Directors and the Members, shall attend to the giving of all notices to the Members and Directors and other notices required by law, shall have custody of the seal of the Association and shall affix it to instruments requiring the seal when duly signed. The Secretary shall keep the records of the Association, except those of the Treasurer, and shall perform all other duties incident to the office of the secretary of an association and as may be required by the Directors or the President. 6.5 Assistant Secretary. The Assistant Secretary shall exercise the powers and perform the duties of the Secretary in the absence or disability of the Secretary. 6.6 Treasurer. The Treasurer shall have custody of all property of the Association, including funds, securities and evidences of indebtedness. He shall keep books of account for the Association in accordance with good accounting practices, which, together with substantiating papers, shall be made available to the Board of Directors for examination at reasonable times. He shall submit a treasurer's report to the Board of Directors at reasonable intervals and shall perform all other duties incident to the office of treasurer. All monies and other valuable effects shall be kept for the benefit of the Association in such depositories as may be designated by a majority of the Board of Directors. 7. Fiduciary Duty; Compensation. The officers and Directors of the Association, as well as any manager employed by the Association, have a fiduciary relationship to Owners. No officer, Director or manager shall solicit, offer to accept, or accept any thing or service of value for which consideration has not been provided for his own benefit or that of his immediate family; from any person providing or proposing to provide goods or services to the Association. Any such officer, director or manager who knowingly so solicits, offers to accept or accepts any thing or service of a value shall, in addition to all other rights and remedies of the Association and Owners, be subject to a civil penalty in accordance with the Act. Notwithstanding the foregoing, this Section shall not prohibit an officer, Director or manager from accepting services or items received in connection with trade fairs or education programs. Neither Directors, nor officers shall receive compensation for their services as such, but this provision shall not preclude the Board of Directors from employing a Director or officer as an employee of the Association, nor preclude contracting with a Director or officer for the management of the Condominium or for any other service to be supplied by such Director or officer. Directors and officers shall be compensated for all actual and proper out-of-pocket expenses relating to the proper discharge of their respective duties. 8. Resignations and Removals. Any Director or officer may resign at any time by written resignation, delivered to the President or Secretary. Such resignation shall take effect upon receipt unless a later date is specified in the resignation, in which event the resignation shall be effective from such later date unless withdrawn prior to such date. The acceptance of a resignation shall not be required to make it effective. An officer more than 90 days delinquent in the payment of regular Assessments shall be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law. An officer charged with a felony theft or embezzlement offense involving the Association's funds or property shall be removed from office, creating a vacancy in the office to be filled according to law. If a person has any such criminal charge pending, he or she may not be appointed or elected to a position as an officer. By-Laws 10 MIAMI 1759573.3 7829330796 i However, should the charge be resolved without a finding of guilt, the person shall be reinstated for the remainder of his or her term of office, if any. 9. Fiscal Manal4ement. This Section shall supplement the provisions for fiscal management of the Association set forth in the Declaration and Articles: 9.1 Budtet. (a) Adoption by Board; Items. The Board of Directors, shall from time to time, and at least annually, prepare a budget for the Condominium, and shall determine the amount of Assessments payable by Owners and allocate and assess expenses among Owners in accordance with these By-Laws and the Declaration. The adoption of a budget for the Condominium shall comply with the Act: 9.2 Assessments. Assessments against Owners for their share of the items of the budget shall be made for the applicable calendar year annually in advance on or before the 20th day of the month preceding the first day of the fiscal year for which the Assessments are made. Such Assessments shall be due in equal installments, payable in advance on the first day of each month (or each quarter at the election of the Board) of the year for which the Assessments are made. If an annual Assessment is not made as required, an Assessment shall be presumed to have been made in the amount of the last prior Assessment, and installments on such Assessment shall be due upon each installment payment date until changed by an amended Assessment. In the event the annual Assessment proves to be insufficient, the budget and Assessments may be amended at any time by the Board of Directors. Unpaid Assessments for the remaining portion of the calendar year for which an amended Assessment is made shall be payable in as many equal installments as there are full months (or quarters) of the calendar year remaining as of the date of such amended Assessment. Each such installment to be paid on the first day of the month (or quarter), commencing the first day of the next ensuing month (or quarter). If only a partial month (or quarter) remains, the amended Assessment shall be paid with the next regular installment in the following year, unless otherwise directed by the Board in its resolution. 9.3 Special Assessments; Assessments for Emergencies. Special Assessments shall be levied as provided in the Declaration and paid as the Board of Directors may require in the notice of such Assessments. The funds so collected shall be used only for the specific purpose or purposes set forth in the Assessment notice but, upon completion of such specific purpose or purposes, any excess funds may, at the discretion of the Board, either be returned to Owners or applied as a credit towards future Assessments. Special Assessments for Common Expenses for emergencies that cannot be paid from the annual Assessments for Common Expenses shall be due only after 10 days' notice to Owners, and paid as the Board of Directors may require in the notice of Assessment. By-Laws II MIAMI 1759573.3 7829330796 9.4 Depository. The depository of the Association shall be such bank or banks in the County as shall be designated from time to time by the Directors and in which the monies of the Association shall be deposited. Withdrawal of monies from those accounts shall be made only by checks signed by such person or persons as are authorized by the Directors. All sums collected by the Association from Assessments or contributions to working capital or otherwise may be commingled in a single fund or divided into more than one fund, as determined by a majority of the Board of Directors. A separate reserve account shall be established for the Association in such a depository for monies specifically designated as reserves for capital expenditures and/or deferred maintenance. Reserve and operating funds of the Association shall not be commingled unless combined for investment purposes. 9.5 AccountinlZ Records and Reports. The Association shall maintain accounting records in the County, according to good accounting practices used by similar associations. The records shall be open to inspection by Owners or their authorized representatives at reasonable times and written summaries of them shall be supplied at least annually. The records shall include, but not be limited to, (i) a record of all receipts and expenditures, and (ii) an account for each Unit designating the name and current mailing address of the Owner, the amount of each Assessment, the dates and amounts in which the Assessments come due, the amount paid upon the account and the dates so paid, and the balance due. Written summaries of the records described in clause (i) above, in the form and manner specified below, shall be supplied to each Owner annually. 9.6 Application of Payment. All Assessment payments made by an Owner shall be applied as provided in these By-Laws, the Declaration or as determined by the Board. 9.7 Notice of Meetings. Notice of any meeting where Assessments against Owners are to be considered for any reason shall specifically contain a statement that Assessments will be considered and the nature of any such Assessments. 10. Roster of Owners. Each Owner shall file with the Association a copy of the deed or other document showing such Owner's ownership. The Association shall maintain such information. The Association may rely upon the accuracy of such information for all purposes until notified in writing of changes as provided above. Only Owners of record on the date notice of any meeting requiring their vote is given shall be entitled to notice of and to vote at such meeting, unless prior to such meeting other Owners shall produce adequate evidence, as provided above, of their interest and shall waive in writing notice of such meeting. 11. Parliamentary Rules. Except to the extent waived by the chairman of the meeting (either' of Directors or Members), Roberts' Rules of Order (latest edition) shall govern the conduct of the Association meetings when not in conflict with the Declaration, the Articles or these By-Laws. 12. Amendments. Except as otherwise provide in the Declaration, these By-Laws may be amended in the following manner: 12.1 Notice. Notice of the subject matter of a proposed amendment shall be included in the notice of a meeting at which a proposed amendment is to be considered. By-Laws 12 MIAMI 1759573.3 7829330796 t i 12.2 Adoption. A resolution for the adoption of a proposed amendment may be proposed either by a majority of the Board of Directors or by not less than 50% of the Members. Directors and Members not present in person or by proxy at the meeting considering the amendment may express their approval in writing, provided that such approval is delivered to the Secretary at or prior to the meeting. The approval must be: (a) by not less than 75% of the votes of all Members represented at a meeting at which a quorum has been attained; or (b) by not less than 100% of the entire Board of Directors. 12.3 Rij4hts of Mortgagees. No amendment may be adopted which would eliminate, modify, prejudice, abridge or otherwise adversely affect any rights, benefits, privileges or priorities granted or reserved to mortgagees of Units without the consent of such mortgagees in each instance. No amendment shall be made that is in conflict with the Articles or Declaration. No amendment to this Section shall be valid. 12.4 Execution and Recording. A copy of each amendment shall be attached to a certificate certifying that the amendment was duly adopted as an amendment of the Declaration and By-Laws, which certificate shall be executed by the President or Vice President and attested by the Secretary or Assistant Secretary of the Association with the formalities of a deed. The amendment shall be effective when the certificate and a copy of the amendment is recorded in the Public Records of the County which contains on the first page an identification of the Official Records Book and page reference for the recording of the Declaration. 12.5 Procedure. The By-Laws shall not be revised or amended by reference to its title or number only. Proposals to amend the By-Laws shall contain the fiill text of the By-Laws to be amended; new words shall be inserted in the text underlined and words to be deleted shall be lined through with hyphens. However, if the proposed change is so extensive that this procedure would hinder rather than assist the understanding of the proposed amendment, underlining and hyphens as indicative of words added or deleted shall not be used, but instead a notation shall be inserted immediately preceding the proposed amendment in substantially the following language: "Substantial rewording of By-Law. See By-Law....for present text." Nonmaterial errors or omissions in the By-Law process shall not invalidate an otherwise properly promulgated amendment. 13. Official Records. From its inception, the Association shall maintain for the Condominium, a copy of each of the following, where applicable, which shall constitute the official records of the Association: (a) The plans, permits, warranties, and other items to be provided pursuant to Section 718.304(4) of the Act; (b) A photocopy of the recorded Declaration of Condominium with all amendments; (c) A photocopy of the recorded By-Laws of the Association with all amendments; By-Laws 13 MIAMI 1759573.3 7829330796 I (d) A certified copy of the Articles with all amendments; (e) A copy of any Rules and Regulations of the Association; (f) A book or books containing the minutes of all meetings of the Board of Directors and Owners, which minutes shall be retained for a period of not less than seven years; (g) A current roster of all Owners, their mailing addresses, Unit identifications, voting certifications, and, if known, telephone numbers; (h) All current insurance policies of the Association and of the Condominium operated by the Association; (i) A current copy of any management agreement, lease, or other contract to which the Association is a party or under which the Association or Owners have an obligation or responsibility; (j) Bills of sale or transfer for all property owned by the Association; (k) Accounting records for the Association and the accounting records for the Condominium which shall be maintained for a period of not less than seven years and shall include, but not be limited to: (i) Accurate, itemized, and detailed records for all receipts and expenditures. (ii) A current account and a monthly, bimonthly, or quarterly statement of the account for each Unit designating the name of the Owner, the due date and amount of each Assessment, the amount paid upon the account, and the balance due. (iii) All audits, reviews, accounting statements; and financial reports of 'the Association or Condominium. (iv) All contracts for work to be performed, bids for work to be performed shall also be considered official records. (1) Ballots, sign-in sheets, voting proxies and all other papers relating to elections which shall be maintained for a period of 1 year from the date of the meeting to which the document relates. (m) All other records of the Association not specifically listed above which are related to the operation of the Association. (n) A copy of the inspection report provided for under Section 718.301(4)(6) of the Act. The official records of the Association shall be maintained for at least seven years within the County, or, if in another county,then within 45 miles of the Condominium. By-Laws 14 MIAMI 1759573.3 7829330796 The official records of the Association shall be made available to any Owner for inspection within 5 working days after receipt of written request by the Board or its designee. The official records of the Association (i) shall be open to inspection by any Member or the authorized representative of such Member at all reasonable times and (ii) may be made available electronically by email or by website. The right to inspect the records includes the right to make or obtain copies, at the reasonable expense, if any, of the Member. The Association may adopt reasonable rules regarding the frequency, time, location, notice and manner of record inspections and copying. The failure of the Association to provide official records within 10 working days after receipt of a written request shall create a rebuttable presumption that the Association wilfully failed to comply with this paragraph. An Owner who is denied access to official records is entitled to the actual damages or minimum damages for the Association's willful failure to comply with this paragraph. The minimum damages shall be $50 per calendar day up to 10 days, the calculation to begin on the 1 lth working day after receipt of the written request. Failure to permit inspection of the official records as indicated entitles any person prevailing in an enforcement action to recover reasonable attorneys' fees from the person in control of the record who, directly or indirectly, knowingly denies access to the records for inspection. The Association shall maintain on the Condominium Property an adequate number of copies of the Declaration, Articles, By-Laws and rules and regulations, and all amendments to the foregoing, as well as the Question and Answer Sheet and the most current year-end financial statements, to ensure their availability to Owners and prospective purchasers. The Association may charge its actual costs for preparing and furnishing these documents to those persons requesting same. 14. Certificate of Compliance. A certificate of compliance from a licensed electrical contractor or electrician may be accepted by the Association's Board as evidence of compliance of the Units to the applicable Condominium fire and life safety code. 15. Construction. Wherever the context so permits, the singular shall include the plural, the plural shall include the singular. 16. Captions. The captions are inserted only as a matter of convenience and for reference and in no way define or limit the scope of these By-Laws of the intent or any provision. By-Laws 15 MIAMI 1759573.3 7829330796 i, - I I EXHIBIT E Articles of Incorporation MIAMI 1746636.8 7829330796 t 850-617-6381 3/31/2009 1:53:26 PM PAGE 1/003 Fax Server Eg�77 , , Kn C vw IcEmnV% Ke�a C_Cg C V Q, 1 41.1 v WCC'"(3 '"' C K> 4 C KV mcc Knc n HE HUM X cs-sa ME n n nC H211-11- �KnI n XCEPH n n n n n n n XnXcXCFnC'0CHC1 K MCA c of vc XF a t HER: HOC PVC OD wF QuS ✓�C ?)Pparbnatt of fptat a PVC n G�� KHI certify from the records of this office that PURDY AVENUE COMMERCIAL �nC g-gcpCONDOMINIUM ASSOCIATION, INC. is a corporation organized under the laws of the State of Florida, filed on March 30, 2009. Z � �nC The document number of this corporation is N09000003183. H ��C T further certify that said corporation has paid all fees due this office Ravic U1ti? HDR?KC: t hrough December 31, 2009, and its status is active. ova�nC I further certify that said corporation has not filed Articles of v� 'JnC Dissolution. nC G I further certify that this is an electronically transmitted certificate H113,authorized by section 15.16, Florida Statutes, and authenticated by the code, 209A00010804-033109-N09000003183-1/1, noted below. �� KIM' PffiC �nC U Authentication Code: 209A00010804-033109-N09000003183--1/1 MXIC.✓R� J A 1. R IV, VVIN v n inc , HE J X-01 I �� Given under my hand and the VV IN Great Seal of the State of Florida, 'T E at Tallahassee, the Capital, this the V, gov. � Thirty-first day of March, 2009 z O G n FAIS: FIRP C 1 ODE cOb Rurt 0. 99robuning ® 9etretarp of Mate a d XV �nCx�C � V �"GD��C►� CD�R �� i Fax Audit No.H09Q00074457 3 ARTICLES OF INCORPORATION- OF PURDY AVENUE COMMERCIAL CONDOMINIUM ASSOCIATION,INC. The undersigned incorporator, by these Articles, forms a corporation not for profit pursuant to Chapter 617 of the laws of the State of Florida, and adopts the following Articles of Incorporation: ARTICLE 1 NAME-AND ADDRESS The na.ine of the corporation shall be PURDY AVENUE COMMERCIAL CONDOMINIUM ASSOCIATION, INC. For convenience, the corporation shall be referred to in this instrument as the "Association", these Articles of Incorporation as the "Articles" and the By-Laws of the Association-as the "By-Laws." The principal place of business and mailing address of the Association shall be 170Q Convention Center Drive,Miami Beach, Florida 33139 or such other p lace as may be subsequently designated by the Board of Directors. ARTICLE .2 PURPOSE The purpose for which the Association is organized is to provide an entity pursuant*to the Florida Condominiuin Act, Chapter 718 of Florida Statutes ("Act") to operate the condominium located in Miami-Dade County, Florida ("Condominium") to be known as PURDY AVENUE COMMERCIAL CONDOMINIUM. The Association is not organized for profit and no part of the net earnings, if any, shall inure to the benefit of any Member or other Person. ARTICLE' 3 DEFINITIONS The capitalized tenns used in these Articles shall have the same definitions and meanings as those set forth in the Declaration of Condominium of the Condominium("Declaration")to be recorded in the Public Records.of Miami-Dade County, Florida, unless provided to the contrary in these Articles, or unless the context otherwise requires. The term "Person" shall include individuals, corporations,partnerships,trusts,limited liability companies and other legal entities. J Articles of Incorporation MIAMI 1758986.5 7829330796 Fax Audit No.H09000074457 3 I i 1 == Fax Audit No.H09 000074457 3 A)RTYGL1�,4 POWERS The powers of the Association shall include and be governed by the following: 4.1 General. The Association shall have all of the common-law and statutory powers of a corporation not for profit under the saws of Florida that are not in conflict with the I provisions of these Articles,the Declaration,the By-Laws or the Act. 3 ,4.2 Enumeration. In addition to, and not in limitation of, the powers described in Section 4,1, the Association shall have all of the powers and duties set forth in the Act except as limited by these Articles- By-Laws and the Declaration, and all of the powers and duties i reasonably necessary to operate the Condominium and to exercise such powers, duties and obligations described in the Declaration, as it may be arhended from time to time,including,but not limited to,the following: (a) To make and collect Assessments and other charges against Owners, and to use the proceeds in the exercise of its powers and duties. (b) T9 acquire, buy, own, operate, lease, sell, trade and mortgage both real and personal property as may be necessary or convenient in the administration of the Condominium. (c) To maintain, repair, replace,reconstruct, add to and operate the Common Elements of the Condominium Property, and other property acquired or leased by the Association for use-.by Owners. (d) At the request of the Owners, to purchase insurance upon the Condominium Property and insurance for the protection of the Association,its officers,directors and Members as Owners. (e) To execute all documents or consents, on behalf of the Owners (and their mortgagees), required by all govenumental and/or quasi-governmental agencies in connectipn with land use and development matters (including, without limitation, plats, waivers of plat, unities of title, covenants in lieu 1 thereof), and in that regard, each Owner,by acceptance of the deed to such i Owner's Unit, appoints and designates the Board of Directors as such Owner's agent and attorney-in-fact to execute, any and all such documents or consents. 4.3 Property All funds and the titles of all properties acquired by the Association and their proceeds shall be held for the benefit and use of the Members in accordance with the _.. priovisions of the Declaration,these Articles and the By-Laws. I i Arficles orLycorporation 2 i MIAMI 1758986.5 7829330'796 Fax Audit No.H09 000074457 3 i f i i Fax Audit No.H09000074457 3 4.4 Distribution of Income. The Association shall make no distribution of income to its members, directors or officers and upon dissolution all assets of the Association shall be transferred only to another not for profit corporation or public agency. i 4.5 Limitation. The powers of the Association shall be subject to and shall be exercised in accordance with the provisions of these Articles, the Declaration, the By-Laws and the Act provided that in the event of any conflict, the provisions of the Act shall control over-the Declaration,these Articles and the lay-Laws. ARTZCLV 5 MEMBERS 5.1 Membership. The members of the Association ("Members") shall consist of all of the record Owners from time to time of Units in the Condominiwn, and, after termination of the Condominium, all record Owners at the time of such termination and their successors and assigns. The Owner of the City Unit shall be deemed the Class A Member and the Owner of the BRP Unit shall be deemed the Class B Member. In the event either Unit is subjected to a subordinate condominium regime composed solely of a Unit then the association governing such subordinate regime shall be deemed the Member of the Condominium and the Owner for purposes of exercising the-rights of an Owner under the Condominium documents. 5.2 'V'otin : On all matters upon which*the Members shalI*-be entitled to vote, the Owner of the City Unit shall have 65 votes and the Owner of the SRC Unit shall have 35 votes. The votes shall be exercised or cast in the manner provided by the Condominium Documents. 5.3 Meetings of Members_. The By-(Laws shall provide for an annual meeting of Members, make provision for regular.and special meetings of Members other than the annual meeting and set the quorum requirements for meetings of the Members. 5.4 No Transfer or Hypothecation. No Owner may assign, hypothecate or transfer in any manner membership in the Association or the funds and assets of the Association except as an appurtenance to such Owner's Unit. 5.5 Loss.of Membership. -Any Member who conveys or loses title-to the Member's Unit by sale, gift,judicial decree or otherwise.shall,'immediately upon such conveyance or loss of title,no longer be a Member with respect to such Unit and shall lose all rights and privileges of a Member resulting from ownership of such Unit. ARTICLE 6 TERM OF VaSTENCr The Association shall have perpetual existence. Articles of Incorporation 3 MIAMI 1758986.5 7829330796 Fax Audit No.H09.;000074457 3 i k f Fax Audit No.H09 000074457 3 ARTICLE 7 r INCORPORATOR The name and address of the incorporator of the Association is as follows: 1 NAME ADDRESS Scott Robins 230 Fifth Street Miami Beach,Florida 33139 r ARTICLE 8 DIRE 8.1 Number and. Qualification. The property; business and affairs of the Association shall be managed by a$oard consisting of four Directors. Two Directors shall be deemed Class A Directors and two Directors shall be deemed Class B Directors, all shall be appointed as provided in the By-Laws. None of the Directors need be Members of the .Association or Owners. 8.2 Duties and Powers. All -of the duties and-powers of the Association existing under the Act,the Declaration,these Articles and the By-Laws shall be exercised exclusively by the Board of Directors, subject only to approval by Owners when such approval is specifically required. 8.3 Election; Removal. Directors of the Association shall be elected or appointed at the annual meeting of the Members in the manner determined by and subject to the qualifications set forth in the By-Laws. Directors may be removed and vacancies on the Board of Directors shall be filled in the manner provided by these Articles and the By-Laws. Any Director appointed or elected by either the Class A Member or the Class B Member may be removed at any time without cause only by the Member appointing or electing such Director and such Member malting such appointment or election may designate a,replacement Director. i 8.4 First Directors. The names and addresses of the members of the first Board of Directors who shall hold office until their successors are elected and have qualified, as provided in the By�Laws,are as follows: NAME ADDRESS Anna Parekh 1700 Convention Center Drive Miami Beach,Florida 33139 s • 1 Articles oUncorporation 4 MIAMI 1758986.5 7829330796 Fax Audit No.H09000074457 3 t f f Fax Audit No.H09000074457 3 Saul Frances 1700 Convention Center Drive Miami Beach,Florida 33139 Robert Reboso 1700 Convention Center Drive Miami leach,Florida 33139 Scott Robins 230 Fifth Street Miami Beach,Florida 33139 Philip Levine 1425 North View Drive Miami Beach,Florida 33140 8.5 Standards of Conduct. A Director shall discharge his or her duties as a director, including any duties as a member of a Committee: in good faith; with the care an ordinary prudent person in a like position would exercise under similar circumstances; and in a manner reasonably believed to be in the best interests of the Association. Unless a Director has knowledge concerning a matter in question that makes reliance unwarranted, a Director, in J discharging his or her duties,may rely on information, opinions, reports or statements, including financial statements and other data, if prepared or presented by: one or more officers or employees of the Association whom the director reasonably believes to be reasonable and competent in the manners presented; legal counsel, public accountants or other persons as to Batters tl�e Director reasonably believes are within such.person's professional.- or expert competence; or a.Committee of which the Director is not a member if the Director reasonably believes the Colnniittee merits confidence. A Director is not liable for any action taken as a director, or any failure to take action, if he or she performed the duties of his office in compliance with the foregoing standards. ARTICLE 9 OFFICERS The affairs of the Association shall be administered by the officers holding the offices designated in the By-Laws. The officers shall be elected by the Board of Directors of the Association and shall serve at the pleasure of the Board of Directors. The By-Laws may provide for the removal from office of officers, for filling vacancies and for the duties of the officers. The names and addresses of the officers who shall serve until their successors are designated by the Board of Directors are as follows: President: Anna Pareld-i Vice President Philip Levine f Vice President and Assistant Secretary: Scott Robins Secretary&nd Treasurer: Saul Frances I Articles of Incorporation 5 MIAMI 1758986.5 7829330796 Fax Audit No. H09 000074457 3 r � Fax Audit No.1309000074457 3 ARTICLE 10 INDEMNIFICATION 1 10.1 Indemnity. The Association shall indemnify any person who was or is a party or is,tluueatened to be, made a party to any threatened, pending or contemplated action, suit or proceeding, whether civil, criminal, administrative or investigative (collectively "Action"), by reason of the fact that he or she is or was a director, employee, off cer or agent of the Association (collectively "Association Person"), against expenses (including attorneys' fees and appellate attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably j incurred by the Association Person in connection with such Action, if the Association Person acted in good faith and in a planner the Association Person reasonably believed to be in, or not jopposed to, the best interests of the Association and with respect to any criminal action or proceeding, had no reason to believe the Association Person's conduct was unlawful. The Association shall not, however, indemnify any Association Person as to matters to which the Association Person shall be finally adjudged in any such Action to be liable for gross negligence j or gross misconduct in the performance of the Association Person's duty. The termination of any I Action by ,judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself,create a presumption of gross negligence or gross misconduct. The fozegoing right of indemnification shall be in addition to any other rights to which an Association Person may be entitled as a matter of law or otherwise. 10.2 Expenses, To the extent that an Association Person has been successful on the merits or otherwise in defense of any Action, or in defense of any claim, issue or matter regarding such Action, the Association Person shall be indemnified against expenses (including attorneys'fees and appellate attorneys' fees)actually and reasonably incurred in such Action. 10.3 Approval. Any indemnification under Section 10.1 (unless ordered by a court) shall be made by the Association only as authorized in the specific case upon a determination that indemnification of the Association Person-is pioper under the cixcuuistanc' because the i Association Person has met the applicable standard of conduct set forth in Section 10.1. Such determination shall be made (a) by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to such Action, or (b) if such quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Directors so directs, by independent legal counsel in a written opinion,or by a majority of the Members. 10,4 Advances: :Expenses-incurred in defending an Action may be paid by the i Association in advance of the final disposition of such Action, as authorized'by the Board of Directors in any specific case upon receipt of an undertaldng by or on behalf of the Association Person to repay such amount unless it shall ultimately be determined that the Association Person is entitled to be indemnified by the Association as authorized in this Article 10. 10.5 Miscellaneous. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any by-law, agreement, vote of Members or otherwise, and shall continue as to a person who has Articles of Incorporation 6 MIAMI 1758986.5 7829330796 Fax Audit No.H09 000074457 3 Pax Audit No.H09000074457 3 ceased to be an Association Person and shall inure to the benefit of the heirs and personal representatives of such person. j 10.6 Insurance. The Association shall have the power to purchase and maintain insurance on behalf of any person who is or was an Association Person or is or was serving, at the request of the Association, as a director, officer, employee or agent of another corporation, partnership,joint'venture,trust or other enterprise, against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Association would have the power to indemnify him or her against such liability under the provisions of this Article. ARTICLE 11 13Y-LAPSES The first By-Laws of the Association shall be adopted by the Board of Directors and may be altered, amended or rescinded by the Directors and Members in the manner provided in the By-Laws and the Declaration. ARTICLE 12 AMENDMMNTS Amendments to these Articles shall be proposed and adopted in the following manner: 12.1 Notice. Notice of the subject matter of a proposed amendment shall be included in.tlie notice of any.meeting at which the proposed amendment-is to be considered.- 12.2 Adoption. A resolution for the adoption of a proposed amendment may be proposed either by a majority of the Board of Directors or by any Member of the Association. Directors and Members not present in person or by proxy at the meeting considering the I amendment may express their approval in writing, providing the approval is delivered to the i Secretary at or prior to the meeting. The approvals must be: (a) by not less than the votes of all of the Members represented at a meeting; or (b) by not less than 75% of the Board of Directors. I12.3 Limitation. No amendment shall make any changes in: the qualifications of I membership;the voting rights or property rights of Members; Sections 4.3, 4.4 or 4.5 of Article 4, entitled "Powers"; or this Section 12.3, without, in each case, the approval in writing of all Members and the joinder of all record owners of mortgages upon Units. No amendment shall be made that is in conflict with the Act, the Declaration or the By-Laws. No amendment to these Article's shall be made which adversely affects the rights of Institutional Mortgagees without the prior written consent of a majority of holders of mortgages on the Units held by Institutional Mortgagees. Articles of Incorporation 7 i MIANU 1758986.5 7829330796 Fax Audit No.H09000074457 3 1 i r 'Fax Audit No.H09000074457 3 12.4 RecoMing. A-copy of each amendment shall be filed with the Secretary of State pursuant to the provisions of applicable Florida law, and a copy certified by the Secretary of State shall be recorded in the public records of Miami-Dade County,Florida: ARTICLE 13 OFFICE,- REGISTERED AGEN The initial registered. office of the Assodiation shall be 1200 South Pine Island Road, Plantation, Florida 33324, with the privilege of having its office and branch offices at other places within or without the State of Florida. The initial registered agent at that address shall be CT Corporation Systems. IN WITNESS WHE Ci�(3F., the undersigned has executed these Articles of Incorporation as incorporator as of the f March,2009. Scott Robins,incorporator AAMes oflncorp.gp1lon MI,AM1 1758986.57829330796 • _ Fax Audit No.H09000074457 3 0.1"- BK 26815 PG 737�35 sT 'AGE Fax Audit No. H09000074457 3 ACCEPTANCE OF APPOI TM ENT AS RECYSTERED AGENT The undersigned, who has been designated in the foregoing Articles of Incorporation as registered agent for the corporation, agrees that (i) he accepts such appointment as registered agent and will accept service of process for and on behalf of said corporation, and (ii) he is familiar with and will comply with any slid all laws relating to the complete slid proper performance of the duties and obligations of a registered agent of a Florida corporation, Dated; as of March 2009. Registered Agent madot� Cuddihy Special Assistant Secretary Articles of incorporation 9 MIAMI 1758986.5 7829330796 Fax Audit No.H0900 -OA457 3 1 i OR Bk 27525 P9s 4 347 - 4368; t22pgs", RECORDED 12/17/2010 12<°4205; HARVEY RUVINP CLERK OF COURT MIAMI-CAGE t OUNTY P FLORIDA This instrument prepared by: Martin A.Schwartz,Esq. Bilzin Sumberg Baena Price &Axelrod LLP 200 S.Biscayne Blvd.,Suite 2500 Miami,Florida 33 13 1-5340 (Space Above For Recorder's Use Only) FIRST AMENDMENT TO DECLARATION OF CONDOMINIUM OF PURDY AVENUE COMMERCIAL CONDOMINIUM THIS FIRST AMENDMENT TO DECLARATION OF CONDOMINIUM (this "Amendment") dated as of December 15, 2010, is made by BAY ROAD PARTNERS, LLC, a Florida limited liability company, having an address at c/o Scott Robins Companies, 230 5th Street, Miami Beach, Florida 33139 ("BRP") and CITY OF MIAMI BEACH, a municipal corporation, having an address at 1700 Convention Center Drive, Miami Beach, Florida 33139 ("City"). BRP and City are collectively referred to as "Owners." Purdy Avenue Commercial Condominium ("Condominium"), was created by the Declaration of Condominium recorded in Official Records Book 26815, at Page 3667, in the Public Records of Miami-Dade County, Florida ("Declaration"). Pursuant to Section 5.1(a)(i) of the Declaration, 100% of the Owners have the right to amend the Declaration. BRP and City collectively own 100% of the Units in the Condominium. BRP and City desire to amend the Declaration to add additional property to the Condominium to modify the legal descriptions of the Units, to modify and replace certain pages in the legal description and survey exhibits as specifically set forth below and make certain other changes in the Declaration. NOW, THEREFORE, by virtue of the authority of Owners as aforesaid, Owners amend the Declaration as follows: MIAMI 2338255.4 7829330796 1. Submission of Additional Land. BRP submits the property described in Exhibit A- 1 ("Phase 2 Property") and all improvements erected thereon or to be erected thereon, together with all easements, rights and appurtenances, to the condominium form of ownership and use in the manner provided by the Florida Condominium Act, Chapter 718, Florida Statutes as it exists on this date. BRP and City agree that the description of the Land shall be modified and expanded so that the Land shall be the property described in Exhibit A to this Amendment. 2. Legal Description. Exhibit "A" is amended by substituting Exhibit "A" attached to this Amendment for Exhibit "A" in the Declaration. 3. Revision of Units. BRP and City hereby amend and adjust the boundaries of the Units so that the BRP Unit shall be the BRP Unit described in Exhibit B to this Amendment and the City Unit shall be the City Unit described in Exhibit B to this Amendment. The City Unit shall include all of the land below the top surface of the slab on the first floor of the Building. The Owners acknowledge that improvement to be constructed on the Land as contemplated by Exhibit B have not been constructed and that, upon completion of such improvements, further modification of the description of the Unit may be required in order to reflect the as built location of the improvements on each of the Units. 4. Survey. Exhibit "B" to the Declaration is amended by substituting Exhibit "B" attached to this Amendment for Exhibit "B" in the Declaration. 5. Common Elements. The definition of Common Elements is amended to add the following as Common Elements: (f) any pump room with the improvements therein in the Building to be constructed that furnishes service to both Units and/or the Common Elements. 6. Description of Condominium. Section 3.1(a) - (c) are revised to read in their entirety as follows: (a) The BRP Unit is legally described and graphically indicated in Exhibit B to this Amendment. (b) The City Unit is legally described and graphically indicated in Exhibit B to this Amendment. BRP conveys and quitclaims all of its interest in the City Unit to City. (c) The designation of each Unit is set forth on Exhibit "B". Exhibit "B" consists of a survey of the Land, a graphic description of the Units, and a plot plan thereof. Exhibit "B" together with this Declaration identify the Common Elements and each Unit and the relative locations and approximate dimensions. Upon completion of the Building, the Owners will reconfigure the description of the Units to reflect the as-built location of the City Unit and the BRP Unit. Owners agree to file an additional amendment to the Declaration promptly after the descriptions have been determined. 2 MIAMI 2338255.4 7829330796 7. Unit Boundaries. The following shall be added to Section 3.2: "The parametrical boundaries of each Unit shall extend to the property line of the Land included within or adjacent to the description of each Unit on Exhibit B." 8. Easements. The following paragraph is added to Section 3.3: 0) Columns. An easement to maintain support columns in the BRP Unit for the benefit of the City Unit and in support of that portion of any Building located on the Land above the first level as such columns are shown on Exhibit B. 9. Maintenance and Re air. The third sentence of section 6.2 is amended to read as follows: "Except as otherwise provided, the Association shall make all repairs to the Common Elements, Association Property and the slab of the first floor of the Building." 10. Termination. The following is added at the end of Section 16. "Upon termination of the Condominium for any reason whatsoever, the easements described in Section 3.3(b)-(j) shall continue in effect." 11. Except as expressly amended as provided in this Amendment, all of the terms and provisions of the Declaration including, without limitation, Exhibit "C", shall remain in full force and effect, and are ratified and confirmed. Unless otherwise indicated, the capitalized terms used in this Amendment have the meanings indicated in the Declaration. Owners have caused this Amendment to be executed as of the date indicated above. Signed, sealed and delivered CITY OF MIAMI BEACH, FLORIDA, a municipal in the presence of: corporation Sign Nam <"l ' Print Name:Alkel�— �• �''Ir9-�Tl�h By Print Na e: • Sign Nam `�`� g Print Name: 4kcwf ATTEST: : B y Print Name: R0 f3 E R-T LFMLM�"C APPROVED AS TO FORM & LANGUAGE &FOR EXECUTION 3 MIAMI 2338255.4 7829330796 � G' orney Date R i STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) The foregoing First Amendment to Declaration of Condominium was acknowledged before me this day of December, 2010 by 1));,-,T6- &jh d , as Mayor of the City of Miami Beach, a municipal corporation of the State of Florida, on behalf of such municipal corporation. He/She is personally known to me or has produced a Florida driver's license as identification. Sign Name: Print Name: NOTARY PUBLIC, STATE OF FLORIDA Print Name MY COMMISStO . S 0 °ovao s. ° v o 2° #DD 832367 e Ls �nded%0 0B(1C TA,F 4 MIAMI 2338255.4 7829330796 Sign Name: BAY ROAD PARTNERS, LLC Print Name: 7-- Sign Na Print Name: 1WA ��l�Dr� By: Scott Robins, Manager STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) The foregoing First Amendment to Declaration of Condominium was acknowledged before me this / day of December, 2010 by Scott Robins, as Manager of Bay Road Partners, LLC, a Florida limited liability company, on behalf of such limited liability companies. He is personally known to me or has produced a Florida driver's license as identification. Sign Name: Print Name: S&N7tf-u V. �r4-EIS NOTARY PUBLIC, STATE OF FLORIDA Print Name S'►- 3776.0 V. MY COMMISSION EXPIRES: SEBASTIAN V.PARIS Florida Notary Public Commission:DD-827912 Expires:November 13,2018 5 MIAMI 2338255.4 7829330796 EXHIBIT "A" -- - -- - PHASE 2 PROPERTY Lots 5and 6 and the West 1/2 of Lot 7, all in Block 14, of the ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, as recorded in Plat Book 6, Page 115, of the Public Records of Miami-Dade County, Florida. 6 MIAMI 2338255.4 7829330796 j EXHIBIT "B" SURVEY 7 � MIAMI 2338255.4 7829330796 PURDY AVENUE' COMMERCIAL CONDOMINIUM STATE OF FLORIDA SS COUNTY OF MIAMI-DADE BEFORE ME, the undersigned authority duly authorized to administer oaths and take acknowledgments, personally appeared DANIEL C. FORTIN, by me well known and known to me to be the person hereinafter described, who being by me first duly cautioned and sworn, deposes and says on oath as follows, to wit: 1. That he is a duly registered and duly licensed Surveyor and Mapper authorized to practice under the laws of the State of Florida. 2. Affiant hereby certifies that the attached sketch and floor plans marked Exhibit B, together with the wording of the First Amendment to the Declaration of Condominium, to which this is attached, is an accurate representation of the location and dimensions of the PROPOSED IMPROVEMENTS to the land according to the plans and specifications, and that there can be determined therefrom the identification, location, dimensions and size of the common elements and of each condominium unit therein. There may exist some variance, between the proposed improvements and the improvements as constructed. 3. That the improvements represented hereon are proposed and have not been constructed and must be inspected, measured, and recertified upon "substantial" completion in accordance with the provisions of Florida Statute 718.104 4. That the architectural plans used in the preparation of this Exhibit B, were prepared by Arquitectonica, 801 Brickell Ave, Suite 1100, Miami, Florida, P.H. (305) 372=1812. 5. Elevations shown hereon are relative to the National Geodetic Vertical Datum of 1929. 6. That The East 75.63 feet of Lot 5, Block 14 and the West 74.47 feet of Lot 5, Block 14 ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 6 Page 115, of the Public Records of Miami—Dade County, Florida is equal to and comprises II of Lot 5, Block 14, without gaps or overlaps. FURTHER A F Af NT AYETH NAUGHT. FORTIN, VY, KILES, INC., LB3653 / Daniel C. ortin, or "e Firm ( PROFESSIONAL SURVEYOR AND MAPPER LS2853 to State of Florida 66 o STATE OF FLORIDA LO SS N COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this December 15, 2010 by DANIEL C. _ FOR N, who is per Wally known to meanf o^ didrrot'9take«"an: h. � _J Y? n / " plP� �� yU;u'} i i1Dli::�:ale of`i%��nda 3 C.. p C'�l/� `/ � y/''j s'. P•II :.,C1i'1(:!I:i:!iil:DID.j6i t44 ----------- ---7—��`-- ------ ~ NOTARY PUBLIC— State of lorida 'I.OF41°f ''`,'��'''„'2 FORTIN, LEAVY, KILES, INC. 5.1 3 CONSULTING ENGINEERS, SURVEYORS & MAPPERS 0 FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER: 00003653 180 Northeast 168th. Street /North Miami Beach, Florida. 33162 co Phone: 305-653-4493 / Fax 305-651-7152 / Email fls@flssurvey.com 0 0 Z Date December 15, 2010 Dwg. No. 6010-008 Job. No. 100746 _j 0 U EXHIBIT B SHEET 1 OF 15 PURDY A COMMERCIAL CONDOMINIUM LEGAL DESCRIPTION: Condominium Property All of Lots 1 and 2, Less the North four (4) feet of the East 1/2 of said Lot 2, Block 14—A, ISLAND VIEW ADDITION, according to the plat thereof, as recorded in Plat Book 9 at Page 144, and together with Lots 5 through 8, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, according to the plat thereof, as recorded in Plat Book 6 at Page 115, both being recorded in the Public Records of Miami—Dade County, Florida. SURVEYOR'S NOTES: This site lies in Section 33, Township 53 South, Range 42 East, City of Miami Beach, Miami—Dade County, Florida. — All documents are recorded in the 'Public Records of Miami—Dade County, Florida unless otherwise noted. Lands shown hereon were not abstracted for restrictions, easements and/or rights—of—way of records. Bearings hereon are referred to a value of N00°00'00"E for the East right of way line of Purdy Avenue, and evidenced by found spike and found 3/4" iron pin. Elevations shown hereon are relative to the National Geodetic Vertical Datum of 1929, based on Miami—Dade County Bench Mark No. C-100, Elevation + 11.06, Located at Dade Boulevard & West Ave on Bridge over Collins Canal, being a Brass disk in the North Corner of the bridge. Lands shown hereon are located in Federal Flood Zone AE (EL 8) based on Federal Emergency Management Agency Flood Insurance Rate Map Community No. 120651,Map/Panel No. 12086C0317, Suffix L, dated September 11, 2009, and index map revised September 1 1, 2009. tn a Dimensions indicated hereon are field measured by electronic measurement, 60 unless otherwise noted. 0 — Lands shown hereon containing 43,200 square feet, or 0.992 acres, more or less. N Precision of closure 1:10,000 — Commercial Class Survey. Roof overhang not located unless otherwise shown. ° 0 Underground improvements and/or underground encroachments not shown unless otherwise indicated. o — The approximate location of all utilities shown hereon were determined from As—Built o plans and/or on—site locations and should be verified before construction. r 00 No claims as to ownership are made or implied. 3 0 0 J (D st O O z LEGAL DESCRIPTION U & SURVEYOR'S NOTES EXHIBIT B SHEET 2 OF 15 PURDY AVENUE` COMMERCIAL CONDOMINIUM CANAL \ 35 I 34 33 132 131 130 I 29 128 I 27 126 a 36 \ I I 15 FOUND 1/2'PIPr07 LB3653(11/14/ FOUND NAIL&DISK LB3653(11/14/07) W '�°° STREET FOUND 1/2'PIPE&CAP Z LB3653(1/22/98) PIPE OUND 1/2 PIPE W 37 8Q - 6 - + - 5 - z (� 38 > -4 14 0 O - 7 _4- W U) - - - < 3 8 13- 3 Q M -39 - T- 2 _ m 9 2 U) - - - - W 40 -1 1 9 10 1 - - - CL _ 8 8 s S7 � $$ 8 7 15 6 J 9 I 6 - - - 5 z 10 5 13 4 D 11 4 3 S `` 12 I 3 9 - - 13 I 14 - - - v 1 1 d o NWW'00•E 220.W 18TH STREET 8 FOUND CUT NAIL N This site lies in Section 33, Township 53 South, Range 42 East, 0 City of Miami Beach, Miami-Dade County, Florida. 0 0 3 N 0 0 J 0 cD 0 NOT TO SCALE z LOCATION SKETCH 0 U EXHIBIT B SHEET '3 OF 15 PURDY AVENUE COMMERCIAL CONDOMINIUM WFOUND 3l4'IRON PIN INASSSIie E FOUND NAIL&DISK $r °NO I.D.(12MM) (,215119) LB3653(12/9/09) 'oS 1&2 STORY BUILDING o� 01 WITNESS CORNER, 4 FLOaR ELEVATION a1e A _ _ , ,91d FLOOR ELEVATION INACCESSIBLE 4.94'. '�ml GARAGE FLOOR 9$g• adz ELEVATION 4.e2 mdz 7 GO _ FOUND PK NAIL NO W € .' r•. .0()'.'r' DVDFFfE °: °.� u 'u = I.D.1219!09)(0.18' m '( FOUN A. ' qVERHi�c 9o€ sh z \ �•' W �II 4F,N°'o"Pic O Q L�J' Im 4(o.,eE,o. �y'� 3> I �> $ II COT2 I --- .-�---I�l�F wrDG�E O< �� ?g (IpI��pApSPHALr I `--''�°-----J)�I�IL• —�. I I O 0 3 I �' n 'n — 11 6 CgAINUNK a� __ _ _ __ _ _ I 3, PRQPUM BUfC U DINC, I ?! L AT GROUND LEVEL I I cc f m U AS PROVIDED BY I } W - ARQUITECTONICA ON I J I F ---------- F, Q m Im — I li i III LOT SEPTEMBER 30,2010 I ¢I W D d �__ II I WEST RIGHT CL ( I �' N O y1,I I � Z °iJ O H I �IIDING�TI- �- I Itfi HI QIA NIJ K D z II II III II I GE I I li P�` F, g> III III III I I III II II I I 'i �� a — III lil Ili i i ill !i �I I I y A III III --III I II II II ° Za_n♦ MOD III I I�—�_ —��I II II •._� =�i^ �."sodd _ �❑� ICI I P I P ��4==131)==� —T NARBO R�Pu��r A,�ruE) P T BOI(JF 6 PAGE 115 L__ @�� WATER SOUND III I'I II I � Ij W sou7N L91E'I I h a L�r s o h4r`q x t o8 OF Lor e I \°a1R 11—'� I UGN7 POLE SdB II II cc tll av R T OF WAY T OF II ❑ uar uar I OOfeRELR OF Lore III II I - 7 BOOK B PLAT BOOK l r. .S PAGE 115 PAGE 115 I L_ -I(li(� L 'I Esar'i t I ( OVERHEAD II f ) .{ unuTr I�. J. 55.00' Saar 3 .I � �:.FV[i EL�T,� ° ii f ❑ASPHALT (POOR CONDITION) (POOR CONDITION _ mGHT OF WAY malt OF WAY m O I) ( L I ,.�. PLAT BOOK 6 PLAT 8011(6 IL PAGE K PACE 113 LOT 7 II ¢ 3 I) II i FR I ( qri qH LIMITS AR OF PROPOSED PARKING GARAGE r'g II ly f r r' V w zvi � 7a IIIIII I L� � L a fEFlCE 1 0. 3hdd O (LDK OF LO e•HIC71 a1AMUNK HEST 3d++ I , EAST �I FENCE ��POD 1� g7dd 2 '1 L0 z33 19-t� IJ ¢ 7_ O D II y ��5 $ ❑ �� °z d6 G� I.: 0 7 II II L F 11� MONITORING WELL I. THEAk.TOI BEACH REALTY COMPANY'S ( *°+ _ PLA}I OFI SLAND VIEW SUBDIVISION 6 I d �— LOT 6 II PLA,�BOOK 6 PAGE 115 $; i t! '°1 add l I' kf I @ii r g o o II 1y ASPHALT CAD POOR 1O1l) ❑ C II ` II II %+ 1' 711' y, PROPOSED BUILDING v ,d DOR BULDING LINE MIS WESn L_ AT GROUND LLE�V/EL 8 I G - AS PROVIDED-BY (�T- L ARQUITECTONICAON L j W SEPTEMBER I , L a 6 § GRASS Sa u 81835 2 STORY BUILDING LOT 5 _ g II I ! _ GARAGE FLOOR ELEVATION+a95 z E°ic,""aF1`*02„ ❑ FOUND a 0 II a 0 A °4 (f0 BE REMOVED) NO I.D. / ) -I a Z T II 9. 4'HIG14 CHAIN 13 m ®d 3 g' 15. FOUND SPIKE "r I I d NO I.D.(12/9/09) :♦ ELECTRIC PANEL :y .0-rW. 24'S) 1 STORY BUILDING ` `°.°'".'Z`5' GRAPHIC SCALE J FLOOR ELEVATION+aee 2 STORY BUILDING f0 FOUND NAIL a DL�c LOT 4 F1.00N ELEVATION ACCE NOTE: ET101 FLGGR ELEVATION""DmsB`E 0 20 40 60 WITNESS Existing Survey, improvements 6' COMER o within the site to be removed. Z TOPOGRAPHICAL ( IN FEET ) 0 1 inch = 40 ft. SURVEY EXHIBIT B SHEET 4 OF 15 i'��► � ' T rr ` ` II r r � `1 1 ` . c � I r, ■ WIM OVI MUM RUN ORM SLIT 9 - PURDY A COMMERCIAL CONDOMINIUM -- r I III I I I r, •'I I I;I�°�---�r—R— v 1 h 44 I -n 11 IV1I1I�II4 I I I � IU 1I 1 4 I 4 �I1 II I4 4 IrI�I �1UIU!4 II4 I I,�=U IU I h4 4��VVI I I A �I9 II 4 4 4 I al e��I1VG4 4!i�I l ��VU UI 4 9 4 a��1�IIII I G_E—N_E—R_A—T_O—1 R LOBBY iqU 42 U 41_j 40 U 3948 47 U 46 L 45 J 44 L 43 ill I I I I —=!III 1I �I I I I I a 79 37 80 II 4 9---_� UP 36 1 I II II LJ I ° 81 L== I 35 70 49 II a===82 I - --�� 34 go II 71 =j h u 50 =1 ; �I 83 II IJ — C- �=--m3 33 =9 II I L---=3 f1 1 I - ®® 72 a�—m= 51 �I L II�� 84 °)JI ° --�� 32 1 I�. II II 73 52 3====a GRAPHIC SCALE °a 31 a 1 I�5`� II 0 17,5 35 70 74 1� a ==53m®�= 1 II 86 P -I r1 - 211 75 54 Cr- L J 87 °__ I ( IN FEET aj1 1 29 ) 76 55 !I 1 inch = 35 ft. FF II ,---88 gaa-� 28 1 I II 77 -- ° I a 56 IJJI r� I li 1 89 �c====1ra 27 EAU====- ��_= II r1====� U 26 ° I� I,ra==== pll[ 1111 - 58 < L=--=lI 1- jlll! ! pl!� II�1 1�1: � A 1110 ;II"_ !Ilii II a 59 C� ��® - '' LJ II III pll Y 24 II 1 ° ' I ilii pll y I II _. a 1 rl I !I 11 II ti J IIrio==- 23 61 9 l �y I ' II IIEI II II! p =3 ry II` II - "� 22 - 62 `GJ I:, ' III F UII I ° ' J I' 21 1 is II r OPEN M it 1 .111 OPEN TO rip I �I L-J BELOW 111 p1 BELOW III�a9 63 C-_M , II II �I I Ilil p!I '1 II r=a�--3 20 o IIII III pll Illrl 64 �IJjlf II I II i ; 111 pll 111Lil=_=_____-_- 0o III I II pll i II ° 19 1 I r II� 65 =__ LJ II III III °-ma=:3 18 ---- I I I !I',°= 1 \ II LJII 111 pl! III° = 66 �mms=�1 II 67 17 u I r II C- III pllf � I I I `III 1,1,11 II'FI 58 16 1 I,�L J I I II ==== 1 IIt === I ° EC II d !I r� �i II II i �---_� 1 I 7 1 �1�m a-m 15 1 I a� ; LJ II �1 d 69 � 11, II 14 pill I r 1 �I ---- 13 1 LJ II 1 2 1 12 LC 1 II I I L J _I rl 1,0==3 � I Ilr _� �s�-�° il` i! NOTES: o i IIII U-- 4 11 °I I II All improvements are proposed and it X11 ---m 3 i I� subject to change without notice. r ; I Ulull r, II 3 i� � . ��—� — _—_---- I All improvements at this level are 6 n 7 n 8 n 9 10�__------_ °_ �- I P o I I 4d 11 91 41 >AN �e—'— Al LOBBYELE. II part of the City Unit. II I 41 41 i1 41 4�'—�� .� II OFFICE _ *rill ' II s �I �I I V III 4 I 9 II q V 4I11 � �I p n O O z GROUND LEVEL U FLOOR PL AN EXHIBIT B SHEET 6 OF 15. f, PURDY AVENUE COMMERCIAL CONDOMINIUM j � Illl II4 III= 91I !1I tl � III Jif Ili �� I � �4 9!I 11 !11 U�' II II 94 94 VU �I ,1 I - ,iFE Lam—�LOBS 64 U 63 LU 62 i� 61 Lj 601P 59) 58 j 57 56 a i 55 F r- 54 J; (;rf 109 53 t —110__— UP _—— 52 N - 1��= 51 -r°11 ° 6 112 j --—— 50 1I� 113 ➢��____] 49 89 0 11 J3 114 i L0 1 48 �a== 111 Fa ___J GRAPHIC SCALE 1 90 ___°IIIL�===fib I�t 115 i =-=-_y�Ffl====3 47 �ia�, 0 17,5 35 70 91 °�' 9 69 a p Iam=_ Ez tr ° 116 �g-a .� 46 f e; 4a� �tn sz ==° I g==- 7o ==a°' ( IN FEET ) � 45 a �Y 1 inch = 35 ft. 93 hJI g 71 ----�1 118 S�s�= I ----_20 44 � ° 1 ---_� I 119 fi 94 72 119 °=s_ _�3 43 V) --- � r l � 95 _ i � U=_=73 U -120 '� 95 96=_ =r�I L�=__Z 6 c�;t2=___¢y ��1--- 97 II��° 59 Ji _75 ZJ ___ �3 �il�--___ j III C rYa _=_===g 3 1 98-===° IILU===7fi� a- 39 =__�� h, lhalm-- 4—} 38 r.„J ° too ItIII L--°_____78 L==== 5 37 � I X11==== 1 9 1L 1 101 °i1!�° = 79 Sm_a v IL_=_=___� °,Irk 36 ° U I 102__ _p_;119__ so d 7 1 L Ir°===3 66 35 ass=� I _ _ O 1 103 ? I�� 81 t = �IJ $ 34 r i 104 0 82\ s =a= N 33 105 ° 1r�� 83 "_IMP, 10 __= _a l r t 4 r 32 9 r 106 ° L6--- 84 ___°- B CL I Saa�s�-m=s=s 31 c 107 1 1LUm=a 85 oh---12 C=s—� I�--- 30 I�---- --- r 1 ° � 108 p'11 6 86 13 29 ill F0 Ec 5� �Il—— 14 28 �} ' 1 =_3 NOTES: 0 I ° 15 27 � y All improvements are proposed and } J subject to change without notice. 16, �1 17 18 191 20rrF 21 r 22 23 24 N 25 26 rrJ = All improvements at this level are o U li U 4 9 4 II II 9 II 9 II 11 9 4 9 11 LOBBY ELEV f part of the City Unit. - 1 � 411 119 49 4� 4 � I19 41I Ili! I!9 4f�j � � I ;I II II 119 h.9 IN q G 49 39 49 49 1111;\ _ \s 21��——- r 0 0 z THIRD F®U RTH LEVELS v U FLOOR PLAN EXHIBIT B SHEET 7 OF 15 PURDY AVENUF COMMERCIAL CONDOMINIUM IV k11I `�n� �� f il�eD� Pa Pe� �� Iq J j��L��j,LOgg�ll N II II °q I!I II q IIN ;i q I N II II I q I 11 64U 63U 62U 61 U 601J 59 U 58U 57�uj 56;I� 55 I 54 En_--- 6 53 a t a='ll -_Ua- PURDY AVENUE COMMERCIAL CONDOMINIUM 9-gig -9 8 �R g Ag +N+ V.Y + V'•� O O O O O O F- N pd�d � d d d � d WOW T T > 1 3Nn A183dUd Ec 3 M I. II �I illl I!j �iljl!, I j�i�!i�i I �-�- 111 I ,il'JIIIIII II I z I iji 11 I !Ilj ,!'iil'�I � •'I I. I.I�� -III!.. ' I ill I I 'I IIII 1 I"!I I 1ii11 I'I I I I I�I ' I I I I IIII I Ili( I f r l I I jl i I I I ;IIII II I Ijlj,�. I u'jl I� I I �f !1';111 1111,11I� i t '1 jI'I I j�lj Ilq�l I (� I Ili ��'�� . ll��± ► �i��l�i, �II��- �� i M,II�"Millilli, �-I I 'I�1� III . �� I I II'I �i i � 1I I !r�l� j j � � I J i � i dl�l I 'I I �!�►�I I I I� � I il'il it ' �I iil i t N 'I I I I 1 II I II �l I NOTE: ;1 II I I 1. ELEVATIONS REFER TO (N.G.V.D.) III I i II I a l NATIONAL GEODETICVERTICAL DATUM. O I I III II I� I �o f o l Iil i 1111 I o+ ;I 2. NOT TO SCALE 00 Z o Z Z Z!ii gg i CL d d U- I O H I O > 0 w z _ � I I I3Nn ALa3doad ELEVATION EXHIBIT B SHEET 9 OF 15 PURDY AVENUE' COMMERCIAL CONDOMINIUM CANAL \ 5 1 34 33 1 32 1 31 1 30 1 29 1 28 1 27 1 26 1 M 36 \ I I 15 FOUND 1/2'PI & LB3653(11/14/07) FOUND NA1L&DISK L33653(11/14/07) W S °°��E '�°� STREET FOUND 1/2'PIPE& LB3653(1/22/98) W FOUND 1/2 PIPE OUND 1/2 PIPE W —37 — z$ 5 5— o� — 6 — � — — z (� 38 W 4 14 O 7 4 W > — — — — — - - - - Q 3 } 8 13- 3 M —39 — 0 - ®2 _m — 9 — T— — 2 — U) 40 F47 10 1$ 8 7 ° 15 � 6 � — s I — s - - — — — 5 Z 10 5 13 10 $ 4 0 11 4 12 I 3. - - - - 2— — T - T - 2 z 9 — — 13 I 14 — — — v 1 1 1n - - - - I C NEE 220.W 8 18TH STREET FOUND CUT NAIL 117 N This site lies in Section 33, Township 53 South, Range 42 East, City of Miami Beach, Miami-Dade County, Florida. 0 0 0 0 J CO O Scale: 1" = 200' C; BRP UNIT i v LOCATIONSKETCH EXHIBITB SHEET10- OF15 PURDY AVENUE` COMMERCIAL CONDOMINIUM LEGAL DESCRIPTION: BRP Unit A portion of Lots 1 and 2, Block 14 A, ISLAND VIEW ADDITION, according to the plat thereof, as recorded in Plat Book 9 at Page 144, and together with a portion of Lots 5 through 8, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, according to the plat thereof, as recorded in Plat Book 6 at Page 115, both Plats being recorded in the Public Records of Miami-Dade County, Florida, being more particularly described as follows: Begin at the Southwest corner of said Lot 5, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, also being a point on the East right of way line of Sunset Harbour Drive also known as Purdy Avenue per said Plats; thence N 00°00'00" E along said West line of said Lots 5 through 8, Block 14 and Lots 1 and 2, Block 14 A for 267.00 feet to Reference Point 'A'; thence S 90'00'00" E for 31.83 feet; thence S 00'00'00" W for 108.33 feet; thence S 90'00'00" E for 26.33 feet; thence N 00°00'00" E for 32.76 feet; thence S 90'00'00" E for 10.17 feet; thence N 00'00'00" E for 6.82 feet; thence S 90°00'00" E for 7.67 feet; thence N 00'00'00" E for 20.00 feet; thence N 90'00'00" W for 17.83 feet; thence N 00'00'00" E for 12.08 feet to a point of curvature concave to the Southeast; thence Northeasterly along a 10.67 foot radius curve leading to the right through a central angle of 90'00'00" for an arc distance of 16.76 feet to a point of tangency; thence S 90'00'00" E for 81.17 feet to a point on the East line of said Lot 2, Block 14 A; thence S 00'00'00" W along said East line of Lots 1 and 2, Block 14 A for 22.75 feet; thence N 90'00'00" W for 3.25 feet; thence S 00'00'00" W for 2.26 feet; thence N 90'00'00" W for 7.33 feet; thence N 00'00'00" E for 2.26 feet; thence N 90'00'00" W for 6.75 feet; thence S 00°00'00" W for 2.26 feet; thence N 90°00'00" W for 8.00 feet; thence N 00'00'00" E for 2.26 feet; thence N 90°00'00" W for 16.83 feet; thence S 00'00'00" W for 26.82 feet; thence S 90°00'00" E for 42.17 feet to a point of said East line of Lot 1, Block 14 A; thence S 00'00'00" W along said East line of Lots 1, Block 14 A and Lots 5 through 8, Block 14 for 172.43 feet; thence N 90'00'00" W for 22.33 feet; thence S 00'00'00" W for 9.17 feet; thence N 90'00'00" W for 9.67 feet; thence S 00'00'00" W for 9.83 feet; thence N 90'00'00" W along the South line of said Lot 5, Block 14 for 118.00 feet to the Point of Beginning. AND °0 Commence at said Reference Point 'A', being a point on the East right of way line of Sunset Harbour Drive also known as Purdy Avenue per ISLAND VIEW ADDITION PLAT, thense N 00'00'00" E along said West line of said Lot 2, Block 14-A for 6.83 feet; thence N 90'00'00" E for 32.00 feet to the Point of Beginning; thence N 00'00'00" E for 11.50 feet; thence N 90'00'00" E for 20.75 feet; thence S 00'00'00" W for 4.43 feet; thence S 57°15'34" W for 13.06 feet; thence S 90'00'00" W for 9.76 feet to the Point of Beginning. a The above described perimetrical boundaries lies between elevation +5.0 feet and elevation +21.8 feet (bottom of 0 slab) relative to the National Geodetic Vertical Datum of 1929. 0 0 0 5= M 0 3 0 0 J co r O O Z BRP UNIT LEGAL DESCRIPTION EXHIBIT B SHEET 11 OF 15 PURDY AVENUE' COMMERCIAL CONDOMINIUM a a S00000100"w Y� o° 2.26' M Z 35 35 N w POINT OF BEGINNING N90°oo'oo^W Noo°oo'00"E ' 3 LOT 3 I 16.83 2.26 I —L4 Z Q N00°00'00"E N90°00'00"W J 2.26' 3.25' POINT OF — 6 L=16.76 0 I COMMENCEMENT J L7 R=10.67 oo N90000'00^w Soo°oo'oo"w 0=90°00'00" w m I 8.00' 2.26' REFERENCE POINT A LOT 2 ISLAND VIEW ADDITION :3 c4 S90°oU'oo"E a PLAT BOOK 9 PAGE 144 M S90°00'00"E 81.17' N90 000'00"W 31.83' N90°00'00"W 6.75' 7.33' I °c °o c^v DETAIL"A" 0 o N CM 0 °0 r O W CD z 0 o > N ° qN s90000'00^E SEE DETAIL"A" 0 W 0 LINE TABLE C)C3 LINE LENGTH BEARING Cl)I ® L1 6.83' N00'00'00"E a W LOT 8 3 3 O 8� L2 32.00' N90'00'00"E m = > �� _ O p = L3 11.50' N00'00'00"E \� S2� ¢ L4 20.75' N90'00'00"E °OQ�O," w W U L5 4.43' S00'00'00"W 0 W w Q I m L6 13.06' S57'1 5'34"W I a o - a L7 9.76' S90'00'00"W W 0 J (L o �`'' - 0� '4 oc 0 2 2 I I Z o \ 3 I I w zm :30 <D L P ;p O D I 6-m f E I O L I rx \ \\ '6 0 0 I � 3 I O N O � O LO j O oo O I N O I35' 35' v LO N N90 000'00 11W 118.00' I I o POINT OF BEGINNING o I SOUTHWEST CORNER OF LOT I LOT 5, BLOCK 14 GRAPHIC SCALE L J 0 25 50 100 3 I 0 I I I ( IN FEET ) r` 1 inch = 50 ft. Nt 0 0 z BRP UNIT U OF DESCRIPTION EXHIBIT BSKETCH SHEET 12 OF 15 PURDY AVENUE! COMMERCIAL CONDOMINIUM CANAL \ 35 1 34 33 1 32 1 31 1 30 1 29 1 28 1 27 1 26 1 � Q 36 I I 15 ■•• FOUND 1/2-PIN-) C L83653(11/14/" FOUND NAIL&DISK LB3653(11/14/07) w ��ooE '�°� STREET FOUND 1/2°PIPE&CAf>` Z LB3653(1/22/98) \ W FOUND 1/2 PIPE OUND 1/2 PIPE a _37 - z$ - - - 6 - - 5 - w � z U 38 W 4> — 14 �Q 7 4 W Cn - - - Q � - - — - - 3 8 3 Q m 39 >_ -770 2 �— - - - 0 — m — 9 � — 2 — W 40 :D 1 N 10 1 8 11 14 7 $$ 8 7 N y _ 15 C 6 _ 9 I 6 Q — — — — 5 10 5 13 10 4 Z 11 4 a 3 LL 12 I 3 CM 2 T T 2 9 - - 13 1 14 F- - - - 0 1 1 U') 00 N90°00'00'E 220.00' 18TH STREET V FOUND CUT NAJL - N This site lies in Section 33, Township 53 South, Range 42 East, ° City of Miami Beach, Miami-Dade County, Florida. 0 0 ° NOTE: CN) : o See Sheets 6 through 8 for 2nd through 5th Floor Levels 0 Scale: 1" = 200' z FIRST LEVEL - CITY UNIT U L®CATI®N SKETCH EXHIBIT E SHEET 13 OF 15 r PURDY AVENUE' COMMERCIAL CONDOMINIUM LEGAL DESCRIPTION: City Unit PARCEL 1 A portion of Lots 1 and 2, Block 14 A, ISLAND VIEW ADDITION, according to the plat thereof, as recorded in Plat Book 9 at Page 144, and together with a portion of Lots 7 and 8, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, according to the plat thereof, as recorded in Plat Book 6 at Page 115, both being recorded in the Public Records of Miami—Dade County, Florida, being more particularly described as follows: Commence at the Southwest corner of said Lot 5, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, also being a point on the East right of way line of Sunset Harbour Drive also known as Purdy Avenue per said Plats; thence N 00'00'00" E along said East right of way line and West line of said Lots 5 through 8, Block 14 and Lots 1 and 2, Block 14 A for 267.00 feet to the Point of Beginning of the hereinafter described Parcel 1; thence continue N 00°00'00" E for 23.00 feet; thence N 90'00'00" E for 75.00 feet; thence S 00°00'00" E for 4.00 feet; thence S 90°00'00" E for 75.00 feet to a point on the East line of said Lot 2, Block 14 A; thence S 00'00'00" W along said Lot 2, Block 14 A for 45.00 feet; thence N 90'00'00" W for 81.17 feet to a point of curvature; thence along a 10.67 foot radius curve leading to the left through a central angle of 90'00'00" for an arc distance of 16.76 feet to a point of tangency; thence S 00'00'00" W for 71.67 feet; thence N 90'00'00" W for 26.33 feet; thence N 00'00'00" E for 108.33 feet; thence N 90'00'00" W for 31.83 feet to the Point of Beginning. LESS AND EXCEPT Commence at the Point of Beginning of the hereinafter described Parcel 1; being a point on the East right of way line of Sunset Harbour Drive also known as Purdy Avenue per ISLAND VIEW ADDITION PLAT, thense N 00'00'00" E along said West line of said Lot 2, Block 14—A for 6.83 feet; thence N 90'00'00" E for 32.00 feet to the Point of Beginning; thence N 00'00'00" E for 11.50 feet; thence N 90'00'00" E for 20.75 feet; thence S 00'00'00" W for 4.43 feet; thence S 57'15'34" W for 13.06 feet; thence S 90'00'00" W for 9.76 feet to the Point of Beginning Provided, however, Parcel 1 is only the portion thereof lying below elevation +21.8 feet (second floor bottom of slab) and above elevation +5 feet (first floor bottom slab), relative to the National Geodetic Vertical Datum of 1929. PARCEL 2 A portion of Lot 5, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, according to the plat thereof, as recorded in Plat Book 6 at Page 115, as recorded in the Public Records of Miami—Dade County, Florida, being more particularly described as follows: 0 do Commence at the Southwest corner of said Lot 5, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND o VIEW SUBDIVISION, also being a point on the East right of way line of Sunset Harbour Drive also known as Purdy Avenue per said Plats; thence N 90'00'00" E along the South line of said Lot 5, Block 2 for 118.00 feet to the N Point of Beginning of the hereinafter described Parcel 2; thence N 00'00'00" E for 9.83 feet; thence N 90'00'00" E for 9.67 feet; thence N 00'00'00" E for 9.17 feet; thence N 90'00'00" E for 22.33 feet to a point on the East line of said Lot 5, Block 14; thence S 00'00'00" W along said Lot 5, Block 14 for 19.00 feet to the Southeast corner of said Lot 5, Block 2; thence S 90'00'00" W along the said South line of Lot 5, Block 2 for 32.00 feet to the Point of Beginning. 0 ° Provided, however, Parcel 2 is only the portion thereof lying below elevation +21.8 feet (bottom of slab) relative to the National Geodetic Vertical Datum of 1929. o PARCEL 3 o All of Lots 1 and 2, Less the North four (4) feet of the East 1/2 of said Lot 2, Block 14—A, ISLAND VIEW r ADDITION, according to the plat thereof, as recorded in Plat Book 9 at Page 144, and all of Lots 5 through 8, m Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, according to the plat thereof, 3 as recorded in Plat Book 6 at Page 115, both being recorded in the Public Records of Miami—Dade County, ° Florida. Provided, however, Parcel 3 is only the portion thereof lying above elevation +21.8 feet (second floor bottom of n slab) and below elevation +5 feet (first floor bottom slab), relative to the National Geodetic Vertical Datum of 00 1929. z CITY UNIT v LEGAL DESCRIPTI®N EXHIBIT B SHEET 14 OF 15 .. -�T BK 27525 PG 4363 °AGE PURDY AVENUE' COMMERCIAL CONDOMINIUM 35' 35' POINT OF S00°00'00"E N00°00'00"E BEGINNING LOTS 4.00' I I � 23.00' I I J L 9 0 pOo Z °m I 0 POINT OF a Q 0 0'0 /P BEGINNING ^ I PARCEL 1 N90000'oo"W 81.17' L=16.76 \ 35' 35' N R=10.67 \ o � � coo. D=90 000'00" °n N moo ^ LOT 1 I � —N \ D W LINE TABLE 0 Z o o LINE LENGTH BEARING 1 Z ° LOT 8 \ 3°aa L1 6.83' N00'00'00"E I O W 8 F o L2 32.00' N90'00'00"E m U) \ F L3 11.50' N00 00'00"E L4 20.75' N90'00'00"E N90 000'00"W \ (K W L5 4.43' S00'00'00"W _ C W " rr-��, 26.33' \ 3 L6 13.06' 557'15'34"W I � o °!.f v \ L7 9.76' 590'00'00"W w Z) C3 \ 55 o Z LOT 7 Z o :3 I � Z � \ Z) PARCEL 3 \ W \ Z o 0 .n 3 ce (1 THE ALTON BEACH REALTY COMPANY S N \ tL 3 O �JJ PLAT OF ISLAND VIEW SUBDIVISION o U\ C I m PLAT BOOK 6 PAGE 115 p = o °� wm\ 12 0 Li \ LOT 6 N90°00'00"E M \ } o En 22.33' N m I a p N00°00'00"E N90 000'00"E 9.17' C 9.67' I Q- LOT 5 \ S00°00'00"W LINE OF LOTUS BLOCK 14 N00°00'00"E 19.00 9.83 SOUTHEAST CORNER \ \ \ \\ \ \\ F LOT 5.BLOCK 14 N90 000'00"E 118.00' N90000'00"W 32.00' o ( POINT OF COMMENCEMENT ° SOUTHWEST CORNER OF LOT4 POINT OF BEGINNIN GRAPHIC SCALE LOT 5, BLOCK 14 0 0 25 50 100 I 3 J L o _ o ( IN FEET ) I cO 1 inch = 50 ft. I I n o NOTE: See Sheets 6 through 8 for z CITY UNIT _ FIRST LE 2nd through 5th Floor Levels VEL ®F DESCRIPTION EXHIBIT BSKETCH SHEET 15 OF 15 i FUNDING AGREEMENT This Funding Agreement is executed as of the Effective Date (as hereafter defined) by and between City of Miami Beach, a Florida municipal corporation, ("City") and Bay Road Partners, LLC, a Florida limited liability company (`BRP") (collectively, the City and BRP may also be referred to herein as the "Parties," or each individually as a"Party"). RECITALS A. City entered into a certain agreement, dated December 16, 2008, (as heretofore amended, the "Acquisition Contract") with Scott Robins Companies, Inc., a Florida corporation, Purdy Partners, LLC, a Florida limited liability company, Purdy Partners 1919, LLC, a Florida limited liability company, and 1849 Purdy Partners, LLC, a Florida limited liability company (collectively, "Original Seller") with respect to the "Land" (as such term is defined in the Acquisition Contract). B. All of Original Seller's rights and obligations under the Acquisition Contract have been assigned to BRP, and BRP has assumed all obligations of Original Seller under the Acquisition Contract. C. Pursuant to the Acquisition Contract, City has agreed to construct the Project (as hereafter defined) on the Land, and BRP has agreed to fund certain costs with respect thereto. D. City requires that BRP deposit with City the estimated amount of the BRP Construction Costs (as hereafter defined) prior to commencement of construction, and BRP has agreed to deposit the funds in accordance with the terms of this Funding Agreement. Now, therefore, City and BRP agree as follows: 1. Incorporation of Recitals. City and BRP acknowledge and agree that the Recitals are correct, and they are hereby incorporated into and made a part of this Agreement. 2. Definitions. The following terms, as used in this Funding Agreement, shall have the following meanings: Architect: means Arquitectonica. A/E means that certain A/E agreement, dated April 7, 2009, Agreement: between City and Architect for the design, permitting, bid/award, and construction administration of the Project, and any subsequent amendments with respect thereto. BRP means all costs of construction with respect to the BRP Unit Construction (and its percentage interest in the Common Elements), Costs: including its share of general conditions, soft costs, change orders and cost overruns. BRP Construction Costs shall include without limitation all amounts contemplated by 548823.1 Section 8.6(a) of the Acquisition Contract; provided, however, that Exhibit E to the Acquisition Contract is hereby replaced with Exhibit E to this Funding Agreement. The initial BRP Construction Costs are estimated to equal the BRP Deposit. BRP Deposit: means $1,820,350 (including contingency), the initial amount deposited by BRP with the City pursuant to this Funding Agreement. BRP Unit: shall have the meaning ascribed to it in the Declaration, including its percentage interest in the Common Elements. Cit-V means all costs of construction with respect to the City Unit Construction (including its percentage interests in the Common Elements), Costs: including its share of general conditions, soft costs, change orders, and cost overruns. The City Construction Costs are estimated to be $8,964,294 (including contingency). City Unit: shall have the meaning ascribed to it in the Declaration, including its percentage interest in the Common Elements. Construction means that certain construction contract executed, or to be Contract: executed, between City and Boran Craig Barber Engel (BCBE) Construction Company, Inc., as approved pursuant to City Resolution No. 2010-27557, for construction of the Project, and any subsequent change orders with respect thereto. Declaration: means the Declaration of Condominium for Purdy Avenue Commercial Condominium as recorded in Official Records Book 26815 Page 3667 of the Public Records of Miami-Dade County, Florida as amended by First Amendment to Declaration of Condominium executed simultaneously i herewith. Effective Date: means December 15, 2010. Plans: means the final plans and specifications for the Project as customarily required to obtain a full building permit, and including, without limitation, all architectural and engineering plans and specifications heretofore or hereafter produced by Architect pursuant to the A/E Agreement and approved by the City. Project: means design, permitting, development and construction of that certain public parking garage and first floor retail space building in accordance with respectively, the A/E Agreement and Construction Contract (and as said Project was heretofore 548823.1 2 f i approved by the City's Design Review Board on October 6, 2008, pursuant to File No. 21861, and the City's Planning Board on September 23, 2008,pursuant to File No. 18969). 3. BRP Deposit. Simultaneously with the execution of this Funding Agreement, BRP has delivered to City the BRP Deposit. City acknowledges receipt of the BRP Deposit. City shall maintain the BRP Deposit in a separate account and shall not commingle the BRP Deposit with other funds. BRP shall not be entitled to receive any interest, if any, that accrues thereon. BRP shall have no right to a return of all or any portion of the BRP Deposit unless City fails or refuses to construct the Project or the BRP Construction Costs are less than the BRP Deposit as determined by the Architect. 4. Use of BRP Deposit. City shall use the BRP Deposit solely for the purpose of paying the BRP Construction Costs. City shall have absolute control of the BRP Deposit so long as City uses the BRP Deposit solely for payment of BRP Construction Costs. As construction of the Project proceeds, City shall from time to time make payments for the costs thereof. City shall use the BRP Deposit to pay the BRP Construction Costs and City shall use City's funds to pay the City Construction Costs. City shall be entitled to rely solely upon the Architect for purposes of determining the allocation of each invoice between BRP Construction Costs and City Construction Costs. 5. Deficiency; Excess In the event Architect or the General Contractor estimates that the actual BRP Construction Costs will exceed the BRP Deposit, City shall notify BRP in writing with a copy of the Architect's or General Contractor's revised estimate and the manner of such computation and BRP shall within ten (10) business days thereafter increase the BRP Deposit by the amount of the deficiency demanded by City. BRP is responsible for all BRP Construction Costs including any such costs that exceed the BRP Deposit. If upon completion of the Project BRP has not fully paid the BRP Construction Costs, BRP shall promptly upon demand of City pay any unpaid amounts for which BRP is responsible. Any amounts owed by either party to the other pursuant to this paragraph 5 shall bear interest at the rate of 15% per annum from the time when due until paid. To the extent the BRP Deposit exceeds the BRP Construction Costs, City will return the excess to BRP within a reasonable time after final completion of the Project. 6. Successors and Assigns Bound. This Agreement shall be binding upon City and BRP and their respective successors and assigns. 7. No Third Party Beneficiary. This Funding Agreement is intended solely for the benefit of City and BRP and their respective successors and assigns, and no third party shall have any rights or interest in this Funding Agreement. 8. No Agency or Partnership. Nothing contained in this Funding Agreement shall constitute City as a joint venturer, partner or agent of BRP or render City liable for any debts, obligations, acts, omissions, representations or contracts of BRP. 548823.1 3 9. Amendment and Waiver. This Funding Agreement may not be modified except by written instrument signed by both City and BRP. 10. Notices. No notice or other communication shall be deemed given unless sent in the manner provided for in the Acquisition Contract. 11. Severability. The invalidity, illegality, or unenforceability of any provision of this Funding Agreement pursuant to judicial decree shall not affect the validity or enforceability of any other provision of this Agreement, all of which shall remain in full force and effect. 12. Governing Law and Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, CITY AND BRP EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF THIS AGREEMENT. 13. Nature of Agreement. This Funding Agreement supplements the provisions of the Acquisition Agreement that survived closing of the Acquisition Contract, all of which remain in full force and effect and are not superseded hereby. IN WITNESS WHEREOF, City and BRP have caused this Funding Agreement to be executed and delivered as of the Effective Date. CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida By: Date: a Z, z oz ep ATTEST: By:Y Date: 7�eGr-_Wf3 eg I s, a616 APPROVED AS TO FORM&LANGUAGE [BRP signature page follows] FOR EXECUTION 7 ILis M 548823.1 4 Cit Attorney �� ate I BAY ROAD PARTNERS,LLC (BRP) By: Bay Road2atmas RRP, LLC By: Scott Robins Managing Member f 548823.1 5 3 Illlil�11 11111 1111111111111111111111111111111 - CF N 2012RO752108 OR Bk 28322 P9s 4833 - 4802; (20aes) RECORDED 10/22/2012 11:23:48 HARVEY RUVINP CLERK OF COURT MIAMI-DADE COUNTYP FLORIDA This instrument prepared by: Martin A.Schwartz,Esq. Bilzin Sumberg BaenaPrice &Axelrod LLP 1450 Brickell Avenue,23rd Floor Miami,Florida 33131 (space Above For Recorders Use only) SECOND AMENDMENT TO DECLARATION OF CONDOMINIUM OF PURDY AVENUE COMMERCIAL CONDOMINIUM THIS SECOND AMENDMENT TO DECLARATION OF CONDOMINIUM (this "Amendment") dated as of October 1 2012 is made by BAY ROAD PARTNERS, LLC, a Florida limited liability company, having any address at c/o Scott Robins Companies, 230 5t' Street, Miami Beach, Florida 33139 ("BRP") and CITY OF MIAMI BEACH, a municipal 39 corporation, having an address at 1700 Convention Center Drive, Maami Beach, Florida ("City"). BRP and City are collectively referred to as Owners. Purdy Avenue Commercial Condominium ("Condominium"), was created by the Declaration of Condominium recorded in Official Records Book 26815, at Page 3667, as amended by a First Amendment to Declaration of Condominium recorded in Official Records Book 27525, Page 4347, all in the Public Records of Miami-Dade County, Florida ("Declaration"). Pursuant to Section 5.1(a)(i) of the Declaration, 100% of the Owners have the right to amend the Declamation. BRP and City collectively own 100%of the Units in the Condominium. BRP and City desire to amend the Declaration to add a completed as-built survey as Exhibit B to the Declaration in replacement of the existing Exhibit B to the Declaration. NOW,THEREFORE,by virtue of the authority of Owners as aforesaid, Owners ame �4 �C OK C,, the Declaration as follows: , a coo wr rein�• �oE C011N� hU,kW 3333879.178293/30796 1. Surve . Exhibit "B" to the Declaration is amended by substituting Exhibit "B" attached to this Amendment for Exhibit"B"in the Declaration. 2. Full Force and Effect. Except as expressly amended as provided in this Amendment, all of the terms and provisions of the Declaration including, without limitation, Exhibit"C", shall remain in full force and effect, and are ratified and confirmed. Unless otherwise indicated, the capitalized terms used in this Amendment have the meanings indicated in the Declaration. Owners have caused this Amendment to be executed as of the date indicated above. Signed,sealed and delivered CITY OF MIAMI BEACH,FLORIDA, a municipal in the presence of: corporation Sign Name: �.-- Print Name: ,�v waC� By: a P *• N Sign Name: Print Name: ATTEST: _.-.- By: Print Name: V Aftkcs G *' '• h H 26 A"ROVED AS TO fORM&LANGUA OE &FOR FIECUYION +13 it- MIAMI 3333879.178293/30796 2 STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) The foregoing Second Amendment to Declaration of Condominium was acknowledged before me this day of , 2012 by as Vice-Mayor of the City of Miami Beach, a municipal corporation of a State of Florida, on behalf of such municipal corporation. He/She is personally known to me or has produced a Florida driver's license as identification. . Sign Name: P, - Print Name: IAVbje- NOTARY PUBLIC, STATE OF FLO A Print Name MY COMMISSION EXPIRES: .XI-111l' °°�•, BARBARA PAREDES 3� s•s Notary Public-State of Florida Ste, My Comm.Expires Nov 14.2016 �'•a;FoF � ; Commission#EE 827224 MIAMI 3333879.178293/30796 3 Sign N e: BAY ROAD PARTNERS,LLC Print Nan-/-"v Sign Name: v Print Name: a 0 By: me,Manager STATE OF FLORIDA ) COUNTY OF N AMI-DARE ) The foregoin Second Amendment to Declaration of Condominium was acknowledged before me this;W day of October, 2012 by Philip Levine,as Manager of Bay Road Partners,LLC, a Florida limited liability company, on behalf of such limited liability company. He is per known to me or has produced a Florida driver's license as identification. Sign Name: Spi►Y PV� Ip—gpTISTA Print Name: * MY COMMISSION#EE 061242 * EXPIRES:February 4,2015 NOTARY PUBLIC,STATE OF FLORIDA aV%-e Print Name MY COMMISSION EXPIRES: MIAMI 3333879.178293/30796 4 EXHIBIT "B" SURVEY MIAW 3333879.178293/30796 5 PURDY AVENUE COMMERCIAL CONDOMINIUM STATE OF FLORIDA SS COUNTY OF MIAMI-DADE BEFORE ME, the undersigned authority duly authorized to administer oaths and take acknowledgments, personally appeared DANIEL C. FORTIN, by me well known and known to me to be the person hereinafter described, who being by me first duly cautioned and sworn, deposes and says on oath as follows, to wit: 1. That he is duly registered and duly licensed land surveyor authorized to practice under the laws of the State of Florida. 2. Affiant hereby certifies that the CONSTRUCTION OF THE IMPROVEMENTS shown within this Exhibit B, is substantially complete, so that this Exhibit B, together with the provisions of the Declaration of Condominium as amended the Condominium Property, is an accurate representation of the location and dimensions of the improvements and so that the identification, location, and dimensions of the common elements and of each unit can be determined from these materials. 3. And further, that all planned improvements, including, but not limited to landscaping, utility services and-access to the units identified herein and common element facilities serving the herein identified units have been substantially completed in accordance with the provisions of Florida Statute 718.104. 4. T ..,t,* 16. vations shown for each floor are relative to the National Geodetic Vertical Datum of 192 .. .{ 1 IJHE AI.F_ SA ET AUGHT. L14 T I N 9 3653 t J � Y ani C drtj;n, For The Firm PRO SsRFQiJA`SURVEYOR AND MAPPER LS2853 STAT1�6�FLORIDA SS COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this October 17, 2012 by DANIEL C. o FORTIN, who is perso ally known to me and who did not take an oath. Notary Pudic state of Florida Susan P Kay EE 60096 o. NO ARY PUBLIC— State of Flor a �yces04M10 018 • �j �� Explre�OAl06n 0 o 9 RTw EAVY KLES INC. CONSULTING ENGINEERS, SURVEYORS & MAPPERS FLORIDA CERTIFICATE OF AUTI30RIZATI0N NUMBER: 00003653 180 Northeast 168th. Street/North Miami Beach, Florida. 33162 Phone: 305-653-4493 /Fax 305-651-7152/Email fls @flssurvey.com 0 Z Date October 17, 2012 Dwg. No. 6012--015 Job. No. 120828 PYWIRIT R SHEET 1 OF 15 PURDY AVENUE COMMERCIAL CONDOMINWM LEGAL DESCRIPTION: Condominium Property All of Lots 1 and 2, Less the North four (4) feet of the East 1/2 of said Lot 2, Block 14—A, ISLAND VIEW ADDITION, according to the plat thereof, as recorded in Plat Book 9 at Page 144, and together with Lots 5 through 8, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, according to the plat thereof, as recorded in Plat Book 6 at Page 115, both being recorded in the Public Records of Miami—Dade County, Florida. SURVEYOR'S NOTES: — This site lies in Section 33, Township 53 South, Range 42 East, City of Miami Beach, Miami—Dade County, Florida. — All documents are recorded in the Public Records of Miami—Dade County, Florida unless otherwise noted. — Bearings hereon are referred to a value of N00'00'00"E for the East right of way line of Purdy Avenue, and evidenced by fonNational Geodetic Vert cal iron Datumin of 1929, based — Elevations shown hereon are relative to the on Miami—Dade County Bench Located at Dade Boulevard & M � 10 a� t� Bross disk in1 6� the North Corner of the bridge. West Ave on Bridge over Collin Canal being — Lands shown hereon are located in Federal Flood Zone AE (EL 8) based on Federal Emergency Management Agency Flood Insurance Rate Map Community No. 120651, Map/Panel No. 1208600317, Suffix L, dated September 11, 2009, and index map revised September 11, 20 _ less otherwise noted. field measured b electronic measurement, Y Dimensions ind icated hereon are — Lands shown hereon containing 43,200 square feet, or 0.9 92 acres, more or less. — Precision of closure 1:10,000 — Commercial Class Survey. — Roof overhang not located unless otherwise shown. — Underground improvements and/or underground encroachments not shown unless otherwise indicated. — The approximate location of all utilities shown hereon were determined from As—Built plans and/or on—site locations and should by bcl verified before claims as to ownership are — Legal description shown hereon furnish made or implied. a — The following is the building floor areas within the BRP unit and CITY unit to the exterior .�� limits of the building structure, but does not include the open space within each unit is: BRP building area: 33,397 square feet± CITY building area: 108,462 square feet±. 0 SURVEYOR'S CERTIFICATION: 4 I hereby certify that this "Boundary and Topographic Survey" was made under my responsible charge nt o July 24, 2012, and meets the applicable codes as set forth in the Florida Administrative Code, p to Section 472:027, Florida Statutes. "Not valid wi ut the gnature and the original raised seal of a Florida Lloensed Surveyor and Mapper" FO INp LE 1y , SI-,ILFS, INC., LB3653 Ddniel,. , ortin, For hQ. Firm Surveyp�' d dPPb�'LS- 2853 State.,o +da..:� C1�1 ION p -�� GAL DES CV�IIRIT R & Y®R S NOTES ® 5 SURVE PURDY AVENUE COMMERCIAL CONDOMR41UM CANAL I 1 1 1 1 1 1 1 1 \\ I I 32 1 31 1 30 1 29 1 28 1 27 126 1 \ 35 134 33 1 1 I I I I I 36 c I I i I I I I FOUirD 1 PIP & LB3653 11/14/07 FOUND NATLk DISK L83853(11/14/0» STREET � seo°oo'oo� ies.00r FOUND 1 PIPE&CAP LB3653 1/22/0) D 1/2 PIPE �y� - FOUND 1/2 PIPE ■■ LL! 6 5 D 37 — Z$ —5 Q --- --�_-- -- z W 4 14 O 7 4 w V 38 > O -- - -- - 3 �. 8 13- - 3 - 39 Q — g 2 Cl)LLI 40 D 10 1 — 8 — 1 7 — 9 --I - 6 R - z 5 - - - 13 - - - f 0 4 z _11 4._ 3 — � 12 I 3 — 2 I 1 2 CL 13 I 14 -- - E 18TH STREET o $ FOUND CUT Nagy c IL 0 in Section 33, Township 53 South, Range 42 East, This site lies City of Miami Beach, Miami-Dade County, Florida. 0 0 N 9 N NOT TO SCALE o LOCATION SKETCH Z SHEET 3 OF 15 C Y 1�. I f2 I°'' R _ � PURDY AVENUE COMMERCIAL C Am I w pw -- > w 1A2 8TORY BURDM a oeuo rim ca mm•w d #1219 eoe ar vK wLL No FOUND Lu � LerE naomtlat NA0.8 Dim •� w 129"W FLOOR 9WATI N d•1;SW V U99869 Ib6n2) ® Z Q EIEVA70 Roortl SET HAL a DISK Q atrwnu a1 p�en21 r�an21: 3 € m 3> LOT 2 ,' Q Q , ® O LL Jr. CC X S20 �� U Oct BAY t '•`�, Q 'i LV m 0 RAM ELLVAT l 4.7 m c/) a LOT 1 � M. r1wP coal QdA110N+s azwam FLOOR ,, __ .rc Jill, n=OSOMM 4.7 CA � ,W o��J — � w lk- P�OOK 9 PAGE 144 11241 MULTISTORY BUILDING `' .ld:d: aiaPOZa i• 1900 BAY ROAD PLAT BOOK 6 PAGE 115 � v wr.oa l' 0"Lm LOT 8 +M FLOOR-MAL A PAROG c�aE ENW 2fld T}ii1U Otl,aOOR-v�i1�aN0 OAw1L#E f. ••� ,IOM W VW mm RC 00 A NT or my or IN em 6 NK sit ` - �• piR.Ope• Q P LOT 7 � O COVERED WALKWAY s :t 00 .p q B I B, "4d � 8; ' � idd LOT 6 fit 6g3 THE ALU N BRACH RFALTY COMPANV•3 PLAT OF{BLAND VIEW BUWIVIBION y' PLAT BOOK 6 PAGE 1111 a d LOT , •� SEr wLL A D{BK o �, � L99E69 pr�vU1z! ... 0 Ro BE REMOVED) E7 E E1r ' � � .v orwER rruocESS�w.E sse�E GRAPHIC SCALE so LOT 4 amm"...V o zo 40 f 1MBd8OOD®1 BOUNDARY AND Z �� 1 11LOb o 40 ft. TOPOGRAPHIC SU 9=XI-IIRIT R SHEET 4 OF 15 1 ' 1 . i MON ri :.mg; , P-MY AWT%M comN[ERciAL CONDOMINIUM 126.0' © —'I I, 1 11 II 11 it 11 II II 11 11 1111 ' 1 11 11 II II It It It It II ' L08011 It u u u u u u U 1 II el 1 ,I '1 ii ❑ 1 ---7--_ I _v�s_� C -- I I I 1 I 1 I C-___, , 1 • ,I GRAPHIC SCALE __b�1 i_ C==== I 11 0 175 35 70 C- I IN FEET 11 ❑ 1 I C==e= I ===7 a j ii 1 inch m 35 M c==-- ' 'I Cse- 1 — I III II 1111 III ,_=m=� 1 l II Il. 1111 1 1111 1 II I Il ,IctJ Jul I 111 1 I =� ' '1 ,I� 1; I III I 111 1 1 Ill _ 'I I;N ;�1 1 Ill I Iii 1 I II1-s=�a� 1 1 �I y II 11 � 111 I 111 11 1 II B C��--1 ' Ij �I ❑ r � = I 1 I III �, I 111 11 �__ ii nl I Iti a If I 01 I 1 II — I 11 � III I 111 11 II B � i I I a l II 11 III 1 111 1 � C---_ I N e====, in ii � ° ° iii 11 ii i Jill p a® C==== 1 11 1I 111 I nl I 1111 �f ---== 1 I 11 111 1111 I 111► I — If 11�===• II — 1 I 11 u ' ` � 1 ' i NOTE: O If ❑ i 1__==� gym® �`\�`\ c-----1 i 11 All improvements at this level are If ; �_—' Q'r° i i part of the City Unit. i n �_ - CITY UNIT u II I I I 11 11 11 CI . 1� - II II 1 11 11 OFM 11 LL- 11 1 °1�1,_°1�'Ii �-_ to 26.0' O N Z SECOND LEVEL FLOOR PLAN OF 15 PYI- IRIT R SHEET 6 PURDY AVENUE COMMERCIAL CONDOMINIUM 126.0 _ --1 Ij-- �,��IIIII®II°pll II°°I 1 11° Id°rll I I— I — I I� II IA '�11 11 11 Id 11 II It II Id II I I II 1 1 II I1 II II I I 11 II II tl I I II U U U U U U u U I II II II =— 11Lrr...r1 II If +I C==== 1' ====:3 I 1— I Ile II 1 1 C===— 1 I If II I If I C==== =mC I II I -- 1 ' C==== 'I i' GRAPHIC SCALE 17.5 39 70 li I C===— II I ( IN FEET ) I 1 inch o 95 tt — 1 1 II I C===— II ====3 16_ Crrrre 'I c--- I r--� I 'I 'I — ° o I' C=°—a I 11W ' ' I c---- N II N _ _I I e�rrrr II 1 e I_ C= 'I r _ I C==== I 1 I �I II j I —1 II NOTE: o ii 1====� i e--"�I 11 All improvements at this level are 11 part of the City Unit. ,-�xt,.� II n n n n n n n c II I 11 11 11 11 11 dl 11 11 IJ,oeBY jl CITY UNIT If „I I 11 11 to 11 1 1 11 dl 11 11 1 I I I 11 11 11 11 1 I 11° 11 11 11 1 'I I m —— 126.0' N LS THIRD AND FOUR TH LEXTF LOOR PLAN SHEET 7 F 15 PYWIRIT R F PURDY AVENUE COMMERCIAL CONDOMINIUM 126.0 I 1�U1--II- II 11- II- t 1 I II II 11 1 II 11 I° It I I II II II II I I I 1 Il II 11 11 1 1I fl II II II I I!! 1 I u u it it ei u u u u I l L----A r �imm-=1 n n n 111 11 11 11 I 11 1 I _10 -mII--Ilooq J L_.J L._.J L..JI a _� Cme.m•A - WALL --`�'----_____ Ate_ Cr== c - ° 1 _ 1 ° =Z GRAPHIC SCALE _ e -mm.a I t A°-- C��m�A 0 17.5 35 70 Cm==' -d=� 1 1 °1 A' __I 1 C===i !-- 1 1 1 C====t e — 1 1 inch 35 ft _5 =1 1 I Cm==- 1 I 0 1 1 C=== C==== �o w N 1_==.a i ----1 --- C===-A N e ° c C==== 1 I C====1 C====A 1 I 1 °t =� 1 o I C==== ===a C===ml CL C � 1 C=m==A C====1 �I gNjOTmprovements at this level are port of the City Unit. n n n n n n n nT_ I I I 11 11 1 f I f 10 11 1 I I��Geatt CITY UNIT ° I 11 Ir 11 ll 1 1 11 11 11 11 1 I 1 11 11 11 11 1 i 11 11 11 11 l� ©© _ — °O 126.0' a� N z FIFTH LEVEL (ROOF) 3 OOR PLAN 5 FL SHEE T ®F PUNY AVENUE COMMERCIAL CONDOM19IUM I i lk I . Q��19j 9j F 5 �9d � d ® S 0 I a �0 N C, O C a d c NOTE: 1. ELEVATIONS REFER TO (N.G.V.D.) NATIONAL GEODETICVERTICAL DATUM. 2. NOT TO SCALE 0 d W N O k N rf r G Z [: -r ELEVATION OF 15 YU�Ri � SHEEN' 9 PURDY AVENUE COMMERCIAL CONDOMINIUM CANAL I I I I I I I I I \ 35 1 34 33 1 32 1 31 1 30 1 29 1 28 1 27 1 26 1 Q 36 I I I I I I I I �, i�_ X95651 11/14/0 �o°o0b0E •cm Mess U�/u/o� w STREET W MW 1/2 '6 v 5 LU Q —37 _ Z 5 a -- -+ -- - Z V L� 4 �® _ 7 —4 — � 38 — � C0 — _ — Q 3 8 3 � 39 9 2 � Ij 40 .5.`" 10 10 4 � —11 — — 4 — 3 —12 I 3 — - - -- 2— —T T - 2 9 - - 13 1 14 f-- - 1 s — —— — 2" 18TH STREET N_ n O r • • Range 42 East, r- This site lies in Section 33, Township 53 South, g a City Ci of Miami Beach, Miami-Dade County, Florida. o a co � N . 9 co SWI®. 1"=200' 0 BRP UNIT Z F=YHIRITR LOCATIONSKETCH SHEET10OF15_ PURDY AVENUE COMMERCIAL CONDOMINIUM LEGAL DESCRIPTION:-BRP Unit A portion of Lots 1 and 2, Block 14 A, ISLAND VIEW ADDITION, according to the plat thereof, as recorded in Plot Book 9 at Page 144, and together with a portion of Lots 5 through c as recorded E LTO PIBEACH k 6 at Page COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION. according to the plot thereof, 115, both Plats being recorded in the Public Records of Miami-Dade County, Florida, being more particularly described as follows: Begin at the Southwest corner of said Lot 5, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, also being a point on the East right of way line of Sunset Lots through 8,aBlockn14nand Lots Purdy 1 Avenue per said Plots; thence N o0100'00" E along soid West line of s ' 1 feet; thence S and 2, Block 14 A for 267.00 feet to Reference Point 'A';26.33 feet, the*0e N 00'00'00" E for 32.76 feet; thence 00900'00" W for 108.33 feet, thence S 90 00 00 E S 90'00'00" E for 10.17 feet; thence N 00'00'00" E for 6.82 feet; thence S 90'00'00" E for 7.67 feet, thence for 17.83 feet; thence N 00'00'00" E for 20.00 feet; thence N 90'00'00" W N 00'00'00" E for 12.08 feet to a point of curvature concave to the Southeast; thence Northeasterly along feet to foot oint ofstangency leading henceo the right through a central angle of 90'00 00 for an arc distance of 16.7 P S 90'00'00" E for 81.17 feet to a point on the East line of said Lot 2, lo90,00'0 ; tW for 3. 250700,00" feet;0thence along said East line of Lots 1 and 2, Block 14 A for 22.75 feet; thence N thence N 00'00'00" E for 2.26 feet; thence S 00 00 00 W for 2.26 feet; thence N 90'00'00" W for 7.33 feet; thence N 90'00'00" W for 8.00 feet; thence N 90'00'00" W for 6.75 feet; thence S 00'00'00" W for 2.26 feet; thence N 00'00'00" E for 2.26 feet; thence N 90'00'00" W for 16.83 feet; thence S 00'00'00" W for 26.82 feet; S 90'00'00" E for 42.17 feet to a point of said East line of Lot 1,4 Ifor 72 43 thence ethenOce• N'90'00 00" W for said East line of Lots 1, Block 14 A and Lots 5 through 8, Block 22.33 feet; thence S 00'00'00" W for 9.17 feet; thence N 90' Lot 5 W for 9.67 feet;18 00 feet oO the'OPoint of r 9.83 feet; thence N 90'00'00" W along the South line of said Lot 5, Block Beginning. a AND Commence at said Reference Point 'A', being a point on the East right of way line of Sunset Harbour Drive also `r' known as Purdy Avenue per ISLAND VIEW ADDITION PLAT, thense N 00°00'e0 Point along Beginningstthe thence of said Lot 2, Block 14-A for 6.83 feet; thence N 90000'00" E for 32.00 feet to � N 00 00 00 E for 11.50 feet; thence N 90'00'00" E for 20.75 feet; thence S 00'00'00" W for 4.43 feet; thence S 57'15'34" W for 13.06 feet; thence S 90'00'00" W for 9.76 feet to the Point of Beginning. The above described perimetrical boundaries lies be elevation +5.0 feet and elevation +21.8 feet (bottom of slab) relative to the National Geodetic Vertical Datum of 1929. 0 a 9 w N 00 N BRP -UNIT O Z � r-Y - f R tT R LEGAL DE SCRIPTION SHEET 11 ®F 15 PURDY AVENUE . . . COMMERCIAL CONDOMINIUM Soo°oo' v � 228' N90°00'OOwVU N00°00' "E 36 3F —1 c 2 9 POINT OF BEGINNING I 16,83' 226' LOT 3 --L —L_ — N00°00'00'E N�°00'00"WI i 325' L2 L-16.76 r— IPOINT 2'OF — — 17 R-10.67 0 N90°0V000Mv s00000'ooww COMMENCEMENT 6-90w ' 8•w 226' POINT A tSLMD VIEW ADDITION �i4 REFERENCE . LOT 2 PLAT BOOK®PAGE 144 o S90°00'00 E � ° w �� N90°00 00'VV N90°00'00'W 31.83' S90 0000E 81.17' 7.33' 5.75' _DETAIL"A" T N W z > SEE D IL"A" a: 390°00'OONE LINE TABLE 0 W LINE LENGTH BEARING i 3 Z L1 6,8.3' N0 0'00'000E LOT 8 L2 N 0° Q L4 11.50' 0.55' N9 ' °E i a: w 6 L5 .43' S 0 ° I Lli 1 . 6' S5715'34'W =110 w m L7 0 0. IL C . m I v IJ i I LEGEND: BRP UNIT a I lit 8 N i � I 0 0 i I ° N90000'00"W .118.00' iPOINT OF BEGINNING I ° I SOUTHWEST CORNER OF I � I LE Lora GRAPHIC SCA . I LOT 5, BLOCK 14 too 0 25 50 LIN FEET mmw I9 I i i inch ,n so & co N 0 BR-P UNIT Z DESCRIPTION SHEET 12 OF 15 V SKETCH ®F PYN I RIT R PUNY AVENUE COMMERCIAL CONDOMINIUM CANAL I 1 1 1 1 1 1 1 \\ 35 1 34 33 1 32 1 31 1 30 1 29 1 28 1 27 1 26 1 36 \ I I I I I I I I Ica M" t�s DISK L83M(11/14/07) W STREET r � W rwo,/z 6 vpc 5 L1J 37 = 5 ® -- --I- -- - z -- - Lz 4 14 s< — Z 4 W U 38 _ � — — 7 - -- - Q 3 8 3 — 39 — — � 40 � ,.1. — 10 1 F 11 14 7 ~ 8 _ .1 7 — 15 6 — 9 s .! o - - - - 5 10 5 s. 13 - - 10 _4 � —11 — — 4 — 3 12 I — 3 — — 2--2— _ T— T 2 9 _ _ 13 1 14 - 1 CL sox 18TH STREET `* 8 FOW CW w& N n O . This site lies in Section 33, Township 53 South, Range 42 East, a of Miami Beach, Miami-Dade County, Florida. 0 City 0 a c� N NOTE: See Sheets 6 through 8 for r 2nd through 5th Floor Levels 9 Smie: 1"=200' co Z FIRST LEVEL CITY UNIT SKETCH OF 15 PYWRIT B LOCATION 13 PURDY AVENUE COMMERCIALCONDOMINIUM LEGAL DESCRIPTION: City Unit PARCEL 1 A portion of Lots 1 and 2. Block 14 A, ISLAND VIEW ADDITION, according to the Plot thereof, as recorded in Plat Book 9 at Page 144, and together with a portion of Lots 7 and 8, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, according to the plat thereof, as recorded.in Plat Book 6 at Page 115, both being recorded in the Public Records of Miami—Dade County, Florida, being more particularly described as follows: Commence at the Southwest corner of said Lot 5, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, also being a point on the East right of way line of Sunset Harbour Drive also known as Purdy Avenue per said Plats; thence N 00'00'00" E along said East right of way line and West line of said Lots 5 through 8, Block 14 and Lots 1 and 2, Block 14 A for 267.00 feet to the Point of Beginning of the hereinafter described Parcel 1; thence continue N 00'00'00" E for 23.00 feet; thence N 90'00'00" E for 75.00 feet; thence S 00'00'00" E for 4.00 feet; thence S 90'00'00" E for 75.00 feet to a point on the East line of said Lot 2. Block 14 A; thence S 00'00'00" W along said Lot 2, Block 14 A for 45.00 feet; thence N 90°00'00" W for 81.17 feet to a point of curvature; thence along a 10.67 foot radius curve leading to the left through a central angle of 90'00'00" for an arc distance of 16.76 feet to a point of tangency; thence S 00'00'00" W for 71.67 feet; thence N 90'00'00" W for 26.33 feet; thence N 00'00'00" E for 108.33 feet; thence N 9900'00" W for 31.83 feet to the Point of Beginning, LESS AND EXCEPT Commence at the Point of Beginning of the hereinafter described Parcel 1; being a point on the East right of way line of Sunset Harbour Drive also known as Purdy Avenue per ISLAND VIEW ADDITION PLAT, thense N 00°00'00" E along said West line of said Lot 2, Block 14—A for 6.83 feet; thence N 90'00'00" E for 32.00 feet to the Point of Beginning; thence N 00'00'00" E for 11.50 feet; thence N 90'00'00" E for 20.75 feet; thence S 00'00'00" W for 4.43 feet; thence S 57'15'34" W for 13.06 feet; thence S 90'00 00 W for 9.76 feet to the Point of Beginning Provided, however, Parcel 1 is only the portion thereof lying below elevation +21.8 feet (second floor bottom of slob) and above elevation +5 feet (first floor bottom slab), relative to the National Geodetic Vertical Datum of 1929. PARCEL 2 A portion of Lot 5, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, according to the plat thereof, as recorded in Plot Book 6 at Page 115, as recorded in the Public Records of Miami—Dade County. Florida, being more particularly described as follows: 1* Commence at the Southwest corner of said Lot 5, Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND N VIEW SUBDIVISION, also being a point on the East right of way line of Sunset Harbour Drive also known as Purdy Avenue per said Plats; thence N 90'00'00" E along the South line of said Lot 5. Block 2 for 118.00 feet to the Point of Beginning of the hereinafter described Parcel 2; thence N 00'00'00" E for 9.83 feet; thence N 90'00'00" E for 9.67 feet; thence N 00'00'00" E for 9.17 feet; thence N 90'00'00" E for 22.33 feet to a point on the East line of said Lot 5. Block 14; thence S 00'00'00" W along said Lot 5, Block 14 for 19.00 feet to the Southeast corner of said Lot 5. Block 2; thence S 90'00'00" W along the said South line of Lot 5, Block 2 for a 32.00 feet to the Point of Beginning. ° Provided, however, Parcel 2 is only the portion thereof lying below elevation +21.8 feet (bottom of slab) relative to the National Geodetic Vertical Datum of 1929. PARCEL 3 3 All of Lots 1 and 2. Less the North four (4) feet of the East 1/2 of said Lot, 2, Block 14—A, ISLAND VIEW ADDITION, according to the plat thereof, as recorded in Plat Book 9 at Page 144, and all of Lots 5 through 8, 9 Block 14, THE ALTON BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW SUBDIVISION, according to the plat thereof, 3 as recorded in Plat Book 6 at Page 115, both being recorded in the Public Records of Miami—Dade County, o Florida. Provided, however, Parcel 3 is only the portion thereof lying above elevation +21.8 feet (second floor bottom of slab) and below elevation +5 feet (first floor bottom slab), relative to the National Geodetic Vertical Datum of N 1929 0 CITY UNIT Z LEGAL DESCRIPTION�u�iRi-r R SHEET 14 OF 15 y � OFD BK 25322 PG 4852 t-AST PAGE PMY AVENUE COMMERCIAL CONDOMINIUM POINT OF 800 000100°E BEGINNING LOTS 4.00• I N00°00'00'E 23.00' _ I LL g a: R ? 7D POINT OF <P I m BEGINNING Im 81 m PARCEL 1 N90°00 00'W .1 T E T 35' LR16.76 35' a « O R=10.67 ° a W 4 Ao90°00'0V I CL n T. •r n > 00 °` LOT 1 y i ® W LINE TABLE p d UNE LENGTH BEARING ,z < L1 .00. s W LOT 8 L2 .00' Ns ' Cr D 0 > L3 11.5 ' N .0 . n7 L4 0.75' 9 0' c•. l �' N90°00'00'W L5 4.4 0 '00"W O g a ® + L6 13.06' °15 4 W n i W 26.33' L7 9.7 'Ek'00' " CO a d LOT ClkC z PARCEL 3 n (� THE ALTON BEACH REALTY COMPANY'S LEGEND: aJ PLAT OF ISLAND VIEW SUBDIVISION ME() PLAT BOOKS PAGE 115 I a �A S1n� _ CITY UNIT c LOT 6 Nww 00"E 22.33' N N00°00'00'E N90000WE 9.1T 9.6T I LOT 5 Jain F°monw SOWN UW OF Uff 5 14 N00°00'00°E 19.00' a N90000'00'E 118.00' N90 000'00"W 32.00' I POINT OF COMMENCEMENT SOUTHWEST CORNER OF POINT OF BEGINNIN� LOT4 PARCEL 2 GRAPHIC SCALE LOT 5, BLOCK 14 0 25 50 100 I I _ J 9 Ana ) i inch = 50 & NOTE: See Sheets 6 through 8 for Z LTNIT FIRST LENTE.1 2nd through 5th Floor Levels CITY ®F DESCRIPTION SK:ETC�H OF 15 FX�I�IT � SHEET 15 i 111111 IIlii IIIli illii illll!1111 IIlII!iii 1111 DEVELOPMENT AGREEMENT C F N 2 O O 5 R O 7 7 7 3 5 6 OR Bk 23610 P9s 2119 - 2254; (136pgs y Between RECORDED 07/26/2005 14:24:24 HARVEY RUVIH► CLERK OF COURT MIAMI-DADE COUNTY► FLORIDA CITY OF MIAMI BEACH, FLORIDA (City) and c:) CA AR&J SOBS,LLC . -- C= (Developer) Dated as of 2005 — rya 5" & ALTON PROJECT MIAMI 699472.17 7198217084 5/20/05 2:13 PM l TABLE OF CONTENTS Page ARTICLE 1 DEFINITIONS.......................................................................................... ARTICLE 2 CONSTRUCTION................................................................................... Section 2.1 Consistency with City's Comprehensive Plan and Zoning Regulations.... Section 2.2 Project Concept Plan Approval.................................................................. Section 2.3 Design of the Project.................................................................................. Section 2.4 Public Facilities and Concurrency;Brownfields Benefits ......................... Section 2.5 Plans and Specifications............................................................................. Section 2.6 Conditions Precedent to Developer's Commencement of Construction of the Project......................................... Section 2.7 Commencement and Completion of Construction of the Project............... Section 2.8 Completion of Construction of the Project................................................. Section 2.9 Confirmation of Land Development Regulations...................................... Section 2.10 Required Development Permits.................................................................. Section 2.1.1 Developer's Right of Termination............................................................. Section 2.12 City's Right of Termination....................................................................... ARTICLE 3 PLANS AND SPECIFICATIONS.......................................................... Section 3.1 Approval and Modification of Plans and Specifications............................ Section 3.2 Compliance with Requirements; Construction Standards.......................... Section 3.3 Design and Decor....................................................................................... Section 3.4 Development Dispute................................................................................. ARTICLE 4 CITY PARTICIPATION......................................................................... Section 4.1 City's Right to Use Field Personnel........................................................... ARTICLE 5 MISCELLANEOUS CONSTRUCTION PROVISIONS..................... Section 5.1 Art in Public Places.................................................................................... Section 5.2 Prevailing Wage......................................................................................... Section 5.3 FTA Requirements..................................................................................... Section 5.4 Construction Agreements........................................................................... Section 5.5 Demolition of the Development Site.......................................................... Section 5.6 Construction Staging.................................................................................. ARTICLE 6 FINANCING OF PROTECT CONSTRUCTION AND DISBURSEMENT PROCEDURES.............................................. Section 6.1 Developer's Obligations............................................................................. Section 6.2 Disbursement of City's Transit Facility Contribution; Alley..................... Section,6.3 Fees............................................................................................................. Section 6.4 Neighboring Property................................................. ............................ ARTICLE7 INSURANCE..................................................................:......................... (i) 699472 17.DOC MIAMI 699472.17 7198217084 5/20/05 2:13 PM ARTICLE 8 DAMAGE CONSTRUCTION AND RESTORATION........................ Section8.1 Casualty...................................................................................................... Section 8.2 Effect of Casualty on this Agreement........................................................ ARTICLE9 CONDEMNATION.................................................................................. Section9.1 Taking......................................................................................................... Section 9.2 Effect of Taking on this Agreement........................................................... ARTICLE 10 RIGHTS OF RECOGNIZED MORTGAGEE...................................... Section 10.1 Notice and Right to Cure Developer's Defaults......................................... ARTICLE 11 NO SUBORDINATION........................................................................... ARTICLE 12 MAINTENANCE AND REPAIR........................................................... Section 12.1 Maintenance of Development Site............................................................. Section 12.2 Waste Disposal........................................................................................... ARTICLE 13 REQUIREMENTS................................................................................... Section 13.1 Requirements.............................................................................................. ARTICLE 1.4 CREATION AND DISCHARGE OF LIENS........................................ Section 14.1 Creation of Liens........................................................................................ Section 14.2 Discharge of Liens...................................................................................... Section 14.3 No Authority to Contract in name of City.................................................. ARTICLE 15 PUBLIC PURPOSE................................................................................. ARTICLE 16 RIGHT TO PERFORM THE OTHER PARTY'S COVENANTS..... Section 16.1 Right to Perform Other Party's Obligation................................................ Section 16.2 Discharge of Liens...................................................................................... Section 16.3 Reimbursement for Amounts Paid Pursuant to this Article....................... Section 16.4 Waiver,Release and Assumption of Obligations....................................... ARTICLE 17 EVENTS OF DEFAULT, CONDITIONAL................................. LIMITATIONS,REMEDIES,ETC....................................................... Section 17.1 Definition....................................................................... Section 17.2 Enforcement of Performance; Damages and Termination......................... Section 17.3 Strict Performance.............................................................0........................ Section 17.4 Right to Enjoin Defaults............................................................................. Section 17.5 Remedies under Bankruptcy and Insolvency Codes.................................. Section17.6 Inspection................................................................................................... Section17.7 City's Default............................................................................................. ARTICLE 18 NOTICES, CONSENTS AND APPROVALS....................................... Section 18.1 Service of Notices and Other Communications......................................... MIAMI 699472.17 7198217084 5/20/05 2:13 PM Section 18.2 Consents and Approvals............................................................................. Section1.8.3 Estoppel Letters.......................................................................................... ARTICLE19 ARBITRATION....................................................................................... Section 19.1 Expedited Arbitration of Development Disputes....................................... Section19.2 Litigation.................................................................................................... ARTICLE 20 NO PERMIT OR WAIVER OF FEES/APPLICABILITY OF BROWNFIELD REDEVELOPMENT ACT.................................. ARTYICLE 20A INVESTIGATIONS,ETC....................................................................... ARTICLE 21 HAZARDOUS MATERIALS................................................................. Section 2 1.1 General Provision....................................................................................... Section21.2 Survival ...................................................................................................... ARTICLE 22 MISCELLANEOUS................................................................................. Section 22.1 Governing Law and Exclusive Venue........................................................ Section 22.2. References.................................................................................................. Section 22.3 Entire Agreement, Etc. ............................................................................... Section 22.4 Invalidity of Certain Provisions ..................................:.............................. Section 22.5 Remedies Cumulative................................................................................. Section 22.6 Performance at Each Party's Sole Cost and Expense................................. Section 22.7 Time is of the Essence................................................................................ Section 22.8 Successors and Assigns.............................................................................. Section 22.9 Notice of Defaults ...................................................................................... Section 22.10 No Representations..................................................................................... Section 22.11 Nature of Obligations................................................................................. Section 22.12 Non-liability of Officials and Employees .................................................. Section 22.13 Partnership Disclaimer.......:....................................................................... Section 22.14 Time Periods............................................................................................... Section 22.15 No Third Party Rights................................................................................ Section22.16 No Conflict................................................................................................. Section 22.17 Recording of Development Agreement...................................................... Section 22.18 Duration of This Development Agreement................................................ ARTICLE 23 CITY'S RIGHT OF FIRST OFFER...................................................... MIAMI 699472.17 7198217084 5/20/05 2:13 PM LIST OF EXHIBITS Exhibit A - Legal Description of Land Exhibit B - Depiction of Transit,Facility Dedication Area Exhibit C - City's Transit Facility Contribution Exhibit D - Representative Construction Guaranty Provisions Exhibit E Material Provisions of Declaration Exhibit F - Permitted Exceptions for City Spaces Exhibit G - Form Deed for City Spaces and Transit Elements Exhibit H - Intentionally Omitted Exhibit I - Location of City Spaces, Transit Elements and Developer Spaces Exhibit J - Project Concept Plan Exhibit K - Legal Description of Alley Exhibit L - City's Right of First.Offer to Purchase Project Exhibit M - Form of Dedication Deed for Transit Facility Dedication Area Exhibit N - Intentionally Omitted Exhibit O - Schedule of Estimated Elevator/Bus Stop Costs (iv) MIAMI 699472.17 7198217084 5/20/05 2:13 PM DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of this S11 day of , 2005 (the "Effective Date"), by and between the CITY OF MIAMI BEACH, FLO DA ("City"), a municipal corporation duly organized and existing under the laws of the State of Florida, and ARW SOBE, LLC, a Florida limited liability company ("Developer"). As of the Effective Date, the sole members of the Developer are AP Sobe, LLC, wholly beneficially owned by Alan Potamkin, his family or a trust for the benefit of his family, and controlled by Alan Potamkin; RP Sobe,LLC, wholly beneficially owned by Robert Potamkin, his family or a trust for the benefit of his family, and controlled by Robert Potamkin; and Berkowitz Limited Partnership, wholly beneficially owned by Jeffrey Berkowitz, his family or a trust for the benefit of his family, and controlled by Jeffrey Berkowitz. More precise entity composition information for Developer will be furnished to the City Manager as soon it is available,but in any event by the Outside Date, as hereinafter defined. RECITALS: WHEREAS, Developer represents to City that Developer is the record and beneficial owner of certain parcels of real property located in the City of Miami Beach, Miami-Dade County, Florida, legally described on Exhibit"A" attached hereto and made a part hereof(title evidence will be furnished to the City which confirms this at the time specified in Section 2.6(d) (vi)below); and WHEREAS, City is the holder of a public right-of-way easement to the "Alley", as hereinafter defined (said Exhibit "A" property and the Alley are collectively referred to as the "Land", which Land is bordered by 5" Street, 6" Street,Alton Road and Lenox Avenue); and WHEREAS, on June 7, 2000, the City Commission adopted Resolution No. 2000-23963 designating the Land a Brownfield Area, to promote the environmental restoration and economic redevelopment of the area; and WHEREAS, Developer intends to construct on the Land a multi-level commercial building to be used for grocery/retail/office/restaurant space and its appurtenances (the "Retail Space") and a parking garage (defined below as Transit Facility); and WHEREAS, Developer shall convey to the City subject to the terms specified in this Development Agreement in fee simple several condominium units which in the aggregate include 535 of the parking spaces within the Transit Facility(said 535 spaces are defined below as the City Spaces, consisting of the "City Supermarket Spaces" and the "City Non-Supermarket Spaces", each of which shall be one or more separate units) and the "common areas" (including an equitable allocation of the Land) of the Transit Facility(said "common areas" shall be deemed part of the City Spaces for purposes of this Agreement) and one or more other condominium unit(s) which contains other "Transit Elements" (as hereafter defined), to the extent constituting real property interests(signage,-furniture and any other non-real estate components, if any, of the Transit Facility will not be part of the condominium, although they will be utilized for the benefit of the condominium) and excluding the Transit Facility Dedication Area which shall not be part 5 MIAMI 699472.17 7198217084 5/20/05 2:13 PM of the condominium but shall be conveyed to the City as provided elsewhere in this Agreement. Developer shall retain fee simple title to one or more condominium units which include in the aggregate the Retail Space as well as the rest of the Transit Facility, and the "common areas" (including an equitable allocation of the Land) of the Project not conveyed to the City (said "common areas" shall be a part of the Retail Space for purposes of this Agreement), including all parking spaces other than the City Spaces(defined below as the Developer Spaces); and WHEREAS, the Transit Facility will be operated as an integrated facility, with City being responsible for parking control and certain other duties of the operation thereof and Developer being.responsible for the maintenance, repair, insurance, paying taxes, and security; and WHEREAS, City and Developer have agreed that the Developer shall execute and record a Declaration of Condominium(the"Declaration") for the Property in a form approved by the City Manager (which approval will not be unreasonably withheld so long as the terms are consistent with this Agreement, including its Exhibits), at the time and subject to the terms specified in this Development Agreement, containing the essential terms set forth in Exhibit"E" attached hereto and such other provisions as City and Developer shall mutually and reasonably agree upon; and WHEREAS, the Parties have negotiated this Development Agreement, setting forth the City's and Developer's respective rights and responsibilities with regard to the development, design, construction, ownership and operation of the Project. NOW,THEREFORE,the Parties agree as follows: ARTICLE 1 DEFINITIONS For all purposes of this Agreement the terms defined in this Article 1 shall have the following meanings: "Affiliate" or "Affiliates" means, with respect to any Person, any other Person that, directly or indirectly,through one or more intermediaries, controls or is controlled by, or is under common control with, such Person. For purposes hereof, the term"control"(including the terms "controlled by" and"under common control with") shall mean the possession.of a Controlling Interest. Unless the context otherwise requires, any reference to Affiliate in this Agreement shall be deemed to refer to an Affiliate of Developer. "Alley" means that certain parcel of property subject to a right-of-way easement held by the City containing approximately 7,800 square feet and legally described on Exhibit"K." "Architect" means a person or firm licensed to operate as an architect in Miami-Dade County, Florida and who is designated by Developer as the architect for the Project and approved by the City Manager with respect to the Transit Facility (which approval shall not be (6) MIAMI 699472.17 7198217084 5120105 2:13 PM unreasonably withheld and is deemed given in respect of Robin Bosco Architects and Planners, Inc. and STA.Architectural Group). "Brownfield Redevelopment Act" means the Florida Brownfield Redevelopment Act, Section 376.77, et. M.,Florida Statutes(1997). "Building Permit" means a "full building permit" as.such term is defined in the Land Development Regulations, issued by the Building Department of the City, which allows buildings or structures to be erected, constructed, altered, moved, converted, extended or enlarged for any purpose, in conformity with applicable codes and ordinances. "Business Day"or"business day"means a day other than Saturday, Sunday or a day on which banking institutions in the State of Florida are authorized or obligated by law or executive order to be closed. "City" means the City of Miami Beach, Florida, a municipal corporation duly organized and existing under the laws of the State of Florida.. "City Code" means the Code of the City of Miami Beach, Florida, as amended through the date hereof and as hereafter amended to the extent permitted herein or by applicable law. "City Commission"means the Mayor and City Commission of the City of Miami Beach, Florida, the governing body of the City, or any successor commission, board or body in which the general legislative power of the City shall be vested. "City Elevator"means the elevator and elevator bank to be conveyed to the City, located at the northwest corner of the Improvements and comprising a part of the Transit Elements (which will stop at all floors of the Transit Facility), together with an easement from the Transit Facility Dedication Area to the City Elevator for use by the general public for ingress and egress between such areas. Developer shall perform routine day to day maintenance of the City Elevator at its cost (such as sweeping and cleaning). Developer shall perform all other maintenance, repairs and replacement of the City Elevator, including obtaining a service contract for maintenance that is subject to City's reasonable approval, at the City's cost,based on a budget reasonably approved by the City and subject to annual reconciliation, and this obligation shall survive any termination of this Agreement. "City Improvements" means the City Spaces and the other Transit Elements. The City Improvements are to be constructed by Developer as part of the Project. "City Manager"means the chief administrative officer of the City or his or her designee. "City Spaces" means the 535 parking spaces within the Transit Facility that are to be conveyed to the City and located substantially as shown on Exhibit"I"hereto. The City Spaces shall be comprised of the "City Supermarket Spaces" and "City Non-Supermarket Spaces", as defined below. Anything, in this Agreement to the contrary notwithstanding, in order to satisfy potential FAR, parking and governmental requirements, up to 14 (the precise number of which shall be determined by Developer based on the governmental parking requirements imposed for the issuance of the building permits and final certificate of occupancy for the (7) MIAMI 699472.17 7198217084 5/20/05 2:13 PM Project, not to exceed 14) of the City Non-Supermarket Spaces shall be owned jointly by the City and the Developer as tenants in common, each as to an undivided 50% interest (and Developer shall retain said 50% interest when it conveys said up to 14 spaces to City),but (i) for purposes of City's Transit Facility Contribution, the allocation of Revenues and Operating Expenses, allocation of payment in the event of condemnation, determination of the purchase price in the event-of a sale and all similar purposes under the Declaration, City shall be deemed the sole owner of such up to 14 spaces, (ii) Developer shall, to the extent an exemption from taxes would otherwise be available in respect of said up to 14 spaces, pay any taxes in respect of said spaces (otherwise, City shall pay taxes on said spaces), (iii) Developer may, at any time convey its interest in any or all of said up to 14 spaces to the City for no additional consideration, and the City shall accept such conveyance and (iv) such up to 14 spaces shall, at Developer's option, be the last spaces to be reconveyed to Developer in the case of a condemnation, and if any of said up to 14 spaces are at any time condemned, City shall, for no consideration, convey to Developer, at Developer's option, an equivalent interest in other City Non-Supermarket Spaces (or Supermarket Spaces, if there are no more City Non-Supermarket Spaces) so that Developer will continue to own, after the condemnation, if it so elects,up to the same number of spaces that it owned prior to the condemnation as a 50% co-tenant. The provisions of the foregoing will be incorporated into and implemented by the Declaration at the time of its preparation. Further, anything in this Agreement to the contrary notwithstanding, if Developer, in order to satisfy potential FAR,parking and governmental requirements, requires more than the 14 spaces provided for above based on the governmental parking requirements imposed for the issuance of the building permits and final certificate of occupancy for the Project, the Parties shall negotiate in good faith to attempt to arrive at a mutually satisfactory solution, failing which Developer may unilaterally reduce the number of City Non-Supermarket Spaces to be sold to the City under this Agreement by the amount of the shortage in parking spaces required by Developer, whereupon the City's Transit Facility Contribution allocable to parking spaces shall be reduced by an amount equal to the per parking space amount multiplied by the reduction in the number of parking spaces sold by the Developer to the City (and Developer shall promptly reimburse the City for any excess payment paid by the City in respect therefor, if any). "City Non-Supermarket Spaces" shall mean all of the City Spaces less the City Supermarket Spaces. "City Supermarket Spaces" shall mean that portion of the City Spaces equal to 97 parking spaces for the.contemplated supermarket user. "City's Consultant" means such Person as City may designate in writing to Developer from time to time. "City's Transit Facility Contribution" shall mean approximately $16,395.03 per parking space(being calculated by taking$8,771,340 and dividing same by the actual number of City Spaces) constituting the City Spaces plus an additional sum equal to the actual Hard Costs and Soft Costs incurred by Developer for the City Elevator plus an additional sum equal to the actual Hard Costs and Soft Costs incurred by Developer for the Transit Facility Dedication Area Finishes (but in no event to exceed $356,187.60 for the City Elevator and $118,204.80 for the Transit Facility Dedication Area Finishes) plus the additional sum of$333,333 for the Transit (8) MIAMI 699472.17 7198217084 5/20/05 2:13 PM Facility Dedication Area, all of which shall be disbursed by City pursuant to Section 6.2 of this Agreement. "Commence Construction" or "Commencement of Construction" means the commencement of major work (such as installing pilings or pouring foundations) for construction of the Project in accordance with the Plans and Specifications. Any and all preliminary site work (including, without limitation, any environmental re-mediation -and ancillary demolition or site preparation work, including installation of forms for foundations) shall not be deemed to be Commencement of Construction. "Completion Deadline" means the date that is the earlier of(a)twenty-four(24) months following the Construction Commencement Date, or(b)March 1, 2008,both subject to a day for day extension by reason of Unavoidable Delays. "Comprehensive Plan" means the Comprehensive Plan that the City adopted and implemented for the redevelopment and continuing development of the City pursuant to Chapter 163,Part II, Florida Statutes. "Concurrency Requirements"has the meaning provided in Section 2.4(b). "Consenting Party"has the meaning provided in Section 18.2(c)(i). "Construction of the Project"means the construction of all.or any portion of the Project on the Land. "Construction Agreement(s)" means any general contractor's agreement, architect's agreement, engineer's agreement, or any other agreement for the provision of services, labor, materials or supplies entered into with respect to the Construction of the Project, as the same may be amended or otherwise modified from time to time. "Construction Commencement Date"has the meaning provided in Section 2.7. "Construction Work" means any construction work performed under any provision of this Agreement and/or the Construction Agreements with respect to the Construction of the Project. "Contractor" means an contractor, subcontractor supplier, vendor or materialman Y � Pp , supplying services or goods in connection with the Construction of the Project. "Controlling Interest" means the power to direct the management and decisions (both major decisions and day-to-day operational decisions)of any Person. "Default" means any.condition or event, or failure of any condition or event to occur, which constitutes, or would after the giving of notice and lapse of time (in accordance with the terms of this Agreement) constitute, an Event of Default. (9) MIAMI 699472.17 7198217084 5120/05 2:13 PM "Default Date" means the date that is twenty-four (24) months and one day after the Construction Commencement Date or March 2,2008,whichever occurs first,but subject to a day for day extension in each case for delays due to Unavoidable Delays. "Default Notice"has the meaning provided in Section 17.1 (a). `_`Design Review Board" or"DRB" means the Design Review Board of the City created and established pursuant to the Land Development Regulations,or any board or body which may succeed to its function. "Developer"means ARW Sobe, LLC, a Florida limited liability company. "Developer Improvements" means any building (including footings and foundations), building equipment and other improvements and appurtenances of every kind and description now existing or hereafter erected, constructed, or placed upon the Land (whether temporary or permanent), and any and all alterations and replacements thereof, additions thereto and substitutions therefor, except for the City Improvements which shall be constructed upon the Land by Developer but owned by the City. "Developer Spaces" means all parking spaces (currently contemplated to be approximately 546) located within the Transit Facility except for the City Spaces, and located substantially as shown on Exhibit "I" hereto. .The Developer Spaces shall include a portion of the City Code required parking spaces for the contemplated supermarket user. The Developer =Spaces shall not include any of the City Spaces that are co-owned by Developer as a tenant in common with the City. "Development Agreement" (or this "Agreement") means collectively, this Development Agreement and all exhibits and attachments hereto, as any of the same may hereafter be supplemented, amended, restated, severed, consolidated, extended, revised and otherwise modified, from.time to time, either in accordance with the terms of this Agreement or by mutual agreement of the parties. "Development Agreement Act" means the Florida Local Government Development Agreement Act, Section 163.3220, et. seq.,Florida Statutes(1998), as may be amended. "Development Approval" means any zoning, rezoning, conditional use special exception, variance or subdivision approval, concurrency approval under Section 163.3180, Florida Statutes, or any other official action of local government having the effect of approving development of land. "Development Arbitrator"shall have the meaning provided in Section 19.1 (j). "Development Dispute".has the meaning provided in Section 3.4. "Development Site"means the Land. Effective Date has the meaning provided in the preamble of this Agreement. (10) MIAMI 699472.17 7198217084 5/20/05 2:13 PM "Event of Default"has the meaning provided in Section 17.1. "Excess Transit Facility Costs"means those costs that shall be the.sole responsibility of the Developer as that term is used in Section 6.2.1 (ii). "Fair Market Value" means the fair market value of the property or interest being valued as jointly agreed to by City and Developer or, if they cannot agree for any reason within thirty (30) days, as determined by an appraiser mutually acceptable to City and Developer (which shall be designated within fifteen (15) days after expiration of the aforestated thirty(30) day period or it shall be presumed that they could not agree) or, if they cannot agree on a single appraiser for any reason, each shall.designate an appraiser within fifteen (15) days thereafter (and if either does not, the appraiser selected shall be the sole appraiser) and the appraisers so designated shall select a ,third appraiser (within fifteen (15) days of their selection). Each appraiser shall be a licensed M.A.I. appraiser having no less than 10 years experience in appraising facilities similar to the property or interest being valued in the vicinity of the Property. Fair Market Value shall be determined assuming title and environmental condition will be in the condition in which the party conveying is obligated to convey as provided in this Development Agreement, but shall not take into account any restrictions, use rights, limitations or other factors peculiar to the Project or to the property or interest being valued that might affect value (it being the intent that these latter factors be considered through the discount (hereinafter defined as the "Fraction") by which Fair Market Value is multiplied in various places in this Agreement). For clarification, Fair Market Value of the City Spaces, where applicable, shall first be determined by including land value and then, as provided in the document pursuant to which Fair Market Value is being determined, such value shall be multiplied by the Fraction to adjust for the fact that the City does not participate in the value of the Land, as the City's Transit Facility Contribution does not include compensation to Developer for Land value. "Fees"has the meaning provided in Section 6.3 (a). "Fraction" has the meaing set forth in the Declaration. "FTA" means the Federal Transit Administration, an operating division of the U.S. Department of Transportation. "FTA Master Agreement" means Federal Transit Administration Master Agreement, FTA MA (10) between the City and FTA, dated October 1, 2003, a copy of which was previously..furnished to Developer. "FTA Recipient"means the entity that receives federal assistance directly from FTA, as the legal entity that is designated the Recipient in the Grant Agreement or Cooperative Agreement with FTA. "FTA Requirements" means requirements imposed on the expenditure of FTA Funds including, but not limited to,those identified in the FTA Master Agreement. "Governmental Authority" or "Authorities" means the United States of America, the State of Florida, Miami-Dade County, the City (in its governmental as opposed to proprietary capacity) and any agency, department, commission, board, bureau, instrumentality or political (11) MIAMI 699472.17 7198217084 5/20/05 2:13 PM subdivision (including any county or district) of any of the foregoing, now existing or hereafter created, having jurisdiction over Developer or any owner,tenant or other occupant of,or over the Development Site or any portion thereof or any street, road, avenue or sidewalk comprising a part of, or in front of, the Development Site, or any vault in or under the Development Site, or airspace over the Development Site. "Guarantors"means Jeffrey Berkowitz, Alan Potamkin and Robert Potamkin, who shall each execute a Guaranty in accordance with the provisions of this Development Agreement. "Guaranty" means a joint and several guaranty issued to the City (which shall be separate from any guaranty issued to Developer's construction lender)to be delivered by each of the Guarantors to City prior to any disbursement of the City's Transit Facility Contribution pursuant to which each Guarantor shall guaranty to the City the timely and lien free completion of the Project in accordance with the Plans and Specifications, this Development Agreement and all Requirements, and which shall be in form and substance substantially the same as set forth on Exhibit D attached hereto. "Hard Costs" means costs paid by Developer to contractors, materialmen and suppliers for Construction of the Project. "Hearing"has the meaning provided in Section 19.1 (b). "Historic Preservation Board" or"HPB"means the Historic Preservation Board of the City created and established pursuant to the Land Development Regulations or any board or body which may succeed to its functions. "Improvements" means the Developer Improvements, the City Improvements and all improvements located on the Land at any point in time. "Institutional Lender" means a bank, savings and loan association, insurance company, an agency of the United States Government, the Federal National Mortgage Association ("FNMA"), the Federal Home Loan Mortgage Corporation ("FHLMC"), or any other lender generally recognized as an institutional lender, holding a mortgage, lien or other security interest on the Property or a portion thereof. "Joint Board" means the Joint Historic Preservation and Design Review Board created and established pursuant to the Land Use Regulations or any board or body which may succeed to its functions. "Land"has the meaning set forth in the first Recital. "Land Development Regulations" means Subpart B (Chapters 114 through 142) of the Code of the City of Miami Beach, Florida, as the same was in effect as of the date of this Development Agreement. "Loan Documents"means, collectively, any loan agreement,promissory note,mortgage, guaranty or other document evidencing or securing a loan secured by, among other collateral, Developer's interest in the Land or Property. (12) MIAMI 699472.17 7198217084 5/20/05 2:13 PM "Mortgagee"means the holder of a Mortgage. "Notice"has the meaning provided in Section 18.1 (a). "Notice of Failure to Cure"has the meaning provided in Section 10.1 (a). "Outside Date"means the date which.is eighteen(18)months after the Effective Date,or the Construction Commencement Date,whichever shall first occur. "Parties"means the Developer and the City, collectively. "Party"means the Developer or the City. "Payment and Performance Bond"has the meaning provided in Section 2.6 (c). "Permits and Approvals" shall mean any and all permits and approvals required to be issued by Governmental Authorities in connection with the Construction of the Project,including to the extent applicable, without limitation, the City of Miami Beach building permits, the approvals of the City of Miami Beach Design Review Board, the City of Miami Beach Historic Preservation Board, the City of Miami Beach Planning Board,the City of Miami Beach Board of Adjustment, the Miami-Dade -County Department of Environmental Resources. Management permits, the Florida Department .of Environmental Protection permit, any other permits and/or approvals required by any Governmental Authorities and any utility access agreements with all applicable utility companies. "Permitted Exceptions" means the matters set forth on Exhibit 6IF' hereto and any other matters hereafter imposed on the Property or the Transit Facility Dedication Area or any portion thereof by requirement of the City or with the consent of the City Manager, which consent will not be unreasonably withheld, delayed or conditioned so long as the City Improvements and the Transit Facility Dedication Area shall not be materially and adversely affected. "Person" means an individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, estate, trust, unincorporated association or other entity; any Federal, state, county or municipal government or any bureau, department, political subdivision or agency thereof; and any fiduciary acting in such capacity on behalf of any of the foregoing. "Planning Board"or"PB"means the Planning Board of the City created and established pursuant to the Land Development Regulations, or any board or body which may succeed to its functions. "Plans and Specifications" means the final plans and specifications for the Project, including, foundation, structural, electrical, plumbing and HVAC plans and such other plans and specifications customarily required to obtain a full building permit, each as prepared in accordance with this Agreement and approved by City in both its governmental capacity and its proprietary capacity, as the same may be modified from time to time in accordance with the provisions of this Agreement. (13) MIAMI 699472.17 7198217084 5/20/05 2:13 PM "Project" means the Land and the City Improvements and the Developer Improvements to be constructed by.Developer thereon, which shall include,without limitation, the following: a mixed use project containing approximately 1792000 square feet of commercial/retail/office/restaurant space and a parking garage containing approximately 1081 parking spaces, and which shall be substantially as depicted on the.Project Concept Plan. The Project includes the Retail Space and the Transit Facility. At such time as Substantial Completion has been achieved, the term "Project" shall mean the Land and all Improvements which have been constructed thereon and shall further include all alterations and additions thereafter made. Notwithstanding the foregoing, if this Agreement is terminated, for purposes of determining whether or not the "Conditions", as hereinafter defined, have been satisfied, the Project may, at Developer's sole option, be modified to eliminate the City Elevator (unless City elects to require and pay for same in accordance with the Vacation Agreement and Vacation Resolution) and all or a portion of that parking which is in excess of City Code required parking. "Project Concept Plan" means the concept plan for the Project attached hereto as Exhibit 66J"hereto as may be modified in accordance with this Agreement. "Project Construction Costs" means all Hard Costs and Soft Costs of construction incurred in connection with the Construction of the Project. "Property" means the Land and all Improvements from time to time located thereon, together with all easements, development entitlements, utility allocations and other benefits appurtenant thereto. "Recognized Mortgagee"means an Institutional Lender who is the holder of a mortgage and who has notified City that it is a Recognized Mortgagee and provided an address for notices. "Requirements"has the meaning provided in Section 13.1 (b). "Soft Costs"means, all out-of-pocket costs incurred by Developer to third parties(but, if any such third parties are affiliated with Developer, only to the extent that such services are necessary for the Project and only to the extent of the amount that would reasonably be payable in an arms length transaction if the third party were unrelated) for designing,planning, financing and managing Construction of the Project, other than Hard Costs. "Substantial Completion"or"Substantially Complete"or"Substantially Completed" means, with respect to the Project, that (1) it shall have been completed substantially in accordance with the Plans and Specifications, (2) the certificate of the Architect described in Section 2.8 (b)(i) shall have been obtained, and (3) the City Improvements, the Developer Improvements and all other Improvements constituting a part of the Project shall have been issued temporary or permanent certificates of occupancy,or their equivalent. "Term" means the period commencing on the Effective Date and, unless sooner terminated as provided herein, expiring on the issuance of a final certificate of occupancy and the completion of all remaining punch list items with respect to completion of the Project, payment by City to Developer of all amounts owed to Developer under this Agreement, conveyance to City of the City Spaces and City Elevator, and dedication to the City of the Transit Facility Dedication Area, all in accordance with the terms of this Agreement, subject, however, to (14) MIAMI 699472.17 7198217084 5/20/05 2:13 PM survival of any provisions of this Agreement that are expressly stated herein or intended by their terms to survive such expiration or termination. "Transit Elements" means and includes collectively (a) the City Non-Supermarket Spaces, (b) the City Elevator; (c) the Transit Facility Dedication Area; and (d) signage for the Transit Facility. "Transit Facility" means a parking garage which is part of the Project and which contains the City Spaces, certain other Transit Elements and the Developer Spaces (but not the Transit Facility Dedication Area) and all ramps, elevators, and stairways located within the parking garage and serving the parking garage. "Transit Facility Dedication Area" means the area at the northwest corner of the Property that is to be dedicated to the City for mass transit intermodal stop pedestrian waiting area , the legal description of which will be prepared prior to conveyance to reflect the cross- hatched area noted and labeled.on Exhibit "B" attached hereto, but only between the height of street grade and approximately 11 feet above street grade (it being understood and agreed that Developer shall retain the portions below grade for underground footings, foundations, utilities and the like, and shall retain the portions above approximately 11 feet for improvements to be located over the Transit Facility Dedication Area). Anything in this Development Agreement to the contrary notwithstanding, the Transit Facility Dedication Area shall not be part of the Transit Facility, the Property or the Project, but shall be a Transit Element which will be dedicated for a mass transit intermodal stop pedestrian waiting area at the time set forth in this Development Agreement. Developer shall not be required to comply with FTA Requirements in respect of this area if such requirements (when aggregated with the FTA Requirement for the balance of the Project) are more costly to comply with than what is contained in the Project Concept Plan unless City, at its option, elects to pay for the excess costs (except that.Developer shall comply with Davis Bacon Act and shall, consistent with the City's FTA approved DBE plan, use reasonable efforts to comply with the DBE requirements of the FTA Master Agreement based on up to 10% of an assumed $9,500,000 City's Transit Facility Contribution (but in no event less than 5% of an assumed $9,500,000 City's Transit Facility Contribution) at no additional cost to City, and Developer shall also comply with any other requirements of the FTA Master Agreement at the City's request and at the City's cost, and further provided, in respect of all FTA Requirements, they are reasonably capable of being implemented without unusual delay and without materially changing the character of the Project). Anything in this Agreement to the contrary notwithstanding, Developer shall not be obligated to acquire or convey any land other than the Land or other than as contemplated hereby. Developer shall install at its cost (but subject to payment by the City for the Transit Facility Dedication Area Finishes as provided for elsewhere in this Agreement) the curbing, pavement, directional signage (to direct.people into the Transit Facility) and building mounted lighting for the Transit Facility Dedicated Area and shall, subject to the immediately preceding sentence, comply with all Requirements pertaining to construction of the Transit Facility Dedication Area. Developer shall not be obligated to install transit related signage, furniture (such as benches and waste containers) or similar items, unless requested by and paid for by City without contribution by Developer (and if installed, City shall maintain, repair and, when required, replace (or at City's option remove) same, which obligation shall survive termination of this Agreement if the Transit Facility Dedication Area has been conveyed to City). (15) MIAMI 699472.17 7198217084 5/20/05 2:13 PM "Transit Facility Dedication Area Finishes" means the improvements noted in item 2 of the Schedule of Estimated Elevator Bus Stop Costs attached hereto as Exhibit "O". Developer shall perform routine day to day maintenance of the Transit Facility Dedication Area Finishes at its cost (such as sweeping and cleaning). Developer shall perform all other maintenance, repairs and replacement of the Transit Facility Dedication Area Finishes at the City's cost, based on a budget reasonably approved by the City and subject to annual reconciliation, and this obligation shall survive and termination of this Agreement. "Unavoidable Delays" means delays due to strikes, slowdowns, lockouts, acts of God, inability to obtain labor or materials, war, enemy action, civil commotion, fire, casualty, catastrophic weather conditions, eminent domain, a court order which actually causes a delay (unless resulting from disputes between or among the party alleging an Unavoidable Delay, present or former employees, officers, members, partners or shareholders of such alleging party or Affiliates (or present or former employees,officers,partners,members or shareholders of such Affiliates) of such alleging party), unusual permitting or inspection delay, or another cause beyond such party's control or which, if susceptible to control by such party, shall be beyond the reasonable control of such party. Unavoidable Delays shall include, in the case of a Recognized Mortgagee (but not in the case of Developer), the time reasonably necessary to foreclose its mortgage (but only if and to the extent that ownership and/or possession of the Property is required in order for the Recognized Mortgagee to perform or comply with any of Developer's obligations hereunder). Such party shall use reasonable good faith efforts to provide notice to the other party not later than ten (10) days after such party knows of the occurrence of an Unavoidable Delay; provided, however, that either party's failure to notify the other of the occurrence of an event constituting an Unavoidable Delay within.such ten (10) day period shall not alter, detract from or negate its character as an Unavoidable Delay or otherwise result in the loss of any benefit or right granted to the delayed party under this Development Agreement. In no event shall (i) any party's financial condition or inability to fund or obtain funding or financing constitute an Unavoidable Delay with respect to such party, and (ii) any delay arising from a party's (or its Affiliate's)default under this Development Agreement or any of the Project Agreements constitute an Unavoidable Delay with respect to such party's obligations hereunder. The times for performance set forth in this Development Agreement (other than for monetary obligations of a party) shall be extended to the extent performance is delayed by Unavoidable Delay, except as otherwise expressly set forth in this Development Agreement. Notwithstanding the foregoing, City's failure to pay when due City's Transit Facility Contribution in accordance with the terms of this Development Agreement shall, at Developer's option, be an Unavoidable Delay. Developer shall from time to time upon request of the City provide to the City Developer's then current construction time line schedule and shall advise as to-whether any then known Unavoidable Delays have occurred and the nature and extent thereof. ARTICLE 2 CONSTRUCTION Section 2.1 Consistency with City's Comprehensive Plan and Zoning Regulations. (16) MIAMI 699472.17 7198217084 5/20/05 2:13 PM 2.1.1 The City has adopted and implemented the Comprehensive Plan. The City hereby finds and declares that the provisions of this Development Agreement dealing with the Land are consistent with the City's adopted Comprehensive Plan and Land Development Regulations, subject to the Developer's obtaining all applicable Requirements,Permits and Approvals. Section 2.2 Project Concept Plan Approval. Developer's Project Concept Plan,which includes but is not limited to showing the layout and siting of the Project, including but not limited to all buildings and structures, streetscape, infrastructure improvements and other improvements and appurtenances proposed to be developed upon the Development Site, is herein submitted simultaneously with the submission of this Development Agreement for approval by the City Commission, and attached as Exhibit J hereto. Should the City Commission fail to approve the Project Concept Plan,which shall be by way of the City Commission failing to approve this Development Agreement--approval of this Development Agreement shall be deemed approval of the Project Concept Plan--or, if approved, if the Projecxt Concept Plan does not become final and unappealable, then this Development Agreement shall be of no force or effect, and each Party shall bear its own costs and expenses incurred in connection with this Development Agreement and neither Party shall have any further liability to the other(except for matters, if any, that expressly survive termination of this Development Agreement). Section 2.3 Design of the Project. Developer shall be solely responsible for the design of the Project,,but such design shall be substantially in accordance with the design created by Developer's Architect ("Project Design") as reflected on the approved Project Concept Plan. Design of the Project, including the City Spaces and the other Transit Elements, shall be at the sole cost and expense of Developer. The Parties acknowledge that final, non-appealable approvals of the Project by the DRB and the HPB have been obtained. Section 2.4 Public Facilities and Concurrence; Brownfields Benefits. (a) Developer anticipates that (i) the Project will be served by those roadway transportation facilities currently in existence. as provided by state, county and local roadways, (ii) the Project will be served by public transportation facilities currently in existence, including those provided by Miami-Dade County, the City, and other governmental entities as may presently operate public transportation services within the City; (iii) the sanitary sewer,. solid waste, drainage, and potable water services for the proposed Project are to be those services currently in existence and owned or operated by Miami-Dade County, the Miami-Dade County Water and Sewer Department, and the City; and(iv)the Project will be serviced to the extent that available capacity exists by any and all public facilities, as such are defined in Section 163.3221(12), Florida Statutes (1997), and as such are described in the City's Comprehensive Plan, specifically including, but not limited to, those facilities described in the Infrastructure Element and Capital Improvements Element therein, a copy of which is available for public inspection in the offices of the Planning, Design and Historic Preservation Department of the City of Miami Beach. The foregoing, however, shall not be deemed to be an approval of, nor shall it be deemed to relieve Developer of,the obligation to comply with, Section 163.3180 , (17) MIAMI 699472.17 7198.217084 5/20105 2:13 PM Florida Statutes (1997), and City has made no determination or representation with respect to any such matters. (b) Developer shall be responsible for obtaining all land use permits, including, but not limited to, all permits and approvals required pursuant to Section 163.3180, Florida Statutes (1997), with respect to concurrency requirements for roads, sanitary sewer, solid waste, drainage, potable water, and parks and recreation (the "Concurrency Requirements"). Developer shall, within twenty-four(24) weeks after the Effective Date,.apply to the appropriate Governmental Authorities for satisfaction of all applicable Concurrency Requirements, and shall thereafter diligently and in good faith pursue such letters or other evidence that the Project meets all applicable Concurrency Requirements. (c) The Transit Facility shall be available for use as a public municipal transit facility. Developer may pursue and retain solely for its own account, except as and to the extent provided to the contrary in Article 20, any rights or benefits available under the Miami Beach City Commission Resolution No. 2000-23963, the Brownfield Site Rehabilitation Agreement between A&R Sobe, LLC and Miami-Dade County and/or under the Brownfield Redevelopment Act as they pertain to the Project. Section 2.5 Plans and Specifications. (a) Developer has submitted a complete application, consistent with the Project Concept Plan, for approval of the Project to DRB and the HPB or Joint Board, which application the Parties acknowledge has received final and unappealable approval. Upon receipt of approval of the Project Concept Plan and this Agreement by the City Commission, Developer shall prepare Plans and Specifications for construction of the Project, as approved by the DRB, and/or the HPB, and/or Joint Board, as applicable. The Plans and Specifications shall be submitted for a Building Permit within thirty-two (32) weeks from the date on which the City Commission approves the Project Concept Plan and this Development Agreement, and the approvals become final and non-appealable. (b) Developer shall pursue approval by the City of the Plans and Specifications diligently and in good faith. City(in its proprietary capacity) shall cooperate, but at no cost to City, with all reasonable requests of Developer in respect.thereof. Section 2.6 Conditions Precedent to Developer's Commencement of Construction of the Project. The following conditions precedent are intended for the benefit of City and shall not be modified or waived except by written instrument executed by the City Manager: (a). Subject to Section 2.6 (c), Developer shall not Commence Construction of the Project unless and until Developer shall have obtained and delivered to City's Consultant copies of all Permits and Approvals required to Commence Construction, all of which shall be consistent with ith the approved Project Concept Plan and the Plans and Specifications unless modified by Developer and approved by City in its proprietary capacity in accordance with the provisions of this Agreement. (18) MIAMI 699472.17 7198217084 5/20/05 2:13 PM (b) City(solely in its capacity as the owner or future owner of a portion of the Transit Facility and the Transit Elements and not in its governmental capacity) shall reasonably cooperate, but at no cost or liability to City, with Developer in obtaining the Permits and Approvals and any necessary utility access agreements, shall sign any application reasonably made by Developer which is required in order to obtain such Permits and Approvals and utility access agreements and shall provide Developer with any information and/or documentation not otherwise reasonably available to Developer(if readily available to City and City locates them in its files) which is necessary to procure such Permits and Approvals and utility access agreements. Any such accommodation by City shall be without prejudice to, and shall not constitute a waiver of, City's rights to exercise its discretion in connection with its governmental functions and.shall be without warranty or representation. (c) Prior to Commencement of Construction of the Project, Developer shall cause the General Contractor to furnish to City a payment and performance bond (the "Payment and Performance Bond") in a form reasonably acceptable to City, issued by a surety listed in the most recent United States Department of Treasury listing of approved sureties or otherwise reasonably acceptable to City Manager (if Developer's Institutional Lender providing construction loan financing approves the surety, City shall be deemed to have done so), guaranteeing the payment and performance of the General Contractor under a guaranteed maximum price contract for the Construction of the Project. City may accept, in its sole and absolute discretion, for any reason and/or for no reason whatsoever, a completion guarantee from the General Contractor, together with bonds for each subcontractor whose subcontract exceeds 350,000, in substitution for such Payment and Performance Bond. City shall be named (jointly with any Recognized Mortgagee, but the lender shall have first opportunity to complete) as a dual obligee under the Payment and Performance Bond. (d) Prior to Commencement of Construction of the Project and prior to any disbursement of any portion of the City's Transit Facility Contribution (except for the funds earmarked.,for the Transit Facility Dedication Area and the Transit Facility Dedication Area Finishes, which shall be funded as provided in this Agreement (anything in the Vacation Resolution and Vacation Agreement described in Section 6.2.1(iv) to the contrary notwithstanding) and none of the following conditions, other than (vi), shall apply to said funding), the following shall have occurred: (i) Developer-shall have obtained the written commitment of the Institutional Lender providing construction loan financing for the Project and any other then lenders for the Project(in form and substance reasonably acceptable to the City Manager)to the fee simple conveyance to the City of the condominium unit(s) comprising the City Spaces, the City Elevator and the other Transit Elements (excluding the Transit Facility Dedication Area, which shall be dedicated at the time and in the manner provided for herein), subject only to the Permitted Exceptions (including, without limitation, free and clear of such lenders' financing and mortgage and other security interests), upon Substantial Completion (provided this Agreement has not previously been terminated and payment has been made to the City to repay the City's Transit Facility Contribution and any other amount owed to it as a result of such termination as provided in this Agreement); (19) MIAMI 699472.17 7198217084 5/20/05 2:13 PM (ii) Developer shall have completed its construction loan closing with an Institutional Lender for the Project, and in connection therewith the Institutional Lender shall have entered into an agreement with City pursuant to which the Institutional Lender shall recognize and agree that its rights are subject and subordinate to this Agreement and shall agree (which agreement will run with the Property and be binding on successors in title, in form and substance reasonably acceptable to the City Manager) that prior to commencement of foreclosure proceedings of the Property or prior to the acceptance of a deed in lieu thereof, the Institutional Lender shall elect by written notice to City (provided this Agreement has not previously been terminated and payment has been made to the City to repay the City's Transit Facility Contribution and any other amount owed to it as a result of such termination as provided in this Agreement) either(X) to irrevocably and unconditionally cause the Project to be completed in accordance with this Agreement and fulfill Developer's remaining obligations under this Agreement(which obligation shall be joint and several with Developer and Guarantors) with reasonable dispatch upon the conclusion of foreclosure or the acceptance of a deed in lieu thereof(and the City shall honor this Agreement as a direct agreement between it and the Institutional Lender at foreclosure or deed in lieu.in such case) or(Y) to repay to the City (which repayment shall be secured by lien rights that are not subject to being foreclosed in connection with a foreclosure by such Institutional Lender of its security for its loan) no later than 30 days after conclusion.of foreclosure or the acceptance of a deed in lieu of foreclosure the full amount of the City's Transit Facility Contribution actually disbursed by the City (less the portion thereof allocated to the Transit Facility Dedication Area and the Transit Facility Dedication Area Finishes)together with interest thereon at the lesser of (A) the average yield on an annualized basis generated by investments actually made by the City in accordance with the City's Investment Policy and Procedure (designed to assure the preservation of principal, a copy of which has been furnished to Developer)during the like period of time or(B) simple interest at the rate of 4%per annum,in each case from the date of disbursement until the date repaid, whereupon (contemporaneously with receipt of which) City shall relinquish all interests in the Project other than the Transit Facility Dedication Area and this Agreement shall terminate (any failure by the Institutional Lender to provide written notice of its election prior to the institution of foreclosure proceedings or the acceptance of a deed in lieu of foreclosure shall be deemed the election of item (Y) unless otherwise mutually agreed to by the City and said Institutional Lender); (iii)Developer's construction lender(which shall be an Institutional Lender) shall have provided City with a recordable agreement that will run with the Property(and be superior to the lien of all mortgages) reasonably acceptable to the City Manager pursuant to which such lender agrees (provided this Agreement has not previously been terminated as provided in this Agreement) to the filing of the Declaration upon Substantial Completion (either as the developer thereunder (if it has acquired title) or through a mortgagee joinder), and agrees,promptly upon the filing of the Declaration to convey (if it is then the owner) and release from the lien of its mortgage (if it is then a mortgagee) the condominium unit(s) comprising the City Spaces, the City Elevator and the other Transit Elements (excluding the Transit Facility Dedication Area, which shall be conveyed at the time and in the manner as provided elsewhere in this Agreement); (iv) Guarantors shall have each executed and delivered to City the Guaranty; (v)the Transit Facility Dedication Area shall have been dedicated to the City, subject only to the Permitted Exceptions; (20) MIAMI 699472.17 7198217084 5120/05 2:13 PM (vi) Developer shall have provided a title insurance commitment evidencing its ownership of the Land, subject only to the Permitted Exceptions (and subject to vacation of the Alley, if the vacation has not then occurred), and a survey depicting the Land which reflects no matters that are inconsistent with this Agreement or the transaction contemplated hereby(improvements that are contemplated to be demolished shall not be deemed inconsistent or objectionable); and (vii) all of the conditions of(a), (b) and(c) above shall have been satisfied. At the request of Developer's construction-or other.lender, City, Developer and Developer's construction or other Lender shall enter into a direct agreement memorializing the foregoing matters and such other matters as the City or such lender may reasonably request (and which, in the case of the City, are not inconsistent with the provisions of this Agreement), the form and substance of which shall be reasonably acceptable to the City Manager and such lender. The immediately preceding sentence and the provisions of(a) and(c) above shall apply,to the extent applicable, and be a condition precedent to any supplemental financing by another lender(other than Developer's construction lender) that will encumber the Property prior to conveyance to the City of the City Spaces and other Transit Elements (excluding the Transit Facility Dedication Area). Section 2.7 Commencement and Completion of Construction of the Project. Developer shall at its expense (a) Commence Construction on or before sixty (60) days after the later of(i) all Permits and Approvals necessary for the Commencement of Construction have been issued, and Developer's construction loan has been closed (all of which Developer shall pursue diligently and in good faith), and(ii) all conditions precedent set forth in Section 2.6 have been satisfied; (b) thereafter continue to prosecute Construction of the Project with diligence and continuity to completion; and (c) achieve Substantial Completion of the entire Project on or before the Completion Deadline. Promptly after Commencement of Construction, City and Developer shall enter into an agreement acknowledging the date upon which Commencement of Construction occurred(the"Construction Commencement Date"). Subject to any right of Developer to terminate this Development Agreement as herein provided, if, after Developer has Commenced Construction, Developer fails to diligently prosecute Construction of the Project (subject to Unavoidable Delays), and such failure continues (subject to Unavoidable Delays) for thirty (30) consecutive days after Developer's receipt of notice of such failure, City shall, in addition.to all of its other remedies under this Agreement or at law or in equity, have the right to seek such equitable relief(either,mandatory or injunctive in nature, including specific performance) as may be necessary to cause diligent and continuous prosecution of Construction of the Project(subject to Unavoidable Delays)by Developer. Section 2.8 ComRletion of Construction of the Project. . I (a) Substantial Completion of the Project shall be accomplished in a diligent manner, and in any event by the Completion Deadline, and final completion of the Construction of the Project, including but not limited to completion of all punch-list items, shall be accomplished promptly and in a diligent manner thereafter, in each case in a good and workmanlike manner, in substantial accordance with the Plans and Specifications (with no (21) MIAMI 699472.17 7198217084 5120/05 2:13 PM material deviations except as expressly permitted herein), and in accordance with all applicable Requirements. (b), Upon Substantial Completion of the Project, Developer shall furnish City the following: (i) a certification of the.Architect (certified to City on the standard AIA certification form) that it has examined the Plans and Specifications and that, in its professional judgment, Construction of the Project has been Substantially Completed substantially in accordance with the Plans and Specifications applicable thereto and, as constructed, the Improvements (including the City's Improvements and the Developer's Improvements)comply with all applicable Requirements. (ii) final lien waivers in form and substance reasonably satisfactory to City from each contractor, subcontractor, supplier or materialman retained in connection with the Construction of the Project, evidencing that such Persons have been paid in full for all work performed or materials supplied in connection with the Construction of the Project. (iii) a complete set of signed and sealed as-built plans and a survey showing the Improvement(s) for which the Construction of the Project has been completed. City shall have an unrestricted license to use such as-built plans and survey (and prior to Commencement of Construction Developer shall provide to City the architect's written consent thereto) for any purpose related to the Development Site without paying any additional cost or compensation therefor; (iv) a Contractor's Final Affidavit in form and substance reasonably satisfactory to the City Manager executed by the General Contractor (A) evidencing that all contractors,.subcontractors, suppliers and materialmen retained by or on behalf of Developer in connection with the Construction of the Project have been paid in full for all work performed or materials supplied in connection with the Construction of the Project and (B) otherwise complying with all of the requirements for a final contractor's affidavit under the Florida Construction Lien Law, Chapter 713,Florida Statutes, as amended; (v) evidence that the Declaration (in the form required by this Agreement) has been' recorded in the Public Records of Miami-Dade County, Florida, subject only to the Permitted Exceptions and with all proper mortgagee joinders; and (vi) a special warranty deed conveying the condominium units to be conveyed to the City pursuant to the terms of this Agreement(but including in any event the City Improvements, to the extent not previously conveyed), subject only to the Permitted Exceptions. Each of City and the Developer shall be liable for the payment of one half of any documentary stamp tax and/or surtax that may be payable in connection with said conveyance (but the Parties shall cooperate with each other to attempt to obtain a waiver or exemption, under the Brownfield Redevelopment Act or otherwise), regardless of whether or not the City is statutorily exempt (unless Developer is also exempt). Notwithstanding the foregoing, the City shall pay Developer's one-half(or promptly reimburse Developer therefor) up to the remaining balance of the Credit, as defined in Section 6.3(c). If, after giving effect to the immediately preceding (22) MIAMI 699472.17 7198217084 5/20/05 2:13 PM sentence, there is still a remaining balance on the Credit, City shall pay same in cash to Developer at the time of delivery of the deed contemplated by this subparagraph(vi). (c) Following Substantial Completion of the Project, Developer shall remain obligated to fully complete construction of the Project with diligence, notwithstanding conveyance to the City of the City Spaces and other Transit Elements prior thereto. Section 2.9. Confirmation of Land Development Regulations. The zoning district classification of the Land (including the Alley upon its vacation as contemplated by this Development Agreement) is and shall be CPS-2, as defined in the Land Development Regulations. Section 2.1.0 Required Development Permits. Developer shall be solely responsible for obtaining all final,non-appealable Development Approvals, as applicable. City(in its propriety capacity) shall cooperate, at no cost or liability to City, with all reasonable requests of Developer in respect thereof. Section 2.11 Developer's night of Termination. Notwithstanding anything to the contrary contained herein,Developer shall have the right to be released from its liability and obligations and to terminate this Development Agreement by written notice to City delivered not later than the Outside Date if(a) changes to the Developer's Project Design, Project Concept Plan, the Plans and Specifications or any other aspect of the Project required by the DRB, HPB, PB, Joint Board, or any other Governmental Authority (including the City), render the Project economically unfeasible in the sole judgment of Developer, (b) the Project cannot meet Concurrency Requirements under Section 163.3180, Florida Statutes (1997), or the costs of concurrency mitigation, in the sole judgment of Developer, render the Project economically unfeasible, (c) Developer, after good faith efforts, has been unable to obtain any Development Approvals or a Building Permit for the Project pursuant to:the Plans and Specifications, (d) after good faith efforts, Developer has not obtained lease commitments for at least 90% of the Retail Space of the Project or has not been able to arrange construction loan financing at market rates and terms, (e) federal, state, county or local funds or incentives sought by Developer pursu ant to Article 20 herein are, in the sole judgment of Developer, inadequate, or (f) Developer in its sole discretion elects to terminate this Development Agreement for any reason. In the event of termination of this Development Agreement pursuant to this Section, each Party shall bear its own costs and expenses incurred in connection with this Development Agreement and neither Party shall have any further liability to the other except for any matters that expressly survive termination of this Development Agreement. The right of termination.pursuant to this Section 2.11 shall expire and become void if not exercised by Developer prior to the Outside Date. Any termination under this Section shall not affect the rights and obligations of the Parties in respect of the Alley and Transit Facility Dedication Area which are governed by the Vacation Agreement and Vacation Resolution. Section 2.12 City's Might of Termination. (23) MIAMI 699472.17 719829 7084 5/20/05 2:13 PM Notwithstanding anything to the contr a ry contained herein Ci ty shall have the right to be released from its liability and obligations and to terminate this Development Agreement if for any reason; (a) Developer has not obtained a Building Permit for the Project on or before the Outside Date; or (b) Developer has not Commenced Construction of the Project on or before March 1, 2007; or (c) City in its sole discretion determines that the Project and the public purposes to be derived from it render the Project unfeasible or unwarranted in light of the City's Transit Facility Contribution, and other provisions of this Agreement, or (d) Developer has not obtained the fully executed Grocery Lease required by Article 15 of this Agreement and delivered a copy thereof to City on or before the Outside Date; or (e) City in its sole discretion elects not to proceed with this Project. In the event of termination of this Development Agreement,pursuant to this Section 2.12, each Party shall bear its own costs and expenses incurred in connection with this Development Agreement and neither Party shall have any further liability to the other except for any matters that expressly survive termination of this Development Agreement. City's right to terminate this Agreement pursuant to subparagraphs(c) and (e) above shall expire and shall not thereafter be exercisable in the event City does not exercise its termination options within forty-five (45) days after Developer has provided its "Construction Application Notice"to City. "Developer's Construction Application Notice"shall mean written notice given by Developer to City (a) stating that either (i) Developer intends within 45 days thereafter to submit its loan application to a specific Institutional Lender for construction loan financing of the Project and to pay any required application fee or (ii) Developer intends within 45 days thereafter to submit its building permit application to the City for the Project; and (b) containing the following language in bold 12 point type (i.e. as reflected hereinafter in quotes) and in all capital letters "CITY'S FAILURE TO EXERCISE ITS TERMINATION RIGHT UNDER 2.12(c) or 2.12(e) OF THE DEVELOPMENT AGREEMENT WITHIN FORTY-FIVE (45) DAYS OF THIS NOTICE WILL CONSTITUTE THE WAIVER OF CITY'S RIGHT TO EXERCISE CITY'S TERMINATION RIGHTS UNDER SAID SUBPARAGRAPHS." The right of termination pursuant to this Section 2.12 shall expire and become void if not sooner terminated as aforestated or exercised by City prior to the Outside Date. Any termination under this Section shall not affect the rights and obligations of the Parties in respect of the Alley and Transit Facility Dedication Area which are governed by the Vacation Agreement and Vacation Resolution. ARTICLE 3 PLANS AND SPECIFICATIONS Section 3.1 ApRroval and Modification of Plans and Specifications. (a) In accordance with Section 2.6, and simultaneously with submitting its application.for the required Building Permit, Developer shall prepare and submit to City (in its proprietary capacity) the Plans and Specifications, which Plans and Specifications shall be used to obtain the required Building Permit and shall be consistent with the approved Project Concept Plans. If such submitted Plans and Specifications are materially inconsistent with, or contain material modifications to, the Plans and Specifications as approved by the DRB and the HPB or Joint Board, if applicable, or with the approved PP pp Project Concept Plans, then such Plans and Specifications shall clearly indicate, by ballooning, highlighting, black-lining or describing in MIAMI 699472.17 7198217084 (24) 5/20/05 2:13 PM writing in sufficient detail in a memorandum accompanying such Plans and Specifications, all such modifications. Within ten (10) Business Days of its receipt of such Plans and Specifications, City shall notify Developer, in writing, describing, with specificity, the basis for such disapproval of any material inconsistencies or material modifications of which City disapproves between the proposed Plans and Specifications and the Plans and Specifications as approved by the DRB and HPB or Joint Board, if applicable, or the approved Project Concept Plans, it being agreed however, that if Developer has complied with Section 18.2 (c) hereof, City's failure to so notify Developer of its disapproval within such time period shall be deemed to constitute City's conclusive approval of such Plans and Specifications; provided, however, that if City shall notify Developer within ten (10) Business Days following its receipt of Developer's request that the complexity of such changes necessitates an extension of such time period to complete City's review, such period shall be extended to the date which is reasonably and mutually agreed to by City and Developer, not to exceed thirty(30) days after City's receipt of the proposed inconsistencies or modifications; provided, further, however, that City shall not be responsible for,and shall not be deemed to have approved, any such material inconsistency or modification that is not indicated as required by this Section 3.1 (a). Notwithstanding anything to the contrary contained herein, City shall not object to any modifications which are necessitated to comply with Requirements and which do not have a material adverse affect upon the City Spaces or the Transit Elements. Otherwise, City shall be reasonable in considering any modifications-that are the subject of this Section 3.1 (a). (b) If Developer desires to materially modify previously-approved Plans and Specifications, Developer shall submit any such modified Plans and Specifications to City for City's approval (in its proprietary capacity), but only to the extent they affect the Transit Facility or its operation. Such modified Plans and Specifications shall clearly indicate, by ballooning, highlighting, black-lining or describing in writing in sufficient detail in a memorandum accompanying such modified Plans and Specifications, all such proposed modifications to the Plans and Specifications. Within ten (10) Business Days of its receipt of the proposed modifications, City shall notify Developer in writing, with specificity of any material inconsistencies or material modifications of which City disapproves between the Plans and Specifications as modified and the Plans and Specifications previously approved by City, it being agreed however, that if Developer has complied with Section 18.2 (c) hereof, City's failure to so notify Developer of its disapproval during such time period shall be deemed to constitute City's conclusive approval of such Plans and Specifications;provided,however,that if City shall notify Developer within ten (10) Business Days following its receipt that any of the proposed modifications to the Plans and Specifications that the complexity of the proposed modifications necessitates an extension of such time period to complete City's review, such period shall be extended.to.the date which is reasonably and mutually agreed to by City and Developer, not to exceed thirty (30) days after City's receipt of the proposed modifications; provided, further, however, that City shall not be responsible for, and shall not be deemed to have approved, any such proposed modification that is not indicated as required by this Section 3.1 (b). Notwithstanding anything to the contrary contained herein, City shall not object to any modifications to the Plans and Specifications which are necessitated by Requirements and which do not have a material adverse affect on the City Spaces or the Transit Elements and shall not unreasonably withhold consent to other modifications. MIAMI 699472.17 7198217084 (2s)_ 5/20/05 2:13 PM. (c) If City disapproves any material inconsistencies or material modification in the Plans and Specifications pursuant to Section 3.1 (a) above, or City disapproves any of the material modifications to or material inconsistencies in the Plans and Specifications pursuant to Section 3.1 (b) above, then Developer shall, at its election either: (x) submit City's disapproval to expedited arbitration pursuant to Section 3.4 and Section 19.1 as to the (i) materiality of the inconsistency or modification and/or (ii) the reasonableness of the disapproval or (y) within thirty(30)days after receiving City's disapproval notice, submit revised Plans and Specifications or a revised modification to the Plans and Specifications to meet City's objections,which revised Plans and Specifications or revised modification shall be reviewed as provided in Section 3.1 (a) or(b), as applicable. (d) Nothing contained in this Section 3.1, however, shall relieve Developer from the obligation to obtain all necessary Approvals and Permits from Authorities, including City in its governmental capacity. Section 3.2 Compliance with Requirements; Construction Standards. (a) Notwithstanding anything to the contrary contained herein, the Plans and Specifications shall comply with all applicable Requirements and will be generally consistent with the approved Project Concept Plans subject, however, to any changes approved or deemed approved,by City. It is Developer's responsibility to assure such compliance. City's approval in accordance with this Section 3.2 of any Plans and Specifications shall be deemed to be a determination by City(in its proprietary capacity) that the Plans and Specifications so approved are in substantial conformity with the Developer's Project Design or are otherwise acceptable to City, but shall not be, and shall not be construed as being, or relied upon as, a determination that such Plans and Specifications comply with applicable Requirements, including, without limitation, any Requirements providing for the review and approval of the Plans and Specifications by any Governmental Authority including City (in its governmental capacity as opposed to its proprietary capacity). (b) Construction of the Project shall be carried out pursuant to Plans and Specifications prepared by licensed architects and engineers, with controlled inspections conducted by a licensed architect or professional engineer or other professionals as required by applicable Requirements. Section 3.3 Design and Dicor. Notwithstanding anything to the contrary contained in this Agreement, City (in its proprietary capacity) shall not have any approval rights with respect to matters of interior or exterior design and aesthetic decor of the Retail Space. Further, so long as Developer materially conforms with the Plans and Specifications, City (in its proprietary capacity) shall not have any approval rights with respect to matters of interior or exterior design and aesthetic decor of the Transit Facility, except as and to the extent specifically requiring City's consent under Section 3.1 of this Development Agreement or to the extent the quality standards or appearance for any portion of the Transit Facility are lower than, or materially different from, those for the Developer Spaces. Any City approval that may be required under the immediately preceding sentence shall not be unreasonably withheld, conditioned or delayed, and City shall be liable for (26) MIAMI 699472.17 7198217084 5/20/05 2:13 PM any increased costs or costs associated with any delay resulting from the approval rights exercised by the City. Section 3.4 Development Dispute. (a) Any dispute or disagreement between City and Developer arising P rior to Substantial Completion with respect to the matters described in Section 3.4(b) (a"Development Dispute") shall be finally resolved in accordance with the provisions of Section 19.1. (b) Any,contention by Developer that City has unreasonably failed to approve or give its consent to any modifications to the Plans and Specifications pursuant to Section 2.5, Section 3.1 (a) or (b) or to any design and decor matters pursuant to Section 3.3, or any contention by City that Developer is not complying with its obligations or responsibilities set forth in those sections shall be the subject of a Development Dispute pursuant to Section 3.4(a) above. ARTICLE 4 CITY PARTICIPATION Section 4.1 City's Right to Use Field Personnel. City reserves the right, at its sole cost and expense, to maintain one (1) on-site representative (from City's Consultant, City or another entity designated by City) at the Development Site to conduct inspections of the Development Site (provided, however, that City shall be entitled to maintain additional on-site.representatives from time to time to the extent reasonably necessary to perform such inspections), and Developer agrees to provide access to the Development Site, including, without limitation, access to inspect the Construction Work, the preparation work and work in progress at the Development Site. No such inspection by the City's on-site representatives shall impose upon City responsibility or liability for any failure by Developer to observe any Requirements or safety practices in connection with such Construction Work or constitute an acceptance of any work which does not comply with any Requirements or the provisions of this Agreement, and no such inspection shall constitute an assumption by City of any responsibility or liability for the performance of Developer's obligations hereunder, nor any liability arising from the improper performance thereof. The City's on-site representatives shall not interfere with any Construction Work being performed at the Development Site, shall comply with all safety standards and other job-site rules and regulations of Developer and shall visit the site at their sole risk. City's on-site representatives are inspectors only. The on-site representatives shall make only such communications with Developer's construction manager(s) and the General Contractor (or, with the approval of, and in the presence of, the Developer's construction manager(s) or the General Contractor, the subcontractors or any other Person involved in the Construction of the Project) as are reasonably necessary to enable such on-site representatives to conduct their investigations, and in no event shall the on-site representatives give directions to such Persons. -Developer shall endeavor to provide reasonable prior notice to City's on-site representatives of any regularly schedule construction meetings involving representatives of Developer, any general contractor, the Project Architect, and/or the Project engineer, and City's representatives shall be entitled to attend(but there shall be no obligation to MIAMI 699472.17 7198217084 (27) 5/20/05 2:13 PM reschedule any meeting to accommodate the schedule of City's on-site representatives). All expenses incurred by City's on-site representative shall be paid by City. ARTICLE 5 MISCELLANEOUS CONSTRUCTION PROVISIONS Section 5.1 Art in Public Places. (a) Developer acknowledges having been advised that compliance with the City's Art in Public Places (AIPP) legislation, as codified in Chapter 82, Article VII, Sections 82-536 through 82-612 of the City Code, and as same is amended, is applicable to the Project. (b) Developer shall request that,in consideration of Developer's providing the substantial art work depicted on the approved Project Concept Plan by world renowned local artist Romero Britto, and the Potamkin family's commitment to contribute to the City's Bass Museum, the City Commission approve a resolution confirming that the requirements of the AIPP legislation have been satisfied. (c) In the event the City Commission determines that the AIPP legislation requirements are not satisfied by the Romero Britto artwork, and the Potamkin family's commitment to contribute to the Bass.Museum, Developer shall have the right to terminate this Agreement by written notice to City not later than the Outside Date (as defined in Section 2.11) (and if Developer does not give.notice of termination on or before such date, Developer shall be deemed to have waived such right of termination and shall not thereafter be entitled to terminate this Agreement pursuant to this Section 5.1). Section 5.2 Prevailing Wage. Developer shall pay all Persons employed by it with respect to Construction of the Project, without subsequent deduction or rebate unless.expressly authorized by Requirements, not less than the relevant prevailing wage as prescribed by City of Miami Beach Ordinance No. 94-2960 (the City's Prevailing Wage Ordinance),but only to the extent the City's Prevailing Wage Ordinance is applicable to the construction of the Project. Developer further agrees to comply, and assure the compliance by the Contractor and any subcontractors with respect to Construction of the Project, with the applicable employee protection requirements identified in Section 24 of the FTA Master Agreement,to the extent applicable. Section 5.3 FTA Requirements. Developer recognizes that City may in its sole and absolute discretion pursue funding of the eligible portions of City's Transit Facility Contribution from the FTA or another funding source, although obtaining funding from any source is not a condition of this Development Agreement or City's obligations hereunder. Developer agrees to use reasonable and good faith efforts to comply with all currently effective FTA Requirements, including the requirements of the existing FTA Master Agreement, but only with respect to the construction, use and operation of the Transit Elements (and such obligations shall not terminate upon expiration of the Term (28) MIAMI 699472.17 7198217084 5/20/05 2:13 I'M (but shall terminate upon termination of this Agreement for any other reason)but shall remain in effect thereafter for as long as FTA requires). In the event that this Development Agreement requires the Developer to undertake responsibilities usually performed by the City, as the FTA Recipient, Developer agrees to use reasonable and good faith efforts to comply with all FTA Requirements and other requirements and responsibilities under federal law, regulation or directive, but only to the extent applicable to the Transit Elements (and City shall provide reasonable guidance and input to Developer in Developer's attempts to do so), and shall extend the FTA Requirements as applicable to any and all contractors and subcontractors on the Project, but only to the extent applicable to the Transit Elements. Notwithstanding the foregoing, Developer shall not be required to comply with FTA Requirements if such requirements are more costly to comply with than what is contained in the Project Concept Plan unless City, at its option, elects to pay for the excess costs (except that Developer shall comply with Davis Bacon Act and shall, consistent with the City's FTA approved DBE plan, use reasonable efforts to comply with the DBE requirements of the FTA Master Agreement based on up to 10% of an assumed $9,500,000 City's Transit Facility Contribution (but in no event less than 5% of an assumed $9,500,000 City's Transit Facility Contribution) at no additional cost to City, and Developer-shall also comply with any other requirements of the FTA Master Agreement at the City's request and at the City's cost, and further provided, in respect of all.FTA Requirements, they are reasonably capable of being implemented without unusual delay and without materially changing the character of the Project). Any costs incurred by Developer in complying with the provisions of FTA that are the obligation of City shall be reimbursed to Developer by City within 30 days of.invoicing, accompanied by reasonable substantiation. Anything in this Development Agreement to the contrary notwithstanding, in the event of a conflict between FTA Requirements and the provisions of this Development Agreement, the provisions of this Development Agreement shall govern. Section 5.4 Construction Agreements. (a) Required Clauses. All Construction Agreements which provide for the performance of labor on the Development Site shall include the following provisions (or language intended to accomplish the objectives specified below, which language is.reasonably approved in advance by City): (i) To the fullest extent permitted by law, Contractor shall and does hereby indemnify and hold harmless the City of Miami Beach, Florida(and any successor), and their respective elected and appointed officials (including the City's Mayor and City Commissioners), directors, officials, officers, shareholders, members, employees, successors, assigns, agents, contractors, subcontractors, experts, licensees, lessees, mortgagees, trustees, partners, principals, invitees and affiliates, from and against any and all liability, claims, demands, damages, losses, fines, penalties, expenses and costs of every kind and nature, including, without limitation, costs of suit and attorneys fees and disbursements (collectively, Expenses), resulting from or in any manner arising out of, in connection with or on account of- (1)any act, omission, fault or neglect of Contractor,or anyone employed by it in connection with the work or any phase thereof, or any of its agents, contractors, subcontractors, employees, invitees or licensees in connection with the work, or anyone for whose acts any of them may be liable, (2) claims of injury (including physical, emotional, economic or otherwise) to or disease, sickness or death of persons or damage to property (including, without limitation, loss of use (29) MIAMI 699472.17 7198217084 5/20/05 2:13 PM resulting therefrom) occurring or resulting directly or indirectly from the work or any portion thereof or the activities of Contractor or anyone employed by it in connection with the work, or any portion thereof, or any of its respective agents, contractors, subcontractors, employees, invitees or licensees in connection with the work, or anyone for whose acts any of them may be liable, or (3) mechanics or materialmen's or other liens or claims (and all costs or expenses associated therewith) asserted, filed or arising out of the work or any phase thereof other than liens or claims arising out of Developer's failure to make the required payments properly due Contractor. In no.event shall Contractor be able to seek or be entitled to consequential damages (including, without limitation, loss of profits or loss of business opportunity) for claims arising under this contract. This indemnification obligation shall not be limited in any way by: (x) any limitation on the amount or type of damages, compensation or benefits payable to Contractor under worker's compensation acts, disability benefit acts or other employee benefit acts or other insurance provided for by-this contract; or(y) the fact that the Expenses were caused in part by a party indemnified hereunder. The Contractor further agrees that this indemnification' shall be made a part of all contracts and purchase orders with subcontractors or material suppliers. The indemnification agreement included in this contract is to be assumed by all subcontractors. (ii) A provision which grants to Developer the right to assign to City, subject and subordinate to the rights of the Developer's Recognized Mortgagee, the contract and Developer's rights thereunder, at City's request, without the consent of the Contractor and without the City's thereby assuming any of the obligations of Developer under the contract occurring prior to such assignment and/or purchase order. City shall have the right to enforce the full and prompt performance by the Contractor of such contract. . Contractor agrees to comply with al (iii) gr p y 1 laws and requirements applicable to Contractor and the Project, including, without limitation, the City's Prevailing Wage Ordinance, if such provision is applicable to construction of the Project, and the FTA Requirements. (iv) Contractor expressly acknowledges and agrees that Contractor and all subcontractors, suppliers, materialmen and laborers are prohibited from filing liens against property of-the City of Miami Beach, Florida, and nothing contained in the contract shall operate to waive such prohibition nor any other constitutional, statutory, common law or other protections afforded to public bodies or governments. (v) Unless and until the City of Miami Beach, Florida or its designee expressly assumes the obligations of Developer under this contract (and then only to the extent the same arise-from and after such assumption), the City of Miami Beach, Florida, shall not be a party to this contract and will in no way be responsible to any party for any claims of any nature whatsoever arising or which may arise in connection with such contract. (vi) Contractor hereby agrees that notwithstanding that Contractor performed work at the Development Site or any part thereof, the City of Miami Beach, Florida shall not be liable in any manner for payment or otherwise to Contractor in connection with the work performed at the Development Site, except to the extent the City of Miami Beach, Florida, expressly assumes the obligations of Developer hereunder (and then only to the extent such obligations arise from and after such assumption). MIAMI 699472.17-7198217084 (30) 5/20/05 2:13 PM (vii) All warranties which are granted by Contractor and all subcontractors shall run to the benefit of City as third party beneficiary. Contractor and all subcontractors and suppliers agree, however,that Contractor and all subcontractors and suppliers shall look solely to the Developer and not to City for performance of all of Developer's obligations under the construction contracts and subcontracts. (b) Developer shall use good faith efforts to include all of the foregoing provisions. If Developer is unable to negotiate inclusion of any of the'foregoing provisions, or doing so would materially and adversely impact the contract price, Developer may terminate this Agreement prior to the Outside Date (but not thereafter) unless City agrees to waive the applicable requirements. Section 5.5 Demolition of the Development Site. Except pursuant to that certain Historic Preservation Board Final Order No. 1345, approving a Certificate of Appropriateness, Developer shall not demolish any portion of the Development Site: Any demolition permitted.hereunder shall be performed in accordance with all applicable Requirements. Section 5.6 Construction Staging. Construction Staging for the Project will be confined to the Development Site or another .off-site location owned or controlled by Developer. Developer shall instruct all workers on the -Development Site to park their vehicles at an off-site location, so as to not materially impact residents and other users of the neighboring residential areas. If necessary to avoid disruption to :residential areas,the Parties shall agree upon one or more reasonable off-site locations. ARTICLE 6 FINANCING OF PROJECT CONSTRUCTION AND DISBURSEMEENT PROCEDURES Section 6.1 Developer's Obligations. Subject to.Section 5.3 above, Developer shall provide all of the funds necessary to complete Construction of the Project except the City's Transit Facility Contribution to be funded by City. The City's Transit Facility Contribution shall be funded as set forth in Section 6.2.1. Section 6.2 Disbursement of City's Transit Facility Contribution; Alley. Developer shall design (consistent with the approved Project Concept Plans) and construct, subject to City's Transit Facility Contribution, as more. particularly set forth in Section 6.2.1 below, the Project, including the Transit Facility and the other Transit Elements to be located on the Property, which Transit Facility shall be of sufficient capacity to accommodate approximately 1081 cars, and the Transit Facility Dedication Area. 6.2.1. City's Transit Facility Contribution is subject to the following: MIAMI 699472.17 7198217084 (31) 5/20/05 2:13 PM (i) City will fund an amount equal to City's Transit Facility Contribution. Subject to Section 5.3 above and any other express provisions of this Agreement, City shall not be obligated.to fund any other costs of the Transit Elements or any other Project Construction Costs. (ii) In the event that costs of construction of the City Spaces and City Improvements exceed the City's Transit Facility Contribution for such item,-Developer shall, subject to Section 5.3 above and any other express provisions of this Agreement, be solely responsible for payment of, and shall pay, all excess costs ("Excess Transit Facility Costs'). Developer shall also be entitled to retain any savings. It is the intention and agreement of Developer and the City that the City's sole financial obligation with respect to the Project is, subject to Section 5.3 above and any other express provisions of this Agreement, to fund City's Transit Facility Contribution and that Developer shall be solely responsible for paying all other Hard Costs and Soft Costs of the Project. (iii) City shall fund City's Transit Facility Contribution as follows: (1) As to all amounts other than those allocated to the Transit Facility Dedication Area (but including those allocated to the Transit Facility Dedication Area Finishes), as construction progresses in accordance with Exhibit "C" hereto, anything in the Vacation Resolution and Vacation Agreement described in Section 6.2.1(iv) to the contrary notwithstanding; (2) As to the amount allocated to the Transit Facility Dedication Area (but excluding those allocated to the Transit Facility Dedication Area Finishes), at the time of the dedication thereof to the City,.which shall take place simultaneously with the Commencement of Construction and the issuance by the City Manager of the recordable instrument(s) stating that both Conditions provided for in (iv) below have occurred, such that no further reversion of the Alley to the City is possible. The form of the dedication shall be by deed, a copy of which is attached hereto as Exhibit "MVI". This provision shall survive termination of this Agreement. (iv) In accordance with the City's Requirements for Vacation of Alleys, Easements and City Rights-of-Way, as adopted on July 26, 1989 and the City's Sale or Lease of Public Property legislation, as codified in Chapter 82,Article II, Sections 82-37 through 82-3% City has vacated the Alley, subject, however, to possible reverter and/or reconveyance as provided in Resolution No. 2005-25827 adopted February 23, 2005 (the "Vacation Resolution") and the "Vacation Agreement" executed in furtherance thereof. The Alley shall revert to City, and Developer in confirmation thereof shall promptly upon written demand execute and deliver to City a Quit Claim Deed, subject to no liens or encumbrances other. than the Permitted Exceptions, if the conditions (the "Conditions") specified in the Vacation Resolution and/or (32) MIAMI 699472.17 7198217084 5/20/05 2:13 PM Vacation Agreement shall occur (City shall, promptly upon request of Developer, confirm, by recordable instrument signed by the City Manager, that these Conditions have been satisfied, if such be the case, and this obligation shall survive termination of this Agreement), in which event this Development Agreement shall terminate. The- City agrees, simultaneously with the satisfaction of the Conditions, to allow the permanent removal, at a cost to Developer of$45,000 ($15,000 per space), to be paid by Developer upon the earlier of Substantial Completion or the occurrence' of an Event of Default by Developer (provided, however, that City shall waive payment of(or refund, if applicable) the portion of this amount equal to the remaining unpaid balance of the Credit, as defined in Section 6.3(c),if and at the time this Agreement is terminated at any time prior to conveyance to City of the condominium units to be conveyed pursuant to this Agreement), of three (3) metered on street parking spaces (and, at no additional cost to Developer, to allow the temporary removal of the remaining five (5) metered parking spaces while initial construction is proceeding) on the south side of 6th Street between Lenox Avenue and Alton Road, adjacent to the Project (the precise spaces to be reasonably agreed upon by the Parties), to facilitate construction while initial construction is proceeding and thereafter to provide,for transit and/or ancillary parking uses (ex. loading zone, handicapped parking, taxi zone) reasonably. approved by the City, and this provision shall survive termination of this Agreement., Simultaneously with the conveyance by Developer to City of the City Spaces, Developer and City will execute and record a restrictive covenant upon the Lands (or shall include appropriate provisions in the Declaration) which is consistent with the provisions of Section 15.2. Except as provided above in respect of the Conditions,the Alley shall not revert and shall not be reconveyed, and the Transit Facility Dedication Area shall be dedicated and payment therefor be made by the City, even if this Agreement is terminated pursuant to Section 2.11 or 2.12 prior to Commencement of Construction or pursuant to any other provision of this..Development Agreement, and these obligations shall survive termination. The foregoing shall not be construed as allowing termination under Sections 2.11 or 2.12 after Commencement of Construction, which is expressly not contemplated or permitted. The foregoing is merely intended to confirm that, if the Conditions are satisfied, the Alley does not revert, regardless of what else happens under the Development Agreement, either before or after the Commencement of Construction. (v) Good and marketable title to the City Spaces and the other Transit Elements (excluding the Transit Facility Dedication Area) shall be conveyed to the City upon recording of the Declaration promptly following Substantial Completion, which conveyance shall be subject only to the Permitted Exceptions. The form of the deed conveying the City Spaces and such Transit Elements shall be substantially as set forth on Exhibit 66G" attached hereto. The Parties agree that the City Supermarket Spaces, the City Non-Supermarket Spaces and such other Transit Elements shall each be separate condominium units created pursuant to a Declaration prepared by Developer and approved by City,which approval shall not unreasonably be withheld. The Declaration shall be effective to convert the entire Project to the condominium form of ownership, with Developer retaining title to all condominium units other than those conveyed to the City. (33) MIAMI 699472.17 7198217084 5/20/05 2:13 PM (vi) The management and operation of the Transit Facility and certain matters pertaining to the relationship by and between the Parties shall be governed by the Declaration. Section 6.3 Fees. (a) City Permit Fees. Developer assumes payment responsibility for any and all Permits now or hereafter required to be obtained from the City(in its governmental capacity) for the construction of the Project, which include, without limitation, building permit applications, inspection, certification, impact and connection fees, fees that the City may levy by or through its Public Works Department (including, without limitation, water and sewer fees) and those fees, to the extent applicable, listed in the City of Miami Beach,Building Department Fee Schedule, as amended through September 16, 1992 by Ordinance Number 92-2796, or the most current edition adopted by the City, which fee schedule is hereby incorporated by reference and made a part of this Agreement (collectively, the Fees). Developer shall remain responsible for payment of the Fees notwithstanding any and all modifications or changes in price structure as imposed by the City or any other Governmental Authority authorized to impose such Fees. (b) Non-City Permit Fees. Developer shall assume responsibility for payment of all fees charged by all other Governmental Authorities relating to the Project. (c)' Declaration Costs. The Parties acknowledge being aware that there are certain costs associated with the establishment of a condominium that do not exist in connection with the establishment of air rights estates. City and Developer shall be equally responsible for the following costs associated with the condominium structure of the transaction contemplated by this Agreement: (i) the legal fees and costs invoiced by Greenberg Traurig (or another firm mutually acceptable to both Parties, in the event Greenberg Traurig is unable to commit to the timely preparation of the condominium documents) for preparation of the condominium documents (estimated to be approximately $30,000, assuming minimal negotiation and redrafting), which firm the Parties have agreed.to engage to draft the condominium documents; City shall pay its half directly to Greenberg Traurig (or such other firm) simultaneously with Developer's payment of its half within 30 days of receipt of an invoice (if City fails to do so, Developer may pay City's portion of Greenberg Traurig's (or such other firm's) invoice and City will promptly reimburse Developer) and (ii) within 30 days of receipt of an invoice (accompanied by reasonable substantiating documentation), the costs of recording the Declaration. Notwithstanding the foregoing, City agrees that Developer is entitled to a credit from the City for $45,000 (the "Credit"), and City shall pay Developer's share of the foregoing (or promptly reimburse Developer therefor) up to the full amount of the Credit. With respect to the issue of extended construction warranties which are required under Section 718.203 of the Condominium Act, the Declaration addresses the treatment of same in Section 4(e)(iii). At Developer's sole option, to be exercised at any time prior to the Construction Commencement Date, Developer may elect to require City to pay to Developer City's pro rata share(based on the number of City Spaces in relation to the total number of City Spaces and Developer Spaces) of the incremental increase in cost payable by Developer to obtain from the general contractor and/or subcontractors and suppliers, the extended warranties required by Section 718.203 of the Condominium Act, as same may be amended: If Developer so elects, payment by the City to Developer shall be made at the time any holdback for Hard Costs is required to be paid by City MIAMI 699472.17 7198217084 (34) 5/20/05 2:13 PM to Developer under Exhibit C of this Agreement, whereupon the provisions of Section 4(e)(iii)of the Declaration shall be modified to provide that costs actually incurred by Developer for items that are covered by the extended warranty during the Extended Warranty.Period, if any, shall be paid solely by Developer and shall not be included in Operating Expenses. This provision shall survive termination of this Agreement. ARTICLE 7 INSURANCE Developer shall, in accordance with the Declaration, carry or cause to be carried the insurance required under the Declaration and such other insurance as is required by any Institutional Lender(or if there is no Institutional Lender, then such insurance as an Institutional Lender would normally require in connection with construction the Project). Developer shall also carry such other insurance as required by FTA and such other insurance as City shall reasonably require, but City shall be solely responsible for the payment of any incremental premium increase if such coverages exceed those required by Developer's Institutional Lender, and this obligation shall survive termination. ARTICLE 8 DAMAGE CONSTRUCTION AND RESTORATION Section 8.1 Casualty. If the Development Site is damaged or destroyed in whole or in part by fire or other casualty, the provisions of the Declaration applicable to damage or destruction by fire or other casualty to the Land or Property described under the Declaration or this Agreement shall govern the rights and obligations of Developer, City and any Recognized Mortgagee. Section 8.2 Effect of Casualty on this Agreement. Except as provided in Section 8.1 or the Declaration, this Development Agreement shall not terminate, be forfeited or be affected in any manner, by reason of any damage to, or total or partial destruction of, or untenantability of the Development Site or any part thereof resulting from such-damage or destruction. i ARTICLE 9 CONDEMNATION Section 9.1. Taking. If all or any portion of the Development Site is taken for any public or quasi-public purpose by any lawful power or authority by the exercise of the right of condemnation or eminent domain or by agreement among Developer, any Recognized Mortgagee and those (35) MIAMI 699472.17 7198217084 5/20/05 2:13 PM authorized to exercise such right, the provisions of the Declaration applicable to such taking of the Premises described under the Declaration shall govern the rights and obligations of Developer, City and any Recognized Mortgagee hereunder. Section 9.2 Effect of Taking on this Agreement. Except as provided in Section 9.1 or the Declaration, this Development Agreement shall not terminate, be forfeited or be affected in any manner, by reason of any taking of the Development Site or any part thereof. ARTICLE 10 RIGHTS OF RECOGNIZED MORTGAGEE Section 10.1 Notice and Right to Cure Developer's Defaults. (a) City shall give to any Recognized Mortgagee a copy of each notice of Default at the same time as it gives notice of such Default to Developer, and no such notice of Default shall be deemed effective with respect to any Recognized Mortgagee unless and until a copy thereof shall have been so received by or refused by such Recognized Mortgagee. All such notices to a Recognized Mortgagee shall be sent as set forth herein. City shall also give the Recognized Mortgagee notice ("Notice of Failure to Cure') in the event Developer fails to cure a Default within the period, if any, provided in this Agreement for such cure, promptly following the expiration of such period(i.e., an"Event of Default"). (b) The Recognized Mortgagee shall have a period of ten (10) days as to monetary defaults and thirty(30) days as to non monetary defaults after receipt of the Notice of Failure to Cure to(1) cure the Event of Default referred to in the Notice of Failure to Cure or(2) cause it to be cured, subject in either case to the same additional time periods provided to Developer pursuant to the provisions of Section 17.1 (a) unless such default is excused because it is not susceptible of being cured by a Recognized Mortgagee (ex., defaults stated in Section 17.1 (b), (c), (d), and (e)). Nothing contained herein shall be construed as imposing any obligation upon any Mortgagee to so perform or comply on behalf of Developer. (c).City shall accept performance by a Recognized Mortgagee of any covenant, condition or agreement on Developer's part to be performed hereunder with the same force and effect as though performed by Developer. (d) Notwithstanding the foregoing provisions of this Section 10.1, if a Recognized Mortgagee fails (for any reason) to cure any Event of Default by Developer within ten (10).days-as to monetary defaults or thirty (30) days as to non-monetary defaults following receipt of the Notice of Failure to Cure (as extended or excused as herein above provided),then City may, but shall be under no obligation to,perform the obligation of Developer the breach of which gave rise to such Event of Default (including, without limitation, the.performance of any of the obligations of Developer under any Construction Agreement), without waiving or releasing Developer from its obligations with respect to such Event of Default and without waiving.any remedies.available to City at law or in equity or under this Agreement. Developer (36) MIAMI 699472.17 7198217084 5/20/05 2:13 PM hereby grants City access to the Development Site and assigns to City the Construction Agreements (to the extent deemed necessary or desirable by City) in order to perform any such obligation. (e) If there is more than one Recognized Mortgagee, only that Recognized Mortgagee; to the exclusion of all other Recognized Mortgagees, whose Mortgage is most senior in lien shall be recognized as having rights under this Article 10,unless such first priority Recognized Mortgagee has designated in writing to City a Recognized .Mortgagee whose Mortgage is junior in lien to exercise such right. (f) Notwithstanding anything to the contrary set forth above, the Recognized Mortgagee shall be obligated to perform its obligations under Section 2.6(d) and the related agreement(s) referenced therein, and such Recognized Mortgagee and any purchaser at a foreclosure sale shall be deemed a third party beneficiary of this Agreement and shall.be entitled to the rights of Developer hereunder (including those related to payment of the City's Transit Facility Contribution and other payments) if it succeeds to the interests of Developer. ARTICLE 11 NO SUBORDINATION Neither City's interest in the Property pursuant to this Agreement, as the same may be modified, amended or renewed, nor the City Spaces, other Transit Elements or City's interest in this Agreement or the Declaration shall be subject or subordinate to (a) any Mortgage or Other Loan Documents now or hereafter existing, (b) any other liens or encumbrances hereafter affecting Developer's interest in the Land or Property or Developer's interest in this Development Agreement or(c) any mortgages, liens, encumbrances or Loan Documents now or hereafter placed on any interest in the Development Site. ARTICLE 12 MAINTENANCE AND REPAIR Section 12.1 Maintenance of Development Site. (a) Maintenance and Repair. (i) Developer shall at all times (both during and after construction) take good care of, and keep and maintain, the Development Site in good and safe order and condition, and shall make all repairs reasonably necessary to keep the Development Site in good and safe order and condition. (ii) Developer shall not commit, and shall use all reasonable efforts to prevent waste,damage or injury to the Development Site and the Project. MIAMI 699472.17 7198217084 37 5/20/05 2:13 PM a (b) Cleaning of Development Site. Developer shall keep clean and free from rubbish all areas of the Development Site. (c) Other Areas. Developer shall promptly rectify any damage or interference caused by Developer to any property, improvements, equipment, structures or vegetation inside or outside of the Development Site which is owned or controlled by City. (d) Environmental: Brownfields. Developer shall comply with the terms of any further action letter and all other Requirements relating to environmental matters pertaining to the Development Site. (e) Requirements. Developer shall at all times comply with all Requirements with respect to the use, condition, operation, ownership, maintenance and remediation of the Development Site and the Project. (fl Maintenance of Development Site, FTA Requirements Developer understands and agrees that the federal government, through the funding,provided by the FTA, if City elects to obtain such funding, retains a federal interest in any real property, equipment and supplies financed with federal assistance (limited to the Transit Elements)until, and to the extent that, the federal government relinquishes its federal interest. Unless otherwise approved by FTA, City and Developer agree to comply with the requirements identified in Section 19 of the FTA Master Agreement with respect to real property, equipment and supplies financed by the FTA (limited to the Transit Elements). Notwithstanding the foregoing or anything else contained in this Agreement, FTA shall not be entitled to require a change to the business deal reflected by this Development Agreement (including the business deal related to funding of the City's Transit Facility Contribution or other payments by the City hereunder, and casualty and condemnation, as reflected in the Development Agreement and the Declaration). Further, Developer shall not be required to comply with FTA Requirements if such requirements are more costly to comply with than what is contained in the Project Concept Plan unless City, at its option, elects to pay for the excess costs (except that Developer shall comply with Davis Bacon Act and shall, consistent with the City's FTA approved DBE plan, use reasonable efforts to comply with the DBE requirements of the FTA Master Agreement based on up to 10% of an assumed $9,500,000 City's Transit.Facility Contribution (but in no event less than 5% of an assumed $9,500,000 City's Transit Facility Contribution) at no additional cost to City, and Developer shall also comply with any other requirements of the FTA Master Agreement at the City's cost, and further provided,.in respect of all FTA Requirements, they are reasonably capable of being implemented without unusual delay and without materially changing the character of the Project). Subject to the foregoing and any other specific limitations contained elsewhere in the Agreement, Developer agrees to exert reasonable good faith efforts to assist the City in meeting the requirements of the FTA (limited to the Transit Elements). This subparagraph shall survive expiration of the Term but not any other termination. Section 12.2 Waste Disposal. Developer shall dispose of waste from all areas of the Development Site in accordance with the Requirements and in a prompt, sanitary and aesthetically reasonably inoffensive manner. (38) MIAMI 699472.17 7198217084 5/20/05 2:13 PM I ARTICLE 13 REQUIREMENTS Section 13.1 Requirements. (a) Obligation to Comply. In connection with any Construction Work, and with the maintenance, management, use, construction, ownership and operation of the Development Site, the Project, and Developer's performance of its obligations hereunder, Developer shall comply promptly with all Requirements,without regard to the nature of the work required to be done. (b).Definition of Requirements. As used in this Agreement, "Requirements" shall mean: (i) any and all laws, constitutions, rules, regulations, orders, ordinances, charters, statutes, codes, executive orders and requirements of all Governmental Authorities having jurisdiction over a Person and/or the Development Site or any street, road, avenue, alley or sidewalk comprising a part of, or lying in front of, the Development Site (including,without limitation, any of the foregoing relating to handicapped access or parking,the Building Code of the City and the laws,rules, regulations, orders, ordinances, statutes, codes and requirements of any applicable Fire Rating Bureau or other body exercising similar functions). . (ii) . any conditions of the temporary and/or permanent certificate or certificates of occupancy issued for the Development Site as then in force; the requirements of the City of Miami Beach Prevailing Wage Ordinance,Miami Beach City Code, Section 31A-27, as amended, if applicable; (iv) any and all provisions and requirements of any property, casualty or other insurance policy required to be carried by Developer under this Agreement; (v) any and all provisions and requirements of'that certain Brownfield Site Rehabilitation Agreement dated December 29, 2000 by and between Miami- Dade County and A&R Sobe, LLC; and (vi) any and all requirements and responsibilities under federal law, regulation or directive, including, but not limited to,the FTA Requirements identified in the FTA Master Agreements. ARTICLE 14 CREATION AND(DISCHARGE OF LIENS Section 14.1 Creation of Liens. MIAMI 699472.17 7198217084 (39) 5/20/05 2:13 PM (a) Developer shall have no power or authority to, and shall not, create, cause to be created, or suffer or permit to exist (1) any lien, encumbrance or charge upon City's rights under or in respect of this Agreement, the Development Site, the Project, the City Spaces, the other Transit. Elements or any part thereof or appurtenance thereto, the Declaration or the income therefrom, (2) any lien, encumbrance or charge upon any assets of, or funds appropriated to, City, or(3) any other matter or thing whereby City's interest in the Property or any part thereof or appurtenance thereto or any revenues therefrom might be materially impaired. Notwithstanding the above, Developer shall have the right to execute Mortgages and other Loan Documents, leases and other instruments (including, without limitation, equipment leases) encumbering only Developer's rights under or in respect of this Agreement, the Development Site or any part thereof or appurtenances thereto. Further, until the Declaration is filed and the City Spaces and other Transit Elements are conveyed to City, Developer may encumber the entire Property, subject to obtaining the lender recognition and other agreements provided for in Section 2.6(d)of this Development Agreement. (b).City (in its proprietary capacity) shall have no power or authority to, and shall not, create, cause to be created, or suffer or permit to exist(i) any lien, encumbrance upon Developer's rights under this Agreement, the Declaration or the income therefrom, the Development Site or any part thereof or appurtenance thereto, (ii) any lien, encumbrance or charge upon any assets of,or funds appropriated to,Developer, or(iii) any other matter or thing whereby Developer's interest in the Land or Property and any part thereof or appurtenant thereto might be impaired. Section 14.2 Discharge of Liens. (a) If any mechanic's, laborer's, vendor's,materialman's or similar statutory lien is filed against the City's interest in the Development Site or any part thereof(whether or not any such lien is valid), or City's interest in the Land or Property or if any public improvement lien created, or caused or suffered to be created, by Developer shall be filed against any assets of, or funds of City, Developer shall, within thirty (30) days after Developer receives notice of the filing of such mechanic's, laborer's, vendor's, materialman's or similar statutory.lien or public improvement lien, cause it to be discharged of record by payment,deposit,bond,order of a court of competent jurisdiction or otherwise. (b) If any mechanic's, laborer's, vendor's,materialman's or similar statutory lien is filed against the Developer's interest in the Development Site or any part thereof or Developer's interest in the Land or Property as a result of any action of City(in its proprietary capacity), City shall, within thirty (30) days after City receives notice of the filing of such mechanic's, laborer's, vendor's, materialman's or similar statutory lien, cause it to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. Section 14.3 No Authority to Contract in Name of City. Nothing contained in this Article 14 shall be deemed or construed to constitute the consent or request of City, express or implied, by implication or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any (40) MIAMI 699472.17 7198217084 5/20/05 2:13 PM materials for any.specific.improvement of, alteration to, or repair of, the Development Site or any part thereof, nor as giving Developer any right, power or authority to contract for, or permit the rendering of, any services or the furnishing of materials that would give rise to the filing of any lien, mortgage or other encumbrance against City's interest in the Property or any part thereof or against any.assets of City. Notice is hereby given, and Developer.shall cause all Construction Agreements to provide, that to the extent enforceable under Florida law, City shall not be liable for any work performed or to be performed at the Development Site or any part thereof for Developer or for any-subtenant or for any materials furnished or to be furnished to the Development Site or any part thereof for any of the foregoing, and no.mechanic's, laborer's, vendor's, materialman's or other similar statutory lien for such work or materials shall attach to or affect City's interest in the Property or any part thereof or any assets of City. ARTICLE 15 PUBLIC PURPOSE Section 15.1 City acknowledges that public benefits will result from the'Parties' performance of this Development Agreement ("Public Purpose" or "Public Benefits'). Such Public Benefits include but are not limited to the environmental remediation and redevelopment of the Brownfield Area pursuant to the City of Miami Beach Brownfield Resolution No. 2000-23963; revitalizing the area surrounding the Project to create a commercially viable commercial corridor between Alton Road and Ocean Drive along Fifth Street; providing a grocery store to the growing neighboring residential community; providing a parking garage; beautification to the City of Miami Beach's "Gateway Property," and preservation of the historical character of the area/building located at the corner of Fifth Street and Lenox Avenue; creation of the Transit Elements component of the Project, and the creation of jobs for the City of Miami Beach community. Section 15.2 In furtherance of the foregoing, Developer covenants and agrees to include as an initial occupant of the Retail Space a national or regional grocery store chain which shall initially open for the operation of a grocery supermarket. Developer shall enter into a binding lease ("Grocery Lease") having a minimum term of ten(10) years for not less than 40,000 square feet of Retail Area with a national or regional grocery supermarket which will unconditionally (subject to customary contingencies for Substantial Completion and performance by Developer of its construction.obligations under the Grocery Lease) obligate the tenant to initially open for business as a grocery supermarket in the entire leased premises upon Completion of the Project. The Lease shall grant Developer the right to recapture the leased premises if the tenant ceases to operate a grocery supermarket from the entire leased premises during the lease term, other than temporarily for remodeling, reconstruction after casualty or condemnation, transfer of.operations in the case of an assignment or subletting to another operator or Unavoidable. Delays. If the tenant fails to open for business, or, after opening, ceases to operate a grocery supermarket from the entire leased premises (for other than a permitted reason listed above in this Section 15.2), Developer shall use diligent and good faith efforts to enter into a new lease with another national or regional grocery supermarket for the same leased premises and for the same use (a "Replacement Lease"). If Developer is unsuccessful in entering into a Replacement Lease, Developer shall at its option either (A) pay to the City $55.00 per City Supermarket Space per (41) MIAMI 699472:17 7198217084 5/20/05 2:13 PM month(which amount will increase by 2.5%per annum starting at the time that the Contribution, as defined in the Declaration, starts increasing) for each month commencing when, and only during the time that, a replacement non-supermarket user is operating out of the space demised in the Grocery Lease and continuing through the end of the tenth year from the commencement of the lease term for.the Grocery Lease (but any payments under this subparagraph (A) shall be fully refunded to Developer if Developer subsequently exercises option (B) below) or (B) purchase from City the City Supermarket Spaces pursuant to the closing procedure set forth in Developer's right of first refusal paragraph 9 of the Declaration for a price equal to City's Transit Facility Contribution allocable to such spaces together with interest thereon at the Interest Rate, as hereinafter defined, for the period commencing on the date payments under (A) above are provided to:commence.and continuing until the end of the tenth year from the commencement of the lease term for the Grocery Lease. From and after the date of conveyance of the City Supermarket Spaces to Developer, the percentages utilized for purposes of calculating the relative contributions of the City and Developer in respect of Operating Expenses and Revenue under the Declaration shall be adjusted proportionately, effective as of the date of the conveyance. The "Interest Rate" shall be the average yield on an annualized basis generated by investments- actually made by the City in accordance with the City's Investment Policy and Procedure (designed to assure the preservation of principal, a copy of which has been furnished to Developer) during the period of time commencing on the commencement date of the term of the Grocery Lease and ending when Developer's option under this sentence is triggered. Any payments under(A) above, and interest under(B) above, shall cease at the end of the tenth year from the commencement of the lease term for the Grocery Lease. For purposes of this provision, if there is a condemnation,the first spaces taken shall be deemed to be City Supermarket Spaces. Further, if Developer is unsuccessful in entering into a Replacement Lease and if City and Developer, each acting in their own discretion, are unable to reach agreement as to an alternate use for the space, City shall at its option then be entitled to attempt to locate another tenant (having either (X).an operating history and credit that are no less beneficial than the tenant (and any guarantors) under the Grocery Lease or (Y) a credit rating of not less than Standard and Poors A)who shall use the leased premises for family oriented retail/commercial uses that are no more parking intensive than grocery store use and do not violate any then existing exclusive or prohibited uses granted to other occupants of the Property and who shall-pay the same base rent and pass-thrus as specified in the Grocery Lease for the same remaining term (or for a commercially reasonably longer term, not to exceed the aggregate number of years in the initial and potential .renewal terms of the Grocery Lease, with commercially reasonable periodic increases in rent that are comparable to those provided for in the Grocery Lease) and who shall be entitled to the same options, rights, signage rights and benefits, and have the same obligations, burdens and responsibilities (other than those relating to use of the space as a grocery supermarket). If City does in fact locate another tenant, Developer shall thereupon recapture the Grocery Lease from the existing tenant and enter into a direct lease with the tenant identified by City at the:.same base rent and pass-thrus (but percentage rent shall not be required, and the tenant shall be required to pay 100%of the taxes allocable to the City Supermarket Spaces,to the extent Developer is obligated to pay or reimburse the City in respect of same) as specified in the Grocery Lease (and containing such other terms as are consistent with the Grocery Lease and otherwise customarily required for leases of similar space to similar tenants and otherwise consistent with the.provisions of this Paragraph, without,however, an increase in any obligations or other economic changes that are adverse to Developer or the tenant). Specific consideration (42) MIAMI 699472.17 7198217084 5/20/05 2:13 PM for the foregoing includes without limitation, vacation and conveyance by the City to Developer of the Alley as provided in Section 6.2.1 (iv) of this Development Agreement and the City's other agreements set forth in this Development Agreement. The .provisions set forth in this Section 15.2 shall become null and void and of no further force or effect 10 years from the commencement of the lease term for the Grocery Lease. Section 15.3 Developer represents that the intended initial use of the Project is retail/commercial/parking and that initially office use will only be an incidental purpose. Nothing contained herein, however, shall prevent Developer from using the Project for any lawful purposes which comply with all Requirements, except, however, for the provisions of this Article 15 with respect to the Grocery Lease and subsequent use of the space included in the Grocery Lease. ARTICLE 16 RIGHT TO PERFORM THE OTHER PARTY'S COVENANTS Section 16.1 Right to Perform Other Party's Obligation. (a) If an Event of Default shall occur, and subject to any limitations contained elsewhere in this Agreement (including those for the benefit of Recognized Mortgagees) City may, but shall be under no obligation to, perform the obligations of Developer the breach of which gave rise.to such Event of Default, without waiving or releasing Developer from any of its obligations contained herein, provided that City shall exercise such right only in the event of a bona fide emergency or after five (5) Business Days notice, and Developer hereby grants City access to the Development Site in order to perform any such obligation. Notwithstanding the foregoing, City shall not be entitled to perform any such obligations if a Recognized Mortgagee promptly commences and thereafter diligently pursues reasonable steps in good faith to do so, and City shall not interfere with such rights of a Recognized Mortgagee to do so. (b) If a default by City under this Agreement shall, occur and be continuing beyond any applicable grace period, Developer may, but shall be under no obligation to, perform the obligations of City (other than those which are governmental as opposed to proprietary obligations) the breach of which gave rise to such default, without waiving or releasing City from any of its obligations contained herein, provided that Developer shall exercise such right only in the event of a bona fide emergency (threat of imminent injury to persons or property)or after five(5)Business Days notice to City. Section 16.2 Discharge of Liens. (a). If Developer fails to cause any mechanic's, laborer's, vendor's, materialman's or similar statutory lien (including tax liens, provided the underlying tax is an obligation of Developer) to be discharged of record in accordance with the provisions of Article 14, City may, but shall not be obligated to, discharge such lien of record either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings. (43) MIAMI 699472.17 7198217084 5/20/05 2:13 PM (b.) If City fails to cause any mechanic's, laborer's, vendor's, materialman's or similar statutory lien (including, tax liens, provided the underlying tax is an obligation of City) to be discharged of record in accordance with the provisions of Article 14, Developer may,but shall not be obligated to, discharge such lien of record either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings. Section 16.3 Reimbursement for Amounts Paid Pursuant to this Article. Any reasonable amount paid by either Party in performing the obligations of the other party as provided in this Article 16, including all costs and expenses incurred in connection therewith,shall be reimbursed to the Party incurring same within thirty(30)days of demand. Section 16.4 Waiver,Release-and Assuml2tion of Obligations. (a) City's payment or performance pursuant to the provisions of this Article 16 shall not be, nor be deemed to constitute, City's assumption of Developer's obligations to pay or perform any of Developer's past,present or future obligations hereunder. (b) Developer's payment or performance pursuant to the provisions of this Article 16 shall not be, nor be deemed to constitute, Developer's assumption of City's obligations to pay or perform any of City's past,present or future obligations hereunder. ARTICLE 17 EVENTS OF DEFAULT, CONDITIONAL LIMITATIONS,REMEDIES,ETC. Section 17.1 Definition. Each of the following events shall be an Event of Default by Developer hereunder: (a) If Developer shall default in the observance or performance of any term, covenant or condition of this Agreement on Developer's part to be observed or performed and, if no cure period is expressly provided for herein, Developer shall fail to remedy such Default within ten(10) days as to monetary default or thirty(30) days as to non-monetary defaults after notice by City (the Default Notice), or if such a Default is of such a nature that it cannot reasonably be remedied within thirty(30) days (but is otherwise susceptible to cure), Developer shall (i) within thirty (30) days after the giving of such Default Notice, advise City of Developer's intention to institute all steps necessary (and from time to time, as reasonably requested by City, Developer shall advise City of the steps being taken)to remedy such default (which such steps shall be reasonably designed to effectuate the cure of such Default in a professional manner), and (ii) thereafter diligently prosecute to completion all such steps necessary to remedy the same; or (b) to the extent permitted by law, if Developer admits, in writing, that it is generally unable to pay its debts as such become due;or (44) MIAMI 699472.17.719 8217084 5/20/05 2:13 PM (c) to the extent permitted by law, if Developer makes an assignment for the benefit of creditors; or (d) to the extent permitted by law, if Developer files a voluntary petition under Title 11 of the United States Bankruptcy Code, or if Developer files a petition or an answer seeking, consenting to or acquiescing in, any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future Federal bankruptcy code or any other present or future applicable Federal, state or other bankruptcy or insolvency statute or law, or seeks, consents to, acquiesces in or suffers the appointment of any trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar official of Developer, of all or any.substantial part of its properties, or of all or any part of Developer's interest in-the.Land or Property, and the foregoing are not stayed or dismissed within one hundred fifty(150)days after such filing or other action;or (e) to the extent permitted by law, if, within one hundred fifty (150) days after the commencement of a proceeding against Developer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future Federal bankruptcy code or any other present or future applicable Federal, state or other bankruptcy or insolvency statute or law, such proceeding has not been dismissed, or if, within one hundred fifty (150) days after the appointment, without the consent or acquiescence of Developer, of any trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar official of Developer,. of all or any substantial part of its properties, or of all or any part of Developer's interest in the Land or Property, such appointment has not been vacated or stayed on appeal or otherwise, or if, within one hundred fifty (150) days after the expiration of any such stay, such appointment has not been vacated; (f) if a levy under execution or attachment in an aggregate amount of One Hundred Thousand Dollars ($100,000) (as adjusted for inflation) at any one time is made against the Development Site or any part thereof or.rights appertaining thereto and such execution or attachment is not vacated or removed by court order,bonding or otherwise within a period of sixty(60)days, subject to Unavoidable Delays after such levy or attachment; (g) Developer's failure to achieve Substantial Completion on or before the Completion Deadline;,or (h) Any voluntary or involuntary assignment of the Developer's rights hereunder or if Jeffrey Berkowitz, Alan Potamkin and Robert Potamkin, collectively, shall cease to own a majority of the membership and beneficial interests and the Controlling Interest in Developer or shall cease to have control over the Construction of the Project, in either case at any time prior to Substantial Completion of the Project. City's notice to Developer shall state with specificity the provision of this Agreement under which the Default is claimed, the nature and character of such Default, the facts giving rise to such Default, the date by which such Default must be cured pursuant to this Agreement, if applicable, and, if applicable, that the failure of Developer to cure such Default by the date set forth in such notice will result in City having the right to terminate this Agreement. With respect only to Development Disputes, City's allegation of a Default shall be subject to expedited (45) MIAMI 699472.17 7198217084 5/20/05 2:13 PM arbitration in accordance with the provisions of Article 19,or within ten(10)Business Days after receipt of City's notice if no such grace period is provided therein. Notwithstanding the foregoing, no Event of Default shall be deemed to have occurred until such time as City shall have given Developer notice of the occurrence of a Default; provided, however, if Developer shall dispute, in accordance with the provisions of Article 19, City's assertion that a Default which is a Development Dispute has occurred within ten (10) Business Days after the giving of such notice by City, an Event of Default as to any such Development dispute shall not be deemed to have occurred and City shall not be permitted to exercise any, rights against Developer stated herein to arise out of an Event of Default until such time as the Development Arbitrator has determined that an Event of Default has occurred. Developer agrees to make a good faith,effort to notify City of any Unavoidable Delays affecting performance by Developer of its obligations under this Agreement and the estimated delay to result therefrom. Section 17.2 Enforcement of Performance; Damages and Termination. If an Event of Default occurs, City may elect to(a) enforce performance or observance by Developer of the applicable provisions of this Agreement or (b) recover damages for breach of this Agreement, with or without terminating this Agreement, and/or (c) exercise any other remedies available at law, in equity or under this Agreement. City's election of a remedy hereunder with respect to an Event of Default shall not limit or otherwise affect City's right to elect an of the remedies available to City hereunder or at law or in a ui with respect to any Y Y q fiY sP other Event of Default. Anything in the Development Agreement to the contrary notwithstanding, (i) City shall not be entitled to perform any obligations of Developer if a Recognized Mortgagee promptly commences and thereafter diligently pursues reasonable steps to in good faith do so, and City shall not interfere with a Recognized Mortgagee's rights to do so and (ii) any recovery by City of damages under this Development Agreement shall be limited to the amount of.the City's Transit Facility Contribution actually paid by City to Developer, together with interest thereon at the lesser of (A) the average yield on an annualized basis generated by investments actually made by the City in accordance with the City's Investment Policy and Procedure (designed to assure the preservation of principal, a copy of which has been furnished to Developer) during the like period of time or(B) simple interest at the rate of 4%per annum, in each case from the date of disbursement until the date repaid, and upon receipt of such sum, City shall relinquish all interests in the Project to Developer or its designee and this Agreement shall terminate; provided, however,that the foregoing limitation on the City's right to recover damages shall not apply with respect to any of Developer's indemnification obligations hereunder, including without limitation the indemnification contained in Section 21.1. Nothing contained in the Agreement shall preclude City from pursuing specific performance of Developer's obligations under this Agreement, but the right to specific performance by the City is subject to Developer's exercise of any termination right granted in this Agreement. Section 17.3 Strict Performance. No failure by City or Developer to insist upon strict performance of any covenant, agreement, term or condition of this Agreement or to exercise any right or remedy available to (46) MIAMI 699472.17 7198217084 5/20/05 2:13 PM such party by reason of the other Party's Default or an Event of Default, shall constitute a waiver of any such Default or Event of Default or of such covenant, agreement, term or condition or of any other covenant, agreement, term or condition. No covenant, agreement,term or condition of this Agreement to be performed or complied with by either Party, and no Default by either Party, shall be waived, altered or modified except by a written instrument executed by the other Party. No waiver of any Default or Event of Default shall affect or alter this Agreement, but each and every covenant, agreement, term and condition of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent Default. Developer's compliance with any request or demand made by City shall not be deemed a waiver of Developer's right to contest the validity of such request or demand. This provision shall survive termination of this Agreement. Section 1.7.4 Riebt to Enioin Defaults. With respect to Development Disputes and all other disputes, in the event of Developer's Default or an Event of Default, City shall be entitled to seek to enjoin the Default or Event of Default and shall have the right to invoke any rights and remedies allowed at law or in equity or by statute or otherwise, except to the extent City's remedies are expressly limited by the terms hereof. With respect to Development Disputes and all other disputes, in the event of any default by City of any term, covenant or condition under this Agreement, Developer shall be entitled to seek to enjoin the default and shall have the right to invoke any rights and remedies allowed at law or in equity or by statute or otherwise, except to the extent Developer's remedies are expressly limited by the terms hereof. Each right and remedy of City and Developer provided for in this Agreement shall be cumulative and shall be in addition to every other right or remedy provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise, except to the extent City's remedies or Developer's remedies are expressly limited by the terms hereof, and the exercise or beginning of the exercise by City or Developer of any one or more of the rights or remedies provided for in this Agreement or now or hereafter existing at law or in equity or by.statute or otherwise shall not preclude the simultaneous or later exercise by City or Developer of any or all other rights or remedies provided for in this Agreement or now or hereafter existing at law or in equity, except to the extent City's remedies and Developer's remedies are expressly limited by the terms hereof. Section 17.5 Remedies under Bankruiptcy and Insolvency Codes. If an order for relief is entered or if any stay of proceeding or other act becomes effective against Developer, Developer's interest in the Land or Property, or Developer's interest in this Agreement, or City, City's interest in the Land or Property, or City's interest in this Agreement, as applicable, in any proceeding which is commenced by or against Developer or City, as applicable, under the present or any future Federal Bankruptcy Code or in a proceeding which is commenced by or against Developer or City, as applicable, seeking a reorganization, arrangement, composition,readjustment, liquidation, dissolution or similar relief under any other present or future.applicable federal, state or other bankruptcy or insolvency statute or law, City or Developer, as applicable, shall be entitled to invoke any and all rights and remedies available to it under such bankruptcy or insolvency code, statute or law or this Agreement (except to the extent City's remedies and Developer's remedies are expressly limited by the terms hereof). (47) MIAMI 699472.17 7198217084 5/20/05 2:13 PM i Section 17.6 Inspection. Without in any way limiting Article 4, City and its representatives shall have the right to enter upon the.Development Site to conduct inspections for the purpose of determining whether a Default or an Event of Default has occurred, provided that City shall be accompanied by a representative of Developer and provided further that such entry shall not unreasonably interfere with the Construction of the Project and shall be at City's sole risk. Developer agrees to make a representative of Developer available to accompany City on any such inspection. Section 17.7 City's Default. In the event of any default by City hereunder, Developer shall give City written notice specifying such default and City agrees to promptly commence the curing of such default and to cure such default within ten (10) days after receipt of notice in the case of payment of money or thirty(30) days after receipt of notice as to other defaults;provided, however,that if such default cannot reasonably be cured within said thirty .(30) day period, then City shall cure any such default as diligently as reasonably practicable under the circumstances and shall have a reasonable period of time within which to cure such default so long as City is so proceeding. If City fails to cure any default during the applicable curative period, Developer, at any time after the expiration of such curative period, shall have the right to exercise any remedy provided in this Agreement or available to Developer at law or in equity. City agrees to make a good faith effort to notify Developer of any Unavoidable Delays affecting the performance by City of its obligations under this Agreement and the estimated delay to result therefrom. Developer's notice to City shall state with specificity the provision of this Agreement under which the City's default is claimed, the nature and character of such City's default, the facts giving rise to such City's default, the date by which such City's default must be cured pursuant.to this Agreement; if applicable, and, if applicable, that the failure of City to cure such City's default by the date set forth in such notice will result in Developer having the right to terminate this Agreement or exercise any other remedies specified by Developer. With respect only to Development Disputes, Developer's allegation of a City default shall be subject to expedited arbitration in accordance with the provisions of Article 19, or within ten(10)Business Days after receipt of Developer's notice if no such grace period is provided therein. Notwithstanding the foregoing, Developer may not exercise its remedies for a City default until such time as Developer shall have given City notice of the.occurrence of same; provided, however, if City shall dispute, in accordance with the provisions of Article 19, Developer's assertion that a City default which is a Development Dispute has occurred within ten (10) Business Days after the giving of such notice by Developer, Developer shall not be permitted to exercise any rights against City stated herein to arise out of a City default until such time as the Development Arbitrator or a court, if applicable, has determined that a City default has occurred. Anything in this Development Agreement to the contrary notwithstanding, City shall not withhold any payments that are payable under this Development Agreement because of any alleged default by Developer under this Agreement (provided that City shall not be obligated to fund except as provided for in this Agreement,which specifies documentation to be furnished to (48) MIAMI 699472..17 7. 198217084 5/20/05 2:13 PM City and simultaneous funding by the City and Developer's construction lender of draw requests). ., Any such payments shall, however, be made with full reservation of rights. This provision is included in recognition of the fact that the City and Developer's construction lender will be funding construction of the Project pari passu and any withholding of funds by the City could adversely impact Developer's ability to obtain funding from its construction lender. ARTICLE 18 NOTICES, CONSENTS AND APPROVALS Section 18.1 Service of Notices and Other Communications. (a) In Writing. Whenever it is provided herein that notice, demand, request, consent, approval or other communication shall or may be given to,or served upon,either of the parties by the other(or any Recognized Mortgagee), or whenever either of the parties desires to give or serve upon the other any notice, demand, request, consent, approval or other communication with respect hereto or to the Development Site, each such notice, demand, request, consent, approval or other communication (referred to in this Section 18.1 as a Notice) shall be in writing (whether or not.so indicated elsewhere in this Agreement) and shall be effective for any purpose only if given or served by(i) certified or registered U.S. Mail,postage prepaid, return receipt requested, (ii) personal delivery with a signed receipt, (iii), a recognized national courier service or (iv) facsimile or e-mail (provided a confirmation page shall be generated)addressed or delivered as follows: If to Developer:- AR&J Sobe, LLC c/o Berkowitz Development 2665 South Bayshore Drive Suite 1200 Coconut Grove,Florida 33133 Attention: Jeffrey L. Berkowitz With a copy to: Wayne Pathman,Esq. Pathman Lewis, LLP One Biscayne Tower, Suite 2400 Two South Biscayne Blvd. Miami,Florida 33131 If to City: City of Miami Beach 1700 Convention Center Drive Miami Beach,Florida 33139 Attention: City Manager (49) MIAMI 699472.17 7198217084 5/20/05 2:13 PM With a copy to: Brian Tague, Esq. Tew Cardenas LLP 201 South Biscayne Boulevard Suite 2600,Miami Center Miami, Florida 33131 Any Notice may be given, in the manner provided in this Section 18.1, (x) on either party's behalf by its attorneys designated above or otherwise designated by such party by Notice hereunder, and (y) at Developer's request, on its behalf by any Recognized Mortgagee designated in such request. (b) Effectiveness. Every Notice shall be effective on the date actually received, as indicated on the receipt therefor or on the date delivery thereof is refused by the recipient thereof. (c) References. All references in this Agreement to the date of Notice shall mean the effective date, as provided in the preceding Subsection(b). Section 18.2 Consents and Approvals. (a) Effect of Granting or Failure to Grant Approvals or Consents. Except as and to the extent provided herein, all consents and approvals which may be given under this Development Agreement shall, as a condition of their effectiveness,be in writing. The granting by a party of any consent to. or approval of any act requiring consent or approval under the terms of this Development Agreement, or the failure on the part of a party to object to any such action taken without the required consent or approval, shall not be deemed a waiver by the party whose consent was required of its right to require such consent or approval for any other act, except as and to the extent provided herein. (b) Standard. All consents and.approvals which may be given by a party under this Development Agreement shall not (unless otherwise specified in this Development Agreement)be unreasonably withheld or conditioned by such party and shall be given or denied within the time period provided, and if no such time period has been provided, within a reasonable .time. In furtherance of the foregoing, in determining whether City has acted reasonably in:not giving its consent or approval,the trier of fact shall take into consideration (for so long as City is the City or any Governmental Authority) that City is a political body governed by elected officials or persons that are appointed, directly or indirectly, by elected officials. Upon disapproval of any request for a consent or approval, the disapproving party shall, together with notice of such disapproval, submit to the requesting party a written statement setting forth with specificity its reasons for such disapproval. (c) Deemed Approval. (i) If a party entitled to grant or deny its.consent or approval (the Consenting Party) within the specified time period shall fail to do so, then, except as MIAMI 699472.17 7198217084 (50) 5/20/05 2:13 PM otherwise provided in Section 18.2 (c)(ii) below, and provided that the request for consent or approval bears the legend set forth below in capital letters and in a type size not less than that provided below, the matter for which such consent or approval is requested shall be deemed consented to or approved, as the case may be: FAILURE TO RESPOND TO THIS REQUEST WITHIN THE TIME PERIOD PROVIDED IN SECTION [FILL IN APPLICABLE SECTION] OF THE DEVELOPMENT AGREEMENT BETWEEN CITY OF MIAMI BEACH, FLORIDA AND AR&.T SOBE, LLC SHALL CONSTITUTE AUTOMATIC APPROVAL OF THE MATTERS DESCRIBED HEREIN WITH RESPECT TO SECTION [FILL IN APPLICABLE SECTION] OF SUCH DEVELOPMENT AGREEMENT. Notwithstanding anything to the contrary contained in Section 18.2 (c)(i) above, if the City hereunder and the matter, other than a matter referred to in Section 20.2 (c)(iii) below, to be consented to or approved requires the consideration of the City Commission, as applicable (whether pursuant to Requirements or the written opinion of the City Attorney), then such matter shall not be deemed approved or consented to unless City shall fail to respond to Developer's request by the date which is five (5) Business Days after the meeting of the City Commission in which the matter in question is decided; but in any event not later than seventy-five (75)days following such request(or second request), as applicable. (iii) The foregoing provisions of this Subsection shall not be construed to modify or otherwise affect a party's right to arbitrate or litigate, as applicable, the failure of a party to act reasonably in granting or denying a request for consent or to timely respond to a request for a consent, but such right to arbitrate or litigate, as applicable, shall not serve to delay the time period within which a grant or denial of such request is required hereunder. (d) Remedy for Refusal to Grant Consent or Approval. If, pursuant to the terms of this Agreement, any consent or approval by City or Developer is alleged to have been unreasonably withheld, conditioned or delayed, then any dispute as to whether such consent or approval has been unreasonably withheld, conditioned or delayed shall be settled by arbitration or litigation, as applicable. In the event there:shall be a final determination that the consent or approval was unreasonably withheld, conditioned or delayed so that the consent or approval should have been granted, the consent or approval shall be deemed granted and the party requesting such consent or approval shall be entitled to any and all damages resulting therefrom, subject to the limitations provided in this Agreement. (e) No Fees, Etc. Except as specifically provided herein, no fees or charges of any kind or amount shall be required by either party hereto as a condition of the grant of any consent or approval which may be required under this Agreement (provided that the foregoing shall not be deemed in any way to limit City acting in its governmental, as distinct from its proprietary, capacity from charging governmental fees on a nondiscriminatory basis). (51) MIAMI 699472.17 7198217084 5/20/05 2:13 PM (f) Governmental Capacity. Notwithstanding anything to the contrary contained in this Section 18.2, the City shall not be required by this Development Agreement to give its consent to any matter arising from or in connection with this Development Agreement when the City is acting in its governmental capacity. Section 18.3 Estoppel Letters. Each Party shall, from time to time promptly upon request of the other, furnish to the requesting Party an estoppel letter containing such truthful information as the requesting Party may reasonably request pertaining to this Agreement or the transaction contemplated hereby. ARTICLE 19 ARBITRATI®N Section 19.1 ExRedited Arbitration of Development Disputes. (a) If.Developer or City asserts that a Development Dispute has arisen, such asserting party shall give prompt written notice thereof to the other party and to the Development Arbitrator, as hereinafter defined. (b) The Development Arbitrator shall no later than two (2) Business Days after receipt of such notice, hold a preliminary, informal meeting with City and Developer in an attempt to mediate such Development Dispute. If such Development Dispute shall not be resolved at that meeting, the Development Arbitrator shall at such mediation meeting establish a date, not earlier than four(4) Business Days after the mediation hearing nor later than seven(7) Business Days after the mediation hearing for a hearing (a "Hearing") to be held in accordance with this Agreement to resolve such Development Dispute. (c) Developer and City shall each have the right to make one (1) written submission to the Development Arbitrator prior to any Hearing. Such submission shall be received by the Development Arbitrator and the other party not later than two(2)Business Days prior to the Hearing Date. The parties agree that no discovery (as the term is commonly construed in litigation proceedings) will be needed and agree that neither party nor the Development Arbitrator shall have discovery rights in connection with a Development Dispute. (d) Each Hearing shall be conducted by the Development Arbitrator. It is the intention of the parties that the Hearings shall be conducted in an informal and expeditious manner. No transcript or recording shall be made. Each party shall have the opportunity to make a brief statement and to present documentary and other support for its position, which may include the testimony of not more than four (4) individuals, two (2) of whom may be outside experts. There shall be no presumption in favor of either party's position. Any procedural matter.not covered herein or mutually agreed upon between the Parties shall be governed by the Amended 1993 edition of the CPR Rules for the Arbitration of Business Disputes and the Florida Arbitration Code to the extent not inconsistent with the CPR Rules and this Section 19.1. (52) MIAMI 699472.17.7198217084 5/20/05 2:13 PM (e) The Hearings shall be held in a location selected by the Development Arbitrator in Miami-Dade County, Florida. Provided the Development Arbitrator is accompanied by representatives of both Developer and City, the Development Arbitrator may, at its option, visit the work site to make an independent review in connection with any Development Dispute. (fl Once it has been determined by the Development Arbitrator or by agreement of the parties with respect to any Development Dispute that Developer's proposed modifications are material with regard to, or materially inconsistent with, the Preliminary Plans and Specifications or the Plans or Specifications pursuant to Section 3.1 the Development Arbitrator shall take into account,in determining whether City has acted unreasonably in failing to grant an approval or consent as described in Section 3.4(b) such factors as he or she deems relevant which are not inconsistent with this Agreement (including items 1 through 6, below), which in all events shall include the following factors: (1) City does not have any approval rights with respect to the matter of interior design and decor of the Retail Space. (2) The Project shall be a first class facility with a grocery store and restaurant/office/retail space and Transit Facility at a quality comparable with the quality set forth in the Preliminary Plans and Specifications. (3). The mutual goal of Developer and City that Project Construction Costs overruns shall be minimized. (4) The mutual goal of Developer and City that the CConstruction of the Project be commenced as promptly as reasonably possible and completed within approximately twenty-four(24)months from Commencement of Construction. (5) Applicability of any Requirement. (6) The magnitude of the modification to the Preliminary Plans and.Specifications or Plans and Specifications,as applicable. (g) Pending resolution of the Development Dispute, Developer may not implement the matter which is the subject of such Development Dispute. (h) The Development Arbitrator shall render a decision, in writing, as to any Development Dispute not later than two (2) Business Days following the conclusion of the Hearings regarding such Development Dispute and shall provide a brief written basis for its decision not later.than three(3)Business Days thereafter. As to each Development Dispute,the Develo p ment Arbitrator's decision shall be limited to (i) whether or not Developer's proposed modification(s) to the Preliminary Plans and Specifications or the Plans or Specifications pursuant to Section 3.1 is material, (ii) whether or not Developer's proposed modification(s) to the Preliminary Plans and Specifications or the Plans or Specifications pursuant to Section 3.1 (a) or (b), respectively, is materially inconsistent, (iii) whether or not City has unreasonably failed to approve or give its consent to any modifications to the Preliminary Plans or Specifications or the Plans and Specifications pursuant to Section 3.1 (a) or (b); and/or (iv) (53) MIAMI 699472.17 7198217084 5/20/05 2:13 PM whether or not Developer or City is entitled to'any extension of time for performance. The Development Arbitrator may not award any other or different relief. (i) The decision of the Development Arbitrator shall be final and binding on the parties for all purposes and may be entered in any court of competent jurisdiction. 0) The Parties shall cooperate to select an independent, neutral, professional firm having the.requisite knowledge in retail development and/or construction experience to serve as the arbitrator, and who is available to act within the abbreviated time frames set forth herein(the "Development Arbitrator"). The Parties agree that each of the following persons are at this time satisfactory to serve as Development Arbitrator, namely: Judge Gerald Wetherington , Judge J. Kogan, Judge Edward Davis, Judge David Tobin and Mr. John Freud. City authorizes Developer to designate any one of them to be the Development Arbitrator, subject to availability and other material change of circumstances, but this right to designate shall not limit the ability of both Parties to jointly designate someone else; provided, however, that any of said persons that is designated'as a Development Arbitrator may select, subject to the reasonable approval of the parties, a knowledgeable consultant to provide technical guidance, input and expertise on the subject matter of the dispute. If a Development Arbitrator has been previously designated to resolve a dispute under this Article 19, such Development Arbitrator shall be the designated Development Arbitrator for all subsequent disputes unless both Parties mutually agree to designate a different Development Arbitrator,which they shall do if there is a material change of circumstances or the prior Development Arbitrator is not available to act on the abbreviated time frames specified herein. If the Parties cannot agree within two (2) business days on the selection of a Development Arbitrator, then any party may ask the CPR Institute for Dispute Resolution to select a substitute who will act as Development Arbitrator of that Development Dispute. (k) The cost of the Development Arbitrator and any consultant selected pursuant to the proviso set forth in 0) above shall be equally shared by the Parties. Each Party shall bear its costs, including those of its experts and legal fees, associated with the arbitration. Section 19.2 Litigation. Any dispute between the parties, other than a Development Dispute, shall be subject to litigation and not arbitration. ARTICLE 20 NO PERMIT OR WADER OF FEES/APPLICABILITY OF BROWNFIELD REDEVELOPMENT ACT This Development Agreement is not and shall not be construed as a Development Approval, Building Permit or -authorization to commence development, nor shall it relieve Developer of the.obligations to obtain necessary Development Approvals, Building Permits and other required permits that are required under applicable law and under and pursuant to the terms of this Development Agreement. Nothing contained in this Development Agreement shall be (54) MIAMI 699472.17 7198217084 5/20/05 2:13 PM deemed to constitute a waiver of any fee, charge or cost imposed by the City in connection with the issuance of any Development Approval,Building Permit or other permit. Notwithstanding the preceding Paragraph.with respect to the waiver of permit or any impact and other fees, City acknowledges that the Land has been designated as a Brownfield pursuant to Miami Beach City Commission Resolution No. 2000-23963, and that A&R Sobe, LLC has entered into a Brownfield Site Rehabilitation Agreement with Miami-Dade County, Florida. Developer may make application for and diligently pursue maximizing the benefits to which the Project may be entitled as a result of the Brownfield designation, including any benefits afforded by the Brownfield Recovery Act and any other related state, local or federal program (including, if available, waiver of any impact, permit or other fees or costs). City shall cooperate with Developer in connection with the application and any requirements associated with the foregoing, provided, however, City shall not be required to expend any money or incur any other liability with respect thereto, and any approvals required by the City associated with this Article 20 shall be subject to the prior consideration and approval of the City Commission(if and to the extent required by law), which approval, if any is required, shall be given at the City Commission's discretion. To the extent that such benefits are available to a municipality or governmental entity with respect to Brownfields, City agrees to cooperate and utilize reasonable good faith efforts in making application for and diligently pursuing maximizing the recovery of such Brownfields and other benefits; provided,however,City shall not be required to expend any money or incur other liability with respect thereto, and any approvals required by the City associated with this Article 20 shall be subject to the prior consideration and approval of the City Commission if and to the extent ent re uired by law), which approval, if an y is required, shall be given at the City Commission's discretion. Any Brownfield or other such funds that City is otherwise entitled to, eligible for, receives or can obtain in respect of the Project shall, to the extent the City is lawfully entitled to do so, be paid first to City for the reimbursement of expenditures or monies associated with this Article 20, then to Developer in addition to City's Transit Facility Contribution, anything to the contrary contained in this Development Agreement notwithstanding. ARTICLE 20A INVESTIGATIONS.ETC. To the extent required by Requirements, Developer shall cooperate fully and faithfully with any investigation, audit or inquiry conducted by any Governmental Authority that is empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath, or conducted by a Governmental Authority that is a party in interest to the transaction, submitted bid, submitted- proposal, contract, lease, permit, or license that is the subject of the investigation, audit t or inquiry. In addition, Developer shall promptly report in writing to the City Attorney of the City of Miami Beach, Florida any solicitation, of which Developer's officers or directors have knowledge, of money, goods, requests for future employment or other benefit or thing of value, by or on behalf of any employee of City, City or other Person relating to the procurement or obtaining of this Development Agreement by Developer or affecting the performance of this Development Agreement. MIAMI 699472.17 7198217084 (55) 5/20/05 2:13 PM ARTICLE 21 HAZARDOUS MATERIALS Section 21.1 General Provision. The provisions of Paragraph 3 (e) of Exhibit E attached hereto shall be applicable to this Agreement. Notwithstanding the foregoing, City assumes no liability or obligation pursuant to the Brownfield Site Rehabilitation Agreement("BSRA') entered into by and between Developer and Miami-Dade County, Florida, for any existing obligations under said Agreement. Additionally, City.assumes no liability for any environmental contamination associated with the construction of the Project. The parties to this Agreement acknowledge and agree that City's obligation for any environmental contamination shall begin only as to environmental conditions first arising upon or after completion of the Project. Developer shall be solely responsible for any environmental conditions existing on the .Land as of the date hereof, and all remediation thereof, and shall indemnify.and hold City harmless from all liability, damages, losses and costs (including reasonable attorneys' fees and costs at all levels) arising therefrom or relating thereto. The preceding 3 sentences shall survive termination or expiration of this Agreement. Section 21.2 Survival. The provisions of this Article 21 shall survive the expiration or sooner termination of this .Agreement. ARTICLE 22 MISCELLANEOUS Section 22.1 Governing Law and Exclusive Venue. This Agreement shall be governed by,,and construed in accordance.with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. Federal Court venue shall be available only if exclusive jurisdiction is vested in the Federal Courts. The exclusive venue for any expedited arbitration arising out of this Agreement shall be in Miami-Dade County,Florida. BY ENTERING. INTO THIS AGREEMENT, DEVELOPER AND OWNER EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL. LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. Section 22.2 References. (a) Captions. The captions of this Development Agreement are for the purpose of convenience of reference only, and in no way define, limit or describe the scope or intent of MIAMI 699472.17 7198217084 (56) 5/20/05 2:13 PM this Development Agreement or in any way affect this Development Agreement. All captions, when referring to Articles or Sections, refer to Articles or Section in this Development Agreement,unless specified otherwise. (b) Table of Contents. The Table of Contents is for the purpose of convenience of reference only, and is not to be deemed or construed in any way as part of this Agreement. (c) City's Governmental Capacity. Nothing in this Agreement or in the parties acts or omissions in connection herewith shall be deemed in any manner to waive, impair, limit or otherwise affect the authority of the City in the discharge of its police or governmental power. (d) Reference to Herein. Hereunder, Etc. All references in this Agreement to the terms herein, hereunder and words of similar import shall refer to this Agreement, as distinguished from the Paragraph, Section or Article within which such term is located. (e) Reference to Approval or Consent, Etc. All references in this Agreement to the terms approval, consent and words of similar import shall mean.reasonable written approval or reasonable written consent except where specifically provided otherwise Section 22.3 Entire Agreement.Etc. .(a) Entire Agreement. This Development Agreement, together with the attachments hereto, contains all of the promises, agreements, conditions, inducements and understandings between City (in its proprietary capacity as opposed to its governmental capacity) and Developer concerning the development and construction of the Project on the Development Site and there are no promises, agreements, conditions, understandings, inducements, warranties or representations, oral or written, express or implied, between them other than as expressly set forth herein and in such attachments thereto or as may be expressly contained in the Declaration or any other written agreements or instruments executed simultaneously herewith by the parties hereto. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall represent one instrument. (b) Waiver. Modification, Etc. No covenant, agreement, term or condition of this Development Agreement shall be changed, modified, altered, waived or terminated except by a written instrument of change, modification, alteration, waiver or termination executed by City and Developer. No waiver of any Default shall affect or alter this Agreement,but each and every covenant, agreement, term and condition of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent Default thereof. (c) Effect of Other Transactions. No Mortgage, whether executed simultaneously with this Agreement or otherwise, and whether or not consented to by City,shall be deemed to modify this Agreement in any respect, and in the event of an.inconsistency or conflict between.this Agreement and any such instrument, this Agreement shall control. This Agreement shall not be subject or subordinate to any mortgage or any Loan Documents. (57) MIAMI 699472.17 7198217084 5/20/05 2:13 PM (d) Prevailing Party; Attorneys' Fees. In the event of litigation concerning this Agreement, the prevailing party shall be entitled to receive its costs and reasonable attorneys' fees, at trial and through and including all appeals, from the non-prevailing party. Section 22.4 Invaliditv of Certain Provisions. If any provision of this Agreement or the application thereof to any Person or circumstances is, to any extent, finally determined by a court of competent jurisdiction to be invalid and unenforceable, the remainder of this Agreement, and the application of such provision to Persons or circumstances other than those as to which it is held invalid and unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. Section 22.5 Remedies Cumulative. Each right and remedy of either Party provided for in this Agreement shall be cumulative and shall be in addition to every other right or remedy provided for in this Agreement, or now or hereafter existing at law or in equity or by statute or otherwise (except as otherwise expressly limited by the terms of this Agreement), and the exercise or beginning of the exercise by a Party of any one or more of the rights or remedies provided for in-this Agreement,.or now or hereafter existing at law or in equity or by statute or otherwise (except as otherwise expressly limited by the terms of this Agreement), shall not preclude the simultaneous or later exercise by such Party of any or all other rights or remedies provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise (except as otherwise expressly limited by the terms of this Agreement). Section 22.6 Performance at Each Party's Sole Cost and Expense. Unless otherwise expressly provided in this Agreement, when either Party exercises any of its rights, or renders or performs any of its obligations hereunder, such party shall do so at its sole cost and expense. Whenever this Agreement provides that a Party shall cooperate or shall provide information so long as such Party incurs no cost or expense in doing go, such provision shall mean no third party out-of-pocket costs and shall not include costs of salary or overhead of such Party's employees. The preceding sentence, however, shall apply to City only when it is acting in its proprietary capacity as a Party to this Development Agreement and shall not limit or restrict City's ability to impose charges or fees in accordance with its normal and customary policies when City is acting in its governmental capacity. Section 22.7 Time is of the Essence. Time is of the essence with respect to all matters in, and requirements of, this Development Agreement as to both City and Developer including, but not limited to, the times within which Developer must commence and complete Construction of the Project. Section 22.8 Successors and Assigns. The agreements, terms, covenants and conditions herein shall be binding upon, and inure to the benefit of, City and Developer, and, except as otherwise provided herein, their respective MIAMI 699472.17 7198217084 (58) 5/20/05 2:13 PM successors and permitted assigns. If, while City'is the City hereunder, the City shall cease to exist, the City, by its signature hereto, hereby agrees to be bound with respect to all of the terms, covenants and conditions of City hereunder and Developer agrees to recognize the City as City hereunder. There can be no assignment by Developer of its rights or obligations hereunder or its interest in this Agreement, except that Developer may assign all its rights hereunder to a Recognized Mortgagee as security for the performance of Developer's obligations under the Loan Documents (and such Recognized Mortgagee, its successors or assigns shall be recognized and afforded the benefits of this Agreement, including the City's obligation to pay the City's Transit Facility Contribution, if they take over construction of the Project or acquire the Project and, to the extent-contemplated in Section 2.6(d) above, assume all of Developer's obligations hereunder). Any transfer of any membership interests in Developer and any change which results in management or control of Developer being vested in any person or entity other than Jeffrey Berkowitz and/or Alan Potamkin and/or Robert Potamkin shall constitute a violation of this Agreement and shall constitute an Event of Default by Developer. There shall be no assignment by City hereunder, except to another duly constituted governmental entity. This Development Agreement shall not be binding on tenants of the Property who occupy same as tenant only. Section 22.9 Notice of Defaults. Notwithstanding anything to the contrary set forth in this Development Agreement, under no circumstances shall any party to this Development Agreement lose any right or benefit granted under this Agreement or suffer any harm as a result of the occurrence of any Default or default of such party as to which Default or default such party has not received notice thereof from the other party. Section 22.10, No Representations. City has made no representations herein as to the condition of the Development Site. Section 22.11 Nature of Obligations. It is expressly understood that this Development Agreement and obligations issued hereunder are solely company obligations, and that no personal liability will attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors, members, principals, elected or appointed officials (including, without limitation, the Mayor and City Commissioner of the City) or employees, as such, of City or Developer, or of any successor corporation, or any of them, under or by reason of the obligations, covenants or agreements contained in this Agreement,or implied therefrom, except for Guarantors' obligations under the Guaranty;that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer, director, members, principals, elected or appointed officials (including, without limitation, the Mayor and City Commissioner of the City) or employee, as such, or under or by reason of the obligations, covenants or agreements contained in this Agreement or implied therefrom are expressly waived and released as a condition of, and as a consideration for, the execution of this Agreement, except to the extent contained in a separate Guaranty or separate instrument. (59) MIAMI 699472.17 7198217084 5/20/05 2:13 PM Section 22.12 Non-liability of Officials and Employees. No member, official or employee of City shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by City or for any amount or obligation which may become due to Developer or successor under the terms of this Agreement; and, any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such Person, under or by reason of the obligations, covenants or agreements contained in this Development Agreement or implied therefrom are expressly waived and released as a condition of, and as a consideration for, the execution of this Development Agreement. Section 22.13 Partnership Disclaimer. Developer acknowledges, represents and confirms that it is an independent contractor in the performance of all activities, functions, duties and obligations pursuant to this Development Agreement. The parties hereby acknowledge that it is not their intention to create between themselves a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or agency relationship for the purpose of developing the Project, or for any other purpose whatsoever. Accordingly, notwithstanding any expressions or provisions contained herein, nothing in this Agreement, the Declaration or the other documents executed by the Parties with respect to the Project shall be construed or deemed to create, or to express an intent to create, a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or agency relationship of any kind or nature whatsoever between the parties hereto. The provisions of this Section 23.13 shall ;survive expiration of this Development Agreement. Section 22.14 Time Periods. Any time periods in this Agreement of less than five (5) days shall be deemed to be computed based on Business Days (regardless of whether any such time period is already designated as being computed based on Business Days). In addition, any time period which shall end on a day other than a Business Day shall be deemed to extend to the next Business Day. Section 22.15 No Third Party Rights. Nothing in this Development Agreement, express or implied, shall confer upon any Person, other than the parties hereto and their respective successors and assigns, any rights or remedies under or by reason of this Agreement; provided, however, that a Recognized Mortgagee shall be third party beneficiaries hereunder to the extent same are specifically granted rights in Section 10.1 hereof or elsewhere in this Agreement. Further, the successor and assigns of Developer shall be third party beneficiaries hereunder as provided in Section 23.18. Section 22.16 No Conflict. Developer represents and warrants that, to the best of its actual knowledge, no member, official or employee of the City has any direct or indirect financial interest in this Development Agreement nor has participated in any decision relating to this Development Agreement that is MIAMI 699472.17 7198217084 (60) 5/20/05 2:13 PM prohibited by law. Developer represents and warrants that, to the best of.its knowledge, no officer, agent, employee or representative of the City has received any payment or other consideration for the making of this Agreement, directly or indirectly, from Developer. Developer represents and warrants that it has not been paid or given, and will not pay or give, any third :person any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers, and attorneys. Developer acknowledges that City is relying upon .the foregoing representations and warranties in entering into this Agreement and would not enter into this Agreement absent the same. Section 22.17 Recording of Develouanent Agreement. Within 14 days after the Effective Date, City shall record this Agreement with the clerk of the circuit court in and for Miami-Dade County,Florida. The cost of recording shall be borne equally by Developer and City. A copy of the recorded Development Agreement shall be submitted by the City to the state land planning agency within 14 days after this Development Agreement is recorded. This Development Agreement shall not be effective until it is properly recorded in the public records of said county and until 30 days after having been received by the state land planning agency pursuant to this Section. The burdens of this Development Agreement shall be binding upon, and the benefits of this Development Agreement shall inure to, all successors in interest to the Parties. Upon termination of this Agreement for any reason, either Party will/, within 10 days of written request by the other, deliver to the other a written confirmation of termination in recordable form,which may in the case of the City be executed by the City Manager and shall conclusively establish of record the fact of termination, and this provision shall survive termination. Section 22.18 Duration of This Development Agreement. (a) This Development Agreement shall terminate (but subject, however, to the continuation of those provisions hereof which expressly survive termination) upon Substantial Completion of the Project, conveyance of the City Spaces and Transit Elements to City, dedication of the Transit Facility Dedication Area to the City and payment by City to Developer of all amounts required to be paid by City to Developer hereunder; provided, however, that the duration of this Development Agreement may be extended by mutual agreement of the City and Developer. Any payment required to be paid by either party that is not paid when due shall bear interest at ten percent (10%) per annum from the date due until paid. If this Development Agreement is terminated for any reason at any time prior to Commencement of Construction, in addition to any other obligations that survive termination that are specified in this Development Agreement, Developer shall repay to City any portion of the City's Transit Facility Contribution which has then been disbursed b it y City, excluding the portion allocated to the Transit Facility Dedication Area (and the Transit Facility Dedication Area Finishes) if it has been conveyed to City(and such property shall remain City's property),together with interest thereon at the lesser of(A) the average yield on an annualized basis generated by investments actually made by the City in accordance with the City's Investment Policy and Procedure (designed to assure the preservation of principal, a copy of which has been furnished to Developer) during the like period of time or (B) simple interest at the rate of 4%per annum, in each case from the date of disbursement until the date repaid. If termination occurs as a result of an Event of Default by (61) MIAMI 699472.17 7198217084 5/20/05 2:13 PM either party, the.party not in default shall also have such remedies as are available at law or in equity or as specified herein. (b) During the term of this Development Agreement, the City's laws and policies governing the development of land in effect as of the date hereof shall govern development of the Land. The City may apply subsequently adopted laws and policies to the Project only if the City has held a public hearing pursuant to Section 1633225,Florida Statutes, and determined: (i) they are not in conflict with the laws and policies governing this Development Agreement and do not prevent development of the land .uses, intensities, or densities in this Development Agreement; or (ii) they are essential to the public health, safety, or welfare, and expressly state that they.shall apply to a development that is subject to a development agreement;or (iii) they are specifically anticipated and provided for in this Development Agreement; or (iv) the City demonstrates that substantial changes have occurred in pertinent conditions existing at the time of approval of Development Agreement; or (v) this Development Agreement is based on substantially inaccurate information supplied by Developer. Section 22.19 Survival. Upon expiration or termination of this Development Agreement for any reason, the following provision shall nevertheless survive and remain in full force and effect (in addition to any other terms or provisions which specifically state that they shall survive,which shall survive without being specifically recited in this Article): the provisions of Sections 2.8(b)(v) and (vi), Section 5.3 as provided therein, Sections 17.2; 17.3,17.4 and 17.7 to the extent applicable to matters that survive termination, Section 18.1 and Article 222 of this Agreement, excluding Section 22.18(b). Anything in this Agreement to the contrary notwithstanding, the provisions that survive termination after Substantial Completion shall inure to the benefit of the Developer's successors and assigns, whether or not they are permitted assignees under this Agreement. Further, upon expiration or termination of this Development Agreement for any reason prior to the conveyance of the Transit Facility Dedication Area, the City shall be deemed to have irrevocably,elected to have exercised its option to acquire the Transit Facility Dedication Area, and to pay for same and the Transit Facility Dedication Area Finishes, as contemplated by the Vacation Agreement and Vacation Resolution, which Vacation Resolution and Vacation Agreement shall survive termination of this Agreement and the Parties shall be bound thereby. This provision shall survive termination or expiration of this Agreement. Section 22.20 Imact Fee Paynaent for Additional Parking. If, at any time from one year following the issuance of the initial certificate of occupancy for the Improvements through 5 years thereafter, Developer requires additional parking spaces to satisfy governmental code requirements due to a change in use of the Project to a more parking (62) MIAMI 699472.17 7198217084 5/20/05 2:13 PM intensive use(for example, conversion of retail space to restaurant use),Developer shall have the right to satisfy such need for additional parking spaces by payment of an impact fee equal to a flat $15,000.for each additional space needed(or the equivalent monthly payment, as provided by current City Code). Thereafter, the Parties shall negotiate in good faith to attempt to arrive at a mutually satisfactory solution to Developer's parking shortage, failing which Developer (or its designee) may unilaterally repurchase the number of City Non-Supermarket Spaces needed to resolve Developer's parking shortage by notice to City of Developer's, election to do so. If Developer so elects, such reconveyance/conveyance by the City to Developer or its designee shall be made in exchange for a payment by Developer to City of the full per parking space amount of the City's Transit Facility Contribution, together with simple interest thereon at the rate of 4% per annum from the date of last disbursement until the date paid. City shall, within such reasonable_time frame as Developer shall require in order to enable Developer to put together its funding for the payment to be made by it, re-convey the applicable City Spaces to Developer or its designee free and clear of all liens and otherwise subject only to the matters affecting those spaces at the time of Developer's conveyance of those spaces to City and any matters created by, joined in, rendered against or requested by Developer. Upon such re- conveyance/conveyance, City and Developer shall adjust all revenues and expenses collected or incurred under this Declaration as of the date of the re-conveyance/conveyance, and the fraction utilized for allocated the prorata share of revenues and expenses of the operations of the Garage shall be appropriately adjusted. The payment to be made by Developer to the City under this paragraph shall be paid in cash at the time of the reconveyance/conveyance, and Developer shall be liable for.payment of any transfer taxes (documentary stamps, surtax or otherwise) that may be payable on said transfer, if any are payable. The provisions of this Section 22.20 shall survive termination of this Agreement. ARTICLE 23 CITY'S RIGHT OF FIRST OFFER Simultaneously herewith, Developer grants to City a Right of First Offer in the form of Exhibit "L". Said right of first offer shall survive termination of this Development Agreement under the first sentence of Section 22.18(a)but not otherwise. i IN WITNESS WHEREOF, City and Developer intending to be legally bound,have (63) MIAMI 699472.17 7198217084 5/20/05 2:13 PM executed this Development Agreement as of the day and year first above written. WITNESSES: CI O BEACH, FLORIDA, a m 'cip o tion of the State of Florida By: Pri ame S1¢ /Ai�2 avi Dermer,Mayor Print Name ATTES /1- 11W &d4 -. :- By: Prir&rNarne R@ - Print Name STATE OF FLORIDA ) �, COUNTY OF MIAMI-DADS sjow - The foregoing instrument was acknowledged before me this day of 20 by David Dermer, as Mayor, and Robert Parcher, as City Clerk of the CITY M BE CH, FLORIDA, a municipal corporation of the State of Florida, on behalf of such municipal corporation. They are personally known to me or produced valid Flo da driver's licenses as identification. KERRY HERNANDQ MY COMMISSION#DD 175491 N tart' C EXPIRES:May 3,2007 fill Bonded Thru Notary Public Underwriters Type,Print or Stamp Name My Commission Expires: Signatures and acknowledgements appear on next two pages] APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION A kl -0, W.�-- 4- ' - MIAMI 699472.17 7198217084 5/20/05 2:13 PM WITNESSES: AR&J SORE, LLC, a Florida limited liability company, by Berkowitz Limited Partnership, its m ger, by Berkowitz, LLC, its general p r By: Print ame kgmow IL BRUM Jeffre er witz,Manager P t Name Print Name CORPORATE EAL � S ] Print Name STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADS ) The foregoing instrument was acknowledged before me this day of TV20 , by Jeffrey L. Berkowitz, as Manager of Berkowitz, LLC, a Delaware limliability co pang, as general partner of Berkowitz Limited Partnership, a Delaware limited partnership, as manager of AR&J SOBE, LLC, a Florida corporation, a Florida limited liability company, in the capacity aforestated. He is personally known to me or produced a valid.Florida driver's license as identification. * • eC No Public Type,Print or Stamp Name My Commission Expires: MIAMI 699472-17 7199217084 (65) 5/20/05 2:13 PM EXHIBIT A LEGAL DESCRIPTION OF LAND Developer's Parcel: Lot 1 through 16 in Block 104, of OCEAN BEACH FLORIDA, ADDITION NO. 3, according.to the plat thereof as recorded in Plat Book 2, Page 81, of the Public Records of Miami - Dade County, Florida less the South 10 feet of the East 50 feet of Lot 8 and less the South 10 feet of the West 50 feet of the East 100 feet of Lot 8 and less the South 10 feet of Lot 9 in Block 104 of Ocean Beach. Alley: That certain 20 foot wide alley, bounded on the east by the west boundary of Lots 1 through 8, Block 104, Ocean Beach Florida Addition No. 3 according to the plat thereof as recorded in Plat Book 2, Page 81 of the Public Records of Miami-Dade County, Florida; bounded on the west by the east line of Lots 9 through 16, of said Block 104; bounded on the north by the north line of Lot 1 of said Block 104 projected westerly; and bounded on the south by the north line of the south 10 feet of Lot .8 of said Block 104 projected westerly (66) MIAMI 699472.17 7198217084 5/20/05 2:13 PM I --► 15 HIS t< a i o o s- No I t 1 I aY '"' ISO E—fi.:—kill z �s -,;..------- -- -- �- Ilk —Dt OWN. -y z X Z j O X aw wwa i 0 0 o - x - dMW -� ------ —~-- — 1S Hl9 "i---..---------------- NJ cr T is ,��■ (D 0 tT >c 10 200 ��. EXHIBIT C CITY'S TRANSIT FACILITY CONTRIBUTION (Payment Schedule per Section 6.2.1 (vi)) In respect of each construction draw in respect of the City Spaces for Hard Costs, City shall pay Hard Costs reflected in said construction draw (after a holdback as determined by Developer's construction lender for Hard Costs only)multiplied by a fraction, the numerator and denominator of which are as set forth below. The numerator shall be the City's Transit Facility Contribution allocated for other than the Transit Facility Dedication Area, the Transit Facility Dedication Area Finishes and the City Elevator, and the denominator of which shall be the total amount of-Hard Costs available for disbursement under Developer's construction loan plus the City's Transit Facility Contribution allocated for other than the Transit Facility Dedication Area, the Transit Facility Dedication Area Finishes and the City Elevator. As to the City Elevator, City shall fund 100% of the Hard Costs and Soft Costs reflected in each construction draw (after a holdback as determined by Developer's construction lender for Hard Costs only). As to the Transit Facility Dedication Area Finishes, City shall fund 100%of the Hard Costs and Soft Costs reflected in each construction draw (after a holdback as determined by Developer's construction lender for Hard Costs only). City's obligation to fund shall be conditioned upon(a) Developer's construction lender's simultaneously funding of the entire balance of the.construction draw that City is funding and (b) the loan remaining "in balance" (as hereinafter provided), as determined by Developer's construction lender. Simultaneously with the submission of a draw request, and supporting documentation (including whatever evidence the construction lender requires to evidence that the loan remains "in balance"--i.e. the undisbursed portion of the City's Transit Facility Contribution together with the undisbursed balance of the construction loan equals or exceeds the total amount required to achieve Substantial Completion of the Project), to Developer's construction lender, said materials shall be submitted to City. City shall approve or disapprove with detailed explanation such materials within 10 days of receipt; provided, however, that approval by Developer's construction lender (including a determination that the loan is "in balance")( g b lance ) shall automatically be deemed approval by City (even if it previously disapproved). Upon approval of such materials by Developer's construction lender and upon satisfaction of such disbursement requirements as are required by the title insurance company to enable the issuance of title endorsements.without exceptions for mechanics' liens, City shall fund its portion of City's Transit Facility Contribution that is allocable to other than the Transit Facility Dedication Area simultaneously with the funding by Developer's construction lender of its contribution so that, in the aggregate, the full amount of the draw request is funded. Developer shall promptly respond to any reasonable requests of City for additional information, and respond to reasonable requests of City,pertaining to draw requests. Any holdback for Hard Costs shall be funded by the City at the same time that Developer's construction lender funds same. Upon Substantial Completion, City shall promptly 68 MIAMI 699472.17 7198217084 5/20/05 2:13 PM i fund any remaining balance of City's Transit Facility Contribution that has not been funded as of that date (regardless of whether or not-the construction lender does so). The holdback amount shall be a minimum of 5%, to be disbursed no sooner than the time the portion of the work to which the holdback applies is substantially completed. Anything in this Development Agreement to the contrary notwithstanding, the City shall fund the.Transit Facility Dedication Area Finishes if the Transit Facility-Dedication Area has been conveyed to the City and Developer has caused any of the Transit Facility Dedication Area Finishes for which Developer is seeking payment to be installed, even if this Agreement is terminated and even if City is entitled to reimbursement of other portions of City's Transit Facility Contribution, and this provision shall survive termination. The reason for the foregoing is that, once the Transit Facility Dedication Area is conveyed to the City, the City will benefit from the Transit Facility Dedication Area Finishes, regardless of whether or not this Agreement is subsequently terminated 69 MIAMI 699472.17 7198217084 5/20/05 2:13 PM i EXHIBIT D CONSTRUCTION GUARANTY This Construction Guaranty is entered into as of the day of , 200_by Alan Potamkin, Robert Potamkin and Jeffrey Berkowitz (collectively, "Guarantors") in favor of the City Of Miami Beach("City"). 1. The Guarantors,jointly and severally, shall upon City's request fully and timely perform or cause to be performed any Obligations of AR&J Sobe, LLC ("Developer")which for any reason whatsoever are not performed by Developer as and when required of Developer under the Development Agreement between Developer and City dated , 2005 for the 5th and Alton Project (the "Development Agreement"). Within twenty (20) days after City's request therefor, the Guarantors shall commence any remaining construction of the Project and shall thereafter pursue I such construction in accordance with the Plans and Specifications and the Development Agreement to completion. "Obligations" means the obligation of Developer (a) to construct the Improvements in accordance with the Plans and Specifications, the Requirements and the Development Agreement, (b) to furnish or cause to be furnished all labor and materials necessary to complete the Project in accordance with the Plans and Specifications and to pay and discharge any and all costs and expenses thereof as the same may become due and payable,(c)to complete the Project in a good and workmanlike manner on or before the Completion Deadline .set forth in the Development Agreement free and clear of any mechanic's liens or claims of lien, (d) to provide such additional funds for the Project from sources other than the City as may be necessary in order to complete the Project in accordance with the Plans and Specifications, the Requirements and the Development Agreement. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Development Agreement. 2. After City's request for performance hereunder,the Guarantors shall be entitled to requisition and draw undisbursed funds remaining in the City's Transit Facility Contribution or that are otherwise payable by the City pursuant to the terms of the Development Agreement for the purpose of completing the Project, provided that such funds shall not be disbursed until Substantial Completion of the Project, and City may offset any funds that it is owned pursuant to this Guaranty from the amounts otherwise payable by the City on account of the City's Transit Facility Contribution. Guarantors shall be entitled to use insurance or condemnation proceeds for the restoration and repair of the Project. 3. If the Guarantors shall fail to perform or cause the performance of the Obligations upon City's request as and when required under this Guaranty, then: (a) City shall have the right (but not the obligation) in its sole discretion to complete the Project itself or through its agents or third parties (provided, however, that this right shall not be exercised so long as .Developer's construction lender is proceeding in good faith to do so, it being the intent of Guarantors and the City that the City will do nothing to interfere with the Developer's construction lender's attempts to complete construction); and (b) the Guarantors shall promptly pay to City on demand a sum equal to the costs of performing the Obligations by others reasonably acceptable to City in excess of the undisbursed City's Transit Facility Contribution and other amounts payable by the City under the Development Agreement remaining at the time of City's request for performance 70 MIAMI 699472.17 7198217084 5/20/05 2:13 PM hereunder (Guarantor's funds shall be paid first, up to the full amount they are obligated to pay under this paragraph, and City shall promptly refund to Guarantors any excess funding by Guarantors, if any, once construction is completed, together with interest at the same rate as City is receiving on funds owed to it by Guarantors hereunder), together with interest on such demanded sum at the rate of 10% per annum, .simple interest, commencing on the date of demand and continuing until paid, except that after judgment all such sums shall bear interest at the higher of 10% per annum or the rate prescribed by applicable law for judgments. All such payment obligations of the Guarantors shall be promptly paid by the Guarantors in lawful currency of the United States of America and in immediately available funds. All such payments shall be made without set-off, deduction or withholding for any reason whatsoever and shall be final and free from any claim or counterclaim of any Guarantor. 4. For purposes of this Guaranty, the Project shall not be considered "complete" until: (a) the construction of the Project (including all "punchlist" items) shall have been completed in accordance with the Plans and the Development Agreement and in compliance with all applicable laws, orders, rules, regulations and other requirements of any governmental authorities having jurisdiction over the Project; (b) all necessary certificates of occupancy, inspections and approvals for the 'Project shall have been issued by said governmental authorities; (c) an architect or engineer reasonably approved by City shall have certified to City in writing that the foregoing events (a) and (b) have occurred; and (d) the Property shall be free and clear of all liens or claims of lien for labor or materials or services furnished in connection .with the construction or installation or equipping of the Project. 5. The Guarantors jointly and severally agree to pay City interest on any sum for which the Guarantors may be or become liable to City hereunder, from and after the date such sum first becomes payable:from the Guarantors to City, until paid, at the simple interest rate of 10% per annum. The Guarantors jointly and severally agree to pay any reasonable expenses incurred by City in the collection or enforcement of this Guaranty, including costs and reasonable attorney's fees(including those incurred for appellate or administrative or bankruptcy proceedings) in the event that City shall be obliged to resort to the courts or require the services of an attorney to collect under this Guaranty. 6. The Guarantors consent and agree that Developer may alter, extend, change or modify the Plans and Specifications or any terms or conditions contained- in any contract or subcontract or surety bond related to the Project, or may approve any change order, or may release or waive or compromise-the obligations of any such contractor or subcontractor or surety, and that no such.action by Developer shall in any manner affect this Guaranty or release the obligations of any Guarantor hereunder, regardless of whether any Guarantor has received notice of the same or has further consented thereto and regardless of whether. City has approved the action of Developer in question, and the Guarantors hereby severally waive and relinquish any claim or defense against City based on any of the foregoing. 7. The Guarantors hereby jointly and severally waive any and all defenses to any action or proceeding brought to enforce this Guaranty or any part of this Guaranty, except the single defense that the Obligation in question has actually been performed. Without limiting the 71 MIAMI 699472.17 7198217084 5/20/05 2:13 PM foregoing in any way, but merely by way of illustration, each Guarantor hereby specifically waives any defense predicated upon: (a) Incapacity, disability or-lack of authority on the part of Developer or any other person; or (b) Any change or modification in the Plans and Specifications, the Project budget or other cost breakdowns, any disbursement or construction schedules, or any construction contract or subcontract or surety bond related to the Project; or (c). Any change or modification or extension or waiver of any term of the Development Agreement or any document executed by Developer or any Guarantor with respect to the Project; or any indulgence or forbearance or delay on the part of City in the enforcement of any term of the Development Agreement or any such document, or any other or further dealings or agreements between City and Developer or between City and any other Guarantor or guarantors or sureties for all or any part of the Obligations; or (d) The fact that there may now or hereafter be other guarantors or sureties liable for all or any part of the Obligations, or that solvent persons other than Developer or the Guarantors may have undertaken the performance of all or any part of the Obligations, whether in connection with any surety bonds or any transfer of the Property or otherwise;or (e) The full or partial release or discharge of Developer or any other present or future Guarantor or guarantors or sureties for all or any part of the Obligations; or (f) Any other act or omission by City or failure by City to proceed promptly, or any other matter which might, but for this waiver by the Guarantors, be deemed a legal or equitable release or discharge of a .surety or guarantor, regardless of whether such act or omission or failure or other matter varies or increases the risk of any Guarantor or affects the rights or remedies of any Guarantor. 8. City shall not be required to notify any Guarantor of(a) City's acceptance of this Guaranty, (b) any disbursements of funds before the Guarantors begin performance hereunder, (c) any change in the Plans and Specifications or any contract or subcontract or surety bond, (d) any modification.of the Development Agreement or any other document executed by Developer or any other Guarantor in connection with the Development Agreement, nor (d) any default by Developer under the Development Agreement or by any other Guarantor under this Guaranty or by any other guarantors or sureties for all or any part of the Obligations. The Guarantors hereby jointly and severally waive presentment for payment, protest, notice of protest or dishonor, notice of default,. and (except for City's initial request for performance by the Guarantors as specifically provided herein) any other notice or demand whatsoever before City commences to enforce its rights under this Guaranty, whether by judicial proceedings or in any other manner. City shall have no obligation whatsoever to disclose to any Guarantor any information City may now possess or hereafter obtain about Developer,.regardless of whether (i) City has reason to believe that such information materially increases the risk of any Guarantor beyond that which such Guarantor intends to assume hereunder, or (ii) City has reason to believe that such 72 MIAMI 699472.17 7198217084 5/20/05 2:13 PM r information is unknown to any Guarantor, or (iii) City has a reasonable opportunity to communicate such information to any Guarantor; the Guarantors understand and agree that the Guarantors are fully responsible for being and keeping informed of the financial condition of Developer and of all circumstances bearing on the risk of failure to complete the Project. 9. The liability assumed under this Guaranty shall not be affected by City's acceptance of any settlement or composition offered by Developer or decreed with respect to Developer by any court, either in liquidation, readjustment, receivership, bankruptcy or otherwise, except only to the extent that such settlement has resulted in actual performance of the Obligations, and then only to the extent of such performance. This Guaranty shall continue and remain in full force and.effect in the event that all or part of any payment made by Developer in connection with the completion of the Project is recovered from City as a preference, fraudulent transfer or similar voidable payment under any bankruptcy or insolvency law. 10. The obligations of the Guarantors under this Guaranty are direct, unconditional and completely independent of the obligations of Developer. City may exercise any of its rights under this Guaranty, including without limitation bringing and prosecuting any action against the Guarantors jointly or severally or individually, without any requirement that City join Developer as a party to the action, or notify or make demand upon or proceed against or exhaust any other remedy against Developer, any other guarantor or surety for the Obligations, or any other person who might have become liable for the Obligations. 11. All rights, remedies and powers granted to City by applicable law or in this Guaranty or the Development Agreement or any other document executed by Developer in connection with the Development Agreement shall be separate and cumulative and may be exercised singly or concurrently on one or more occasions. No delay in exercising or failure to exercise any of City's rights or remedies shall constitute a waiver thereof,nor shall any single or partial exercise of any right or remedy by City preclude any other or further exercise of that or any other right or remedy. No waiver of any right or remedy by City shall be effective unless made in writing and signed by City, nor shall any waiver on one occasion apply to any future occasion,but shall be effective only with respect to the specific occasion addressed in that signed writing. 12. While this Guaranty remains in effect, no payment or performance under this Guaranty shall in any way or at any time entitle any Guarantor to any right, claim or cause of action against Developer, or to any right, title or interest in or to the Development Agreement or any rights of City, and each Guarantor hereby waives, for the benefit of City and Developer, any and all such rights (whether arising by way of subrogation, exoneration, reimbursement, participation,.assignment,judicial decision, statute, constitutional provision, or otherwise)which such Guarantor might otherwise have had in the absence of this waiver and which would have otherwise entitled such Guarantor to be a "creditor" of Developer.under the provisions of the U.S. Bankruptcy Code(Title 11, U.S. Code)or any other bankruptcy or insolvency law. 13. This instrument is a continuing, binding, absolute and unconditional guaranty of completion.which shall remain in full force and effect until the first of the following events shall have occurred: (a) the construction and installation and equipping of the Project shall have been 73 MIAMI 699472.17 7198217084. 5/20/05 2:13 PM completed in accordance with the Plans and Specifications and all other Obligations have been fully performed or (b) this Guaranty shall have been terminated by written agreement between City and the Guarantors or (c) the Development Agreement shall have terminated by its terms. Promptly upon request by the Guarantors, or any of them, after the first of the foregoing events has occurred, City will confirm in writing that this Guaranty has terminated and is of no further force or effect.- 14. The agreements by the Guarantors contained in this Guaranty shall bind the Guarantors and their respective heirs, personal representatives, successors and assigns, jointly and severally. 15. City may not assign this Guaranty in whole or in part to anyone, other than a successor governmental entity(to whom the rights and benefits hereof shall inure). 16. Time shall be of the essence with respect to all of the provisions of this Guaranty. 17. Any provision of this Guaranty which is prohibited or unenforceable in any jurisdiction shall,. as to such jurisdiction only, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. 18. Whenever used in this Guaranty and unless the context otherwise requires, words in the singular include the plural, words in the plural include the singular, and pronouns of any gender include the other genders. All references in this Guaranty to numbered paragraphs refer to the paragraphs of this Guaranty, unless such reference specifically identifies another document. All references in this Guaranty to sums expressed in dollars refer to the lawful currency of the United States of America, unless such reference specifically identifies another currency. 19. This Guaranty is executed under seal and is governed by, and shall be construed and enforced in accordance with, the laws of the State of Florida, except that federal law shall govern to the extent that it may permit City to charge interest from time to time at a rate greater than may be permissible under Florida law. Nothing contained in this Guaranty shall be construed as obligating any Guarantor in any way to be responsible for interest in excess of that which would be lawful for such Guaran tor to pay under the circumstances. 20. The- Guarantors and City hereby severally, voluntarily, knowingly and intentionally WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY in any legal action or proceeding arising under or in connection with this Guaranty, and in any legal action or proceeding concerning the Obligations,regardless of whether such action or proceeding concerns any contractual or tortious or other claim. Each Guarantor acknowledges that this waiver of jury trial is a material inducement to City, that City would not have entered into the Development Agreement'without this jury trial waiver, and that such Guarantor has been represented by an attorney or has had an opportunity to consult with an attorney regarding this Guaranty and understands the legal effect of this jury trial waiver.. 74 MIAMI 699472.17-7198217084 5/20/05 2:13 PM 21. The Guarantors hereby submit to the jurisdiction of the state and federal courts in the State of Florida for purposes of any action arising from.or growing out of this Guaranty, and further agree that-the venue of any such action shall exclusively be laid in Miami-Dade County, Florida. Executed on the day and date first above written. ALAN POTAMKIN ROBERT POTAM[KIN JEFFREY L. BERKOWITZ 75 MIAMI 699472.17 719.8217084 5/20/05 2:13 PM EXHIBIT E MATERIAL PROVISIONS OF DECLARATION 1. General. The condominium will be structured so that, in addition to the units comprising the actual City Spaces (which shall be broken out into the City Supermarket Spaces and the City Non- Supermarket Spaces) , the Developer Spaces, the City Elevator and the Retail Space, the "common areas" (including an equitable allocation of the Land) comprising the Garage will be a Unit (the "City Unit") to be owned by the City but installed, operated, maintained, insured, repaired and .replaced (when necessary) by the Developer (subject to the payments provided for herein) , and the "common areas" (including an equitable allocation of the Land) not comprising. the City Unit will be a unit (the "Developer Unit") to be owned by the Developer. The term "Garage", as herein used, shall be the portion of the Improvements (including the City Spaces and the Developer Spaces) other than the Retail Space (i.e. the "Transit Facility") . It will include customary easements, including easements for access to parking spaces and the City Elevator by members of the public (subject to the limitations set forth elsewhere) and easements for support and for, encroachments. It is the intention of the Parties' that the City and Developer reasonably cooperate with each other to implement a parking operation that promotes maximum use of the facility as a transit accessible facility that addresses the City's objective and desire to provide a parking alternative that links to other modes of transportation at a key entrance point of the City (and is mindful of the City's FTA funding source requirements, if applicable) while, at the same time, assuring sufficient and .orderly parking for the Retail Space occupants, and the Parties shall reasonably consider implementing any alternatives suggested by each other to effect this intent. 2. Limitations on Use of Property a. Rules . Reasonable nondiscriminatory and consistently enforced rules and regulations may be established by the Developer or, as to the Garage only, the City with prior input from and written approval of the Developer (which approval will not be unreasonably withheld, delayed or conditioned) , related to the use of the Garage and/or. other areas located on the Property. Without limiting the generality of the foregoing, nothing shall preclude Developer from installing devices (such as locks or computer entry cards) that will prohibit or limit access into the Retail Space or areas of the Garage that are wholly under its control (such as electric closets or janitor rooms, but not the Developer . Spaces) from stairwells, elevators and other areas with respect to which access 76 MIAMI 699472.17 7198217084 5/20/05 2:13 PM rights exist for the benefit of the City. Further, nothing shall preclude a reasonable number of Developer Spaces (but not City Spaces) from being designated by Developer for short term parking (but only during Retail Hours, as hereinafter defined) , nothing shall preclude a reasonable number of Developer Spaces and/or City Supermarket Spaces (but not City Non-Supermarket Spaces) from being designated by Developer for use by the customers of the . supermarket occupant only (but only during the hours that the supermarket occupant is open for business) and nothing shall preclude a reasonable number of Developer Spaces (but not City Spaces) from being designated by Developer for use by the customers of Developer designated occupants of portions of the Retail Space only (but only during Retail Hours) . During those hours that all of the Retail Space is closed for business, it is anticipated that substantially all of the Garage will be available for public parking purposes, subject nonetheless to the provisions contained. herein for employee decal parking and the setting aside of specific locations therefor, if applicable. b. Conduct of Work. All work performed in the Garage shall be performed in a prompt, good, workmanlike, first class, lien-free manner, and in a manner which minimizes disruption of or interference with the operation of all portions of the Property. Once commenced, such work shall be performed continuously and with due diligence and, promptly upon completion thereof, the area in which the work was performed, and any other areas affected thereby, shall be restored to at least the condition that they were in prior to the performance of such work. Developer will be responsible for maintenance, repair and replacement of all portions of the Property; it is not contemplated that the City will be performing any maintenance, repair or replacement work in respect of the Property, and the City shall perform no such work in respect of the Property without first consulting with and obtaining the prior written approval of Developer (which Developer may withhold in its absolute and sole discretion if Developer elects to perform such work itself but otherwise Developer will not unreasonably withhold, delay or condition approval) . Any construction .activity by the City within any portion of the Property shall require at least 48 hours written notice to . Developer, except in the case of an emergency when only such notice as is reasonable under the circumstances shall be required. Any construction activity in the Garage shall be performed in a manner that minimizes inconvenience to and disruption of the operation of the Garage and the availability of parking spaces. C. Plans Availability. Each Party shall retain all plans and specifications for any work performed by it, and shall make same available to the other Party from time to time upon reasonable request therefor (and the other Party may duplicate any such materials, at. its cost) . The foregoing is agreed to in recognition of the fact that .such materials may facilitate the maintenance, repair and replacement of facilities within the Property. Each Party 77 MIAMI 699472.17 7198217084 5/20/05 2:13 PM disclaims any representation or warranty as to the accuracy of any such materials. d. Compliance with Legal Requirements. Developer is responsible for maintaining, repairing and replacing all components of the Property, and Developer agrees that it will at all times while this Declaration is in effect promptly and fully comply with all Legal Requirements that pertain to the Property, whether or not any such Legal Requirements shall necessitate structural changes or improvements* to or interfere with the use and enjoyment of the Property; provided, however, that the City shall comply with all Legal Requirements that pertain to the operation of the Garage, for which it is responsible, as well as with all Legal Requirements pertaining to work that it performs or activities in which it engages in respect of the Property "Legal Requirements" shall mean (i) all present and future laws, ordinances, orders, rules, regulations and requirements of all federal, state, county and municipal governments, departments, commissions, boards and courts, and rules and regulations of any insurance rating organization or any other body exercising similar functions, foreseen or unforeseen, ordinary as well as extraordinary, which may be applicable to the Property or the sidewalks and curbs adjoining the..Property or to the use or manner of use of the Property by the owners, tenants, or occupants thereof, including the Americans with Disabilities. Act; and (ii) the requirements of all public liability, fire and other policies of insurance at any time in force with respect to the Property; and (iii)_ the provisions of any restrictive covenants now or hereafter affecting the Property. Each Party further agrees to cooperate with all reasonable requests of the other in respect of resolving issues pertaining to compliance with Legal Requirements. Either Party shall have the right to contest any Legal Requirements, or their applicability, through all available lawful means, and may defer compliance with any Legal Requirement while it is so contesting same in good faith and diligently, so long as the contesting 'Party takes all steps reasonably required to stay any enforcement action or otherwise prevent material adverse impact to the other Party or the Property. e. Cooperation. All easements granted in this Declaration, and the use thereof, shall be deemed to be limited to the extent reasonably necessary to accomplish the purposes for which such easements are granted. Each Party agrees to cooperate with the reasonable requests of the other in furtherance of the spirit and intent of the matters addressed in this Declaration. I 3. Initial Construction/Renovations/Use. a. Changes by Developer. Subject to the provisions contained in this Declaration, after the. Initial Construction has been completed, Developer shall have the right at any time and from time to MIAMI 699472.17 7198217084 78 5/20/05 2:13 PM time, without the need for obtaining consent or approval from the City or anyone else, to change, rearrange, alter, modify, build upon or otherwise reduce the easement areas created by this Declaration and located on its portion of the Property, so long as the City's (and its licensee's and invitee's) easements and use rights to the City Spaces and City Elevator are not materially adversely affected. In the event any of same are accomplished with respect to the easement areas located on its portion of the Property, same shall automatically release the easement area which is so changed, rearranged, altered, modified, built upon or otherwise reduced, from this Declaration. In addition to the foregoing, Developer specifically shall have the right, without the need for obtaining consent or approval from the City or anyone else, to replace, alter or add to any existing buildings or structures located on its portion of the Property or to build any new buildings or structures on its portion of the Property as it may from time to time desire, regardless of whether or not the additions or replacements are constructed wholly or partly upon the easement areas created by this Declaration, subject to compliance with the provisions contained herein and provided that no change in the character of the Property as a retail/restaurant/office project shall be effected without the City's approval, which will not be unreasonably withheld, delayed or conditioned. If the foregoing requires relocation of any then existing utility or drainage facilities, or other components for which easements have been granted by this Declaration, Developer shall be responsible, at its cost, for relocating such utility or drainage facilities, or other components for which easements have been granted in this Declaration, and same shall be accomplished in a manner that minimizes disruption of (and, to the extent reasonably possible, avoids interruption of) service and accessibility for maintenance and in a manner so as to minimize inconvenience. to and disruption of the owners and occupants of the remaining portions of the Property and the operation and availability of parking spaces in the Garage. Notwithstanding the foregoing, Developer shall not effect any of the foregoing if doing so would result in a material reduction in the number of parking spaces at the Property (any reduction shall not affect the City Spaces) or materially and adversely impact access to said parking spaces or ingress/egress to and from the Garage. b. Weight Loads. Neither Party shall permit the weight load from any portion of its Property to exceed the load-bearing capacity of the applicable portion of the structure located on the Property. c. Odors. Neither Party shall permit any offensive odors to exist on the Property; provided, however, that both Parties recognize that it is difficult to control odors within the loading and compactor/trash areas due to the nature of the use of those areas and, although reasonable steps to minimize odors from those areas will be taken, the provisions of this subparagraph shall be interpreted to give 79 MIAMI 699472.17 7198217084 5/20/05 2:13 PM due consideration to the difficulty in controlling odors in these areas. d. Use of Garage. The Garage shall be utilized solely for the parking of motor vehicles and incidental purposes (including shopping cart and other storage areas reasonably designated by Developer) . . Developer shall have the exclusive right to install vending, ATM, pay telephone and similar machines within the Garage (but shall only install them in portions of the Retail Space or Developer Unit unless City consents to their installation in portions of the City Unit, which consent will not be unreasonably withheld,. delayed or conditioned) , and all revenues derived therefrom shall belong solely to Developer and all costs associated therewith shall be Developer's sole responsibility (but this shall not require separate metering or submetering of the minimal utility service required therefor) . Both Parties shall take all steps reasonably possible to prevent soliciting in the Garage. e. Hazardous Materials. Each Party agrees that it will not generate, use, store or dispose of any hazardous materials or substances 'on any portion of the Property except in full compliance with all .Legal Requirements. Hazardous substances or materials for purposes of the foregoing shall mean any substances or materials that are from time to time designated as such.by, or whose generation, use, storage or disposal is regulated pursuant to, any Legal Requirements. If either Party receives any notice of the release of a hazardous material or substances affecting the Property, it shall promptly notify the other Party, and each Party shall cooperate with all reasonable requests of the other Party in respect of remediation, at no cost to the Party being requested to cooperate except to the extent such Party breached the provisions of the first sentence of this subparagraph (e) . f. Government Compliance. (i) The Parties acknowledge that the City (in its regulatory capacity and not as a Party to this Declaration) or other applicable governmental authorities may require the joinder by both Parties in applications for permits to perform work within the Property. Each Party desiring to perform work shall, if so required, submit any such applications to the other Party for review, approval and joinder, which will not be unreasonably withheld, delayed or conditioned, provided the work for which the permit is being sought is in accordance with the terms of this Declaration (including .compliance with all Legal Requirements, including approvals required by City in its regulatory capacity) . The Parties further acknowledge being aware that, in connection with permitting pertaining to any portion of the Property, the Party applying for such permit may have to submit plans for the entire Property and, if this is required by applicable 80 MIAMI 699472.17 7198217084 5/20/05 2:13 PM governmental authorities, each Party shall cooperate with the other, at no cost to the cooperating Party, in accomplishing this in a manner that minimizes delay in the application process. (ii) Each Party shall, within five (5) business days of receipt, furnish to the other Party a copy of any notices received from any governmental authority pertaining to any violation of Legal Requirements, compliance with respect to which is or may be the responsibility of the other Party. 4. Operation, Maintenance, Repair and Replacement. a. Generally. Subject to the limitations and reimbursement/contribution provisions contained elsewhere in this Declaration, City agrees to operate the Garage and Developer agrees to maintain, repair, insure and, when necessary, replace, all portions of the Property (including the Garage) , so that same are at all times in first class order, condition and repair, consistent with. similar first class facilities of -similar stature to that of the Property in the South Florida area. In any event, the standards for maintenance, repair and replacement of the Garage shall be no less than the standards maintained in municipal parking garages that are operated by the City elsewhere within Miami Beach. b. By Developer. The foregoing obligation of Developer to maintain, repair, insure, and, when necessary, replace the Property (including the Garage) , shall include, without limitation: (i) keeping all portions of the Property maintained in a clean, unlittered,' orderly, watertight and -sanitary condition; (ii) removing, to the extent practicable, surface waters; (iii) keeping all marking and directional signs, if any, on the Property clear, distinct and legible; (iv) maintaining, mowing, weeding, trimming and watering all landscaped areas; (v) maintaining and operating exterior and public area lighting at reasonable levels during hours of darkness; (vi) painting and otherwise maintaining the exterior surfaces of the buildings on the Property; (vii) providing such security as Developer reasonably deems appropriate; and (viii) generally maintaining the structure and building systems of the buildings on the Property. The City shall be responsible for initially purchasing and installing all systems, equipment and signage reasonably designated by it (but subject to Developer's approval of the systems; equipment and signage to be installed, and the costs thereof, not unreasonably withheld) in respect of the operation of the Garage (ex. access control devices, security cameras and monitors/recorders, money collection equipment, entry and exit signage)-, initially at its sole cost and without initial contribution by Developer (but subsequent maintenance, repair and replacement shall be an Operating Expense; and one half of the initial purchase and installation cost shall be amortized over ten years 81 MIAMI 699472.17 7:198217084 . 5/20/05 2:13 PM together with a finance charge computed by utilizing the 10-year T-bill rate in effect at the time the initial cost (or the material portion thereof) is incurred and Developer shall pay to City annually in arrears the amount so amortized) ; the purchase and installation, as well as the subsequent maintenance, repair, insuring, obligation to pay taxes on and replacement of such systems, equipment and signage, shall be coordinated with Developer, who may from time to time elect, in Developer' s sole discretion to maintain, repair, insure, pay taxes on or replace any of such systems, equipment and signage, with the costs thereof. (regardless of who performs same) being allocated as an "Operating Expense" of the Garage. C. By City. The foregoing obligation of the City to operate means that the City shall provide all personnel, systems and equipment (subject to the other provisions of this Declaration) reasonably required to control vehicular access to and from the Garage, collect compensation and implement a reasonably and mutually agreed upon parking validation system. The quantity and types of equipment and personnel shall be designated by the City, subject to reasonable prior approval by the Developer of budget and other matters pertaining thereto. Developer may at any time and for any reason in Developer's sole but reasonably exercised business judgment (i.e. if Developer presents .a reasonably objective request, the City shall not have the authority to second guess Developer) request personnel changes, which shall be promptly implemented by the City. Both Parties acknowledge being aware that, in order for the Garage to operate for its intended purpose and for the Retail Space to be successful, sufficient and orderly employee and customer parking will be required and, accordingly, the following limitations shall be applicable: (i) All parking in the Garage will, unless otherwise approved by Developer in its sole but reasonably exercised business judgment, be solely (A) validated parking for customers of the Retail Space (excluding restaurant patrons, who shall not be entitled to validation, but who shall be entitled to park at a timed ticket rate that is no more (unless Developer agrees to a higher rate in its sole discretion) or less than the rates charged by the City in its parking garages as established by the City Commission from time to time) , (B) decal/access card parking for employees of the Retail Space (including restaurant employees) , (C). decal/access card parking for transit users and other third parties, with transit users being given priority (the extent of which shall be initially determined within 120 days after the earlier of one year after Substantial Completion or ' when 90% of the square footage of the Retail Space is initially occupied for normal business operations (the earlier time frame shall be defined as "Full Occupancy") , and shall be adjusted at least quarterly with a view toward maximizing Garage revenues and general public transit and non- ' transit parking consistent with demonstrable Retail Space parking 82 MIAMI 699472.17 7198217084 5/20/05 2:13 PM demand; in this regard, the maximum number of decals/access cards to be allowed during Retail Hours, as hereinafter defined, shall be consistent with the City's policy for other City owned or operated garages unless Developer approves to the contrary in its sole discretion) , (D) special event permit parking for third parties (including special events organized by Developer of the occupants of the Retail Space, with which City shall reasonably cooperate to facilitate implementation) , or (E) timed ticket parking for restaurant patrons and the public, both transit and non-transit users (but during Retail Hours, as hereinafter defined, unless Developer approves, which Developer may do or refuse to do in its sole but reasonably exercised business judgment, the rate (except for restaurant patrons) shall be based on a sliding scale amount that discourages long term parking to the extent reasonably necessary to assure sufficient short term customer parking for the occupants of the Retail Space and their customers) . Anyone parking in the Garage that does not have a decal/access card (including a transit user decal/access card) , special event permit, is not validated by an occupant of the Retail Space (excluding restaurant patrons) , or. is so validated but parks longer than the designated validation period (two hours maximum) , will be subject to payment of a mutually and reasonably agreed upon sum (based on a schedule listing different circumstances and the agreed upon sum for each, if applicable, one of which circumstances will be hourly ticketed parking, which shall be charged based on a sliding scale as aforestated) that is intended to control parking in order to effectuate the mutual intent of the Parties as set forth in the last sentence of subsection 4 (c) (ii) below. Although it is intended by the Parties that hourly parking will be permitted if the parking requirements of the Retail Space are being met, the foregoing limitations on timed ticket parking during Retail Hours are included (and needed). to assure that there will at all times be reasonably sufficient and orderly parking for the Retail Space occupants and their customers, which the Parties mutually agree is essential to the success of the Retail Space and the public/transit Garage operation. All users of the Garage pursuant to subparagraph (C) above shall be advised in the parking contract which they• sign that use of the Garage may be restricted during special events (unless Developer reasonably approves of the omission of such provision) . City shall post notices and reasonably enforce such restrictions during such special events. (ii) Within 120 days after Full Occupancy, the Parties shall mutually, reasonably and in good faith, determine the number of non-employee decals/access cards (including transit decal/access cards) and special event parking passes to be outstanding for parking in the Garage at any given time (the "Public Passes") during "Retail Hours" (defined as hours when at least 100, 000 square feet of the Retail Space is open for business) . After the initial determination of the maximum number of Public Passes to be made available, the maximum number of 83 MIAMI 699472.17 7198217084 5/20/05 2:13 PM Public Passes to be made available will be reasonably and in good faith adjusted by agreement between the Parties based on actual usage patterns at least quarterly (with a view toward maximizing Garage revenues and public/transit parking consistent with demonstrable Retail Space parking demand; provided, however, the maximum number of decals/access cards to be allowed during Retail Hours shall be consistent with the City's policy for other City owned or operated garages unless Developer approves of a different number in its sole discretion) . .,Developer shall have a continuing and on-going priority right over anyone else to (A) reduce the number of Public Passes by up to 14 (the precise number to be based on the number of City Spaces that are jointly owned by City and Developer as tenants in common, each as to an undivided 50% interest, not to .exceed 14) without payment of any sum if a restaurant is operating in the Retail Space and (B) purchase up to 150 Public Passes (exclusive of the reduction in Public Passes implemented pursuant to. (A), above, if any) for use by the Retail Space occupants, their customers and employees during Retail Hours at a cost per Public Pass that is the same as the lowest comparable rate offered to third parties in the Garage. Developer may, from time. to time as needed, purchase all or any Public Passes that Developer is entitled to purchase and/or surrender any or all Public Passes that Developer shall have purchased (upon surrender, those Public Passes that were so surrendered shall once again be available for sale to the public) . If at any time, the code required parking falls below 643 parking spaces by virtue of a change in use of the contemplated supermarket user, those parking spaces that are no longer needed to satisfy code shall be available for public/transit parking, subject to the limitations contained elsewhere in this Declaration. The maximum number of Public Passes that may be outstanding during other than Retail Hours shall be reasonably, in good faith and mutually agreed upon by the Parties, subject to the other limitations set forth in this Agreement. Decals/access cards (including those for transit users) and special event permits will be coded separately for parking during Retail Hours and other hours to maximize potential Garage revenues while assuring at the same. time .reasonably sufficient and orderly parking for the Retail Space occupants. It is the intent of this subparagraph that the City and Developer reasonably cooperate with each other to implement a parking operation that promotes use of the Garage as a transit accessible facility, maximizes the revenues of the Garage and addresses the City's objective and desire to provide a parking alternative that links to 'other modes of transportation at a key entry point of the City (and is mindful of the City's FTA funding source requirements, if applicable) while, at the same time, assuring reasonably sufficient and orderly parking for the Retail Space occupants, and the Parties shall reasonably consider implementing any alternatives suggested by each other to effect this intent. 84 MIAMI 699472.17 7198217084 5/20/05 2:13 PM (iii) During Non-Retail Hours, public, transit and valet parking shall be promoted pursuant to a reasonably and mutually agreed upon joint marketing effort of City and Developer, the cost of which marketing effort shall be deemed an "Operating Expense" of the Garage. A system for decals, parking passes, tickets or other monitoring of valet usage (including valet for any restaurant occupants of the Retail. Space) shall be implemented as reasonably and mutually agreed upon by the Parties so that valet operators are only able to utilize the number of parking spaces for which they pay/pre-pay. City shall in good faith endeavor to provide a shuttle service or other public transportation for Garage users to encourage parking during non- Retail Hours if there is a reasonable demand for same such that doing so is economically practical (the cost for which shall not be included in "Operating .Expenses" for the Garage) . (iv) The customers of the occupants of all of the Retail Space (excluding restaurant patrons, .who shall not be entitled to free parking, but shall be entitled to park at a timed ticket rate that is no more (unless Developer agrees to a higher rate in its sole discretion). or less than the rates charged by the City in its parking garages as established by the City Commission from time to time, as hereinabove provided) and the employees of all of the Retail Space shall be entitled to park in the Garage free of charge, subject to the validation and decal provisions of this Declaration and payment of the agreed upon annual operating expense contribution (the "Contribution") for parking spaces by the owner of the Retail Space (which may be passed through to the occupants of the Retail Space) . The amount of the Contribution shall initially be equal to the number of Developer Spaces (contemplated to be 546) , less the difference between the total number of City code required parking spaces allocable to the contemplated supermarket and the number of City Supermarket Spaces (contemplated .to be 78, calculated by taking the 175 total contemplated supermarket spaces less the 97 contemplated City Supermarket Spaces) and also less the number .of City code required parking- spaces allocable to public elevators, exit stairs and loading areas (contemplated to be 28) , and the result of this subtraction shall be multiplied by 55 times 12 (the complete anticipated calculation, in arithmetic symbols, would be ( (546-78) -28) x 55 x 12 = $290,400.00) per annum plus sales tax, if applicable (currently, sales tax would not be applicable, and the Parties shall reasonably cooperate with each other to restructure the method for payment/collection of the Contribution in order to minimize the obligation to pay sales tax in the event of a change in law) and shall be paid in 12 monthly installments on or before the fifth day of each month in.. advance commencing on the date the Garage first opens for normal business operations. The amount of the Contribution shall increase by 2 .5% (over the Prior year's Contribution) per year starting on the January 1 immediately following the third anniversary of Full Occupancy of the Retail Space. Rates for non-employee decal ac teas 85 MIAMI 699472.17 7198217084 5/20/05 2:13 PM card and special event permits shall be reasonably and mutually agreed upon by the Parties, but shall not in the absence of reasonable justification be less than the rates charged by the City for parking in municipal parking garages operated elsewhere in Miami Beach by the City. (v) City shall not be entitled to assign or otherwise delegate responsibility for operating the Garage to any other person or entity (except that City may enter into a contract with a third party for the operation of the greater of one-half (or more) or three (3) of the parking garages operated by the City within Miami Beach and include operation of the Garage in such contract-the Garage shall not be included in determining the threshold for number of garages (three/one- half) is met) . City shall operate the garage solely.utilizing City employees or employees hired pursuant to a contract with the City for the operation of the greater of three or one-half (or more) of the parking garages operated by the City within Miami Beach. If, at any time, City decides that it no longer desires to operate the Garage, City shall allow Developer at its sole option to either operate, or engage a third party contractor designated by Developer and reasonably acceptable to City to operate, the Garage. (vi) The City and Developer shall reasonably and mutually .allocate specific portions of the parking spaces in the Garage for specific types of users (ex. long term parkers (including public parking/transit users) and Retail Space employees will park on the upper levels, while short term parkers will park on the lower levels; further, specific occupants of the Retail Space, such as the contemplated grocery supermarket, may be designated a specific area for its customer parking, at Developer's option, to the exclusion of others) , if reasonably required for the efficient operations of the Garage, and shall take reasonable steps (including, potentially, towing in the Developers reasonable discretion) to enforce such allocations. (vii) The City and Developer shall reasonably and mutually work with each other, and Developer shall use good faith and reasonable efforts to get the cooperation of the occupants of the Retail Space, to avoid, to the maximum extent possible; parking in the Garage by Retail Space employees at times when they are not actually working (unless they pay the applicable non-validation/decal/access card rate) and validated parking in the Garage other that by Retail Space customers while they are actually shopping at the Retail Space. The intent of the foregoing is to promote public/transit parking and maximize revenue from the Garage operation, while providing validated (no cost to the actual customers and employees) parking to employees and customers of the Retail Space only when they are working/shopping at the Retail Space. I, 86 MIAMI 699472.17 7198217084 5/20/05 2:13 PM (viii) Anything contained in this Declaration to the contrary notwithstanding, in the event Developer determines for any reason in Developer's sole and absolute discretion at any time up until eighteen months after Full Occupancy, and thereafter in Developer's sole but reasonably exercised business judgment (i.e. if Developer presents a reasonably objective case, the City shall not have the authority to second guess Developer) , that (A) the level of parking demand generated by Developer's tenant's and their customers and employees, .together with the demand generated by City permits or timed ticket parking is such that commitments made by Developer to its tenants related to adequacy of parking are, or are alleged to be, breached, or (B) the adequacy of parking for tenants and their customers and employees has resulted in complaints by Developer's tenants, or their customers or employees, relative to the sufficiency of available parking, or (C) the concept of joint operational control of the Garage as contemplated by this Agreement is not working effectively or efficiently (each, an "Issue") , Developer may notify the City (the "Notice") of Developer's determination of the existence of an Issue. Within 15 days after the Notice, Developer and City shall meet to discuss alternative courses of action for rectifying the Issue, which alternatives may include adoption of any of the discretionary controls set forth in subparagraph 4 (c) of this Agreement such as limiting timed ticket parking during designated hours, increasing timed ticket parking rates during designated hours or reducing the number of Public Passes during designated hours, or other alternatives that may be suggested by either of the Parties. If they are unable to agree on a course of action for attempting to obtain a resolution for the Issue, and during the time the course of action to attempt to obtain a resolution for the Issue is being implemented, if requested by Developer, City shall immediately adopt (on an interim basis) any proposal suggested by Developer to alleviate the effects of the Issue while the Developer and City continue to meet to work out a resolution for the Issue .in a manner that is reasonably satisfactory to both (the course of .action, if any, that results in a permanent alleviation of the effects of the Issue shall be referred to as the "Resolution") . If a Resolution is reached, Developer's exercise of its right to require reconveyance/conveyance as provided below shall be inapplicable and no Demand, as hereinafter defined, may be made. Developer and City each agree to work.diligently and in good faith to attempt to reach a Resolution. If, after utilizing diligence and good faith to attempt to reach a Resolution, a mutually acceptable Resolution has not been reached, Developer may, upon 60 days' notice to the City (the "Notice Period") , demand (the "Demand") that the City re-convey the City Spaces, City Unit, City Elevator and other components of the Transit Facility (which, for clarification, does not include the Transit Facility .Dedication Area) to Developer or its designee (in which case City shall also convey at no additional cost, other than twice (once 87 MIAMI 699472.17 7198217084 5/20/05 2:13 PM for Developer's unamortized portion and the other for the City's unamortized portion) any remaining unamortized cost over the first 10 years that Developer has not paid as contemplated in Section 4 (b) above, all systems, equipment and signage utilized in connection with the operation of the Garage to Developer or its designee, regardless of who initially paid for or installed same) . If Developer makes the Demand, the reconveyance/conveyance provided for below shall occur and, until the time of reconveyance/conveyance (or rescission of exercise, if applicable) , the City shall continue in effect any proposal suggested by Developer to alleviate the effects of the Issue. The Demand may only be made if Developer has purchased at least 150 Public Passes during the preceding 30 day period and that has not alleviated the effects of the Issue. Further, any Demand made by Developer shall be deemed withdrawn if, within 30 days thereafter, City agrees to adopt for so long as is necessary any proposal submitted by Developer to alleviate the effects of the Issue. Upon Developer's making the Demand, such reconveyance/conveyance by the City to Developer or its designee shall be made in exchange for a payment by Developer to City of: (AA) in the case of exercise by Developer named herein or an affiliate of this right on or before 18 months after Full Occupancy (regardless of when the reconveyance/conveyance occurs) , and provided the entire Property is not sold or otherwise transferred (excluding by foreclosure or deed in lieu thereof) to an unaffiliated third party purchaser within one (1) year after such exercise (if such a sale or transfer occurs, the sales price shall be recalulated within 30 days after such sale .or transfer based on (BB) below, and this right to recalculate shall survive such sale or transfer) , the full amount of the City's Transit Facility Contribution, less the portion the allocated to the Transit Facility Dedication Area and the Transit Facility Dedication Area Finishes, and adjusted to exclude payment for the City Elevator or any City Spaces previously conveyed/reconveyed to Developer or lost through condemnation, together with simple interest thereon at the rate of 4% per annum from the date of each disbursement until the date paid or (BB) in the case of exercise by Developer named herein or an affiliate of this right on or before 18 months after Full Occupancy (regardless of when the reconveyance/conveyance occurs) , and provided the entire Property is sold or otherwise transferred (excluding by foreclosure or deed in lieu thereof) to an unaffiliated third party purchaser within one (1) year after such exercise, the greater of (M) the Fair Market Value of each City Space at the time of exercise by Developer of said right to require reconveyance/conveyance as aforestated multiplied by the "Fraction", as hereinafter defined, plus the City's Transit Facility Contribution attributable to the City 88 MIAMI 699472.17 7198217084 5/20/05 2:13 PM Elevator or (N) the full amount of the City's Transit Facility Contribution, less the portion thereof allocated to the Transit Facility Dedication Area and the Transit Facility Dedication Area Finishes, and adjusted to exclude payment for the City Elevator or any City Spaces previously conveyed/reconveyed to Developer or lost through condemnation, together with interest thereon at the greater of (X) the average yield. on an annualized basis generated by investments actually made by the City in accordance with the City's Investment Policy and Procedure (designed to assure the preservation of principal, a copy of which has been furnished to Developer) during the like period of time or (Y) simple interest at the rate of .4% per annum, in each case from the date of each disbursement until the date paid or (CC) in the case of exercise by Developer named herein or an affiliate of this right after 18 months after Full Occupancy (regardless of when the reconveyance/conveyance occurs) or in the case of exercise by a successor Developer that is not affiliated. with Developer named herein at any time, the greater of (X) the full amount of the City's. Transit Facility Contribution, less the portion thereof allocated to the Transit Facility Dedication Area and the Transit Facility Dedication Area Finishes, and adjusted to exclude payment for the City Elevator or any City Spaces previously conveyed/reconveyed to Developer or lost through condemnation, together with interest thereon .at the greater of (i) the average yield on an annualized basis generated by investments actually made by the City in accordance with the City's Investment Policy and Procedure (designed to assure the preservation of principal, a copy of which has been furnished to Developer) during the like period of time or (ii) simple interest at the rate of 4% per annum, in each case from the date of each disbursement until the date paid, and (Y) the Fair Market Value of each City Space at the time of exercise by Developer of said right to require reconveyance/conveyance as.aforestated multiplied by the Fraction plus the City's Transit Facility Contribution attributable to the City Elevator. In addition to the amount to be paid pursuant to (AA) , (BB) , or (CC) , as applicable, twice (once for Developer's unamortized costs and once for City' s unamortized cost) any remaining unamortized cost over the first 10 years that Developer has not paid, as contemplated above, on all equipment and signage utilized. in connection with the operation of the Garage shall be paid to the City. The Fraction shall be 56%, which was calculated based on the cost per City Space actually paid by the City to Developer in contrast with the agreed upon value of each City Space in the Garage based on criteria approved by the Parties. City shall, within .the. Notice Period (or such reasonably longer time frame as Developer shall request, in order to enable Developer to put together its funding for the payment to be made by it) , re-convey the 89 MIAMI 699472.17 7198217084 5/20/05 2:13 PM City Spaces and City Elevator and convey the aforestated systems, equipment and signage to Developer or its designee .free and clear of all liens and otherwise subject only to the matters affecting those spaces, equipment and signage at the time of Developer's conveyance of those spaces to, or purchase of such systems, equipment or signage by, the City and. any matters created by, joined in, rendered against or requested -by Developer. Upon such re-conveyance/conveyance, City and Developer shall adjust all revenues- and expenses collected or incurred under this Declaration as of the date of the re-conveyance/conveyance, and City shall turn over to Developer or its designee control of the segregated account into which Revenues are to be deposited pursuant to this Declaration, .and all monies therein, and City shall cooperate with Developer or its designee in the orderly turn-over of control of the Garage. The payment to be made by Developer to the .City under this subparagraph (viii) shall be paid in cash at the time of the reconveyance/conveyance, and Developer shall be liable for payment of any transfer taxes (documentary stamps, surtax or otherwise) that may be payable on said transfer, if any are payable. At any time prior to the reconveyance/conveyance contemplated hereby, Developer may rescind its exercise of the right to require such reconveyance/conveyance. Notwithstanding anything to the contrary provided in this ,Declaration, it is the intent of the Parties that the Developer's right to require a conveyance/reconveyance of the City's interests pursuant to this subparagraph 4 (c) (vifi) shall exist only under the limited circumstance in which the Developer determines as aforestated that there are parking Issues and a Resolution mutually acceptable to the Parties as aforestated has not been found. This subparagraph 4 (c) (viii) is not intended to afford Developer an opportunity to reacquire the City's interests solely to take advantage of the appreciation in the value or parking spaces or to recapture a larger share of the revenues generated from the Garage. d. Standard for Operation. Developer shall operate, maintain and replace, or cause to be operated, maintained and replaced, all portions of Property (including the Retail Space) in a first class manner. City shall operate access, validation and collection systems for the Garage in a first class manner. All portions of the Property shall be operated in accordance with the limitations contained in this Declaration. e. .Collection of Revenues and Allocation of Operating Expenses. (i) All revenues from the Retail Space shall be paid to and be the sole property of Developer. All "operating expenses" of the Retail Space shall be borne by Developer without contribution by the City and without being paid from the Revenue of the Garage. 90 MIAMI 699472.17 7198217084 5/20/05 2:13 PM (ii) All revenues from the operation of the Garage (the "Revenue") , including the Contribution, shall be deposited by City and/or Developer, as applicable, in a dedicated bank account (the "Operating..Account") and no other sums shall be co-mingled with the funds in said account (provided, however, that for expenses that are partially allocable to the Garage and partially allocable to the Retail Space, Developer may deposit money into the Operating Account to cover the portion allocable to the Retail Space and then cut one check to the applicable provider of service out of the Operating Account) . The Operating Account shall initially be funded with an estimated three months of Operating Expenses, with the City funding the City Fraction and the Developer funding the balance. One twelfth of the annual Contribution shall be deposited in the Operating Account not later than the fifth day of each month, in advance. All Revenues of the garage that are collected by the City shall be deposited into the Operating Account within one business day (revenues received on Friday, weekends and legal holidays will be deposited no later than the next business day) of their collection. If at any time the Operating Account has insufficient sums to cover Operating Expenses, the Parties shall deposit the deficiency within three (3) business days after notice (said deposit, being allocated to City based on the City Fraction, with the balance to the Developer) . If either Party fails to pay any amount payable by it into the Operating Account when due, said amount shall accrue interest from the date due until paid at the Default Rate, and the Party not in default of its payment obligation shall be entitled to Collection Costs for enforcement of the other Party's payment obligation. (iii) The Operating Account shall be set up so that it is accessible by the City and Developer by computer, so that each will at all times know the status of the Operating Account. The Operating Account shall be established with the Institutional Lender holding the financing encumbering the Retail Space or its designee, if required by the terms of said financing, or otherwise with another Institutional Lender (which .shall be a bank or savings and loan association, unless mutually agreed to the contrary) mutually and reasonably agreed to by the Parties. City and Developer, each acting alone, will have signatory authority on the Operating Account, although Developer shall be the primary signatory and City shall not, without prior notice to Developer, sign any check or other item pertaining to the Operating Account as a signatory. The cost of maintaining, repairing, insuring, and, when necessary, replacing those portions of the Property (or components thereof) , including the Garage, as enumerated on Schedule 1 attached hereto, in the percentages noted on said Schedule, whether or not technically a part of the Retail Space (the "Operating Expenses") , shall be allocated to the Garage and shall ultimately be payable by the City and Developer in proportion to the number of City Spaces and Retail Spaces owned by each from time to time in relation to the total 91 MIAMI 699472.17 7198217084 5/20/05 2:13 PM of all Retail Space and City Spaces in the Garage from time to time (initially, the City will pay 535/1081=49.49$ and Developer will pay 50.511 based on the contemplated 1081 total parking spaces in the Garage; the City' s share shall hereinafter be referred to as the "City Fraction and shall be adjusted from time to time if and at the time, if any, that the ratio of City Spaces to Developer Spaces changes) . Operating Expenses shall include all costs incurred for preparing annual tax returns and financial statements for the condominium association of which the Garage is a part and all of the costs and fees, if any, payable to the Florida Division of Condominiums on account of the Property being a condominium. Operating Expenses shall also include any costs actually incurred by Developer during the Extended Warranty Period, as hereinafter defined (and Developer may issue its construction warranties, at no cost other than the actual costs of warranty work performed to maintain, repair or replace, for the period of time beyond the time frames that are typical for commercial construction (the "Extended Warranty Period") , to the extent extension of such time frames is required under the Condominium Act of Florida, in lieu of the contractor extending its construction warranties for such time frame) for performing any warranty work during the Extended Warranty Period. To the extent any item of Operating Expense is not enumerated on said Schedule 1, the Parties shall in good faith and reasonably agree on an equitable allocation between the Retail Space and the Garage, using the methodology used for allocating the items that are set forth on such Schedule 1. The Parties agree that Operating Expenses shall include, without limitation, any insurance deductibles .(provided they are in accordance with Section 6 (b) below) and capital expenditures when paid, but shall not include the costs of Initial Construction, any costs covered by insurance or condemnation award proceeds that are actually collected, or costs of correcting defective work or materials (except during any extension period beyond one year for initial construction warranties under the Condominium Act) . Operating Expenses shall include the costs of routine day to day maintenance of the City Elevator and Transit Facility Dedication Area Finishes, such as sweeping and cleaning. Operating Expenses shall specifically exclude all other maintenance costs (including the costs of a service contract for maintenance of the City Elevator, which service contract shall be subject to City's reasonable approval) , and all costs of repairing and replacing, the City Elevator and Transit Facility Dedication Area Finishes, which shall be paid for in full by the City based on a budget reasonably approved by the City and reconciled annually. (iv) Developer shall consult and coordinate with City in preparing an annual budget for Revenue and Operating Expenses, which budget shall be prepared and finalized (with the approval, not unreasonably withheld, conditioned or delayed, of City and Developer) at least 60 days before the year end for the prior budget (the budget 92 MIAMI 699472.17 7198217084 5/20/05 2:13 PM year shall be the calendar year unless mutually agreed to the contrary) , or the budget for the prior year shall govern for purposes of the monthly budgeted payments to be made for the next calendar year (until a budget for the current year is furnished and approved, subject to quarterly and cumulative year-end reconciliation to reflect actual costs) . The budget as so finalized shall include City's figures for personnel and any other expenses incurred or anticipated.to be incurred by City. City shall promptly notify Developer if the actual personnel or other costs incurred by it deviate by more that 5% from the amount reflected on such approved budget. Developer shall provide City with quarterly and annual reconciliations, including reasonably requested supporting documentation, within 30 days after the end of each quarter (60 days in the case of the annual reconciliation) and the amount of any adjustment resulting from such reconciliation shall be paid by the applicable Party to the other within 30 days after the applicable reconciliation is furnished to City. Developer agrees that the costs incurred by it for Operating Expenses (and City agrees that the costs incurred by it for personnel) shall be consistent with the costs incurred by similar facilities of similar size in the vicinity of the Property (City facilities, in the case of costs to be incurred by the City) , taking into consideration the nature of the materials utilized in the construction of the Property and the levels of use of the Property. Developer further agrees that no payment of Operating Expenses shall be made that is not in accordance with the then current budget and/or the guidelines set forth in this Agreement unless approved by the City, which approval shall not be unreasonably withheld, delayed or conditioned. In order to allow Developer and City to verify the charges made by the other hereunder, each agrees to make its books and records solely pertaining to such charges available for inspection at reasonable times and on reasonable advance notice for review by the other, no more than three times per year, upon notice furnished to the Party whose records are being reviewed, within 180 days after receipt of the annual reconciliation for the applicable year (and the audit must proceed promptly thereafter and be completed within 1 year after receipt of the annual reconciliation for the applicable year) . An audit or review shall be performed annually by City or Developer personnel or an independent certified public accountant reasonably acceptable to City and Developer and who is not paid on a contingent fee basis. In the event either Party is successful in disputing any amount paid by it under protest, the successful Party shall be entitled to reimbursement of such amount, together with interest thereon from the date paid until the date reimbursed at the Default Rate. (v) In connection with the quarterly and annual reconciliations to be effected as provided in (iv) above, any amounts in the Operating Account into which Revenues are deposited in excess of those reasonably needed or projected to be needed to pay Operating 93 MIAMI 699472.17 7198217084 5/20/05 2:13 PM Expenses thereafter coming due (taking into consideration Revenues that will be added to such account thereafter) shall be distributed to the Parties in the same proportions as Operating Expenses are paid by the Parties. (vi) It is the intention of the foregoing provisions that City shall ultimately receive and retain that portion of all Revenue that is equal to the City Fraction, that City shall ultimately pay that .portion .of all Operating Expenses equal to the City Fraction, and that Developer shall ultimately receive and retain, the remaining Revenues and be liable for the remaining Operating Expenses. (vii) Following each annual reconciliation, and subject to any audit adjustments, Developer shall distribute to City and Developer any amounts in the Operating Account over the then estimated three months projected Operating Expenses. This distribution will not occur until the budget for the next ensuing year has been approved in final form by the Parties. f. Remedies. If either Party breaches its obligation to operate, maintain, repair and, when necessary, replace as set forth in this Declaration, the other Party may send written notice to such breaching Party and, if such obligations are not performed by the breaching Party within 15 days from receipt of such notice (if not reasonably capable of being fully -perfbrmed within 15 days, such time frame shall be extended for such reasonable additional time as may be needed to perform so long as performance commences within such 15 day period and proceeds continuously, in good faith and with due diligence until completion) , then the Party giving notice shall have the right (without limiting any other rights that may be available) to perform such obligations and bill the breaching Party for the reasonable costs of such performance. If the breaching Party shall not pay such bill within 15 days. of receipt, then interest shall accrue on the unpaid amount from the time it was expended until paid at the Default Rate, and the non-breaching Party shall be entitled to Collection Costs for enforcement of the breaching Party's payment obligation. Notwithstanding the foregoing, in the event of an emergency, the notice and opportunity to cure provided above shall not be required but, rather, only such notice as may be reasonable under the circumstances shall be required (including telephonic notice or no notice at all) ; the Party relying upon the provisions of this sentence shall only perform such work as is reasonably necessary to stabilize the situation and eliminate the emergency situation, and all other or additional work shall require notice and opportunity to cure as provided above. The provisions of this subparagraph shall specifically, without limitation, be applicable. to the remedying of violations of Legal Requirements by the respective Parties as elsewhere provided in this Declaration. 94 MIAMI 699472.17 7198217084 5/20/05 2:13 PM 5. Taxes. a. Developer shall pay, with the maximum allowable discount,, all taxes and assessments, real and personal, whether general or special, levied against the Retail Space, the Developer Spaces, the Developer Unit and their respective components. The Parties acknowledge that, due to the City' s ownership of the City Spaces, the City Unit, the City Elevator and the equipment and signage for the Garage operation, they should be entitled to an exemption from real estate and personal property taxes and assessments (except, potentially, for the City Non-Supermarket Spaces) . Developer agrees to cooperate with City, at no cost to Developer, in attempting to realize said exemption. To the extent an exemption from taxes is not available, City shall pay, with the maximum allowable discount, all taxes and assessments, real and personal, whether general or special, levied against the City Spaces and its components; provided, however, that if supermarket use in the Retail Space is changed to another use, Developer shall pay or reimburse the City for any taxes and assessments for the City Supermarket Spaces that the City would otherwise be obligated. to pay if the City Non-Supermarket Spaces are at the time exempt (i.e. if the current exemption for the City Non-Supermarket Spaces is eliminated, the foregoing proviso shall be inapplicable) . To the extent an exemption from taxes is not available in respect of the City Unit, the equipment and signage for the Garage operation or the City Elevator, the taxes and assessments related thereto, and its components, shall be included in Operating Expenses. b.. The foregoing shall not preclude either City or Developer from contesting taxes, so long as appropriate steps are taken to prevent a sale of the Property on account of non-payment thereof. The Party appealing taxes shall be responsible for the- full costs for any such appeal. c.. With respect to assessments only, the foregoing shall not preclude payment in installments, to the extent available. d. Each Party agrees to cooperate with all reasonable requests of the other in an attempt to have any portion of the Property reasonably requested by the other, or any component thereof, separately assessed for tax purposes. e. If either Party breaches its payment obligations under this paragraph, the other Party shall have the right, but not the obligation, at any time thereafter, to remedy the breach by paying the applicable amount to the applicable authority, and any such payment shall accrue interest at the Default Rate from the date paid until the date repaid,. . and the non-breaching Party shall be entitled to MIAMI 699472.17 7198217084 95 5/20/05 2:13 PM Collection Costs for enforcement of the breaching Party's payment obligation. 6. Insurance and Restoration. a. Types of Insurance. Developer (and, in the case of (iv) below, City, -unless City is entitled by law and elects to self insure this coverage,. in which case the City shall be liable for all matters that would have been covered had City maintained such coverage as if it were maintaining such coverage) shall maintain at all times while this Declaration remains in effect, at its cost but subject to contribution as Operating Expenses (equitably allocated between the Retail Space and Garage as contemplated by Schedule 1 attached hereto or Section 4 (e) (iii). hereto)., the following: (i) "special form" insurance on the Property (including in respect of the Garage equipment initially purchased and installed by City, and any replacements thereof) against all risks of physical loss or damage (including windstorm) in an amount not less than 100% of full replacement cost (excluding excavation, foundations and footings) , with an agreed amount endorsement if coverage is by way of a blanket policy. Said policy shall include demolition and debris removal coverage; (ii) commercial general liability insurance (including blanket contractual liability, personal injury and advertising injury, and, if applicable, liquor liability) covering the Property in amounts of at least $1, 000, 000 per occurrence in the aggregate, $1, 000, 000 products liability and completed operations aggregate and $10, 000,000 excess umbrella coverage; (iii) at all times during which construction is being performed in connection with the Property, builder's risk insurance with limits of coverage not less than that specified in subparagraph (i) above, independent contractor's insurance and blanket contractual liability insurance with limits of coverage not less than that specified in subparagraph (ii) above. In addition, owner's and contractor's protective insurance with a minimum coverage of $1, 000, 000 shall be required unless all contractors performing work in connection with such construction maintain no less than $1, 000,.000 of general liability insurance, naming the Parties and their mortgagees as additional insureds and satisfying the standards set forth elsewhere in this Declaration for insurance to be maintained by the Patties; I (iv) worker's compensation insurance at legally required levels and employer's liability insurance in an amount not less than $1, 000, 000 for the benefit of all employees entering upon the Property as a result of or in connection with their employment by the 96 MIAMI 699472.17 7198217084 5/20/05 2:13 PM Party maintaining such coverage or any agent, representative, licensee or contractor of such Party (or where -such Party is otherwise legally liable) ; (v) insurance against loss or damage by boiler or compressor or internal explosion of. a boiler or compressor if such items shall be located on the Property with limits of coverage not less than that specified in subparagraph (i) above; (vi) rent loss/business interruption insurance for up to 18 months, if reasonably available, in respect of the Revenue generated from the Garage, as mutually and reasonably agreed upon by the Parties; and (vii) such other insurance including, without limitation, flood, plate glass, malicious mischief and wrongful/discriminatory termination insurance, and in such amounts, and such increases to the foregoing coverages, as are customarily maintained with respect to facilities similar in construction, location and use to the facilities located on the Property. b. Standards for Insurance. The policies provided for in subparagraph , (a) may contain a reasonable deductible, not to exceed $:50, 000 for property perils (excluding windstorm) , 2%- of value for windstorm peril, $100, 000 for flood and earthquake perils and $10, 000 for general liability coverage, unless both Parties approve of higher or different deductibles in their reasonable discretion. The policies maintained shall name each Party and any mortgagees of such Party of which notice has been provided as additional named insureds (in the case of. casualty and liability policies) and copies of the policies and certificates of insurance shall be provided to all named insureds promptly upon request. The insurance companies providing insurance shall have a Bests rating of not less than A(-)VII (or its equivalent) at the time each policy is acquired or renewed. Each policy of casualty and liability insurance shall contain a waiver of subrogation rights against. the other Party, its mortgagees) and tenant (s) , and their respective agents, employees and representatives; and each Party, for itself and for its mortgagee(s) and tenant(s) and their respective agents, employees and representatives, waives any liability that the other Party or its mortgagee(s) or tenant (s) or their respective agents, employees or representatives. might have which was covered or would have been covered by the insurance provided for in this subparagraph. The amount of any deductible shall be deemed an Operating Expense (and shall be allocated between the Parties in the same manner as insurance proceeds, of which the deductible is a substitute) . All insurance may be maintained through a blanket policy or policies s, and shall be reasonably allocated amongst the properties covered and between the. Garage and the Retail Space. 97 MIAMI 699472.17 7198217084 5/20/05 2:13 PM C. Remedies. In the event either Party fails to maintain the insurance required hereunder, the other Party may, but shall not be obligated to, obtain such insurance coverage for the breaching Party and the breaching. Party shall, ' within 15 days of demand therefor, reimburse the other for the reasonable cost thereof. If the breaching Party fails to do so, interest shall accrue on the amount owed at the Default Rate from the date paid until the date reimbursed, and the Non- breaching Party shall be entitled to Collection Costs for enforcement of the breaching Party's payment obligation. d. Casualty. In the event any portion of the Property, or any components thereof, is damaged or destroyed by reason of. casualty, Developer shall promptly, in good faith and with due diligence, settle the loss (including pursuing funding of the insurance proceeds) and thereafter promptly restore the damaged or destroyed portion to at least the following extent: (i) the Property shall be restored to substantially the condition it was in prior to the damage or destruction (provided, that if restoration to substantially the condition they were in prior to the damage or destruction is not then permitted by applicable Legal Requirements, restoration shall be to as nearly the .condition they were in prior to the damage or destruction as may then be permitted by applicable Legal Requirements) or (ii) the damage or destruction can be restored to such different condition (subject to the provisions of this Declaration, however, respecting relocation of easements and other matters, the City Spaces shall be restored in accordance with (i) above) and no change in the character of the Property as a retail/restaurant/office project shall be effected without the City's approval, which will not be unreasonably withheld, delayed or conditioned) as the Developer may determine in its sole discretion; and, further. The insurance proceeds payable on account of damage or destruction to the Property shall first be applied toward the restoration obligations set forth herein, and the balance shall be disbursed to and retained .by Developer as its sole property. In the event .Developer breaches its restoration obligations under this subparagraph or under paragraph 7 regarding restoration after condemnation, the City, after 30 days prior written notice, shall be entitled to perform such restoration at the Developer's reasonable cost, and the Developer shall reimburse the amounts so incurred, together with interest thereon from the date paid until the date reimbursed at the Default Rate, promptly upon demand, and City shall be entitled to Collection Costs for enforcement of the Developer's payment obligation. 7. Condemnation. a. In the event all or any portion of the Property, or any component thereof, is condemned or taken through eminent domain, by deed in lieu thereof or by any other means, Developer shall be MIAMI 699472.17 7198217084 98 5120105 2:13 PM entitled to exercise total and sole control over the condemnation proceedings (including,. without limitation, defenses against the taking, if any, withdrawal and disbursement (consistent with the last sentence of this subparagraph (a) ) of all proceeds of the taking, and the extent (subject to the express provisions of this Declaration) of restoration, if any) . City shall promptly notify Developer of any condemnation proceeding instituted against any interest of City in the Property, or of any written notice received by the City in respect of a potential condemnation of any such interest, and authorizes Developer to intervene and assume the defense of any such proceeding and the negotiations pertaining to any such notice of potential condemnation on behalf of the City (and to the exclusion of the City) , consistent . with the provisions of this Section 7. City further authorizes the consolidation of any separate condemnation proceedings in respect of the City's interests and the Developer's interests in the Property. The City shall not be entitled to contest the taking or raise defenses or take any other actions in respect of the condemnation without Developer's consent in its absolute and sole discretion. City shall fully cooperate with and join in any stipulations or other documents reasonably requested by Developer in furtherance of the foregoing. Except as specified in the last sentence of this subparagraph (a) , (i) the City hereby assigns all right, title and interest of the City in respect of any actual or potential condemnation proceedings affecting any interest of the City in the Property to Developer, (ii) the City shall not be entitled to share in . any portion of the award, or to receive a separate award, (iii) City hereby waives any and all rights that it might otherwise have to share in such award and (iv) City hereby waives any and all rights that it might otherwise have to obtain a separate award. The City shall be entitled to consult with Developer in respect of any matters pertaining to any condemnation and to sit in on meetings pertaining to any condemnation, but the decisions made by Developer in its sole discretion shall be binding on City so long as they are consistent with the provisions of this Declaration. The Parties have agreed that, in the event of a taking, City's portion of the award shall be the amount specified in subparagraph (b) below and the condemning authority is authorized and directed to allocate said amount to City and pay such amount directly to the City out of the final condemnation award proceeds. b. If any parking spaces are taken, or any portion of the Garage is taken such that parking spaces must be reconfigured in Developer's sole but reasonably exercised business judgment in order for them to be useable and, as a result of such reconfiguration, there is a loss of parking spaces, the number of parking spaces so taken or lost as a result of reconfiguration shall first be applied to reduce the number of City Spaces (and if Retail Spaces are taken or lost, City shall re-convey to Developer (or its designee) the number of City Spaces required to implement the foregoing allocation (and if all City Spaces are lost or re-conveyed (or the number of City Spaces remaining 99 MIAMI 699472.17 7198217084 5/20/05 2:13 PM after the taking and any reconfiguration is less than 100) , City shall also convey any remaining City Spaces and the City Unit, City Elevator and all equipment and signage utilized in connection with the operation of the Garage to Developer (or its designee) , regardless of the amount paid for, or who paid for or installed, same, and the City's rights in respect of this Declaration shall terminate and vest in Developer (or its designee) upon payment to the City of the payment provided for herein) , which re-conveyance (and equipment and signage conveyance, if applicable) shall be free and clear of all liens and encumbrances other than those existing when Developer originally conveyed the spaces to the City (or when City acquired the equipment or signage) and any matters created by, joined. in, rendered against or requested by Developer) . As City's sole award for the. lost/re- conveyed spaces and/or the City Elevator, City shall be entitled to payment of an, amount equal to (i) in the case of loss/re-conveyance of the City Elevator, an amount equal to the City's Transit Facility Contribution attributable to the City Elevator without interest or (ii) in the case of lost/re-conveyed spaces, an amount per City Space lost (including by way of re-conveyance to Developer (-or its designee) or otherwise) as a result of the taking or reconfiguration as provided herein equal to the greater of (A) the Fair Market Value (determined in accordance .with the provisions of this Declaration and not pursuant to the mechani-sm customarily used in condemnation proceedings) of each City Space at , the time of loss/re-conveyance multiplied by the Fraction or (B) the City's Transit Facility Contribution attributable to the City Spaces divided by 535 and -multiplied by the .number of City Spaces lost/reconveyed, without interest. In addition, upon a loss/conveyance/re-conveyance of all City Space, twice (once for Developer's-, unamortized costs and once for City's unamortized cost) any remaining unamortized cost over the first 10 years that Developer has not paid, as contemplated above, on all equipment and signage utilized in connection with the operation of the Garage shall be paid to the City. Developer shall be liable for payment of any transfer taxes (documentary stamps, surtax or otherwise) that may be payable on any such conveyance/re-conveyance, if any are payable. The Parties acknowledge that the foregoing payment is not and will not be reflective of fair market value or the amount that the condemning authority would be obligated to pay for the City Elevator or spaces so lost/re-conveyed, but is merely intended as an agreed upon payment and allocation between the Parties which takes into consideration various compromises be.tween .the Parties in respect of the negotiations that led up to the entering into of this Agreement and the transaction evidenced hereby. There shall be no payment due to City for the City Unit or, except as specifically provided above, the equipment and signage to be conveyed by the City, if applicable. From and after the .date of such taking (or possession to the conveying authority, if later) , the percentages utilized for purposes of calculating the relative contributions of the City and Developer in respect of Operating Expenses and Revenues shall be adjusted proportionately, effective as 100 MIAMI 699472.17 7198217084 5/20/05 2:13 PM of the date of the taking or possession, as applicable. In the event of a taking, the provisions of subparagraph 6(d) of this Declaration shall apply as between City and Developer and the portion of the Property that is not taken shall be restored as required therein and the condemnation proceeds available as a result of the condemnation shall be used. for restoration as and to the extent set forth therein for insurance -proceeds. C. Intentionally omitted. d. Upon any condemnation that does not result in a termination of the City's rights under this Declaration, Developer shall utilize so much of the condemnation award proceeds as may be received and needed for restoration to restore the Garage to the condition called for by Section 6 (d) in the case of casualty. 8. "5th & Alton" Trade Name. City (only in its capacity as a Party to this Declaration) acknowledges being advised of Developer's proprietary interest in the trade name 115th & Alton" and will not dispute same. City may use the name "5th & Alton as a locational reference for the Garage, but shall not .otherwise use such name. City further agrees to comply, at no out of pocket cost to City,. with any requirements that Developer may reasonably impose from time to time in order to protect its rights with respect to the 115th & Alton" trade name. 9. Developer's Right of First Ref ' P 9 Refusal to Purchase. If City desires to sell all of it interests in the Property and enters into a contract (which contains no contingencies (or in respect of which all contingencies have expired) other than a contingency for exercise by Developer of its right of first refusal) to do so (City may not sell partial interests in the Property) , City shall first offer its interests in the Property to Developer (and said contract shall be contingent on Developer not exercising its right of first refusal) , who may acquire same for an amount equal- to the greater of (a) the full amount of the City's Transit Facility Contribution, less the portion thereof allocated to the Transit Facility Dedication Area and the Transit Facility Dedication Area Finishes, and adjusted to exclude payment for the City Elevator or any City Spaces previously conveyed/reconveyed to Developer or lost through condemnation, without interest or (b) Fair Market Value for each City Space multiplied by the Fraction plus the City's Transit Facility Contribution attributable to the City Elevator. There shall be no payment due to City for the City Unit or, except as specifically provided in Subparagraph 7(b) above, the equipment. and signage to be conveyed by the City. Developer shall have 30 days from the date City offers its interest ,in -the Property to Developer within which to .elect to accept such offer, which election shall be evidenced by a written acceptance to the City. -Once accepted, 101 MIAMI 699472.17 7198217084 5/20/05 2:13 PM Developer shall close on the purchase of City's interests in the Property by no later than the later of the date provided for in the contract obtained by the City from a third party (which triggered the rights of Developer under this paragraph) or 60 days after acceptance by Developer, which time frame may be extended by Developer for a reasonable additional period not to exceed an additional 60 days in order to obtain funding for the acquisition. Developer shall pay all cash at closing. Conveyance shall be free and clear of all liens and encumbrances other than those existing when Developer originally conveyed the City Spaces to the City (or when City acquired the equipment or signage to be conveyed) and any matters created by, joined in, rendered against or requested by Developer) . Income and expenses shall be prorated as of the closing date. City may not sell parts of its interests in the Property. Developer may, at its sole option, designate a designee to acquire the City's interest in the Property. This paragraph shall not apply to any conveyance by the City to a successor governmental authority, but shall be binding on such successor. This provision is agreed to in recognition of the unique aspects of the public/private venture that the Parties contemplate, and the fact that Developer would not have entered into a transaction of this type with another private party. Accordingly, City shall not have the right to object to provisions of this paragraph on the grounds that the price to be paid is less than what it would otherwise have received from a third party. If Developer does not elect to exercise the foregoing right of first refusal or closing pursuant thereto does not occur for any reason, upon conveyance of the City's interest in the Property, Developer shall have the sole right to operate the Garage, or to engage a third party contractor designated by Developer to do so (i.e. the City's transferee shall have no right to operate the Garage or approve the operator) . 10. Miscellaneous. a. Specific. Performance. Anything to the contrary contained in this Declaration notwithstanding, in the event of a violation or breach of any of the provisions contained in paragraphs 2,3 (a) - (d)., .5'(a) (1) and (d) , 7, 8 and 9 of this Declaration, specific performance and/or injunctive relief shall specifically be available, it being agreed that damages would, at best, be difficult to ascertain and would be an inadequate remedy in any event. The foregoing shall not, however, preclude specific performance and/or injunctive relief in the event of a violation or breach of any other provisions of this Declaration,_ or constitute an acknowledgment that damages in the event of a violation or breach of any other provisions of this Declaration would be readily ascertainable or an adequate remedy. b. Prevailing Party Attorneys' Fees; WAIVER OF JURY TRIAL. The prevailing Party in any action in connection with this 102 MIAMI 699472.17 7198217084 5/20/05 2:13 PM Declaration (whether in tort, contract or otherwise) shall be entitled to the award of court costs and a reasonable attorneys' and paralegals' fees at all tribunal levels and in connection with all proceedings, whether or not suit is instituted. The Parties, each being represented by counsel, knowingly, intentionally and voluntarily WAIVE TRIAL BY JURY (for themselves, their successors and assigns) in all actions or proceedings pertaining to the subject matter of this Declaration. C. Estoppel Certificates. Each owner from time to time of the Property, or any portion thereof, agrees, promptly upon request, to furnish from time to time to any other such owner in writing such truthful estoppel information and/or one or more confirmatory easements (confirmatory of the general easements granted hereby) as may be reasonably requested. d. No Public Dedication. Nothing contained herein shall be construed as a dedication of the easements granted herein to the general public. e. Covenant Running with Land; Modifications. This Declaration shall be a covenant running with the land and shall be binding upon and inure to the benefit of the owners from time to time of every .portion of the Property, their successors, assigns, employees, agents, customers, tenants, guests, licenses, invitees and mortgagees. Notwithstanding the foregoing, this Declaration may be abrogated, modified, terminated, rescinded or amended in whole or in part by an instrument executed by the then owners of the Property, joined by their respective mortgagees (if any) . The joinder of any tenants, guests, . licensees or invitees of any such owner (or anyone else) shall specifically not be required in connection with any of the foregoing. f. Notices. Any notices required to be given hereunder shall be given by certified mail, return receipt requested, by hand delivery, by facsimile machine or by FedEx or similar overnight courier service, postage prepaid, to the address specified in the introductory paragraph of this Declaration. Except as and to the extent expressly provided for below with respect to notices of change of address, notices that are given in the manner aforestated shall be effective (regardless of whether or not they are actually received) upon mailing or depositing with FedEx or similar overnight courier service, if mailed or deposited with FedEx or similar overnight courier service, upon receipt of a transmission confirmation if sent by facsimile machine or upon receipt if hand delivered. Any Party hereto may change its address for notice by notifying the other Parties hereto in the manner provided for above; provided, however, that notices of change of address shall not be effective unless and until they are actually received, delivery is refused or they are returned because the address to which they were sent is no longer a current address and the Party 103 MIAMI 699472.17 7198217084 5/20/05 2:13 PM sending such notice was not properly furnished a notification of change of address.- Copies of any notices required to be given to another Party shall also be given to the holder of any mortgage encumbering the portion of the Property owned by such Party if the holder of any such mortgage has notified (in the manner provided for above for giving notice of change of address) the Party giving notice of such holder's address and requested that notices be furnished to such holder. Notice given by .the attorney for any Party shall be as effective as if given by that Party. g. Governing Law; Invalidity; Liability After Sale;. Counterparts. This Declaration shall be governed by the laws of the State of ,Flor.ida. If any portion of this Declaration shall be or become illegal or unenforceable for any reason, the remaining portions shall remain in full force and effect and shall be enforceable to the fullest extent permitted by law. Upon sale of any portion of the Property, the transferor thereof shall be relieved of personal liability hereunder related to the -time period subsequent to such transfer with respect to the portion so transferred. This instrument may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same document. h. Certain Defined Terms;_ Construction. (i) Whenever used in this -Declaration, the term "Default Rate". shall mean a rate per annum equal to two percent (2%-) above the prime rate from time to time published in the Wall Street Journal or its successor, or if it has no successor, a newspaper or other publication of similar stature. Whenever used in. this Declaration, the term "Collection Costs" shall include all costs and expenses reasonably incurred in enforcing the applicable obligation(s) under this Declaration, including, without limitation, reasonable attorneys' and paralegals' fees at all tribunal levels, in connection with all proceedings, and whether or not suit is instituted. (ii) Whenever used in this Declaration, the term "Initial Construction" shall mean construction of the retail/office and garage improvements initially contemplated to be constructed on the Property in accordance with the Development Agreement. (iii) Whenever the terms "presently" or "existing" are used herein, they shall refer to the date of recording of this Declaration. (iv) Use of the words "herein, " "hereinafter, " "hereinabove, " "hereof" and "hereunder, " in this Declaration refer to this Declaration as a whole and not merely to the .partcular article, section, paragraph or provision in which such words appear, unless the 104 MIAMI 699472.17 7198217084 5/20/05 2:13 PM context otherwise requires. Whenever it is indicated in this Declaration that either Party may, shall or will perform any act, then such act shall be performed at the sole cost and expense of the performing Party unless otherwise specifically indicated to the contrary. Use of the word "including" shall be deemed illustrative and not exclusive, and shall be deemed qualified by the term "but not limited to" whenever used. i. _Captions. The captions appearing in this Declaration are for convenience and reference only and in no way define, limit or describe the scope or intent. of this Declaration, nor in any way affect this Declaration. j . No Partnership. Nothing in the Declaration shall cause the Parties in any way to be construed as a partners_, joint venturers or associates of each other in the operation of the Property or subject either Party to any obligations, loss, charge or expenses connected with or arising from the operation or use of the Property by the other. k. Time of Essence. Time is of the essence of this Declaration as to each of the terms, conditions, obligations and performances contained herein or required hereunder. 1. Waiver. No failure by either Party to insist upon the strict performance of any covenant, agreement, term or condition of this Declaration or to exercise any right or remedy consequent upon a breach or default thereof, no forbearance by either Party to enforce one or more of the remedies herein provided upon an event of default, - and no acceptance of full or partial payment of any amount payable under this Declaration during the continuance of any such breach or default, shall constitute a waiver of any such breach or .default or of such covenant, agreement, term or condition. No covenant, agreement, term or condition of this Declaration to be performed or complied with by either Party and no breach or default thereof shall be waived, altered or -modified 'except by a written instrument executed by the other. No -waiver of any breach or default shall affect or alter this Declaration, but each and every covenant, agreement, term and condition of this Declaration shall continue in full force and effect with respect to any other then existing or subsequent breach or default thereof. M. Entire Agreement. This Declaration and the surviving terms of the Development Agreement in furtherance of which this Declaration is executed (the "Development Agreement") contains the entire agreement between the Parties with respect to the subject matter hereof and all negotiations .between the Parties are merged herein. Without limiting the. foregoing, but in furtherance thereof, the Parties 105 MIAMI 699472.17 7198217084 5/20/05 2:13 PM i acknowledge that there are no promises, inducements, assurances, agreements, guarantees, warranties, representations or solicitations, either express or implied, written or oral, except as and to the extent specifically recited and contained herein or in the Development Agreement. This Declaration cannot be changed, modified or terminated orally, but only by an instrument in writing executed. by the Party against whom enforcement of any waiver, change, modification or discharge is sought. n. Remedies Cumulative. Each right and remedy provided for in this Declaration shall be cumulative and shall be in addition to every other right or remedy provided for in this Declaration or now or hereafter existing by law. The exercise or beginning of the exercise of any one or more rights or remedies shall not preclude the simultaneous or later exercise of any or all other rights or remedies, nor shall it constitute a forfeiture or waiver of any amounts owed. o. Independent Covenants. Each and every covenant and agreement contained in this Declaration shall be deemed separate and independent and not dependent upon any other provisions of this Declaration and the damages for failure to perform the same shall be deemed in addition to and separate and independent of the damages accruing by reason of the breach of any other covenant contained in this Declaration. p. Force Majeure. If either Party is unable to fulfill, or is delayed in fulfilling, any of its obligations under this Declaration by reason of strike or other labor trouble; governmental pre-emption or priorities or other controls in connection with a national or other public emergency or shortages of fuel, supplies or labor resulting therefrom; acts of .God; accident; severe adverse weather conditions; permitting or governmental inspection delays; equipment or machinery malfunction or breakdown; or any other cause beyond its reasonable control, the period of such delay or such prevention shall be deemed added to the time herein. However, the foregoing shall not delay the time period for paying any sums due under this Declaration. q. Construction. This Declaration shall not be construed more strictly against one Party than against the other by virtue of the fact that initial drafts may have been prepared by counsel for one of the Parties, it being recognized that this Declaration is the product of extensive negotiations between the Parties and that both Parties have contributed substantially and materially to the final preparation of this Declaration. r. No Third Party Beneficiaries. The provisions contained in this Declaration are for the sole benefit of the Parties, and their MIAMI 699472.17 7198217084 106 5/20/05 2:13 PM respective successors and assigns, and shall not give rise to any rights by or on behalf of anyone other than such parties.. 107 MIAMI 699472.17 7198217084 5/20/05 2:13 PM �i ��• �� Wig—'—' � �� '� � to > �� pc1�' fh ' �NNNS X71 Ic O N:+ �AA 01��N OW NWWA41js N � W N O S 0 0 0 0 0 0 0 O O O O O O O O N O 000000 • 5� �l91 Q�ppJ QQ��pp�p JJ��pp J .pQa p pJJpQ.►��pp��pp .pJ��pp pQ��pp SJ pJ pJ.p.�pJ pJ pJ OD O O O O O O O G O O O O O O O O O� C?I V 0 0 0 0 0 0 w rn o w wv+eAend+EneAV+w��enw�+�tnrr+eAtntfltAtA weAt�tAewer+ _N O co CD �m J P a 0,6 3 8 Z ;5 CA IA �V x c r 4% aN lm c0 O�f.�yOpAjOCj �, J�?I � cn��cn to to MR co cm A o O Mr CA or k o 2 m c a eA cn to to err err eA eA eA eA eA eA eA en a eA eA fa eA d+eA eA er+'e4 eA es err eA eA eA a .� A W W v OD C71NO ch co of W X71 C71NA � O..► Nw co000) h m tclr In O�OOO N.000i��01"'I"pO�iON000.0000 CL 2. 5 v egtAeA errv+eAe++er+err.... Aa eAa aerr.V+e*a....rreAato�eAewenen N ..► J V O J N4 di eA di fA fA ER e9 to en eA to...44 69....lA....M eli eA eN �►W-40 W e� N N C1 r O Eq N Cf r O O (A w CA co o s C, u' c I.- � � e*W if EXHIBIT F 'PERMITTED EXCEPTIONS FOR CITY SPACES 1. Taxes and assessments for the year of conveyance and subsequent years. 2. Covenants,conditions and restrictions as set forth in the Special Warranty Deed recorded in Official Records Book 12745,Page 3829,of the Public Records of Miami-Dade County, Florida. 3. The effects of Orders recorded in Official Records Book 16293,Page 506,and in Official Records Book 22847, Page 3528,both of the Public Records of Miami-Dade County, Florida. Any Florida form 9 title insurance coverage shall be inapplicable to this item. 4. Reservations for oil,gas,mineral,metal,phosphate and petroleum contained in Deed recorded in Deed Book 162,Page 398,of the Public Records of Miami-Dade County,Florida. Note: the right of entry and exploration has been released pursuant to FS Section 270.11. 108 MIAMI 699472.17 7198217084 5/20/05 2:13 PM EXHIBIT G FORM DEED FOR CITY SPACES AND TRANSIT ELEMENTS Prepared by and return to: Arnold A. Brown, Esq. Bilzin Sumberg Baena Price & Axelrod LLP 2500 Wachovia Financial Center Miami, Florida 33131 Part of Folio Nos. : SPECIAL WARRANTY DEED THIS SPECIAL WARRANTY DEED, made as of the day of , A.D. , 200_, -by AR&J Sobs, LLC, a Florida limited liability company, party of the first part, whose post office address is c/o Berkowitz Development, 2665 South Bayshore Drive, Suite 1200, Coconut Grove, Florida 33133, hereinafter called the Grantor, to The City of Miami Beach, a Florida municipal corporation, party of the second .part, whose post office address is 1700 Convention Center Drive, Miami Beach, Florida 33139., Attn: City Manager, and whose Federal Identification No. is hereinafter called the Grantee (wherever used herein the term "Grantor" and "Grantee" include all the parties to the instrument and the heirs, legal representatives and assigns of individuals, and the successors and assigns of corporations) : WITNESSETH: That. Grantor, for and in consideration of the sum of Ten Dollars -($10. 00) and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, hereby grants, bargains, sells, aliens, remises, releases, conveys and confirms unto the Grantee, all that certain land situate in Miami-Dade County, Florida, viz: Units and of 5th and Alton, a condominium, according to the Declaration of Condominium thereof, recorded in Official Records Book , Page I I of the Public Records of Miami-Dade County, Florida. Subject. to: 1. Taxes and assessments for the year 200_ and subsequent years. 2 . Zoning and other governmental rules, regulations and ordinances... 109 MIAMI 699472.17 7198217084 5/20/05 2:13 PM 3. Easements and restrictions of record, if any, without intent to reimpose or reinstate same hereby. 4. Facts which a current and accurate survey or visual inspection of the property might disclose. 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. AND Grantor hereby covenants with Grantee that Grantor is lawfully seized of said property in fee simple and has good right and lawful authority to sell and convey said property; and hereby warrants the title to said property and will defend the same against the lawful claims of all persons claiming by, through or under said Grantor. Acceptance and recording of this Deed constitutes a release of the Memorandum of Development Agreement recorded in Official Records Book , Page , of the Public Records of Miami-Dade County, Florida, between Grantor and Grantee and Grantee joins herein to acknowledge that said Memorandum of Development Agreement shall have no further force or effect. IN WITNESS WHEREOF, Grantor has caused this instrument to be executed as of the day and year first above written. Signed, sealed-and delivered in the presence of: AR&J Sobe, LLC, -a Sign Name: Florida limited liability Print Name.: company Sign Name: By: Print Name: Jeffrey L. Berkowitz, Manager STATE OF ) SS: COUNTY OF ) The foregoing instrument was acknowledged before me this day of 200_, by Jeffrey L. Berkowitz, as. Manager of AR&J Sobe, LLC, a Florida limited liability company, in the capacity 1.10 MIAMI 699472.17 7198217084 5/20/05 2:13 PM i I I aforestated; such person is personally known to me or has produced a driver's license as identification. Sign Name: Print Name: My Commission Expires: Notary Public Serial No. (none if blank) : [NOTARIAL SEAL] WITNESSES: CITY OF MIAMI BRACH, FLORIDA, a municipal corporation of the State of Florida By: Print Name David Dermer, Mayor Print Name ATTEST: By: Print Name Robert Parcher, City Clerk (SEAL] Print Name STATE OF FLORIDA } SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of I , 200_, by David Denver, as Mayor, and Robert Parcher, as City Clerk, of the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, on behalf of such municipal corporation. They are personally known to me or produced valid Florida driver' s licenses as identification. Notary Public Type, Print or Stamp Name My Commission Expires: 111 MIAMI 699472.17 7198217084 5/20/05 2:13 PM EXIOIT H Intenti®naUl Omitted MIAMI 699472.17 71982,17084 112 5/20/05 2:13.PM EXHIBIT I LOCATION OF CITY SPACES, TItA.NSIT ELEMENTS AND DEVELOPER SPACES To be reasonably and in good faith agreed upon between the Developer and City, acting through its City Manager,prior to Developer's Construction Application Notice,and memorialized in writing promptly upon the request of either party MIAMI 699472.17 7198217084 113 5/20/05 2:13 PM � o l l � - ,. 00"do Pop or 7q, I Ilk RA Qw I pA n Alf .._. .�� •,i 1. - -��r+ � ,,�!� M: • min= ADD N } 1 t Emir ' 9 AM '.j��I}�- ,r ice• � � i T • / �: 3�J v _e �� ~� a ;i H m �� f � 1p o t v �f` ---------------i ----- a ■ t o 0 0 0 no LU XO ` T W Q a o �� --s ------- — 4ft s � • e °p° ■ I 5TH ST �---- rmrm cu rq xx c*I, � W t_ Poo-Il a n N --------------; .---------, 4yosrnoea. � s $91 GZ P w = ----------------� ED r i I oil i d a a no�p � b e •'`�•,• � b�aaoaaaoaaaoae aN�a • • • =g rat® :E oW c c o �_..: t N �. w � 9 �a I.Z11- 1� 8 ga to g 9� W 'Q '9111 1 111 111 ME] I ■ ■ Z 6- F�m � • s ■ ■ LL ■ ■ ■ �1 I`. N hi t4 Q W ::' ■ ■ �. N o o: all -OP x 21 9 a s a p p all LI a i l 1 1 t1 s �. rom�I BOA s e � o �< ®� Ir C A_ e a fi g lit ao lit §s 0 1 y I 'll \,L-v 4:3 0 d9 � a Q 'A � • I. s� ----------- ------- f ------------- ----- i � � I I N. 01` O� -yy •r. T d .s bs as 4 " � F w` \ y •� •fir ` • ®cd z xx ow fa mono 19 it 19 l ou X al rn lui N like- ra cM rJ s. N 4 f'r�l wj mv VIR yR N � I � AYR in N N Q EXHIBIT K LEGAL DESCRIPTION OF ALLEY That certain 20-foot wide alley, bounded on the east by the west boundary of Lots I through 8, Block 104, Ocean Beach Florida Addition No. 3 according to the plat thereof as recorded in Plat Book 2, Page 81 of the Public Records of Miami-Dade County, Florida; bounded on the west by the-east line of Lots 9 through 16, of said Block 104; bounded on the north by the north line of Lot 1 of said Block 104 projected westerly; and bounded on the south by the north line of the south 10 feet of Lot 8 of said Block 104 projected westerly. 115 MIAMI 699472.17 7198217084 5/20105 2:13 PM EXHIBIT L CITY'S RIGHT OF FIRST OFFER TO PURCHASE PROJECT Developer hereby agrees that in the event Developer desires to sell all.of the Property to an unaffiliated third party,Developer shall first notify City of the material terms.pursuant to which Developer so desires to sell(the"Offer"), and City shall have 10 business days after receipt thereof within which to elect in writing whether to pursue a transaction in accordance with the terms of the Offer. The material terms pursuant to which Developer desires to sell shall be the purchase price,terms and conditions and timing for payment of the purchase price, and timing for closing. In the event City timely elects to pursue a transaction in accordance with the terms of the Offer,Developer and City shall,within 30 days thereafter,negotiate the terms of a binding contract that is consistent with the terms of the.Offer and otherwise on terms reasonably acceptable to Developer(terms that are customary for similar as-is transactions in the community in which the Property is located,with no representations or warranties except of customary limited matters that cannot be independently verified through other sources,shall be deemed reasonable). In the event City fails to timely elect to pursue a transaction in accordance with the terms of the Offer or,having done so, in the event the parties are unable to agree on the terms of a binding contract in respect of same within said 30 day period,Developer shall be free to pursue an offer from others on the terms set forth in the Offer and otherwise on terms acceptable to Developer. .Developer shall notify City of any material changes to the Offer that would make the Offer more beneficial to City and City shall have five business days after receipt thereof to elect to pursue the Offer, as modified, and if City timely so elects,the a.forestated provisions regarding negotiation of a binding contract shall be applicable(with the time frame reduced to 15 days, however);provided,however,that, in the event the parties were previously unable to reach a binding contract,the issues that prevented the parties from reaching such a binding contract shall be resolved in favor of Developer in the event City elects to pursue the Offer, as modified. The foregoing right of first offer shall not be applicable to sales to affiliates of Developer (but after any such transfer shall be binding upon such affiliates), shall be void and of no further force and effect upon default beyond applicable cure period by City under the terms of any binding agreement respecting the Property that is entered into between Developer and City,or affiliates thereof, in furtherance of the Offer, and shall be null and void and of no further force and effect upon recording of any notice of the right of first offer contained herein by or on behalf of City, including the filing of any notice of lis pendens in connection therewith. The right of first offer contained herein is personal to Developer named herein and its affiliates, on the one hand, and City, on the other hand, and shall be of no further force and effect from and after twelve(12)years from the Effective Date. In amplification of the foregoing,the right of first offer contained herein shall not be binding on any party unaffiliated with Developer named herein that may acquire the Property or any portion thereof, including Developer's lender or a purchaser at foreclosure. Notices under this right of first offer shall be given in the manner provided for in the Development Agreement to which this right of first offer is an exhibit. MIAMI 699472.17 7198217084 116 5120105 2:13 PM City shall be fully liable to Developer for any and all losses,damages,costs or expenses (including,without limitation,reasonable attorneys'and paralegals'fees and costs at all tribunal levels)incurred by Developer in the event that(a) a cloud on title to Developer's interest in any portion of the Property arises by virtue of the provisions contained herein as a consequence of any act or omission of City, or anyone affiliated with City or claiming by,through or under City, or(b) City, or anyone affiliated with City,wrongfully claims a breach or default by Developer of the right of first offer contained herein which directly or indirectly results in or causes Developer's sale or contemplated sale to any third party to not be completed. i 117 MIAMI 699472.17 719.82.17084 5/20/05 2:13 PM EXHIBIT M FORM OF DEDICATION DEED FOR TRANSIT FACILITY DEDICATION AREA Prepared by and return to:' Arnold A. Brown, Esq. Bilzin Sumberg Baena Price & Axelrod LLP 2500 Wachovia Financial Center Miami, Florida 33131 Part of Folio Nos. : SPECIAL WARRANTY DEED (WITH RESERVATION OF EASEMENT RIGHTS) THIS SPECIAL WARRANTY DEED, made as of the _ day of , A.D. , 200_, by AR&J Sobe, LLC, a Florida limited liability company, party of the first part, whose post office address is c/o Berkowitz Development, . 2665 South Bayshore Drive, Suite 1200, Coconut Grove, Florida 33.133, hereinafter called the Grantor, to The City of Miami Beach, a Florida municipal corporation, party of the second part, whose post office address is 1700 Convention Center Drive, Miami Beach, Florida 33139, Attn: City Manager, and whose Federal Identification No. is hereinafter called the Grantee (wherever used herein the term "Grantor" and "Grantee" include all the parties to the instrument and the heirs, legal - representatives and assigns of individuals, and the successors and assigns of corporations) : WITNESSETH: That Grantor, for and in consideration of the sum of Ten Dollars ($10..00) and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, hereby grants, bargains, sells, aliens, remises, releases, conveys and confirms unto the Grantee, all that certain land (the "Property") situate in Miami-Dade County, Florida, viz : (Insert legal description for Transit Facility Dedication Area] Subject to: 1. Taxes and assessments for the year 200_ and subsequent years. 2 . Zoning and other governmental rules, regulations and ordinances. 3 . -Easements and. restrictions of record, if any, without intent to reimpose or reinstate same hereby. 4 . Facts which a current and accurate survey or visual inspection of the property might disclose. 118 MIAMI 699472.17 7198217084 5/20/05 2:13 PM I 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. It is the intent of Grantor, by this instrument, to convey to Grantee the above described property for a public mass transit intermodal stop pedestrian waiting area. It is expressly provided that if and when said use shall be lawfully and permanently discontinued, the title to the above described property shall immediately revert to Grantor, its successors and assigns, and Grantor, its successors and assigns shall have the right to immediately re-possess same. Grantor reserves a perpetual easement for the erection of columns to support the improvements from time to time located above said property, and for utility and drainage facilities within said columns, in locations reasonably approved by Grantee that will not materially adversely interfere with the use of said property for its intended public mass transit intermodal stop pedestrian waiting area. Said easement shall include all rights reasonably necessary to enable Grantor to install, maintain, repair and replace from time to time, the facilities and items that Grantor is permitted to install in, above or below said property. Grantor shall perform routine day to day maintenance (such as sweeping and cleaning) of the sidewalk, column finishes, tile wall finish, canopy and, to the extent installed at Grantee's cost, the elevator, within or serving the Property (the "Transit Finishes") at Grantor's cost. Grantor shall perform all other maintenance (including obtaining a service contract reasonable acceptable to Grantee for maintenance of the elevator) , repairs and replacement of the Transit Finishes at Grantee' s cost, based. on a budget reasonably approved by Grantee and subject to annual reconciliation. Grantee shall, at its sole cost, install (if desired) , maintain, repair and replace (or remove, at Grantee's option) any transit related signage, furniture (such as benches and waste containers) or similar items withing the Property. AND Grantor hereby covenants with Grantee that Grantor is lawfully seized of said property in fee simple and has good right and lawful authority to sell and convey said property; and hereby warrants the title to said property and will defend the same against the lawful claims of all persons claiming by, through or under said Grantor. IN WITNESS WHEREOF, Grantor has caused this instrument to be executed 'as of the day and year first above written. 119 MIAMI 699472.17 7198217084 5/20/05 2:13 PM Signed, sealed and delivered in the presence of: AR&J Sobe, LLC, a Sign Name: Florida limited liability Print Name: company, by Berkowitz Limited Partnership, its manager, by Berkowitz, LLC, its general partner Sign Name: By: Print Name: Jeffrey L. Berkowitz, Manager 120 MIAMI 699472.17 7198217084 5/20/05 2:13 PM STATE OF ) SS. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 200_, by Jeffrey L. Berkowitz, . as Manager of Berkowitz, LLC, as general partner of Berkowitz Limited Partnership, as manager of AR&J Sobe, LLC, a Florida limited liability company, in the capacity aforestated; such person is personally known to me or has produced 'a driverls license as identification. Sign. Name: Print Name: My Commission Expires: Notary Public Serial No. (none if blank) : [NOTARIAL SEAL] 121 MIAMI 699472.17 7198217084 5/20/05 2:13 PM EXHIBIT N INTENTIONALLY OMTTED MIAMI 699472:17 7198217084 5/20/05 2:13 PM OR E' K 23.610 PG 2254 ! UAST PAGE q a R° �° to a � I i i A N SSSB 88588888888588888 ca cn co C"n c J i J 8888 888888888888888'88 /cc w cT J w M Ca N 0 J Ln X8888SSBSSSS88S88SSSS8 ;I it OFF'. �I �o � 44- 7- 99R463 144 1799 SEE' 03 14100 REC.AGREEMENT OF LEASE between CI'T'Y OF MUM REACH,FLORIDA (Owner) and LINCOLN PLAZA PARTNERS,LLC (Tenant) Dated as of /�' 1999 LINCOLN PLAZA PROJECT Prepared By and Record and Return to: t Joel N.Masker,Esq.of f Joel N.Masker,P.A.of Bloom&Minsker } 1401 Brickell Avenue I 7th Floor Miami,Florida 33131 i r R%GNSKBR%C M B\M obigan-i inwln Plaz Wm inPlaz%Gmdlse8-17a(Ax)wpd August 30,1999(2:49PM) 4 U EXHIBIT 1 1 r c orr tt: 1 87701 448 TABLE OF CONTENTS RECITALS ...•..•...••..•.••.•••.•••.•.••o.o••o o.s••o•..••e.•••.•e o••e e o e -�- TERMS OFAGREEMENT ••.••••...•..•••.•........•..••........•......... -1- Article 1 -Definitions .............e•••••••••a.a•a•..•e•s.•••.o•.•••@ a a.ads.. —2— Section 1.1 Definitions .............•••....•0000.•.••.e.•.•.a.a a e.•e. -.- A r t i c l e 2-Demise of Land and Term of Lease ................................. -13m Section 2.1 Demise of Land f o r Term .....................•.......... -13- Section2.2 NoEncumbrances 0000.•...•......gas..............esees -14- Section 2.3 Sale of Entire Interest. .....................a........•0000 -14- Article 3-Rent ..............................aaaaaa•.e..ea9a...•..aaaa0aa9 -14- Section 3.1 Method and Place of Payment .............a....a......... —14- Section 3.2 Rent ......................... -15- Section 3.3 Percentage Rent .......................•...e•........... -17- Section 3.4 Impositions ........................•0000...•........... -19- Section 3.5 Net Lease ......................................••...... .22- Section 3.6 Security Deposit ......... .......................a....... -22- ( Article 4—Late Charges.......e••.•.0...•0..e•e....e.d.d.•.0..••.ease*.dead —23- Section 4.1 Late Charges................ ..........e e............ ... -23- Articles-InflationAdjustment ............00 68..o.•.0•a00a.a•...a0100•..••. -23- Section 5.1 Inflation Adjustment ................•0000..a............ -23- Article 6 as Use ..................... ....................................... -23- Section 6.1 Use . �r...•..................................•0000 -23- Section 6.2 Prohibited Uses••...••e.......•...•..•a...•a•...a...,..e -24- Section 6.3 Garage Parking Rates ............................ ....... -25- Article 7-Insurance .............................................•.sae.... -25- Section 7.1 Insurance Requirements ................................. -25 Section 7.2 Treatment of Proceeds .0 0 0 0.•0 a a 0 0 0......••.0 0 0 a a 0 4 6 0 a a a a -26- Section 7.3 General Provisions Applicable to All Policies .....0 9 1 1......•• -27- Section 7.4 Additional Coverage ............. ....................... -28- Section 7.5 No Representation as t o Adequacy of Coverage .............. -29- Sect-ion 7.6 BIanket or Umbrella Policies ............................. -29- Section 7.7 Liability Insurance Requirements . ..................p a s s e d -29- Section 7.8 Property Insurance Requirements •...................Does* -30- Section 7.9 Other Insurance Requirements ......................a••.. -32- Section 7.10 Construction Insurance Requirements .........e a s e........ -33- P:11vlA1SKBRIC M B1Mlchipn-Lincoln P1a7A\Unc61nP1anGmd1sc8-17a(Bx)wpd August 30.1999(2:49PM) i + �b 0'44.9 Section 7.11 Annual Aggregates ...... •.........e...e e 9999.•.. -34- Section 7.12 Determination of Replacement Value ...........4.......... -34- Section 7.13 Master Subleases ..........a..................•......... -34- Section 7.14 Additional Interests ......a....................a......... 44- - Article 8-Damage,Destruction and Restoration .....................•......•.. -35- Section 8.1 Notice to Owner ........................................ -35- Section 8.2 Casualty Restoration .....a 4•.••.meow.••...•.Does.•....0. -35- Section 8.3 Restoration Funds ...................................... -35- Section 8.4 Effect of Casualty on This Lease .......................... -37- Section 8.5 Collection of Proceeds ................................... -38- Article 9-Condemnation ......as.4.•a•......aaaaaaa9a0oaaa•..a•a9a••aaaa99 -38- Section 9.1 Substantial Takings..•.a.o..a..s0.....••..•...•.aa0940.. -38- Section 9.2 Less Than Substantial Taking. ........a 9.a 9 9 9 a a:•a -39- Section 9.3 Restoration Funds ................. ............4 9.9 9•v 9. -40- Section 9.4 Temporary Taking........0&00aa0.....aa..eaa0aaa 0 0 9 a.•. -42- Section 9.5 Governmental Action Not Resulting in a Taking ............. -43- Section 9.6 Collection of Awards ..................•...a............. -43- Section 9.7 Negotiated Sale 696..4.goes 9606.e0968..•..••aa...a.....#a -43- Section 9.8 Intention of Parties .......••e•s e e..e a a a 0 9 0 0 a....v e•..••a _43- Section 9.9 No Waiver. .....................................a e a a a a. -43 r Section 9.10 Effect of Taking on This Lease ............................ -44- Article 10-Sale of the Project,Transfer and Subletting .............a a...a 0..0.e -44- Section 10.1 Purpose of Restrictions on Transfer. ..........4 a a....a 9.a 9 a -44, Section 10.2 Definitions. ................•9 9 9 9..s e 9 9 9 9...o 9 9 9 9 s a.o . -44- Section 10.3 Restrictions on Sale of the Project or T r a n s f e r. .....•••.e e..• -45- Section 10.4 Transfers. ..............•............................. . -49- Section 10.5 Required Notices ....................................... -50- Section 10.6 Effectuation of Transfers and Sales of the Project. ........... -50- Section 10.7 Office and Retail Master Subleases. ........................ -51- Article 11-Mortgages ..6868...•..........e.•.....•0906••.0960.......•0644. -51- Section 11.1 Right to Mortgage ...... .... ............................. -51- Section 11.2 Definitions ............................................. -52- Section 11.3 Effect of Mortgages ..................................... -52- Section 11.4 Notice and Right to Cure Tenant Defaults .................. -53- Section 11.5 Recognized Mortgagee or its Designee as Tenant Under this Lease ................................. -55" Section 11.6 Execution of New Tenant's Documents .......a............. -56- Section 11.7 Application of Proceeds from Insurance or Condemnation Awards .................................. -59- Section 11.8 Appearance'st Condemnation Proceedings.................. -59- FAMINSKEMC M Bwichlgan-Lincoln Plena\Linco1nP1a=0md1se8-M(Ex)wpd August 30,l 999(2:49PM) ort REC. 18770?0 450 r { Section 11.9 Rights Limited to Recognized Mortgagees .....•............ -59- Section 11.10 No Surrender or Modification ............................ -60- Section 11.11 Recognition by Owner of R ecognized Mortgagee Most Senior in Lien •••a••••s•s••o•o••••o••••s• "60, Section 11.12 Recognized Mortgagee's Assignment Rights ..........•..••• -60- Section 11.13 Notices Under a Mortgage...••a••••••.a.... ......•...•... -62. Article 12-Subordination ...........•...•••a•.•••..••.•goal,•...••••••.see -62- Section 12.1 Subordination of Percentage Rent ......................... -62- Section 12.2 No Subordination of Owner's Proprietary Interest in Land 6666 -62- Section 12.3 Tenant's Interest in the Premises Subject to Title Matters...... -63- Article 13-Project Construction ............................................ -63- Section 13.1 Tenant's Obligation to Construct Project ................... -63- Section 13.2 Description of the Project ........................•....... -63- Article 14-Maintenance,Repair and Alterations •.••••.•••.•...a••.•a..••a•a o• -63- Section 14.1 Maintenance Standards ......................•6 6 6 6...•.•. -63, Section 14.2 Removal of Building Equipment .......................... -64- Section 14.3 No Obligation to Repair or to Supply Utilities ...........•••. "64- Section 14.4 Waste Disposal .................6666.•..•..........a..®. -64- Section 14.5 Alterations ......•.......•...aa...•.••••••aa...a••...a. "64- '' Article 15-Requirements .......... ........................................ -67-. Section 15.1 Tenant's Obligation to Comply With Requirements .......... -67- Section 15.2 Definition ••••••a•••.••••.....•.••.•.a..•..••••.••o..•. -67- Section 15.3. Owner's Obligation to Comply With Requirements. ....•a..a. -68- Article 16-Managements and Operation of Project ............................. -68- Section 16.1 Management of Project ....... ........................... -68- Section 16.2 Garage Revenue Control Equipment....................... -69- Section 16.3 'Transfer of Acceptable Operator's Interest in the Management Agreexment. •••....••••.......••...••.. -70- Section 16.4 Owner's Rights and Remedies. ..•••.••••.•.••••....o•••••• "70- Section 16.5 Repair,Renovation and Replacement Reserve Accounts ....... -71- Section 16.6 More Than One Acceptable Operator. ..................... -72- Article 17-Discharge of Liens •.•.......6096..too a..6999...•.•0a..•.a060aa0.• -72- Section 17.1 Creation of Liens ....................................... -72- Sections 17.2 Discharge of Liens ...................................... -72- Section 17.3 No Authority to Contract in Name of Owner ............. ... -74- • ............. ............................***see** -74- Article 18-Representations® g',� r� -Section No Brokers •so••.sa•.se••••.•••..•a•..a•a•a0a•v•••..••a - 4- � 1 F vAwsKERNc M Bwiclilgan-Lincola PIaza\Uaco9nPh=Grnd1sa-17a(&)wpd August 30,1999(2:49PAQ EC.EC• OPC 4.51A ` Section 18.2 No Other Representations ................................ -74" Article 19-No Liability f o r Injury or Damage ................................. -75- Section 19.1 Liability of Owner or Tenant ............................. -75- Section 19.2 Owner's Exculpation ...........0 41 0 e.••.•e...••••..e••••• -76- Section 19.3 Notice of Injury or Damage............................... -76- Section 19.4 Tenant's Exculpation .................................... -76- Section 19.5 No Punitive Damages. ..............•e.•e••.•e••.e 41 41..... "77" Section 19.6 Survival. ......... ..................................... -77- Article 20-Indemnification ................................................ -77- Section 20.1 Indemnification of Owner...41 41.•••••••••••e.••.•••e•..•.. -77- Section 20.2 Indemnification of Tenant...............41•.............e. -78- Section 203 Contractual Liability ......................•...........•• -78- Section 20.4 Defense of Claim,Etc .........v e t o.........•.........•41 41. -79- Section 20.5 Notification and Payment ................................ -79- Section 20.6 Governs Lease 4141.....a®..........•.•4141...•41:41..•4141••.•. -79- Section 20.7 Survival ......•.••e. ..................•4141•........• -so- Article 21- Covenant �7Against Waste and Inspection 4141.• 4141....e•..............e. _80-p Sectlon21.1 Waste. owe*••••e•o•...•boo••.••••••••eeaseoo•••e000••eo -80- Section2l•2 Inspectionof Premises. ...••••e•••.•so•••e••e••••e.••••• • -80- 1 Article 22-Owner's Security Interest in Building Equipment .................... -80- Section 22.1 Grant of Security Interest ................................ -So- Article 23-Leasehold Condominium .. ....................•...............•. -81- Section 23.1 Creation of Leasehold Condominium. .................e e... -81- Article 24 Right to Perform the Other Party's Obligations .................•4141.. -84, Section 24.1 Right to Perform the Other Party's Obligations .............. -84- Section 24.2 Discharge of Liens ........................... ........... -84- Section 24.3 Reimbursement for Amounts Paid Pursuant to this Article .... -85- j Section 24.4 Waiver,Release and Assumption of Obligations ............. .85- 1 i Article 25-Events of Default,Conditional Limitations,Remedies,Etc. ............ -85- Section 25.1 Definition ..........................a..........e 4141.4141.. -85- Section 25.2 Enforcement of Performance;Damages and Termination ..... -87- Section 25.3 Expiration and Termination of Lease ...................... -87- Section 25.4 Waiver of Rights of Tenant and Owner....••.•...•e.••••..• _88- Section 25.5 Receipt of Moneys After Notice or Termination ...... ....•••. _88- f Section 25.6 Strict Performance ..................•............••4141.... _89- Section 25.7 Right to Enjoin Defaults 4141...........................•e.e "89- Section 25.8 Remedies Under Bankruptcy and Insolvency Codes .......... .90- � F 1MINSKERIC M Michigan-Lincoln P1azdNL1nwJnP1ar Gmdlse847s(Hx)wpd August 30,1999(2 49PM) c. 18770�G 452 Section 25.9 Funds Held By Tenant..............•....•........•••..•. .91- Section 25.10 Inspection ...........................ap.a•.eaa•.ae•o.•a -91- Article 26-Notices,Consents and Approvals .................................. -91- Section 26.1 Service of Notices and Other Communications............... -91- Section26.2 Consents and Approvals .pa.@9*seeress to*see poo.pe•e a eoaa -93- Article 27-Certificates By Owner and Tenant..........................0 p••a•a '95' Section 27.1 Certificate of Tenant. .................................... -95- Section 27.2 Certificate of Owner .................................... -96- Article 28-Financial ReportsandRecords............••..aaa90aape••aa•••a..• -96- Section 28.1 Hoops and Records;Audit Rights .......• •.a..a........•e -96- Article 29-Surrender at End of Term ............a......................... -100- Section 29.1 Surrender of Premises ................................... .100- Section 29.2 Delivery of SubleasesEtc................•............... -100- Section 29.3 Title to Improvements 9 p p o p p•e•a b p a p o p•e a p a p p.40 D e e•p e o p• -100- Section 29.4 Title to Reserve Account•.....................•.....e e e.e -100- Section 29.5 Cash and Accounts Receivable ..a......a.....a......a.... -101- Section 29.6 Personal Property. ...........a..a..a•.e..a..a a.p......a 401- Section 29.7 Survival Clause ...p.p a.e•pae.rose eeae.pa•eaeea.eaa..aa -101- Article 30-Quiet Enjoyment .............................. .............. .101- Section 30.1 Quiet Enjoyment .........a..........................a. .101- Article 31 -Reserved ..................... •.......a.........e•. -102- Article 32-Administrative and Judicial Proceedings,Contests,Etc...a....p...... -102, Section 32.1 Tax Contest Proceedings ...............•..p a.•...•..p.•. -102- Section 32.2 Imposition Contest Proceedings •••o o.a..•••.•..e.••spa••• -102- Section 32.3 Requirement Contest a.a.aooeoeo•eose@0aa000e•eo•ae.ae•a -103- Section 32.4 Owner's Participation in Contest Proceedings .............. -104- Section 32.5 Nonapplicability of this Article 32...a e a a•p p e o•p a p e e a o e a•.• -104- Article 33-Nondiscrimination ....................•.................... .o... -104- i Section 33.1 Nondiscrimination ....a................................ -104- Article 34-Indictment,Investigations,Etc. .....•..a••.e e.•.•.............a.. -104- Section 34.1 Cooperation in Investigations ............................. -104- Article 35-Environmental Matters ........................................... -105- Section 35.1 Definitions .................. .................... ...... -105- i Section 35.2 representations and Warranties of Tenant ......•......... -106- � F:VvMSKERIC M BUichigan-Lincoln PIam\LiocobiP1a=0mdisa-17a(Ex)wpd August 30,1999(2:49PM) off.s 187708 453 1 R�C l Section 35.3 Use of Hazardous Materials ............................. -107- Section 35.4 Tenant Indemnification of Owner ................... -107- Section 35.5 Compliance ..................41 41..a.0 1,..0.8 0.0 a 0.se..... -107- Section 35.6 Notices ................................................ -107- Section 35.7 Owner's Remedies ..................................... -107- Section 35.5 Defaults .............................***.8690066069.00 -105 Section 35.9 Owner Responsibility. .................................. -109 Section 35.10 Survival ........... -109- Article 36-Reciprocal Rights of First Refusal ................................ -109- Section 36.1 Tenant's Reciprocal Right of First Offer................... -109- Section 36.2 Owner's Reciprocal Right of First Refusal ................. -110- Section 36.3 Assignment ........................................... -112- Section 36.4 No Merger. ........................................... -112- Article 37-Miscellaneous ............ o o 4141... -112- Section 37.1 Governing Law ........................................ -112- Section 37.2 Entire and Interpretation of Lease .................... -112- Se�c► ion.3'}7/..3 Entire Agreement...................................... -11/3{�- Section 37.4.4 �Cyounteerpart0�pp...8•......a..................a..a s a e 0 41 0.•. -11✓- Section 37.5 �T alive8'Modification,Etc ......a.....a.0.a...0 0 a 0 0 41 a.a.. -113- Section 37.6 E/fyfectry*oyfOther Transactions .........................4141. -114- Section 37.7 ASeveraA/ility ................0 a 9 0 a.0 0 a 0.a....0.41 41..0 0 41 0. -114- Section 37.8 Merger..a a...0a.a.aa.......a%0a......a000aaaa0a...•.. -114- Section 37.9 Remedies Cumulative ..................a.....o s...6 6.9 6 -114, Section 37.10 Performance at Each Party's Sole Cost and Expense ........ -115- Section 37.11 Recognized Mortgagee Charges and Fees .................. -115- Section 37.12 Successors and Assigns ................................. -115- Section 37.13 Recording of Lease .......... .............a............ -115- Section 37.14 Notice of Defaults. ..............................s...... -115- Section 37.15 No Liability of Officials and Employees of Owner or Tenant.. -115- Section 37.16 Conflict of Interest...................... ............... -116- Section 37.17 No Partnership or Joint Venture ......................a a. -116- Section 37.18 Time Periods ......................................... -116- Section37.19 Time is of the Essence ........... ..........00400400a0000 -116- ; Section 37.20 Radon Notice ......................................... -117- Section 37.21 No Third Party Beneficiaries ............................ -117- List of Exhibits ...................a.......0.0 0....0.............0....a ... -119- F WINSKBRT M B1M Aigan-Lincoln Plaza\LincolnPla=Grndlse8-17o(Bx)wpd Aupst 30,1999(2:49PM) i t � °Fr. 81T0�� 454 SEC. AGREEMENT OF LEASE t TIUS AGREEMENT OF LEASE, dated as of the day of-CdP X1999 (the "Commencement Date'),by and between the Crff OF MIAMI BEACH,FLORIDA,a municipal corporation duly organized and existing under the laws of the State of Florida, as Owner, and LINCOLN PLAZA PARTNERS,LLC,a Florida limited liability company,as Tenant. RECITALS WHEREAS,on December 30, 1997,pursuant to the authorization of the Mayor and City Commission,the Administration issued a Request for Proposals for the development of public-private parking facilities in the area of south Dade Boulevard("UP");and 'WHEREAS,the City issued the RFP in order to solicit qualified development teams to bid on certain publicly-owned sites identified in the RFP and/or to propose the development of parking on privately owned property;and WI EREAS, on April 6, 1998, the City received proposals from five (5) different development teams for various sites throughout the South Beach area;and WHEREAS,on June 30,1998,an Evaluation Committee appointed by the City Manager and i approved by the Mayor and City Commission,heard presentations from the five teams;and WHEREAS,in accordance with the criteria identified in the RFP,the Evaluation Committee ranked the proposals and provided their recommendations to the City Manager;and WHEREAS, on July 15, 1998,the City Commission adopted Resolution No. 98-22857, authorizing the Administration to negotiate with a joint venture composed of SRC Lincoln Plaza. LLC, a Florida limited liability company and RDP Lincoln Plaza LLC,a Florida limited liability company and Michael Milberg(which joint venture is now known as Lincoln Plaza Partners LLC), with regard to the site located between 17'Street and Lincoln Lane and Jefferson and Michigan Avenues in the City;and WHEREAS,said negotiations have been concluded and the Mayor and City Commission, in Resolution No.99-23236,adopted after two(2)duly noticed public hearings held pursuant to the Development Agreement Act and Sections 82-36 through 82-40 of the City Code. It is in the best interest of the City to enter into an Agreement of Lease and Development Agreement with Lincoln Plaza Partners LLC for the development of the aforementioned Project Site. TERMS OF AGREEMENT NOW,THEREFORE,it is hereby mutually covenanted and agreed by and between the parties hereto that this Lease is made upon the terms,covenants and conditions hereinafter set forth. I F W NSKERT M 131Miebigao-Lincoln Pl azalLincolnPlazaOmdlse6.17e(Ex)wpd August 309 1999(2:49PM) i i 18770N 455 Article 1-Definitions Section 1.1 Definitions. For all purposes of this Lease the terms defined in this Article 1 shall have the following meanings and the other provisions of this Article I shall apply: "Acceptable Operator" means any corporation or Person which has the following qualifications: 1. The Acceptable Operator must be,or have a management contract with,a Property Manager. 2. The Acceptable Operator must establish and maintain an on site property management office within a portion of the Project. 3. The Acceptable Operator and any Property Manager hired by the Acceptable Operator shall have no outstanding building code violations for which notice has been served(other than those which are being corrected or contested diligently and in good faith) against any property owned or managed by such Acceptable Operator within the City of Miami Beach,Miami-Dade, County and any cities located within Miami-Dade Cou*. 4. The Acceptable Operator must have been in the business of operating similar i projects and parking garages for the past five(5)years(or have management personnel who have been in the business of operating similar projects and parking garages for at least five(5)years). 1 5. The Acceptable Operator must have been in the business of managing retail or office space for at Ieast five (5)years (or have management personnel who have been in the business of managing retail or office space for at least five(5)years). Any entity contracted as an Acceptable Operator must continue to meet the above throughout its service as an Acceptable Operator hereunder unless certain of said qualifications were waived by the Owner,in writing. 6. An Acceptable Operator shall not be a Foreign Instrumentality. "Accounting principles"means generally accepted accountingprinciples as promulgated by the American Institute of Certified Public Accountants,except as otherwise provided by this Lease, with such changes as Owner and Tenant shall mutually agree are consistent with this Lease in order to reflect technologies and methodologies not addressed in the Accounting Principles. "Affiliate"or"Affiliates"means,with respect to any Person,any other Person that directly or indirectly,through one or more intermediaries,controls or is controlled by,or is under common i I F 1MINSKER\C M Michipan-Lincoln P1a7a\L(nco1nP1azaQmdlsa8-17a(3x)wpd August 30,1999(2 49PM) -2- 1 i a UVAN 456 control with,such Person.For purposes hereof,the term"control'(including the terms"controlled by"and"under common control with")shall mean the possession of a Controlling Interest. "Alterations"has the meaning provided in Section 14.5(a). 11Annual Financial Statements"has the meaning provided in Section 28.1(c). "Annual Report"has the meaning provided in Section 27.1(b). "Assignee"has the meaning provided in Section 10.2(b). "Assignment"has the meaning provided in Section 10.2(a). "Back Rent"has the meaning provided in Section 10.2(c). "Base Rent"has the meaning provided in Section 12(c). "Building Equipment"means all installations incorporated in,located at or attached to and used or usable in the operation of,or in connection with,the Premises and shall include,but shall not be limited to,machinery,apparatus,devices,motors,engines,dynamos,compressors,pumps,boilers and burners,heating,lighting,plumbing,ventilating,air cooling and air conditioning equipment; chutes,ducts,pipes,tanks,fittings,conduits and wiring;incinerating equipment;elevators,escalators i and hoists; washroom, toilet and lavatory plumbing equipment; window washing hoists and equipment;and all additions or replacements thereof excluding,however, any personal property which is owned by subtenants,licensees,concessionaires or contractors(except to the extent any of the foregoing are Affiliates of Tenant). "Building Index" has the meaning provided Section 7.12(b). "Business Day" or "business day"means a day other than Saturday,Sunday or a day on which banking institutions in the State of Florida are authorized or obligated by law or executive order to be closed and are,in fact,closed "Casualty Restoration"has the meaning provided in Section 8.2(a). "Certificate of Occupancy"means the document by that name that is required prior to the occupancy of any premises by Section 307.1 of the South Florida Building Code as amended from time to tune;provided,however,that such definition shall not apply to a temporary certificate of occupancy if issued only for the Garage and retail portions of the Project and only for a period not to exceed twelve (12)months prior to the office portion of the Project receiving a Certificate of i Occupancy. Such term shall include both Temporary CO and Final CO,as the context may require. "City"means the City of Miami Beach,Florida,a municipal corporation duly organized and existing under the laws of the State of Florida. r F 11Vl1NSKBRIC M B1Michignn-Lincoln P1a=Unco1nP1amGrnd1sc&17a(Bx)wpd August 30,1999(2;49PM) i i £ 457. "CO Date"means the date on which Tenant receives a Certificate of Occupancy for any of ! the Garage,office building or retail space,whichever occurs first. "Commencement Date"has the meaning provided in the preamble of this Lease. "Commissioner"means a duly elected or appointed member of the City Commission of the City of Miami Beach. "Condemnation Restoration"has the meaning provided in Section 9.2(b). "Condominium Tenant"has the meaning provided in Section 211(b)(H). "Consenting Party"has the meaning provided in Section 26.2(c)(1). "Construction Agreements" means all agreements executed in connection with any Construction Work affecting the Premises and the Improvements,including,without limitation,a Restoration, Alteration or other Construction Work performed in connection with the use, maintenance or operation of the Premises. "Construction Commencement Date" has the meaning provided in the Development Agreement. �.� 0 r�,. a,/.�r.: Y . e�, •,«E:: �� -�� ,ia e b "Construction Phase"means the period beginning on the Possession Date and ending on the CO Date. "Construction Work"means any construction work performed under any provision of this Lease affecting the Premises and the Improvements, including, without limitation, the initial construction of the Project, a Restoration, Alteration or other construction work performed in connection with the use,maintenance or operation of the Premises. "Controlling Interest"means the ownership of greater than fifty percent(50 11/6)ofthe voting Equity Interests in a Person or the ownership of greater than fifty percent (50%) of the votes necessary to elect a majority of the Board of Directors or other governing body of such Person. "CPI"means the Consumer Price Index for All Urban Consumers for the United States,all items,index base period 1982-84100(commonly referred to as CPI-L),as published periodically by the United States Bureau of Labor Statistics. "Date of Taking"has the meaning provided in Section 9.1(c)(i). "Debt"has the meaning provided in Section 11.2(a). "Debt Service"means all payments in respect of principal and interest on ]Debt(including, 1 without limitation,the net cost to Tenant of interest rate protection agreements and arrangements, F:W NSKEK\C M DWIchlgan-Lincoln Plaza)LincolnPlm(3mdlse8-17a(Ex)wpd August 34,1999(2 49PM) —4— V794 45B and any and all fees paid to the lender(s),administrative fees and charges,extension fees,and the like). Yn the event,and only during the period in which,a Recognized Mortgagee or its Designee becomes Tenant under this Lease by virtue of a foreclosure of its Recognized Mortgage or by virtue of an assignment or conveyance in lieu thereof,Debt Service shall mean the payments that would have been due under the Recognized Mortgage if foreclosure or conveyance in lieu thereof had not occurred and there had been no acceleration of the Recognized Mortgage,and in the event that the maturity date of the Recognized Mortgage has occurred or occurs in such period,Debt Service shall )mean the amount that would have been due in order to make monthly payments,calculated on a level debt service basis,of(a)interest on the remaining unpaid principal indebtedness(i.e.,the"balloon") secured by the Recognized Mortgage computed at the contract(i.e.,non-default)rate specified in the maturing Recognized Mortgage,plus(b)principal payments using the same amortization period as the maturing Recognized Mortgage(i.e.,if the maturing Recognized Mortgage had a ten(10)year term with a twenty-five(25)year amortization period,the amortization period for calculating the monthly principal payments on the remaining principal balance shall be twenty-five(25)years). "Declaration"has the meaning provided for in Section 23.1(x). "Default"means any condition or event,or failure of any condition or event to occur,which constitutes,or would after the giving of notice and lapse of time(in accordance with the terms of this Lease)constitute,an Event of Default. "Default Notice"has the meaning provided in Section 25.1(b). Nee, ,�-�. "Delay ate" means the earlier to occur of i the CO Date or i i the date which is y �) ( ) twenty-four(24)months after the ossession Da (which date shall not be subject to Unavoidable Delay). i G I -2 4A,Q- 6/1 log "DEP"means the State of Florida Department of Environmental Protection. "DERM" means the Miami-Dade County Department of-Environmental Resources Management. "Development Budget"has the meaning provided in the Development Agreement. "Environment"has the meaning provided in Section 35.1(c). "Environmental Compliance"has the meaning provided in Section 35.5. "Environmental Condition"has the meaning provided in Section 35.1(d). I I "Environmental Damages"has the meaning provided in Section 35.1(e). "Environmental Laws"has the meaning provided in Section 35.1(b). P.XMINSKSRIC M B1Michigan-Lincoln PlazalT awInPI=Gmdlsa$-170x)wpd August 30,1999(2 49PM) i 187AN "EPA"means the]Environmental Protection Agency of the United States. I "-Equity Interest"has the meaning provided in Section 10.2(d). "Event of Default"has the meaning provided in Section 25.1. "Expiration of the Terra"means the expiration of the initial Term of this Lease,or the expiration of any extensions thereof,as the case may be,or on such earlier date as this Lease may be terminated as provided herein. "Fair Market Rent" means the rent that the Land should bring if it were raw and unimproved(i.e.,all existing Improvements shall be disregarded)and if it were available for use only for the same uses as the Project as it is then being used,in a competitive and open market under all conditions requisite to a fair lease,Owner and Tenant each acting prudently,knowledgeably,and assuming the rent is not affected by undue stimulus. Implicit in this definition is consummation of a lease as of a specified date under conditions whereby: (i) Owner and Tenant are typically motivated; (ii) Both parties are well-informed or well-advised and acting in what they consider their own best interests; (iii) A reasonable time is allowed for exposure in the open market; (iv) Payment is made in terms of cash in U.S.dollars or in terms of financial arrangements comparable thereto;and (v) The rent represents the normal consideration for property leased unaffected by special or creative financing or concessions granted by anyone associated with the lease. "Final CO",means a certificate(s)of occupancy issued by the City's Building Department for all or a portion of the Improvements,other than a Temporary CO(s). "First Transferee"has the meaning provided in Section 11.12(e). "Fixed Expiration Date"means the date which is the last day of the month in which the fiftieth(50th)anniversary of the Delay Date shall occur,provided,however,that in the event the Terrni is extended as provided herein,Fixed Expiration Date shall mean the last day of any extension or extensions of the Terns in accordance with the provisions of Section 2.1 hereof. i "Foreclosed Tenant"has the meaning provided in Section 11.12(e). "Foreclosure Transferee" and "Foreclosure Transfer" have the meanings provided in Section 11.12(c). i F VAN5KSRIC M B1MicWgan-Uncoln P1sza%1Anco1nPl=Gmdlse9-17a(Ex)wpd August 30,1999(2:49PM) _6- 460 "Foreign Instrmenah y mews a foreign(i.e.,non-United States of Amer>ca)government or instrumentality thereof or a Person controlled thereby. A Person shall be deemed to be"controlled by" a foreign government or instrumentality if such government or instrumentality, directly or indirectly,directs or causes the direction of the management and policies of such Person "Garage"means the part of the Premises consisting of approximately seven hundred(700) parking spaces,a portion of which shall be available as a public parking facility subject to the terms and conditions of Section 6.1(b). "Governmental Authority or Authorities"means the United States of America,the State of Florida,the City(acting in its governmental,not proprietary,capacity),Miami-Dade County,and any agency,department,commission,board,bureau,instrumentality orpolitical subdivision(including any county or district)of any of the foregoing,now existing or hereafter created,having jurisdiction over Tenant,or any owner,tenant or other occupant of,or over or under the Premises or any portion thereof or any street,road,avenue or sidewalk comprising a part of,or in front of the Premises,or any vault in or under the Premises,or airspace over the Premises. "hnposition(s)"has the meaning provided in Section 3.4(b). "Improvement(s)" means any building (including footings and foundations), Building ]Equipment,and other improvements and appurtenances of every kind and description now existing or hereafter erected,constructed,or placed upon the Land(whether temporary or permanent),and any and all alterations and replacements thereof,additions thereto and substitutions therefor. "Institutional Lender"means a Person which,at the time it bpA it l Lender l• "yo' her acting individ WaucMiair-yor representative(such as an agency)capacity];an insurance company organized and existing under the laws of the United States of America or any state thereof or a foreign insurance company [in each case whether acting individually or in a fiduciary or representative(such as an agency)capacity];an institutional investor such as a publicly held real estate investment trust,an entity that qualifies as a"REMIC"under the Internal Revenue Code of 1986,as amended,or other public or private investment entity in each case whether acting as principal or agent);a brokerage or investment banking organization [in each case whether acting individually or in a fiduciary or representative(such as an agency)capacity as principal or agent];%n employees'welfare,benefit, pension or retirement fund;an institutional leasing compan , 1 RIFSPany governmental agency or entity insured by a governmental agency or any combination of Institutional Lenders;provided that each of the above ; entities shall qualify as an Institutional Lender only if(at the time it becomes an Institutional Lender) it shall(a)have assets of not less than One Hundred Million Dollars($100,000,000)adjusted for j inflation and(b)not be an Affiliate of Tenant(it being further agreed that none of the standards set forth in this definition shall be applicable to participants or co-lenders in a loan secured by a Mortgage which is held by an Institutional Lender[whether acting individually or in a fiduciary or representative j s PA/WSKERT M B1Michigan-Unooln P]azsU,tncolnPlaz Umdlsa&17a(Bx),wpd August 30,1999(2:49PM) I oFC. 18770H 461. RAC. , (such as an agency)capacity]. The term "Institutional Lender"also includes an Affiliate of an Institutional Lender as described in this paragraph. "Joint Board"means the Joint Historic Preservation and Design ReviewEoard created and established pursuant to the Land Use Regulations or any board or body which may succeed to its functions. "Land"means the real property and Or rights,if any,described on Exhibit A attached hereto and incorporated by reference herein. "Late Charge Rate"has the meaning provided in Article 4. "Lease"means,collectively,this Agreement ofLease and all exhibits and attachments hereto, as any of the same may hereafter be supplemented, amended, restated, severed, consolidated, extended,revised and otherwise modified,from time to time,either in accordance with the terms of this Lease or by mutual agreement of the parties. i "Lease Year"means(a)the period commencing on the Delay Date,and expiring on the Oast day of the next occurring December which is at least twelve (12) months thereafter; (b) each succeeding 12-month period during the Term;and(c)the final shorter period,if any,ending on the last day of the Term. "Major Alteration"has the meaning provided in Section 14.*)(vi). t . "Management Agreement"means a written agreement between Tenant and Acceptable Operator pursuant to which Acceptable Operator has agreed to manage and operate the Premises in accordance with the terms thereof,and any replacements,substitutions,restatements or modifications thereof. "Managing Member(s)"means the Member(s)who can legally bind the limited liability company. "Master Sublease(s)"has the meaning provided in Section 10.2(fl. "Master Subtenant"has the meaning provided in Section 10.2(g). "Mayor"means the Mayor of the City. i °'Member(s)"means a Person who owns an Equity Interest in a limited liability company. "Membership Interest(s)"means the Equity Interest of a Member. "Mortgage"has the meaning provided in Section 11.2(b). F% MSKERW M BWIMchigan-Lincoln P1ar VAcolnP1=Gm4M-I7a(Ex)wpd August 30,1999(2:49PK -S- 462 "Mortgagee"means the holder of a Mortgage. { "Net Condemnation Award"has the meaning provided in Section 9.1(eXi ). "Net Insurance Proceeds"has the meaning provided in Section 8.2(a). "Notice"has the meaning provided in Section 26.1. "Notice of Failure to Cure"has the meaning provided in Section 11.4(a). "Operating Expense(s)" means, without duplication, all costs and expenses incurred in owning,maintaining,conducting and operating the Premises,other than Debt Service and any other payments of pricipal or interest(whether or not permitted hereunder(and this reference thereto not constituting consent or approval thereo fl],Rental,depreciation,amortization and the original costs of constructing the Improvements pursuant to the Development Agreement. Operating Expenses shall include,without limitation,all operating costs;all wages and benefits and payroll taxes;other goods,supplies,utilities and services;all repairs and maintenance;all professional fees and expenses; all costs of advertising,marketing and promotion;all costs incurred by Tenant or any Affiliate of Tenant under any leasing agreement,management agreement or other similar agreement regarding the leasing or management of the Project entered into by Tenant or any Affiliate of Tenant; all Impositions, all insurance costs; all payments under equipment leases; all real estate, personal property and other taxes, assessments, governmental charges and other Impositions (other than income taxes, unless imposed in lieu of any of the foregoing taxes, assessments, charges or Impositions);provided,however,that no deduction shall be permitted for Alterations which under this Lease require the consent of Owner(unless such consent has been obtained or is deemed to be obtained), Any Operating Expense payable to an Affiliate of Tenant or Acceptable Operator shall be deemed an Operating Expense only to the extent of the fair market value of the goods or services supplied by such Affiliate. "Owner"paeans the City,acting in its proprietary capacity,and any assignee or transferee of ; the entire Owner's Interest in the Premises,from and after the date of the assignment or transfer pursuant to which the entire Owner's Interest in the Premises was assigned or transferred to such assignee or transferee. I "Owner Indemnified Parties"means,collectively,the City(and any successor Owner),and their respective elected and appointed officials(including the City's Mayor and City Commissioners), directors,officials,officers,shareholders,members,partners,holders of other ownership interests, employees, successors, assigns, agents, contractors, subcontractors, experts, licensees, lessees, mortgagees,trustees,partners,principals,invitees and Affiliates. An"Owner IndemnAfled Party" shall mean any of the foregoing. i "Owner's Interest in the Premises"means Owner's interest inthe Land and Owner's interest in this Lease. FAMWSKERIC M B\Michipn-Lincoln P1aya\Linco1nP1mGmd1se8-17s(Ex)wpd Aupd 30.M9(2.49PM) W9- t, 463 "Parties"means Owner and Tenant. i "Permit"has the meaning provided in Section 35.10. "Permitted Transfer"has the meaning provided in Section 16.3(c)(iii). "Person" means an individual, corporation, partnership, joint venture, limited liability company,limited liability partnership,estate,trust,unincorporated association or other entity;any Federal,state,county or municipal government or any bureau,department,political subdivision or agency thereof;and any fiduciary acting in such capacity on behalf of any of the foregoing. "Plans and Specilicatiolns" has the meaning given to such term in the Development Agreement. "Possession Date" means the earlier to occur of(i)one(1)year(which is not subject to Unavoidable Delays)from the Commencement Date or(ii)the date upon which Tenant elects to take possession of the Land. ,�Xk 741.&4-1-t-0-'4' /I� 1 oa "Premises"means,collectively,the Land and the Improvements. "Prohibited Uses"has the meaning provided in Section 6.2(a), "Project"has the meaning provided in Section 13.1. 1 "Project Opening Date"means the date on which the Project is opened to the-public for business,but not later than the date that is thirty(30)days following the issuance of a CO for the entire Project. "Project Revenue(s)"has the meaning provided in Section 33(c). "Property Manager" means a commercial real estate property manager licensed to do business in the State of Florida and the City. "Public Company" means a Person that is required to comply with the reporting requirements under the Securities Exchange Act of 1934,as amended,or any successor statute. "Recognized Accounting Firm" means Ernst &Young/Kenneth Leventhal; Coopers & Lybrand;Arthur Andersen;Price Waterhouse;Deloitte&Touche;KPMO Peat Marwick;Pannell, Kerr&Foster;Mallah,Furman,Berkowitz,Dick,Pollack&Burnet;Rachlin,Cohen&Holtz;or any successor entity of any of the foregoing or any other certified public accountants mutually acceptable to Tenant and Owner. "Recognized Mortgage"has the meaning provided in Section 11.2(c). i � ; I F 1MINSKERT M B1Michipn-Lincoln Plaza\LinwinNitnOmdlse8-17a(Ex)wpd ' August 30,1999(2:49PM) -10- 18770?0 464 "RecoWdzed Mortgagee"means the holder of a Recognized Mortgage;provided,however, .. . that, except to the extent permitted by Section 11.2(c), a Recognized Mortgagee may not be an Affiliate of Tenant(except if Tenant is an Affiliate of a Recognized Mortgagee that has caused this Lease to be assigned to such Affiliate in lieu of foreclosure of the Recognized Mortgage of such Recognized Mortgagee). "Reinstatement Date"has the meaning provided in Section 11.5(a). "Release"has the meaning provided in Section 35.1(8). "Replacement Value"has the meaning provided in Section 7.12(a). "Rental"means rent,Base Rent,Percentage Rent,adjustments and any other sums,costs, expenses or deposits which Tenant is obligated,pursuant to any provisions of this Lease, to pay and/or deposit. "Request for Proposals" or "RFlF" means Request for Proposals (RFP Igo. 20-97/98 (Amended))issued by the City on December 30, 1997,with respect to the Land. "Requesting Party"has the meaning provided in Section 26.2(c)(li). "Requirements"has the meaning provided in Section 15.2. r "Reserve Account"has the meaning provided in Section 16.5(a). "Restoration"means either a Casualty Restoration or a Condemnation Restoration,or both. "Sale of the Project"has the meaning provided in Section 10.2(e). "Security Deposit"has the meaning provided in Section 3.6. "Significant Alteration"has the meaning provided in Section 14.5(x)(). "Substantial Completion"has the meaning provided in the Development Agreement. "South Florida Building Code"means the South Florida Building Code(Revised 1994),as amended from time to time,or any successor thereto. "Substantial Controlling Interest"means the ownership of greater than fiftypercent(50%) of the Equity Interests in a Person and the ownership of greater than fifty percent(50%)of the votes necessary to elect a majority of the Board of Directors or other governing body of such Person. I "Temporary CO"means a temporary certificate of occupancy,as the same may be amended from time to time,issued by the City's Building Department for all or a portion of the Improvements. F:1M[NSKERIC M Michigan-Lincoln Plezall hw1nPW=Gm&e8-17aMx)wpd August 30.1999(2:49PM) - 1- I a e { "Tenant"means Lincoln Plaza Partners,LLC,a Florida limited liability company,and any { assignee,transferee or subtenant of the entire Tenant's Interest in the Premises that is permitted under this Lease from and after the date of the permitted assignment,transfer or sublease pursuant to which the entire Tenant's Interest in the Premises was assigned,transferred or sublet to such assignee, transferee or subtenant. "Tenant Indemnified Parties" means Tenant and its directors, officers, shareholders, employees,successors,assigns,subtenants,agents,contractors,subcontractors,experts,licensees, lessees,mortgagees,joint venturers,members,holders of other ownership interests,partners of a partnership constituting a partner or Member of Tenant, Members of a limited liability company constituting a partner or Member of Tenant,trustees,partners,principals,invitees and Affiliates.A "Tenant Indemnified Party"shall mean any of the foregoing. "Tenant's Interest in the Premises" means Tenant's interest in this Lease and Tenant's ownership of the Improvements as provided in Section 293. "Terin"means the term of years commencing on the Commencement Date and,subject to earlier termination as provided hereunder, expiring at 11:59 p.m. on the Fixed Expiration Date. "Term,"as the context may require,shall include the initial period from the Commencement Date to the Fixed Expiration Date and any extensions or renewals thereof. "Threat of Release"has the meaning provided in Section 35.1(h). "Tide Matters"has the meaning provided in Section 2.1. "Transfer"has the meaning provided in Section 10.2(1~1). "Transferee"has the meaning provided in Section 10.2(1). "Unavoidable Delays" means delays due to strikes, slowdowns, lockouts, acts of God, inability to obtain labor or materials,war,enemy action,civil commotion,fire,casualty,eminent domain,catastrophic weather conditions,a court order which actually causes a delay(unless resulting from disputes between or among the party alleging an Unavoidable Delay, present or former employees,officers,members,partners or shareholders of such alleging party or Affiliates(or present or former employees,officers,partners,members or shareholders of such Affiliates)of such alleging { party),the application of any Requirement,or another cause beyond such party's control or which, if susceptible to control by such party,shall be beyond the reasonable control of such party. Such party shall use reasonable good faith efforts to notify the other party not later than twenty(20)days after such party knows of the occurrence of an Unavoidable Delay;provided,however,that either i party's failure to notify the other of the occurrence of an event constituting an Unavoidable Delay shall not alter,detract from or negate its character as an Unavoidable Delay or otherwise result inthe loss of any benefit or right granted to the delayed party under this Lease. In no event shall(i)any party's financial condition or inability to fund or obtain funding or financing constitute an "Unavoidable Delay" (except for an Institutional Lender's inability to fund,which inability is not F 1MINSKEW M 1BWohigan-Uncoln Plaza\LinoolnP1=Gmdlse&17a(Ex)wpd August 90,1999(2:49PM) -12— caused by Tenant)with.respect to such party and(ii)any delay arising from a party's(or its Affiliate's) i default under this Lease or the Development Agreement constitutes an"Unavoidable Delay"with respect to such party's obligations hereunder. The times forperformance set forth in this Lease(other than for monetary obligations of a party)shall be extended to the extent performance is delayed by Unavoidable Delay,except as otherwise expressly set forth in this Lease. "U.S. Government" means the federal government of the United States of America, including all agencies and departments thereof. Article 2-Demise of Land and Term of Lease Section 2.1 Demise of Land for Term. (a) Owner does hereby demise and lease to Tenant,and Tenant does hereby lease and take from Owner, the Land, together with all the appurtenances, rights, privileges and hereditaznents thereto, "AS IS" subject to (i)the terms and conditions of this Lease and(ii)the matters set forth in Exhibit 2.1(the"Title Matters")attached hereto and incorporated by reference herein,to have and to hold unto Tenant,its successors and assigns for an initial Term commencing on the Commencement Date and continuing until the fiftieth(5011)anniversary of the Delay Date:--:511 las unless sooner terminated pursuant to the terms hereof; provided, however, that as a condition precedent to Tenant's entering upon and taking possession of Parcel l (as described on Exhibit A attached hereto),Tenant shall deliver to Owner special warranty deeds(subject only to the matters set forth in Exhibit 2.1 hereto and further subject to a right of reverter in the event that this Lease is terminated for any reason prior to the Commencement of Construction,and free of any other liens, charges or encumbrances other than taxes not yet due and payable)to Parcel 2(as described on said Exhibit A) to the City, as grantee. Upon satisfaction of the condition precedent set forth in the immediately preceding sentence,Tenant's right to possession and control of the Land shall extend to Parcels 1 and 2 (as described on said Exhibit A). Unless(A)this Lease has been previously terminated in accordance with the provisions hereof,or(B)there exists an uncured Event of Default of Tenant on the date the current Term is scheduled to end,or(C)Tenant notifies the City within the last twenty-four(24)months of the end of the Term in question that it is not going to elect to extend this Lease for each extension provided in this Section 2.1 on the terms and conditions provided herein,this Lease shall be automatically extended for up to two(2)additional Terms of twenty(20) years each, for a total possible maximum Term of ninety (90) years (plus the period from the Commencement Date to the Delay Date).Notwithstanding anything contained in this Section 2.1(a) to the contrary,the Land shall not include Parcel 2 until such time as said Parcel is conveyed to Owner as set forth in this Section 2.1(a). (b) Notwithstanding anything to the contrary contained herein,Tenant shall have the right to be released from its liability and obligations[except the obligation to pay Rental and/or Impositions prior to the Possession Date pursuant to Section 3.2(a)] and to terminate the Development Agreement and this Lease prior to the Possession Date because (i) changes to the i Preliminary Plans and Specifications required by the DRB,Joint Board,or any other Governmental Authority(including the City),render the Project economically unfeasible in the reasonable business j I F-.\M (SKBR%C M Michigan-Lincoln P1azaWnc&P1a=Gmdllse9-170k)VO I August 30,l 999(2:49PM) -13- i judgment of Tenant,(ii)the Project cannot meet concurrency requirements under Section 163.3180, l Florida Statutes (1997), or the costs of concurrency mitigation are, in the reasonable business judgment of Tenant,economically unfeasible,or(iii)Tenant,after good faith efforts,has been unable to obtain a full building permit for the Project pursuant to the Plans and Specifications submitted by Tenant. In the event of termination of the Development Agreement and this Lease pursuant to this Section 2.1, each Party shall bear its own costs and expenses incurred in connection with the Development Agreement and this Lease and neither Party shall have any father liability to the other. Section 2.2 No Encumbrances. Owner will not permit or suffer any encumbrance, mortgage,pledge or hypothecation of Owner's Interest in the Premises except with respect to those matters(such as utility easements and nonmonetary reciprocal easement agreements)reasonably approved by Tenant in writing and which do not adversely affect the operation or development of the Project. At Tenant's request,Owner . Y Pe P J �! shall join in any utility easements and other easements necessary for the Project. Tenant shall pay all of Owner's reasonable attorneys'fees and costs associated therewith and shall indemnify and hold harmless Owner from any and all liability and expenses associated therewith. Notwithstanding the foregoing,Owner shall have the absolute right to pledge its interest in the Rental and/or Impositions payable hereunder so long as such pledge does not include a pledge of Owner's Interest in the Premises(other than the Rental and/or Impositions payable hereunder),and the pledgee shall have no rights under this Lease other than the right to receive payments of Rental and/or Impositions. Any pledge of Rental and/or Impositions permitted hereunder shall not create any rights in the pledgee thereunder to enforce any of the provisions of this Lease. Owner shall deliver to Tenant and any Recognized Mortgagee,within fifteen(15)days after the effective date thereof,a true and correct copy of any pledge instniment permitted hereunder. Section 2.3 Sale of Entire Interest. Owner shall not sell,transfer,convey or assign Owner's Interest in the Premises,except for a sale,transfer,.conveyance or assignment of the entire Owner's Interest in the Premises. Article 3-Rent Section 3.1 Method and Place of Payment. i i Except as otherwise specifically provided herein,all Rental and/or Impositions shall be paid without notice or demand. All Rental and/or Impositions payable to Owner(except Impositions,if the Requirements governing such payments are to the contrary)shall be paid by good checks(payable upon presentment)drawn on a United States or state chartered bank,in currency of the United States of America. Rental and/or Impositions that are payable to Owner(other than Impositions,if the Requirements governing such payments are to the contrary)shall be payable at the address of Owner set forth herein or at such other place as Owner shall direct by notice to Tenant. Impositions that are not payable directly. to Owner shall be payable in the form and at the location provided by Requirements governing the payment of such. f P XMINSKEK\C M H1Mfchipn-Lincoln P1=\Unco1nP1=Grnd1sd-J7a(Ex)wpd August so,1999(2:49MO -14- 4M Section 32 Rent. (a) Rent Prior to the'Possession Date. On the Commencement Date,in consideration ofthe execution ofthis Lease by Owner,Tenant shall pay Owner the lump sum ofFifty Thousand Dollars($50,000),which sum shall be full and complete consideration for the period from the Commencement Date to the Possession Date,and a portion of which represents reimbursement to Owner for certain expenses incurred by Owner pursuant to Section 82-39 of the Miami Beach City Code,as amended. (b) Rent After the Possession Date. Tenant and Owner agree that Owner will lose significant parking revenues during the Construction Phase. In order to compensate Owner for said lost revenues,Tenant shall pay One Hundred and Seventy-Five Thousand Dollars($175,000) per year as rent,commencing on the Possession Date and ending on the earlier to occur of(i)the CO Date and(ii)the Delay Date. (c) Rent After the Delay Date. Tenant shall pay Owner annual rent for each Lease Year,including any adjustments thereto(the"Base Rent"),during the Term commencing on the Delay Date. The initial Base Rent shall be Two Hundred Fifty Thousand Dollars($250,000),and shall be increased as described in Sections 3.2(d),32(e)and 3.2(f)hereof,until the Expiration of the Term. In no event shall Base Rent during an adjustment period be less than the Base Rent during any prior period. (d) Adjustments to Base Rent. (i)The Base Rent shall be increased to Three ! Hundred Thousand Dollars($300,000)per annum,commencing on the first month of the sixth(6 ) Lease Year,and(ii)the Base Rent shall be further increased by the lesser of twelve percent(12%) or the cumulative CPI over the previous five(5)year period and shall be adjusted commencing with the first(Ifi)month of the eleventh(11 s')Lease Year and every five(5)Lease Years thereafter. (e) Appraisal Adjustments to Base Rent. Sometime during the 49' (if the Term has been extended)and 60(if the Term has been extended)Lease Years,the Parties shall cause to be made appraisals of the Fair Market Rent according to the provisions set forth below,for the purpose of adjusting the Base Rent,which adjustments shall be effective at the beginning of the fiftieth(501)(if the Term has been extended)and seventieth(70')(if the Term has been extended) Lease Years,while maintaining the Percentage Rent payments as provided in Section 3.3 herein: (i) Appraisals shall be made by three(3)real estate appraisers,each of which(i)shall be a member of the American Institute of Real Estate Appraisers,and(ii)shall have } not less than ten(10)years experience in managing and appraising real estate. One appraiser shall be selected and appointed by Owner(the"Owner's Appraiser"),and shall be paid by Owner, one shall be selected and appointed by Tenant(the"Tenant's Appraiser")and shall be paid by Tenant;and the third shall be selected and appointed by the first two (2)appraisers so appointed (the "Third Appraiser").The cost of the Third Appraiser shall be evenly split between Tenant and Owner.In the i event of a failure of Owner's Appraiser and Tenant's Appraiser to agree on the Third Appraiser within fifteen (15) days after their appointment, the Third Appraiser shall be appointed by the F.VANSKERIC M BUichigan-Lincoln P1sza%ineD1nP1=Gfnd1se8-17e(Ex)wpd August 30,1999(2:49PK I 1 � 1 1&70$ President of the American Institute of Real Estate Appraisers(or its successor)on the application of either appraiser appointed by Owner or Tenant on ten(10)days' notice to the other appraiser so appointed. (ii) In the event either Owner or Tenant shall fail to appoint an appraiser within fifteen(15)days after demand from the other to make the appointment,then the appraiser appointed by the party not in default shall appoint the second appraiser,and the two(2)appraisers so appointed shall appoint the Third Appraiser. If the first two(2)appraisers so appointed shall fail to agree on such Third Appraiser within fifteen(15)days after their appointment,the Third Appraiser shall be appointed in the same manner provided in Subsection 3.2(e)(i)herein. (iii) After.appointment, the three(3)appraisers,after having been duly sworn to perform their duties with impartiality,sha11 proceed promptly to prepare an appraisal of the Fair Market Rent. The Fair Market Rent determined by the appraisers shall be binding and conclusive on Owner and Tenant.The appraisers shall have the right,by maj ority vote among them.,to determine the procedure to be adopted in arriving at the Fair Market Rent(but in so doing they must apply the definition ofFair Market Rent as provided herein),and may,in their discretion,dispense with formal hearings,it being agreed that their task will be solely that of appraisal. (iv) If prior to the expiration of the initial Term or any extended Terns the Fair Market Rent has not been determined for any reason, Tenant shall continue to pay rent as calculated pursuant to Section 3.2(c) utilizing the Base Rent in effect for the year prior to the i expiration date of the initial Term or any extended Term. When the Fair Market Rent has been determined,the Base Rent will be increased as provided retroactively to the expiration date of the initial Term or any extended Term,and the rent payments shall be recalculated in accordance with Section 3.2(c). If the adjusted Base Rent results in rent due Owner,Tenant shall pay to Owner with the next installment of rent,the amount of rent due,if any.In no event shall the adjusted Base Rent result in a decrease in the Base Rent in effect for the year prior to the expiration of the initial Term, or any extended'Perm,as applicable. i (f) Additional Adjustment to Base Rent. It is the intention of Owner,and ' Tenant acknowledges,that the City will derive an additional benefit from the Premises being placed on the tax roll. Therefore,as a condition to Owner's agreement to enter into this Lease and subject to the provisions of Section 3.4(h)hereof,Tenant agrees that the Premises shall be subject to real estate taxes which Tenant is required to pay hereunder and Tenant shall not seek,based on immunity from taxation, exemption from taxation, classified use, restrictive covenant, applicable judicial limitation,local or state land use regulation,historic preservation ordinance,moratorium or other limitation,to reduce or eliminate the assessed value of the Premises nor reduce,eliminate,abate or defer the real estate taxes thereon. If after the CO Date,the Premises are not subject to real estate taxes or if the real estate taxes are reduced,waived,abated,deferred or exempted due to legislation, judicial action or otherwise,Tenant shall,for each applicable year during the remaining Term of this Lease and any extensions thereof,make payments to the City in lieu of real estate taxes,in an amount equal to the City's portion and,for so long as a redevelopment trust fund and/or tax increment district exists,the Miami-Dade County portion of real estate taxes on the Premises for every year as if they f I F 1MINSKBRIC M B1Michigen-Lincoln PL=\LincolnPla=C}mdlse$-17a(Hx)wpd August 30,1999(2;49PK -16. 1 I had been imposed. Payment in lieu of real estate taxes will be added to Ease Rent under this Lease. For the purposes of this Section 12(f),the amount of the payment in lieu of real estate taxes for any calendar year shall be equal to the sum of the assessed value(in use)of the Land,plus an amount equal to the value of the Improvements determined in accordance with the assessment methodology used for other comparable non-exempt,non-classified commercial properties in the area multiplied by the then applicable millage rate for that calendar year. (g) Payment of Rent and Base Rent. On and after the Possession Date,rent and Base Rent shall be paid in monthly installments equal to one-twelfth ofthe then applicable annual rent and Base Rent and shall be paid in advance, on the first day of each and every calendar month thereafter during the Term. All rent and Base Rent which is due for any period of less than a full month or a full calendar year shall be appropriately apportioned. (h) Interim Garage Rent. Notwithstanding anything to the contrary contained in this Lease, in the event that the Garage is substantially completed and receives a temporary certificate of occupancy prior to the office portion of the Project,for the period commencing on the date such temporary certificate of occupancy is issued and ending on the earlier of(i)twelve(12) months from the date such certificate of occupancy is issued,(ii)the CO Date or(iii)the Delay Date, Tenant shall pay to Owner an additional Twenty-Five Thousand Dollars($25,000)per year as Base Rent,prorated on a monthly basis with respect to the Garage. (i) Interim Retail Rent. Notwithstanding anything to the contrary contained in this Lease,in the event that the retail portion of the Project is substantially completed and receives a temporary certificate of occupancy prior to the office portion of the Project, for the period commencing on the date such temporary certificate of occupancy is issued and ending on the earlier of(i)twelve(12)months from the date such certificate of occupancy is issued,(ii)the CO Date or (iii) the Delay Date, Tenant shall pay to Owner an additional Twenty-Five Thousand Dollars ($25,000)per year as Base Rent,prorated on a monthly basis,with respect to the retail portion of the Project. Section 3.3 Percentage Rent. (a) Tenant shall pay Owner annual percentage rent for each Lease Year(the "Percentage Rent")during the Term in an amount equal to two and one-half percent(2'/2%)of the amount of Project Revenue for each Lease Year commencing on the earlier to occur of i the ninth 3 g () (9'h)Lease Year or e, ale:D a • rovided,however,for the initial and final Lease Years,the Percentage Rent e �ted ac ording to the actual number of days in such Lease Year. 7 r� \% eu I (b) Payment of Percentage Rent. Tenant shall pay the full amount of Percentage Rent due in annual installments,in arrears,within sixty(60)days after the end of each Lease Year i for the preceding Lease Year. The Percentage Rent that accrues in the ninth(91)Lease Year shall ' be payable in ten(10)equal annual installments,without interest. Each of such ten(10) annual installments of the Percentage Rent for the ninth(9P)Lease Year shall be paid to Owner at the same time as the Percentage Rent that is due and payable for the tenth(10'x)through nineteenth(1911) F:1MINSKERIC M Michigan-Lincoln PlazELX LfncolnPhaaftdlsoB-17a(6x)wpd h August 30,1999(2:49PM) 17- ` U r 12� 3L� u� � Project Revenue shall be computed on a cash basis in accordance with the 1 Accounting Principles. The following shall,however,be excluded from Project Revenue: (1) Federal,state and municipal excise,sales,resort,use,and other taxes collected from patrons or guests as a part of or based upon the sales price of any goods or services, including with limitation, gross receipts,room,bed,admission,cabaret,or similar taxes; (2) Any gratuities collected; (3) Allowances,rebates and refunds not included in Project Revenue in accordance with the Accounting Principles; (4) The proceeds of any financing or refinancing; (5) Interest on funds in the Reserve Account; (6) Proceeds from the Sale of the Project; (7) Real estate commissions and management fees; (8) any reimbursements paid by the tenants to Tenant for increases in amounts paid by Tenant to Owner pursuant to the terms of this Lease (to the extent such increases occur during the term of the respective tenant's lease);and (9) Payments to the Reserve Account. Section 3.4 Impositions. (a) Obligation to Pay Impositions. In addition to the payment of Rental,from and after the Possession Date,Tenant shall pay or cause to be paid,in the manner provided in this Section 3.4,all Impositions that atany time thereafter are assessed,levied,confirmed,imposedupon, or charged to Owner or Tenant with respect to(i)the Premises,or(ii)any vault,passageway or space in, over or under any sidewalk or street in front of or adjoining the Premises, or (iii) any other appurtenances of the Premises,or(iv)any personal property,Building Equipment or other facility i used in the operation thereof,or(v)any document to which Tenant is a party creating or transferring , an interest or estate in the Premises of, by or to Tenant, or (A) the use and occupancy of the l Premises,or(vii)this transaction. I FAMWSKERT M Michigan-Uncoin r1=VJ=1nP1=Qrndlse$-17a(Bx)wpd August 30,]999(2:49PM) -19- �. i ,3 (b) Definition. 'Ibnposhion" or"Impositions"means the following imposed by a Governmental Authority: C) real property taxes and general and special assessments(including, without limitation,any special assessments for business improvements or imposed by any special assessment district); personal property taxes; (iii) sales and/or use taxes on Rental; (iv) water,water meter and sewer rents,rates and charges; (v) excises; (A) levies; (vii) license and Pe rmit fees; (viii) any other governmental levies of general application, fees,rents, assessments or taxes and charges,general and special,ordinary and i extraordinary,foreseen and unforeseen,now or hereafter enacted of any kind whatsoever; (ix) service charges of general application with respect to police and fire protection,street and highway maintenance,lighting,sanitation and water supply;and (x) any fines,penalties and other similar governmental charges applicable to the foregoing,together with any interest or costs with respect to the foregoing. (c) Payment of Impositions. i (i) Subject to the provisions of Section 32.2 hereof,from and after the Possession Date, Tenant shall pay each Imposition or installment thereof not later than the date the same may be paid without interest or penalty(which is the date of delinquency). However,if by law of i the applicable Governmental Authority any Imposition may at the ! taxpayer's option be paid in installments(whether or not interest shall accrue on the unpaid balance of such Imposition), Tenant may exercise the option to pay the Imposition in such installments and shall F-VANSKERIC M BUIchigan-Lincoln Plate\LincolnPlazaomdlsoB-17a(Ex)wpd August 30,1999(2:49PM) , 1 C: 1077sla-194 ' be responsible for the payment of such installments with interest,if 1 any. (ii) If Tenant twice fails within any thirty-six(36)month period to make any payment ofan Imposition(or installment thereof)on or before the date the same may be paid without penalty,Tenant shall,at Owner's request,and notwithstanding paragraph(i)above,pay all Impositions or installments thereof thereafter payable by Tenant not later than twenty(20)days before the date of delinquency. However,if Tenant thereafter makes all such payments as required in this paragraph(ii) for thirty-six(36)consecutive months without failure,the Imposition payment date in paragraph(i)above shall again become applicable, unless and until there are two further failures within a thirty-six(36) month period,in which case Tenant shall again have the right to cure the failure so that the payment date in paragraph(i)above shall again be applicable,and this provision shall continue to be applicable to each situation in whi ch there are two further failures within a thirty-six(3 6) month period. Nothing in this paragraph shall be construed to limit Owner's Default remedies as set forth elsewhere in this Lease after failure by Tenant timely to pay any Imposition. (d) Evidence of Payment. Tenant shall furnish to Owner,within thirty(30)days after the date of(Owner's request therefor,an official receipt of the appropriate taxing authority or other proof reasonably satisfactory to Owner,evidencing the payment thereof. (e) Evidence of Non-Payment. Any certificate,advice or bill of the appropriate official designated by law to make or issue the same or to receive payment of any imposition asserting non-payment of such Imposition shall be prima facie evidence that such imposition is due and unpaid ! at the time of the making or issuance of such certificate,advice or bill,at the time or date stated therein. Tenant shall,immediately upon receipt of any such certificate,advice or bill,deliver a copy of the same to Owner. (f) Apportionment of Imposition. Any Imposition relating to a fiscal period of the taxing authority, a part of which occurs after the Possession Date and a part of which occurs before the Possession Date or after the Expiration of the Term,shall be apportioned pro rata between Owner and Tenant. i (g) Exclusions from Impositions. Except as expressly set forth above,nothing contained herein shall be construed to require Tenant to pay or to be charged for any portion of(i) municipal,state or federal income or gross receipts taxes assessed against Owner(other than sales or use taxes imposed on Rental,notwithstanding that Owner may be primarily liable by law for the payment thereof);(ii)municipal,state or federal capital levy,estate,succession,inheritance,transfer or gains taxes,of Owner;(iii)corporation or franchise taxes imposed on Owner or any corporate i F:IMINSMIC M B1Middgan-Lincoln P1=\Unco1nPk=Gmd1se8-1U(Bx)wpd August 30,1999(2;49PM) -21- 8n, 1M /415 owner of the fee of the Land;or(iv)any penalties or late charges assessed against Owner(unless the l same result from Tenant's failure to timely pay Impositions). (h) Tax Abatements and Reductions. Subject to the provisions of Section 3.2(f)which shall control over this Section 3.4(h)when in conflict,Tenant shall be entitled to the benefit of any tax abatements and reductions as are,or may be,available under applicable law as if Tenant were the fee owner of the Premises. Owner shall not be required to join in any action or proceeding in connection with such abatement or reduction unless the provisions of any Requirement at the time in effect require that such action or proceeding be brought by and/or in the name of Owner. If so required, Owner shall join and cooperate in such proceedings or permit them to be brought by Tenant in Owner's name,in which case Tenant shall pay all reasonable costs and expenses (including,without limitation,-ettomeys'fees and disbursements)incurred by Owner in connection therewith. Section 3.5 Net Lease. It is the intention of Owner and Tenant that(a)Rental be absolutely net to Owner without any abatement,diminution,reduction,deduction,counterclaim,setoff or offset whatsoever,except to the extent expressly set forth in this Lease,and(b)Tenant pay all costs,expenses and charges of every kind or nature(except as expressly provided for herein to the contrary)relating or allocable to the Premises that may arise or become due or payable during or after(but attributable to a period falling within)the Term. , Section 3.6 Security Deposit. On the Possession Date and continuing until the CO Date,Tenant shall either(i)deposit with Owner the sum of Two Hundred Fifty Thousand Dollars($250,000)in cash or(ii)post an irrevocable standby letter of credit in form and substance reasonably acceptable to Owner, payable on presentation(site credit),in favor of Owner in the amount of Two Hundred Fifty Thousand Dollars ($250,000)(the"Security Deposit")and payable according to the following: "This letter of credit may be drawn upon in full by the beneficiary hereunder upon the presentation to the bank of a statement signed by the Mayor,City Manager or any Assistant City Manager of beneficiary that an uncured Event of Default exists under the Agreement of Lease between the beneficiary and Lincoln Plaza Partners,LLC ► dated[insert date]." i i If Tenant elects to post the Security Deposit in cash,it shall be placed by Owner in an interest bearing account with interest earned to follow the money.The Security Deposit shall be considered as security for the payment of all of Tenant's obligations,covenants and agreements under this Lease. I I Withinthirty(30)days after the CO Date, Owner shall(provided that Tenant is not in Default under the terms of this Lease)return the Security Deposit to Tenant less any portion that Owner shall have used to make good any Default of Tenant. In the event of any such Default by Tenant,Owner shall j have the right,but not the obligation,to apply all or any portion of the Security Deposit to cure the F 1IvUNSKERIC M B1Michigan-Lfnooln Plaza\UncolnPk=GMd1se8-17a(BX)wpd August 30,1999(2:49PM) -22- Default,in which event the Tenant shall be obligated to deposit with Owner the amount necessary ! to restore the Security Deposit to the amount in eft prior to the deduction. If a Default exists on the CO Date and if Tenant diligently and an good faith proceeds to cure the Default and,in fact,cures the Default,then,in that event,the Security Deposit shall be returned to Tenant. Article 4-Late Charges Section 4.1 Late Charges. If Tenant shall fail to make any payment of Base Rent,Percentage Rent, or other Rental and/or Impositions within thirty(3 0)days after the some shall be due,the late payment shall bear interest from the date due until the date paid at a rate(the"Late Charge Rate")equal to the lesser of(a)Four Percent(4%)per annum in excess of the prime rate in effect from time to time at Citibank, N.A.(or The Chase ManhattanBank,N.A.,if C itibank,N.A.shall not then have an established prime rate;or the prime rate of any major banking institution doing business in New York City,as selected by Owner,ifnone of the aforementioned banks shall be in existence or have an established prime rate) and(b)the maximum interest rate permitted by law. All interest payable under this Section 4.1 shall be deemed Rental(but shall not be compounded)and shall be due and payable by Tenant on fifteen (15) days demand. The collection by Owner of any interest under this Section 4.1 shall not be construed as a waiver of Tenant's default or of Tenant's obligation to perform any term,covenant or condition of this Lease nor shall it affect any other right or remedy of Owner under this Lease. Article S-Inflation Adjustment Section 5.1 Inflation.Adjustment. Unless otherwise expressly provided hereunder,any dollar amount described in this Lease as "adjusted for inflation"or"subject to adjustment for inflation"(or words of similar import)shall be adjusted by multiplying such amount by a fraction,the numerator of which shall be the CPI for the calendar year immediately preceding the date of such adjustment,and the denominator of which shall be the CPI for the calendar year during which the Delay Date occurred. All amounts subject to adjustment hereunder shall be adjusted effective as of January 1 of each year pursuant to the formula described above. If the CP1 ceases to be published,and there is no successor thereto,such othe reasonably similar index as Owner and Tenant mutually designate shall be substituted for the CPI. No such adjustment shall result in Base Rent being an amount that is less.than the Base Rent prior to the adjustment. Article 6-Use i Section 6.1 Use. (a) Continuous Legal Ilse. Tenant shall use and operate the Premises throughout the Term only as permitted by this Lease. In any event,the Premises shall be used only in accordance with the final Certificate[s] of Occupancy therefor which from time to time exist(or temporary F WINSKERT M B1Michigan-Lineoln P1a7A\Lfnco1nP1=Gmdlse8-17n(Ex)wpd August 30,1999(2:49PM) -23- t I 4. U. .lfilr. V'Lw 1! +►iSj► Certificate[s]of Occupancy,to the extent that final Certificate[s]of Occupancy have not been issued 1 therefor). (b) Scope of Use. In accordance with Tenant's obligations to meet and comply with the maintenance and operating standards set forth in Article 14 and other provisions of this Lease,Tenant shall,from and after the Project Opening Date,operate the Premises as an office,retail and commercial(excluding any apartments,hotels,apartment hotels or residential uses)project and parking garage containing not less than seven hundred(700)parking spaces. The number ofparking spaces required by the Land Development Regulations for the uses within the Premises shall be available to Tenant to sublease or license to its subtenants;provided,however,that the remainder of the parking spaces in the Garage(but in no event less than one hundred(100)parking spaces)shall be available for use by members ofthe general public at all times and all of the spaces in the Garage shall be available for use by members ofthe general public during non-office hours to the extent not used by subtenants. Furthermore,Tenant shall provide not less than fifty(50)parking spaces for monthly parking for members ofthe general public who are not subtenants ofthe Premises at monthly garage parking rates established by Tenant,which rates shall not be higher than the highest rate paid by any subtenant in the Premises. Notwithstanding the preceding sentence,Tenant reserves the right to close or restrict access to any portion of the Premises in connection with Alterations undertaken in accordance with the provisions of this Lease or to such extent as may,in the reasonable opinion of Tenant's counsel,be legally necessary to prevent a dedication thereof or the accrual of prescriptive rights to any Person or Persons. (c) Character and Operation of the Premises. The parties recognize and acknowledge that the manner in which the Premises are developed,operated and maintained are matters of critical concern to the City by reason of the need to alleviate a serious parking shortage within the City,and Tenant hereby agrees to develop,operate and maintain the Premises and all other property and equipment located thereon which are owned., leased or maintained by Tenant in a i manner consistent with other comparable first class projects of similar age and in good order, condition,repair and appearance, and in compliance with Article 14. To accomplish this result, Tenant shall establish such reasonable rules and regulations governing the use and operation ofthe Premises by subtenants as Tenant shall deem necessary or desirable in order to comply with Article 16 and assure the level of quality and character of operation of the Premises required herein,and it will use all reasonable efforts to enforce such rules and regulations. Section 6.2 Prohibited Uses. (a) 'Without limiting the provisions of Section 6.1,Tenant shall not use or occupy � the Premises or any part of the Premises,and neither permit nor suffer the Promises to be used or occupied,for any of the following("Prohibited Uses"): (i) for any unlawful or illegal business,use or purpose,including,but not limited to businesses, uses or purposes which are immoral or j disreputable(including"adult entertainment establishments"and"adult , P;WMKBRIC M BW1Uigan-U=Ln Plaza\Unco%FIMGm&d-17a(Ex)'wpd i August 30,1999(2.49PM) -24- bookstores"),or any business,use or purpose that is extra hazardous, I or which will violate the Environmental Laws; (u) for any use which is a public nuisance; (iii) tatoo parlors,psychics,palm and tarot card readers, body piercing shops or as a gambling casino or facility,in the event that gambling is ever made a legal activity under Federal,state or local law; (iv) in any manner that will violate any Certificate of Occupancy for the Premises,or which will violate any laws,ordinances or other rules or regulations applicable to the Premises; (y), in such manner as may make void or voidable any insurance then in force with respect to the Premises;or (A) for any use involving any ownership structure such as time share,time interval, cooperative or condominium (commercial or otherwise), except as provided herein. (b) Immediately upon its discovery of any Prohibited Use,Tenant shall take all reasonably necessary steps,legal and equitable,to compel discontinuance of such business or use, including, if necessary,the removal from the Premises of any subtenants, licensees, invitees or ` concessionaires,subject to applicable Requirements. Section 63 Garage Parldng Rates. All charges forparking in the Garage,including,but not limited to,the hourly,daily,weekly, monthly and evening flat rates,shall not be less than garage parking rate being charged by the City or the Miami Beach Redevelopment Agency and shall not be g Mier than comparable garage parking rates being charged in Miami-Dade County,Florida. Parking rates shall not be increased for special events such as Art Deco Weekend,boat shows or any similar events or activities that create high demand for parking spaces in the area of the Project. i Article 7-Insurance Section 7.1 Insurance Requirements, (a) Liability Insurance. At all tunes during the Tema,Tenant,at its sole cost and expense,shall carry or cause to be carried insurance against liability with respect to the Premises and j the operations related thereto,whether conducted on or off the Premises in an amount of not less than I 1 Twenty-Five Million Dollars ($25,000,000) per occurrence, subject to adjustment for inflation, combined single limit,and designating Tenant as a named insured,and Owner and,if required by a t P 1AMJSKERT M B%Wc61gan-L1nco1n PIamV jncolnPlazaOrndlae8.17a(Ex)wpd August 30.1999(2 49PM) -25- Recognized Mortgage,a Recognized Mortgagee as additional insureds. Such insurance shall meet ( all of the standards,limits,minimums and requirements described in Section 7.7. (b) Property Insurance. At all times during the Term,Tenant at its sole cost and expense,shall carry or cause to be carried"All Risk"(or its equivalent)property damage insurance protecting Tenant,Owner and any Recognized Mortgagees as their interests may appear against loss to the Premises and Improvements and greeting all of the standards, limits, minimums and requirements described in Section 7.8. (c) Other Insurance. At all times during the Term,Tenant shall procure and carry insurance meeting all of the standards,limits,minimums,and requirements described in Section 7.9. (d) Construction Insurance. Prior to the commencement of any Construction Work,Tenant shall procure or cause to be procured,and after such dates shall carry or cause to be carried,until final completion of such work,in addition to and not in lieu of the insurance required by the foregoing subsections(a),(b),and(c),the insurance described in Section.7.10. (e) Garage Liability/Garagekeeper's Liability Insurance. From and after the CO Date,Tenant shall procure or cause to be procured,and after such date shall carry or cause to be carried with respect to the Garage,Garagekeeper's legal liability coverage in an amount not less than Five Million Dollars($5,000,000),subject to adjustment for inflation,per occurrence,with a deductible determined by Owner, but not more than Fifty Thousand Dollars ($50,000) per loss, subject to adjustment for inflation;and(ii)automobile liability insurance covering any automobile owned,non-owned or hired in an amount not less t1m Twenty-Five Million Dollars($25,000,000), ` subject to adjustment for inflation,per occurrence,with a deductible determined by Tenant of not more than Ten Thousand Dollars($10,000)per loss,subject to adjustment for inflation. Section 7.2 Treatment of Proceeds. I (a) Proceeds of Casualty Insurance in General. Insurance proceeds payable with respect to a property loss shall be payable either to Owner or any Recognized Mortgagee or other Institutional Lender pursuant to a mutually acceptable insurance trust agreement, either of which shall hold such proceeds in trust for the purpose of paying the cost of the Casualty Restoration, i or shall be payable to Tenant with respect to insurance proceeds not exceeding One Million Dollars ($1,000,000), adjusted for inflation, per occurrence, and such proceeds shall be applied to the payment in full of the cost of such Casualty Restoration in accordance with the provisions of Article { 8. (b) Proceeds of Rent Insurance. Rent Insurance referred to in Section 7.9 shall be carried in the name of Tenant as named insured and shall be payable to Owner and Tenant to be i applied to Rental and/or Impositions for the period from the occurrence of the damage or destruction until completion of the Restoration as determined in accordance with the provisions of Article 8. Without limiting the foregoing provisions of this Section 7.2(b), if required by a Recognized F,WNSKM\C M 1311VIichipn-Lincoln Ph=XLiacdnPbzHGmd1se8-17e(Bx)wprd Augot 30,1499(2:49PK -26- r I Mortgage, such amounts shall be paid to a Recognized Mortgagee so long as all Rental and/or ( Impositions are first paid to Owner subject to the provisions of Section 12.1 herein. (c) Cooperation in Collection of Proceeds.Tenant,Owner and any Recognized Mortgagee shall cooperate in connection with the collection of any insurance proceeds that may be due in the event of a loss, and Tenant, Owner and any Recognized Mortgagee shall as soon as practicable execute and deliver such proofs of loss and other instruments as may be required of Tenant,Owner or any Recognized Mortgagee,respectively,for the purpose of obtaining the recovery of any such insurance proceeds. (d) Adjustments for Claims. All property insurance policies required by this Article 7 shall provide that all adjustments for claims with the insurers involving a loss in excess of One Million Dollars($1,000,000)adjusted for inflation be made jointly with Tenant,Owner and the Recognized Mortgagee. Section 73 General Provisions Applicable to All Policies. (a) Insurance Companies. All of the insurance policies required bythis Article shall be procured from companies licensed or authorized to do business in the State of Florida that have a rating in the latest edition of"Best's Key Rating Guide"of"A:VHI"or better or another comparable rating reasonably acceptable to Owner,considering market conditions. (b) Required Forms. All references to forms and coverages in this Article 7 shall ` be those used by the Insurance Services Organization (ISO) or equivalent forms reasonably satisfactory to Owner in all material respects. (c) Required Certificates. Certificates of insurance evidencing the issuance of all insurance required by this Article 7 to the extent then required, describing the coverage and providing for thirty(30)days prior notice to Owner by the insurance company of cancellation or non-renewal, shall have been delivered to Owner by the Possession Date, and in the case of any policies replacing or renewing any policies expiring during the Term,not later than fifteen(15)days before the expiration dates of any expiring policies. The certificates of insurance shall be issued by or on behalf of the insurance company and shall bear the original signature of an officer or duly authorized agent having the authority to issue the certificate. The insurance company issuing the insurance,or its duly authorized agent,shall also deliver to Owner proof reasonably satisfactory to Owner that the premiums for at least the first year of the term of each policy(or installment payments to the insurance carrier then required to have been paid on account of such premiums)have been paid. During the performance of any Construction'Work,Tenant shall deliver to Owner an entire duplicate original or a copy(certified by Tenant to be true,complete and correct)of each policy. At all other times, Tenant shall deliver to Owner an entire duplicate original or a copy(certified by Tenant to be true, complete and correct) of each policy within a reasonable period of time after Owner's request therefor. Tenant shall notify Owner of any material changes in the coverage I provided under any policy promptly after requesting an insurance company to make such change or receiving any notice from an insurance company advising Tenant of any such change;provided, ( F 1MINSKERIC.M BUicldgun-Lincoln piaz VAcolnPlamGmdW8.17a(Ex).wpd August 30,1999(2 49PM) -27- however,that no such change may reduce or otherwise modify the insurance coverage required under ( this Lease. (d) Compliance with Policy Requirements. Tenant shall not violate or permit to be violated any of the conditions,provisions or requirements of any insurance policy required by this Article,and Tenant shall perform,satisfy and comply with,or cause to be performed,satisfied and complied with,all conditions,provisions and requirements of all insurance policies. (e) Required Insurance Policy Clauses. Each policy of insurance required to be carried pursuant to the provisions of this Article and each certificate issued by or on behalf of the insurer shall contain(i)a provision stating substantially that no act or omission of Tenant(or any other Person) or any use or occupation of the Premises for purposes more hazardous than are permitted by the policy shall invalidate the policy as to Owner or affect or limit the obligation of the insurance company to pay to Owner the amount of any loss sustained and that no act or omission of Owner shall invalidate the policy as to Tenant or affect or limit the obligation of the insurance company to pay to Tenant the amount of any loss; (ii)a written waiver of the right of subrogation against all of the named insureds and additional insureds,including Owner in its capacity as owner of the Land and any Recognized Mortgagee named in such policy,with respect to losses payable under such policy;(iii)a clause designating Owner,and any Recognized Mortgagee as loss payee or additional insured, as their interests may appear for losses in excess of One Million Dollars ($1,000,000),adjusted for inflation;and(iv)an agreement by the insurer that such policy shall not be canceled,materially modified,or denied renewal without at least thirty(30)days prior written notice to Owner and the holder of the Recognized Mortgage named under a standard New York form ofmortgagee endorsement or its equivalent,specifically covering,without limitation,cancellation or non-renewal for non-payment of premium, except that ten(10) days' notice or statutory notice, whichever is greater,shall be given with respect only to non-payment of premium, I i (f) Separate Insurance. Tenant shall not carry separate liability or property insurance concurrent in form or contributing in the event of loss with that required by this Lease to be furnished by Tenant, unless Owner and any Recognized Mortgagee are included therein as t additional insureds with respect to liability or loss payee with respect to property,as their interests i may appear,with loss payable as in this Lease provided. Tenant shall immediately notify Owner of the carrying of any such separate insurance and shall cause the same to be delivered as in this Lease hereinbefore required. (g) Duration of Policies. Tenant shall procure policies for all insurance required by any provision of this Lease for periods of not less than one(1)year and shall procure renewals thereof from time to time at least fifteen(15)days before the expiration thereof,except that Builders' Risk Insurance shall only be renewed for the term of any construction period. ! Section 7.4 Additional Coverage. (a) Other Insurance. Tenant shall maintain such other insurance, in such amounts as from time to time reasonably may be required by Owner,against such other insurable ; r FIMINSKEM M BlMichisan-Lincoln P1aza\Liaco1nP1azsGlmd1se&17aMX)wpd August 3D,1999(2 49PM) -28- I 'd1err. _f1LL+ hazards as at the time are commonly insured against in the case of mixed-use garages in South Florida I of a size,nature and character similar to the size,nature and character of the Project. (b) Adjustment of Limits. All ofthe limits of insurance required pursuant to this Article 7 shall be subject to review by Owner and,in connection therewith,Tenant shall carry or cause to be carried such additional amounts as Owner may reasonably require from time to time,but Owner may not impose such new limits any more frequently than once in every five(5)year period from the CO Date. Any request by Owner that Tenant carry or cause to be carried additional amounts of insurance shall not be deemed reasonable unless such additional amounts are commonly carried in the case of similar projects in South Florida of a size,nature and character similar to the size,nature and character of the Project;provided,however,that the provisions of this subsection (b)shall not relieve Tenant of its obligation to carry or to cause to be carried All Risk insurance in an amount not less than the Replacement Value as provided in Section 7.12(a). Tenant shall be responsible for all deductibles. Section 7.5 No Representation as to Adequacy of Coverage. The requirements set forth herein with respect tothe nature and amount ofinsurance coverage to be maintained or caused to be maintained by Tenant hereunder shall not constitute a representation or warranty by Owner or Tenant that such insurance is in any respect adequate. Section 7.6 Blanket or Umbrella policies. The insurance required to be carried by Tenant pursuant to the provisions of this Lease may, at Tenant's election, be effected by blanket, wrap-up and/or umbrella policies issued to Tenant covering the Premises and otherproperties owned or leased by Tenant or its Affiliates,provided such policies otherwise comply with the provisions ofthis Lease and allocate to the Premises the specified coverage,including,without limitation,the specified coverage for all insureds required to be named as insureds or additional insureds hereunder,withoutpossibility ofreduction or coinsurance by reason of,or because of damage to,any other properties named therein. If the insurance required by this Lease shall be effected by any such blanket or umbrella policies,Tenant shall furnish to Owner,upon Owner's request,certificates of insurance and copies(certified by Tenant to be true,complete and correct) of such policies as provided in Section 7,3(c),together with schedules annexed thereto setting forth the amount of insurance applicable to the Premises. Section 7.7 Liability Insurance Requirements. The insurance required by Section 7.1(a) shall consist of commercial general liability insurance protecting against liability for bodily injury,death,property damage and personal injury. Such insurance shall(within the limits of the insurance required by Section 7.1(a)): (a) include a broad form property damage liability endorsement with fire legal liability limit of not less than Fifty Thousand Dollars($50,000),subject to adjustment for inflation; i FAMINSKERW M Michigan-Lincoln Pl azal LincolnPlazaCimdlse&17a(Ex).wpd Mpg 30,1999(2 49PK -29 71R6L IWON 483 (b) contain blanket contractual liability insurance covering written and oral I contractual liability; (c) contain contractual liability insurance specifically covering Tenant's indemnification obligations under Article 20,to the extent such indemnification obligation is for an insurable risk; (d) contain independent contractors coverage; (e) contain a notice of occurrence clause; (f) contain.a knowledge of occurrence clause; (g) contain an errors and omissions clause; (h) contain coverage for suits arising from the use of reasonable force to protect persons and property; (i) contain an endorsement providing that excavation and foundation work are covered and the"XCU"exclusions have been deleted; 0) contain a waiver of completion and occupancy condition; S (k) contain no exclusions unless specifically approved in each instance by Owner, other than the industry standard exclusions for projects of similar size and location; (1) contain Products Liability/Completed Operations coverage;and (m) provide for a deductible determined by Tenant, but not more than Fifty Thousand Dollars($50,000)per loss,subject to adjustment-for inflation. Section 7.8 Property Insurance Requirements. The insurance required by Section 7.1(b)shall consist at least of property damage insurance under an "All Risk" policy or its equivalent covering the Premises and all Improvements with replacement cost valuation and an Agreed Amount Endorsement(to be effective not later than promptly following the CO Date)in an amount not less than the full Replacement Value(determined in accordance with Section 7.12)and including the following coverages or clauses: (a) coverage for physical loss or damage to the Improvements; (b) a replacement cost valuation without depreciation or obsolescence clause; (c) debris removal coverage; I F:%M4SKBRIC M Michigan-Lincoln Plat Wncohil'=Grndlse8-17a(Bx)wpd August 30,1999(2:49PM) -30- ` 16TAX .454 (d) provision for a deductible determined by Tenant, but not more than Fifty Thousand Dollars($50,000)per loss(for other than flood or windstorm,with regard to which the deductible shall be a commercially reasonable amount),subject to adjustment for inflation; (e) contingent liability from operation of building laws; (f) demolition cost for undamaged portion coverage; (g) increased cost of construction coverage; (h) an Agreed Amount Endorsement (to be effective not later than promptly following the CO Date) in an amount not less than the full Replacement Value negating any coinsurance clauses; (i) flood coverage(to the extent available at commercially reasonable rates,limits and deductibles); 0) windstorm coverage(to the extent available at commercially reasonable rates, limits and deductibles); (k) coverage for explosion caused by steam pressure-fired vessels(which coverage may be provided under a separate policy reasonably approved by Owner); 0) business interruption coverage in accordance with Section 7.9; (m) a clause designating Owner and a Recognized Mortgagee as additional insureds,as their interests may appear;and (n) contain no exclusions unless approved in writing by Owner,other than the industry standard exclusions for projects of similar size and location. i Tenant shall be named insured,and Owner and any Recognized Mortgagee shall be additional insureds,as their interests may appear.The recognized Mortgagee or Owner shall be designated loss payee on such"All Risk"policy for the benefit of Owner,Tenant and any Recognized Mortgagee. If not included within the"All Risk"coverage above,Tenant shall also carry or cause to be carried � coverage against damage due to(1)water and sprinkler leakage and collapse,which shall be written with limits of coverage of not less than the full Replacement Value per occurrence,with a deductible of not more than Fifty Thousand Dollars($50,000),subj eat to adjustment for inflation and(ii)flood, which shall be written with limits of coverage of not less than Twenty-Five Million Dollars ($25,000,000),with a deductible of not more than Two Hundred Fifty Thousand Dollars($250,000), subject to adjustment for inflation, to the extent available at commercially reasonable rates and deductibles. i I F W NSKERW M BUIchigan-Lincoln PlazALincolnPlanGmdlsa8-17a(Ex)wpd August 30,1999(2 49PM) -31- 'R&G. 167U Q5 If Tenant elects to insure Tenant's personal property used in connection with the Premises, { the replacement value of such personal property shall,be added to the amount of insurance required by this Section. For the purposes of this Section 7.8, any rate,limit or deductible shall be "commercially reasonable"if such rate,lianit or deductible is comparable to the rates,limits or deductibles in the insurance carried by similar projects in South Florida of a size,nature and character similar to the size,nature and character of the Project. Section 7.9 Other Insurance Requirements. The insurance required by Section 7.1(e)shall consist at least of the following: (a) Business Interruption Insurance to include Rent Insurance on an"All Risk" basis in an amount equal to(i)prior to the CO Date,not less than the annual Base Rent and(ii) following the CO Date,not less than the aggregate amount of annual Rental and/or Impositions. The insurance specified in this subsection shall: (1) provide coverage against all reasonably insurable risks ofphysical loss or damage to the Improvements; (ii) Extra Expense coverage,with a limit of at least One Million Dollars ($1,000,000), adjusted for inflation, to cover overtime and other extra costs incurred to expedite repairing or rebuilding the damaged portion of the Premises; (iii) provide for coverage through the attainment of pre-existing business levels; (iv) contain flood and windstorm coverage to the extent available at commercially reasonable rates,limits and deductibles; (v) contain explosion caused by steam pressure fired vessels coverage (which coverage may be provided under a separate policy reasonably approved by owner); (vi) provide for a deductible determined by Tenant,but for not more than Fifty Thousand Dollars ($50,000)per loss(other than for flood or windstorm, with regard to which the deductible shall be a i commercially reasonable amount),subject to adjustment for inflation; i (vii) designate Owner, Tenant and any Recognized Mortgagee as loss { payee but shall be payable only to Tenant with respect.to Business a i F W NSKERT M B Miahipn-Lincoln Plaza\Unco1nP1azaOrndbe8-]7a(Sx)wpd Aupst 30,1999(2 49PM) -32- .�EC.X67" 140. Interruption proceeds not exceeding One Hundred Thousand Dollars I ($100,000),subject to adjustment for inflation,per occurrence;and (viii) contain no exclusions,unless approved by Owner,other than industry standard exclusions for projects of similar size and location. (b) Statutory Workers'Compensation and any other insurance required by law covering all employees of Tenant or any entity performing work on or for the Premises or the Improvements(unless and to the extent provided by such other parties),including Employers Liability coverage, all in amounts not less than the statutory minimum, except that Employers Liability coverage shall be in an amount not less than One Million Dollars($1,000,000),subject to adjustment for inflation. (c) After CO Date,Boiler and Machinery Insurance,covering the entire heating, ventilating and air-conditioning systems,in all its applicable forms,including Broad Form,boiler explosion, extra expense and loss of use in an amount not less than the replacement cost of such heating,ventilating and air conditioning systems,located on any portion of the Premises and other Machinery located on anyportion ofthe Premises,which shall designate Tenant as named insured and loss payee and designate Owner and any Recognized Mortgagee as additional insureds. (d) Automobile liability insurance covering any automobile or other motor vehicle used in connection with the Project in an amount not less than 'Twenty--Five Million Dollars ($25,000,000),subject to adjustment for inflation,per occurrence,with a deductible determined by Tenant ofnot more than Ten Thousand Dollars($10,000)per loss,subject to adjustment for inflation. Section 7.10 Construction Insurance Requirements. The insurance required by Section 7.1(d)shall consist at least of the following: (a) Builders Risk Insurance(standard"All Risk"or equivalent coverage)in an amount not less than the cost of construction,written on a completed value basis or a reporting basis, for property-damage protecting Tenant, Owner, the general contractor, and any Recognized Mortgagee, with a deductible determined by Tenant of not more than Fifty Thousand Dollars ($50,000),subject to adjustment for inflation(except as to flood and windstorm,with regard to which the deductible shall be a commercially reasonable amount),to include rental payment coverage from the date of projected completion and extending for at least twelve(12)months following such date of projected completion. (b) Automobile liability insurance covering any automobile or other motor vehicle used in connection with work being performed on or for the Premises in an amount not less than Five Million Dollars($5,000,000),subject to adjustment for inflation,per occurrence,with a deductible determined by Tenant of not more than Ten Thousand Dollars($10,000),subject to adjustment for inflation. r' I F.\MiKSKML%c M atMidi1gan Uncon,P1=\LincolnP1=Grad1s6847a(Ex)wpd August 30,1999(2:49PM) -33- , I� I !RED: I BUM (c) The insurance required pursuant to Section 7.7. 1 Section 7.11 Annual Aggregates. Excluding Umbrella/Excess Liability Insurance,if there is imposed under any liability insurance policy required hereunder an annual aggregate which is applicable to claims other than products liability and completed operations,such an annual aggregate shall not be less than two(2) times the per occurrence limit required for such insurance. !Section 7.12 Determination of Replacement Value. (a) Definition. The current replacement value of the Improvements(the "Replacement Value") shall be the full cost of replacing the Improvements according to Requirements in effect at that time,including,without limitation,all hard costs of construction as well as the costs of post-casualty debris removal,and soft costs,including without limitation,architects', engineers',surveyors',assessors'and other professional fees and development fees. On the CO Date, Replacement Value of the Improvements shall be deemed to be an amount equal to the actual costs incurred or expended in connection with the construction of the Premises as certified by the architect upon completion of the Premises, other than foundations and financing and other soft costs not applicable to replacement,adjusted for each year after completion of the Premises in accordance with the percentage change in the Building Index. If the insurance required by Section 7.8 above is not , sufficient to cover the Replacement Value,then within fifteen(15)days after such adjustment,said insurance shall be increased or supplemented to fully cover such Replacement Value. In no event shall such Replacement Value be reduced by depreciation or obsolescence of the Improvements. (b) Building Index. As used herein, the "Building Index" shall mean the Marshall and Swift Cost Index or such other published index of construction costs which shall be selected from time to time by Owner and reasonably agreed to by Tenant,provided that such index shall be a measure of construction costs widely recognized in the insurance industry and appropriate to the type and location of the Improvements. Section 7.13 Master Subleases. All Master Subleases shall require the Master Subtenant to carry liability insurance naming Tenant,Owner and any Recognized Mortgagee as additional insureds with limits reasonably prudent under the circumstances. Section 7.14 Additional Interests. All insurance policies in this Article 7 shall contain a provision substantially to the effect that the insurance provided under the policy is extended to apply to Owner,as its interests may appear. Any holder of a Recognized Mortgage which,pursuant to the Recognized Mortgage,is required to be named under any of the insurance carried hereunder shall be named under a standard New York form of mortgagee endorsement or its equivalent. I i i FAMWSKERT M Michigan-Lineoln Plam\LincolnPlaraGmdlse8-17a(&)wpd August 30,1999(2 49PM) -34- i r I Article 8-Damage,Destruction and Restoration t Section 8.1 Notice to Owner. If the Premises are damaged or destroyed in whole or in any material part by fire or other casualty,Tenant shall notify Owner of same as soon as reasonably possible after Tenant's discovery of same. Section 8.2 Casualty Restoration. (a) Obligation to Restore. If all or any portion of the Premises are damaged or destroyed by fire or other casualty,ordinary or extraordinary,foreseen or unforeseen,whether prior to or after completion of the initial construction of the Project,Tenant shall,in accordance with the provisions of this Article 8 and Article 2 of the Development Agreement(a copy of which is attached hereto as Exhibit 8.2;the provisions of which shall be deemed to apply to all Construction Work necessary to complete the Casualty Restoration,to the extent the same are not inconsistent with the terms hereof)restore the Premises to the condition thereof as it existed immediately before such casualty(a "Casualty Restoration'), regardless of whether the Net Insurance Proceeds shall be sufficient therefor. "Net Insurance Proceeds"shall mean the actual amount of insurance proceeds paid following a fire or other insured casualty. (b) Commencement of Construction Work. Subject to Unavoidable Delays, Tenant shall commence the Construction Work in connection with a Casualty Restoration within ninety(90)days after receipt of the Net Insurance Proceeds by the Recognized Mortgagee or Owner arising from the damage or destruction which caused the need for such Casualty Restoration and shall diligently pursue the completion of such Casualty Restoration. (c) Pay Down of Mortgages Prohibited. No Mortgagee (Recognized or otherwise)shall have the right to apply any insurance proceeds paid in connection with any casualty toward payment of the sum secured by its Mortgage to the extent that this Lease requires that Tenant effect a Casualty Restoration with such proceeds. Section 8.3 Restoration Funds. (a) Except as may be otherwise required by any Recognized Mortgage,all Net Insurance Proceeds shall,if in an amount equal to Five Hundred Thousand Dollars ($500,000), adjusted for inflation, or less per occurrence,be paid to Tenant and applied as provided herein. If greater than Five Hundred Thousand Dollars($500,000),adjusted for inflation,then all Net Insurance Proceeds shall be deposited with the Recognized Mortgagee,or,if none,with another Institutional Lender pursuant to a mutually acceptable trust agreement. Provided Tenant is conducting the Casualty Restoration in accordance with this Lease,the Net Insurance Proceeds shall be paid out from time to time as the Casualty Restoration progresses,upon the written request of Tenant,which request shall be accompanied by the following: F V4NSKMkC M Michigan-Lincoln P1=\LincolnP1=C1md1w8-17a(Bx)wad August 30,1999(2 49PM) -35- .1 OF; M*4.8 3 (i) A certificate signed by Tenant and the architect or engineer in charge of the Casualty Restoration,reasonably satisfactory to Owner,dated not more than fifteen(15)days prior to such request,setting forth: (1) that the sum then requested either has been paid by Tenant of is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished materials for the work specified, and stating that no part of such expenditures has been or is being made the basis of anyprevious orthen pending request for the withdrawal of the Net Insurance Proceeds; (2) a brief description of the services and materials; (3) that,except for the amount described in Section 8.3(a)(0(1), there is no outstanding indebtedness actually known to the persons signing such certificate, after due inquiry,which is then due for labor,materials,or services in connection with the Casualty Restoration; (4) that the cost, as estimated by the persons signing such certificate, of the work required to complete the Casualty Restoration does not exceed the amount of the remaining Net Insurance Proceeds,plus any amount deposited by Tenant to defray the expenses of the Casualty Restoration;and (5) that the work described has been completed in accordance with the plans and specifications applicable thereto,in a good and workmanlike manner and in accordance with all Requirements. ' (u) Lien waivers,title insurance company reports or such other evidence, reasonably satisfactory to Owner,to the effect that there has not been filed with respect to the Premises,any vendor's,mechanic's,laborer's, materialman's or other lien which has not been discharged of record, except such as will be discharged by payment of the amount then requested;and ; (iii) Such other documentation regarding the Casualty Restoration as Owner or the Recognized Mortgagee shall reasonably require. (b) Tenant shall,prior to the commencement of the Casualty Restoration,furnish to Owner an estimate of the total cost of the Casualty Restoration certified by the architect or engineer in charge of the Casualty Restoration. If such cost estimate or any subsequent estimate l �. FMA N5KERT M IMMichipn-Lincoln P1=\UncoinPbzaQmdlse8.17a(Ex)wpd August 30,1999(2:49PM) -36- i 1 ' MUM 4M provided pursuant to Section 8.3(a)shall show that the cost of completing the Casualty Restoration is in excess of the amount ofthe Net Insurance Proceeds then available,Tenant shall promptly deposit with the holder of the Net Insurance Proceeds an amount equal to such excess. The amount so deposited shall be included in the Net Insurance Proceeds for all purposes of this Article 8. (c) Upon compliance by Tenant with the foregoing provisions of this Article 8, the holder of the Net Insurance Proceeds shall pay,to Tenant or the persons named in the certificate referred to In Section 8.3(a),from th e Net Insurance Pr oc eeds,an amount eq ual to nine ty p ercent (90%)of the cost of the Casualty Restoration which is evidenced by the request. At the completion of each contract or subcontract in connection with the Casualty Restoration,the balance of the Net Insurance Proceeds relating to that portion of the work,to the extent of and as required to complete the payment of Casualty Restoration costs relating to that portion of the work,shall be paid to'Tenant and Tenant shall provide to Owner reasonable evidence that the Casualty Restoration relating to that portion of the work has been paid for in full. (d) If the amount of any Net Insurance Proceeds,excluding deposits made by Tenant pursuant to Section 8.3(b)above,shall exceed the entire cost of the Casualty Restoration, such excess,upon completion of the Casualty Restoration,shall,if this Lease shall be in full force and effect,and not in default,be disbursed to Tenant,or if this Lease is no longer in full force and effect or is in default,such excess shall be paid to and retained by Owner and shall be(i)credited against any amounts due hereunder which are in default,or(ii)deemed to be Percentage Rent hereunder to the extent that Percentage Rent was reduced during Casualty Restoration and not reimbursed from insurance proceeds and if any balance remains then,in that event,said remaining balance to Tenant as Project Revenue.Any amounts deposited by Tenant pursuant to Section 8.3(b)hereof shall be returned to Tenant to the extent the same are not necessary to fund the cost of the Casualty Restoration. Section 8,4 Effect of Casualty on This Lease, This Lease shall not terminate,be forfeited or be affected in any manner,and there shall be no reduction'or abatement of Rental(except to the extent Owner receives the net proceeds of the insurance described in Section 7.8), by reason of damage to, or total or partial destruction of,or untenantability of, the Premises or any part thereof resulting from such damage or destruction. Tenant's Rental obligations hereunder shall continue as though the Premises had not been damaged or destroyed and shall continue without abatement,suspension,diminution or reduction whatsoever. Subject to Unavoidable Delays and taking into account Tenant's Casualty Restoration obligations (including,without limitation,the effect of the casualty and the Casualty Restoration on the Tenant's ability to comply with the maintenance obligations under Article 14 hereof),Tenant's non-Rental obligations hereunder shall continue as though the Premises had not been damaged or destroyed and shall continue without abatement,suspension,diminution or reduction whatsoever. I P:1 vMSKER%C M BUichigan-Lincoln P1aza\Unco1nP1azaGmd1w8-17aMx)wpd August 30,1999(2 49PK -37- ix Section 8.5 Collection of Proceeds. i Each of the parties shall execute such documents as may be reasonably required to facilitate collection of any insurance proceeds paid or payable in connection with any casualty affecting the Premises. Article 9-Condemnation Section 9.1 Substantial Faking. (a) Termination of Lease for Substantial Taking. If all or Substantially All of the Premises are taken(excluding a taking of the fee interest in the Premises if,after such talang, Tenant's rights under this Lease are not affected and no rights of any Recognized Mortgagee are affected)for any public or quasi-public purpose by any lawful power or authority by the exercise of the right of condemnation or eminent domain or by agreement among Owner,Tenant,Recognized Mortgagee and those authorized to exercise such right,this Lease shall terminate on the Date of Taking and the Rental and/or Impositions payable by Tenant hereunder shall be apportioned and paid to the Date of Taking. (b) Disbursement of Award. If all or Substantially All of the Premises are taken or condemned as provided in Section 91(a), the Net Condemnation Award paid or payable to Owner,Tenant or any lender or mortgagee claiming through either of them in connection with such taking or condemnation shall be paid as follows:(1) there shall first be paid to Owner an amount equal to the Net Condemnation Award multiplied by a fraction, the numerator of which is the appraised value of the Land immediately prior to such condemnation,and the denominator of which is the appraised value of the Premises immediately prior to such condemnation;(2)there shall next be paid to the Recognized Mortgagee so much of the Net Condemnation Award as shall equal the unpaid principal indebtedness secured by such Recognized Mortgagee with interest thereon atthe rate specified therein to the date of payment(including any prepayment fees therm and any so-called "yield maintenance"or"make-whole"amounts or other sums intended to assure to the Recognized Mortgagee a certain rate of return under the loan secured by the Recognized Mortgage,if any,as well as any costs payable by Tenant in connection with such Recognized Mortgage pursuant to any"swap" or other interest rate protection or hedging mechanism);and(3)the remaining Net Condemnation Award shall be disbursed to Tenant. The appraised values referred to in Section 91(b)(1)shall be determined using the appraisal process outlined in Section 3.2(e),except that the appraised values shall be based upon"fair market value"and not Fair Market Rent. (c) Definitions. (i) "Date of Taking"means the earlier of(1)the date on which actual possession of all or Substantially All of the Premises, or any part i thereof, as the case may be, is acquired by any lawful power or authority pursuant to the provisions of applicable law or(2)the date i on which title to all or Substantially All of the Premises,or any part F VvRN KER%C B ichi -Lincoln P inco1nP1ua dlse8-17a d S M 1M gan lazalL Gra (Ex)wp Angust 30,1999(2:49PW -38- I 3K.0.1e WON 92 1 thereof, as the case may be, has vested in any lawful power or 1 authority pursuant to the provisions of applicable law. (ii) "Substantially All of the Premises" means such portion of the Premises as, when so taken, would leave, in Tenant's good faith determination,a balance of the Premises that,due either to the area so taken or the location of the part so taken in relation to the part not so taken,would not under economic conditions,physical constraints, zoning laws, building regulations and other Requirements then existing, readily accommodate a new or reconstructed building or buildings and other improvements of a type fully comparable to the Improvements existing at the Date of Taking. Tenant shall notify Owner,on or about the Date of Taking,in writing of its determination as to whether or not"Substantially All of the Premises has been taken. If Tenant does not determine that Substantially All of the Premises" has been taken,then this Lease shall notterminate and expire but shall continue in force and effect, subject to the other provisions of this Article 9.IfTenant determines that Substantially All ofthe Premises" has been taken,then this Lease shall terminate and expire on the Date of Taking pursuant to Section 9.1(a). (iii) "Net Condemnation Award" shall mean the actual amount of the award paid in connection with or arising from the acquisition or other ' taking of all or Substantially All of the Premises or any portion of the Premises by any authority,less all reasonable out-of-pocket expenses incurred by Owner,Tenant or Recognized Mortgagee in connection with obtaining such award, including, without limitation, all reasonable attorneys'fees and disbursements incurred in connection therewith. Section 9.2 Less Than Substantial Taking. (a) Taking of Less than Substantially All of the Premises. If less than Substantially All of the Premises are taken for any public or quasi-public purpose by any lawful power or authority by the exercise of the right of condemnation or eminent domain or by agreement among Owner,Tenant,any Recognized Mortgagee and the entity authorized to exercise such right,whether prior to or after the completion of the initial construction of the Project,this Lease shall continue for the remainder of the Term(subject to paragraph(b)below)without diminution of any of Tenant's obligations hereunder,but with a fair and equitable abatement of Rental and,in the event Tenant is then making payments to Owner pursuant to Section 3.2(t),such payments,taking into account, amongst other things,that the Net Condemnation Award(if not sufficient for the Condemnation i Restoration)is insufficient to complete the Condemnation Restoration. I I I F 1MIMSKERIC M Michigan-Lincoln PIn=\LiacolnPIa=Gmdlses-17a(Bx)wpd August 30,1999(2:49PM) -39- 167,73% Q 3 1 (b) Obligation to Restore the Premises. If less than Substantially All of the Premises are taken as provided in Section 9.2(a),whether prior to or after the completion of the initial construction of the Project,Tenant shall,in accordance with the provisions of this Article 9 and Article 2 of the Development Agreement(a copy of which is attached hereto and incorporated by reference herein as Exhibit 8.2; the provisions of which shall be deemed to apply to all Construction Work necessary to complete the Condemnation Restoration,to the extent the same are not inconsistent with the terms hereof)restore the remaining portion of the Premises,to the extent feasible,to the condition thereof as it existed immediately before such taking(a"Condemnation Restoration"),regardless of whether the Net Condemnation Award shall be sufficient therefor. (c) Disbursement. If less than Substantially All of the Premises are taken as provided in Section 9.2(a),the Net Condemnation Award payable to Owner,Tenant and any lender or mortgagee claiming through either of them shall be paid as follows: (1)first to the cost of the Condemnation Restoration; (2) second to Owner for payment of any amounts due and payable hereunder which are in default other than Percentage Rent;(3)third to the Recognized Mortgagee for any amounts due and payable under its Recognized Mortgage which are in default;(4)fourth to Owner for any accrued,but unpaid,Percentage Rent;(5)fifth to Recognized Mortgagee to the extent required by the Recognized Mortgage as a result of the less than Substantial Taking;and(6)sixth pursuant to Section 91(b)(1). (d). Commencement of Construction Work Subject to Unavoidable Delays, Tenant shall commence the Construction Work in connection with a Condemnation Restoration within ninety(90)days after receipt of the Net Condemnation Award arising from the taking which caused the need for such Condemnation Restoration and shall diligently pursue the completion of such Condemnation Restoration. (e) Pay Down of Mortgages Prohibited. No Mortgagee (Recognized or otherwise) shall have the right to apply any award proceeds paid in connection with any taking toward payment of the sum secured by its Mortgage to the extent that this Lease requires that Tenant effect a Condemnation Restoration with such proceeds. Section.9.3 Restoration Funds. (a) If in connection with a taking the Net Condemnation Funds are in excess of Five Hundred Thousand Dollars ($500,000), adjusted for inflation,then the Net Condemnation Award shall be deposited with the Recognized Mortgagee,or,if none,with an Institutional Lender pursuant to a mutually acceptable trust agreement. Except as may otherwise be required by a Recognized Mortgagee, if such Net Condemnation Funds are less than Five Hundred Thousand Dollars($500,000)adjusted for inflation,the same shall be paid directly to Tenant to be applied as provided herein. Provided Tenant is conducting the Condemnation Restoration in accordance with this Lease,the Net Condemnation Award shall be paid out from time to time as the Condemnation Restoration progresses,upon the written request of Tenant,which request shall be accompanied by the following: P:IMINSKERIC M BWohigan-Lincoln Ph=U!►colnPl=Gmdlse8-17a(Bx)wpd August 30,1999(2:49PM) -40— 1 49 i (i) A certificate signed by Tenant and the architect or engineer in charge l of the Condemnation Restoration,reasonably satisfactory to Owner, dated not more than fifteen(15)days prior to such request, setting forth: (1) that the sum then requested either has been paid by Tenant or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished materials for the work specified, and stating that no part of such expenditures has been or is being made the basis of any previous or then pending request for the withdrawal of the Net Condemnation Award; (2) a brief description of the services and materials; (3) that,except for the amount described in Section 9.3(a)(i,(1), there is no outstanding indebtedness actually known to the persons signing such certificate,after due inquiry,which is then due for labor,materials,or services in connection with the Condemnation Restoration; (4) that the cost, as estimated by the persons signer such i certificate,ofthe workrequired to complete the Condemnation Restoration does not exceed the amount of the remaining Net ' Condemnation Award,plus any amount deposited by Tenant to defray the expenses of the Condemnation Restoration;and (5) that the work described has been completed in accordance with the plans and specifications applicable thereto,in a good and workmanlike manner and in accordance with all Requirements; (ii) Lien waivers,title company reports or such other evidence,reasonably i satisfactory to Owner,to the effect that there has not been filed with respect to the Premises, any vendor's, mechanic's, laborer's, materialman's or other lien which has not been discharged of record, except such as will be discharged by payment of the amount then requested;and (iii) Such other documentation regarding the Condemnation Restoration as Owner or the Recognized Mortgagee shall reasonably require. (b) 1 Tenant shall,prior to the commencement of the Condemnation Restoration, furnish to Owner an estimate of the total cost of the Condemnation Restoration certified by the architect or engineer in charge of the Condemnation Restoration, If such cost estimate or any � I F:IMTNSKERT M BNichipn-Lincoln PluAV incolnPhnGindlses-17a(nx).wpd August 34,1999(2:49PM) —41- 6 L 1677OR 495 subsequent estimate provided pursuant to Section 93(a)(1)(4)shall show that the cost of completing + the Condemnation Restoration is in excess of the amount of the Net Condemnation Award then available,Tenant shall promptly deposit with the holder of the Net Condemnation Award an amount equal to such excess. The amount so deposited shall be included in the Net Condemnation Award for all purposes of this Article 9. (c) Upon compliance by Tenant with the foregoing provisions of this Article,the holder of the Net Condemnation Award shall pay,to Tenant or the persons named in the certificate referred to in Section 93(a)(i),from the Net Condemnation Award,an amount equal to ninety percent 90% of the cost of the Condemnation Restoration which is evidenced by the request. At the completion of each contract or subcontract in connection with the Condemnation Restoration,the balance of the Net Condemnation Award relating to that portion of the work,to the extent of and as required to complete the payment of Condemnation Restoration costs relating to that portion of the work, shall be paid to Tenant and Tenant shall provide to Owner reasonable evidence that the Condemnation Restoration relating to that portion of the work has been paid for in frill. (d) If the amount of any Net Condemnation Award,excluding deposits made by Tenant pursuant to Section 9.3(b) above, shall exceed the entire cost of the Condemnation Restoration,such excess,upon completion of the Condemnation Restoration,shall,if this Lease shall be in full force and effect,be disbursed to Tenant or if this Lease shall not be in full force and effect, such excess shall be paid to and retained by Owner and shall be deemed to be Percentage Rent to the extent that Percentage Rent was reduced during Casualty Restoration and not reimbursed from insurance proceeds and if any balance remains then,in that event,said remaining balance to Tenant as Project Revenue hereunder. Any amounts deposited by Tenant pursuant to Section 9.3(b)above shall be returned to Tenant to the extent the same are not necessary to fund the cost of the Condemnation Restoration. Section 9.4 Temporary Taking. (a) Notice of Temporary Taking. If the temporary use of the whole or any portion of the Premises is taken for a public or quasi-public purpose by a lawful power or authority by the exercise of the right of condemnation or eminent domain or by agreement between Tenant and those authorized to exercise such right,Tenant shall give Owner notice within five(5)Business Days thereof. The Term shall not be reduced or affected in anyway by reason of such temporary taking and Tenant shall continue to pay to Owner the Rental and/or Impositions without reduction or abatement; provided,however,if such temporary taking is for a period in excess of ninety(90)days,then such taking shall be deemed a permanent taking and the provisions of Sections 9.1 and 9.2,as applicable, shall apply. (b) Temporary Taking Not Extending]beyond the Term. If the temporary i taking is for a period not extending beyond the Term(including a taking restricted entirely to'Tenant's + ' Interest in the Premises and not affecting Owner's interest in any way),Tenant shall apply the award it receives in compensation therefor toward a Condemnation Restoration in accordance with Section i F.\M NSKF,R\C M BUoh+gan-Unooln Plaza\Linco1nP1=.Gmd1se8-17a(Ex)wpd August 30,1999(2A9PM) -42- 18alX 4 1 9.3,and Tenant shall, subject to the rights of any Recognized Mortgagee,be entitled to retain any remaining amount of such award. (c) Temporary Taping Extending Beyond the Expiration of the Term. If the temporary taking is for a period extending beyond the Expiration of the Term,the award or payment shall first be disbursed pursuant to Section 9.3 to be applied toward such restoration of the Improvements as may have been necessitated by such taking,and the remainder shall be equitably apportioned between Owner and Tenant as of the Expiration of the Terns. Section 9.5 Governmental Action Not Resulting in a Taking. In case of any governmental action not resulting in the taking or condemnation of any portion of the Premises but creating a right to compensation therefor,such as the changing of the grade of any street upon which the Premises abut,then this Lease shall continue in full force and effect without reduction or abatement of Rental and/or Impositions. Any award payable thereunder shall be applied(i)first to reimburse Tenant for any Construction Work performed by Tenant resulting from such governmental action and for attorneys'fees and costs related thereto as well as to Owner for its attorneys' fees and costs related thereto; provided, however, that Owner was not acting in its governmental capacity,(ii)second,any remaining amount shall be used to cure any monetary defaults under this Lease,and(iii)the remainder shall be paid to Tenant. Section 9.6 Collection of Awards. Each of the parties shall execute such documents as may be reasonably required to facilitate collection of any awards made in connection with any condemnation proceeding referred to in this Article 9. Section 9.7 Negotiated Sale. In the event of a negotiated sale of all or a portion of the Premises in lieu of condemnation,the proceeds shall be distributed as provided in cases of condemnation. Section 9.8 Intention of Parties. The existence of any present or future law or statute notwithstanding,Tenant waives all rights to quit or surrender the Premises or any part thereof by reason of any condemnation or taking of less than Substantially All of the Premises. Section 9.9 No'Waiver. n contained here' the City,actin in its governmental Notwithstanding anything to theco contrary m, ty, g g capacity, does not waive, and hereby reserves, its right to consent or withhold consent to any acquisition of property owned by or belonging to the City,including the Premises. I F W NSKERT M B1Mlchigan-Lincoln P1aza lL1ncotnPl=Gmd1Se&-17a(8%Jwpd August 30,1999(2 49PM) -43- 4 ' Section 9.10 Effect of Taking on This Lease. 1 Except as provided in Section 9.1,this Lease shall not terminate,be forfeited or be affected in any manner,and there shall be no reduction or abatement of Rental and/or Impositions,by reason of any taking of the Premises or any part thereof. Except as provided in Section 9.2(a), Tenant's Rental and/or Imposition obligations hereunder shall continue as though the Premises had not been taken and shall continue without abatement,suspension,diminution or reduction whatsoever. Subject to Unavoidable Delays and taking into account Tenant's Condemnation Restoration obligations, Tenant's non-Rental obligations hereunder shall continue as though the Premises had not been taken and shall continue without abatement,suspension,diminution or reduction whatsoever. Article 10-Sale of the Project,Transfer and Subletting Section 10.1 Purpose of Restrictions on Transfer. Subject to the provisions of this Article 10;this Lease is granted to Tenant solely for the purpose of development of the Land and its subsequent use in accordance with the terrors hereof,and not for speculation in landholding. Tenant recognizes that in view of the importance of the development of the Land to the general welfare of the community,the qualifications and identity of Tenant are of particular concern to the community and Owner. Tenant further recognizes that it is because of such qualifications and identity that Owner is entering into this Lease with Tenant and,in so doing,is further willing to accept and rely on the obligations of Tenant for the faithful performance of all undertakings and covenants by it to be performed. Section 10.2 Definitions. (a) "Assignment"means a sale,exchange,assignment,transfer or other disposition by Tenant of all or a portion of Tenant's Interest in the Premises,whether by operation of law or otherwise,which is not a Transfer or a Master Sublease. The creation or granting of a Mortgage shall not constitute an Assignment or a Transfer. (b) "Assignee" means a purchaser, assignee,transferee, or other Person which acquires all or any portion of Tenant's Interest in the Premises. (c) "Back Rent" means the amount of unpaid Rental (other than accrued, but unpaid,Percentage Rent)as of the Reinstatement Date,including accrued simple interest on the unpaid Rental (other than accrued, but unpaid, Percentage Rent) from the date due at the default rate specified in the Recognized Mortgage,as well as reasonable attorneys'fees and costs at the trial court and all appellate levels and other expenses incurred by Owner in connection with enforcing this Lease. i (d) "Equity Interest"means,with respect to any entity,(1)the legal(other than as a nominee)or beneficial ownership of outstanding voting or non-voting stock of such entity if such i entity is a business corporation,a real estate investment trust or a similar entity,(2)the legal(other than as a nominee)or beneficial ownership of any partnership,Membership Interest or other voting F:1MINSKMC M H1MioWpn-Lincoln PlazalLincolnPl=Gnidlse8.17a(Ex)Wpd August 30,1999(2:49PM) -44- I or non-voting ownership interest in a partnership,joint venture,limited liability company or similar entity,(3)a legal(other than as a nominee)or beneficial voting or non-voting interest in a trust if such entity is a trust and(4)any other voting or non-voting interest that is the functional equivalent of any of the foregoing. (e) "Sale of the Project"means(il)any Assignment or Master Sublease by Tenant of fifty percent(505S)or more of Tenant's Interest in the Premises or(ii)any change,by operation of law or otherwise, in the ownership of an Equity Interest in Tenant wherein such change in ownership, directly or indirectly, produces any change in the Substantial Controlling Interest of Tenant. (f) "Master Sublease(s)" means any sublease(including a sub-sublease or any further level of subletting)of all or any portion of the Premises,but does not include subleases serving the functional equivalent of a Recognized Mortgage or subleases to actual space users or other subleases entered into in the ordinary course of business for parking,retail,office or other space at the Premises;provided,however,that in the event of a sublease of greater than Twenty Percent(20%) of the parking on the Premises(other than to subtenants of space in the Project to meet their parking needs), Owner shall have the right to approve the subtenant. (g) "Master Subtenant"means any party granted rights by Tenant under a Master Sublease or by any other Master Subtenant(immediate or remote)under a Master Sublease. (h) "Transfer" means (i) any change,by operation of law or otherwise, in the ' ownership of an Equity Interest in Tenant,wherein such change in ownership,directly or indirectly, does not produce any change in the Substantial Controlling Interest of Tenant,or(ii)any transaction or series of transactions,by operation of law or otherwise,including,without limitation,the issuance of additional Equity Interests or the direct or indirect revision of the beneficial ownership or control structure of the management or operation of Tenant or any direct or indirect constituent entity of Tenant,which,in either case,does not produce any change,by operation of law or otherwise,in the Substantial Controlling Interest in Tenant. (i) "Transferee"means a Person to which a Transfer is made. Section 10.3 Restrictions on Sale of the Project or Transfer. (a) No Sale of the Project or Transfer Prior to CO Date. There shall not be 'v any Sale ofthe Projector Transfer prior to the CO Date other than as permitted by the provisions in j Section 10.4 and other than a Foreclosure Transfer. �D (b) No Sale of the Project or Transfer to a Foreign Instrumentality. "1" Notwithstanding anything in this Lease to the contrary,there shall not be any Sale of the Project or 4& any Transfer to a Foreign Instrumentality. Al I, � m P.-VY SKERIC M B1Michipn-Linroin Plm\LincolnPlamOnidlw8-17a(Ex)wpd August 30,1999(2:49PM) -45- DEC. (c) extraction on Sale of the Pro'ec t. a twovisions of Section x here• (i) a real estate investor or real estate investment entity(including without limitation,a real estate investment trust)investing funds for its own account, (ii) a pension fund,pension fund advisor or investment advisor investing on behalf of others,or a developer who either invests,for its own account(with or without �� additional equity investors investing with said developer), in or develops commercial real estate projects located within or outside the United States; i provided,however,that such Permitted Buyer in fact meets or exceeds and certifies to Tenant and Owner that it meets or exceeds the criteria described in subsections A through G below • Wrany time within the thirty(30)day period described in a last paragraph of this Section 10.3(c), Owner shall be entitled to engage an independent accounting fm to review the books,records and other information upon which the certifications and financial statements described below were based for the purpose of determining whether the certifications or the financial statements described below are accurate and complete. (A) Together, with the Permitted Buyer's Affiliates, has equity ownership in real estate (or, in the case of pension fund i advisors or investment advisors, current real estate equity under management)plus cash and/or cash equivalent of at least Twenty Million Dollars($20,000,000),adjusted for inflation, [of which not less than Ten Million Dollars ($10,000,000), adjusted for inflation,must be equity ownership in real estate] (such real estate may either be owned or,in the case of pension fund advisors or investment advisors,under management by Affiliates owned or controlled by such Permitted Buyer or its principals),as set forth in the most recent year end financial ; statements of the persons or entities used to arrive at said Twenty Million Dollars($20,000,000),adjusted for inflation. Said financial statements shall be examined b an inde adent certifierpume a66ounting m and shall be accompanied b MEN in epeen ent certifiedpublic accounting firna7s Flexamined 'i re o , m accor ance with attestatlon standards P P eats lished by the erican Institute of Certified Public i i F:VvIINSKERIC M BVAIchlgan-Lincoln Pl=EfnoolnPlazoomd1se8.17a(Bx).wpd August 30,1999(2:49PK ..46- i 8T 0 Accountants, stating that the sum of the Permitted Buyer's ( eARV ownership in real estate based upon current VITURe ARM ZEE or c equty ent of which at least Ten Million o s ,juste or inflation,consists ofequity ownership in real estate) exceeds Twenty Million Dollars . ($20,000,000),adjusted for inflation, (or, if such examined - financial statements are not available, such equity may alternatively be established by evidence reasonably satisfactory to Owner's independent certified public accounting firm, however, such alternative evidence must be submitted to Owner and approved by Owner's independent certified public accounting film prior to any Sale of the Project being effective. Such approval shall be deemed given ifthe alternative evidence has not been disapproved in writing, with reasons given for disapproval,within forty-five(45)days of all such evidence, being submitted to Owner); (B) is not(nor is any of the individuals or entities included for purposes of the calculation of the Twenty Million Dollars ($20,000,000),adjusted for inflation,equity plus cash and/or cash equivalent described in (A) above), a Foreign Instrumentality; { (C) Must not have been(nor are any of the individuals or entities included for purposes of the calculation of the Twenty Million Dollars($20,000,000),adjusted for inflation,equity plus cash and/or cash equivalent described in(A)above)within the seven (7)years preceding the date of the Sale of the Project,in an adversarial relationship in litigation or are not in an adversarial relationship in litigation currently pending with Owner,in both rases including but not limited to, litigation with respect to ordinances, charter provisions or resolutions of the City, including building codes or tax code violations(but excluding + zoning appeals and appeals of property tax assessments); (D) Must not be owned,controlled or run by entities or individuals (including for this purpose,all entities and individuals included for purposes of the calculation of the Twenty Million Dollars ($20,000,000),adjusted for inflation,equity plus cash and/or cash equivalent described in (A) above) who have been convicted,or are presently under indictment,for felonies under the laws of any foreign or domestic jurisdiction; j i F:VdMKER\C M B1Miohigan-Lincoin Pb=\L1ne61nP1m=Grndlse8r17XEx)'wpd August 30,1999(2 49PM) -47- ' I (E) Must not(including for thispurpose all entities and individuals included for purposes of the calculation of the Twenty Million Dollars($20,000,000),adjusted for inflation,equity plus cash and/or cash equivalent described in(A)above)have filed or been discharged from bankruptcy,reorganization or insolvency proceedings within the past seven years(bankruptcy filings by Affiliates shall not disqualify an assignee,unless such Affiliates were included for purposes of determining the Twenty Million Dollars($20,000,000),adjusted for inflation,equity plus cash and/or cash equivalent calculation described in(A)above); (F') Must not in its charter or organizational documents(defined as the articles of incorporation and bylaws for any corporation, the operating agreement of any limited liability company,the partnership agreement and partnership certificate for any partnership, the trust agreement for any trust and the constitution of the relevant government for any governmental entity, but expressly excluding any statements, positions, actions or allegations not contained in such charter organizational documents) expressly advocate or have as its stated purpose: (x) the violent overthrow of, or armed resistance against, the U.S. Government; or (y) genocide, violence,hatred or animosity toward persons based solely on their race,religion,creed,color,sexual orientation or national origin;and (G) Unless the Permitted Buyer is publicly held,musthave an entity within the group of entities included for purposes of the calculation of the Twenty Million Dollars ($20,000,000), ! adjusted for inflation,equity plus cash and/or cash equivalent described in(A)above which has not less than a five(5)years operating history or must have entered into a Management Agreement with an Acceptable Operator. log s s s i s s s i , f s s ! s mom ! F:\UNSKBR\C M B\Nchigan-Lincoln plaza 11incoIuPIxmGmdlse8-17a(Ex)wpd August 30,1999(2:49P4 —48— 1 (d) ]Foreclosure Transfer. A Foreclosure Transfer pursuant to the provisions of Section 11.12 shall not require the consent of Owner. Section 10.4 Transfers. Tenant represents and warrants that Tenant has not made,created or suffered any Transfers as of the Commencement Date and that the entities and individuals who or which have an ownership interest in Tenant on the Commencement Date are listed,together with their percentage and character of ownership, in Exhibit 10.4 attached hereto and incorporated by reference herein. Except as permitted,pursuant to Sections 10.4(a)-(c)herein, no Transfer may or shall be made, suffered or created by Tenant,its successors,assigns ortransferees without complying withthe terms of Sections 10.5 and 10.6 and other sections herein applicable thereto. The following Transfers shall be permitted hereunder without the consent of Owner or any other action by Owner: (a) Any Transfer of a Member's interest in Tenant or the admission of additional Members to Tenant provided that, after all such Transfers,the previous Managing Member(s)of Tenant shall maintain,under the operating agreement ofTenant,control over the development and day to day operation and leasing ofthe Project(subject,however,to any contract made with an Acceptable Operator); (b) Any Transfer by a Person who is a Member of Tenant of his Membership 1 interest in Tenant into a charitable trust,a blind trust,or for estate planning purposes;and (c) A Transfer from the holder of an Equity Interest in Tenant(1)to his or her mother, father, spouse, brother, sister or child (an "Immediate Family Member"), or any combination thereof,of that holder; (2)to a trust whose sole beneficiary(ies)is(y)a holder of an Equity Interest in Tenant or(z)an Immediate Family Member of a holder of an Equity Interest in Tenant; (3)to a personal representative of the estate of a deceased holder of an Equity Interest in Tenant;(4)to a Person in which a holder of an Equity Interest in Tenant holds,directly or indirectly, the Substantial Controlling Interest;or(5)to any other holder of an Equity Interest in Tenant in which Transferee does not become (unless such Transferee already was) the holder of a Substantial Controlling Interest as a result of such Transfer;(for purposes of this Section 10.4(c)only,the term "Transfer" shall include a transfer of an Equity Interest in a Person or Persons having an Equity Interest,directly or indirectly,in Tenant). d at the time of a requested Trsfer under S ptions 10.4(x) or 10.4(b), ( ) � q Tenant is a corporation or other type of entity,then the references to Ifinled liability company shall be changed to the type entity in question and the Membership Interest being transferred shall be changed to the appropriate ownership interest. Any consent to a Transfer shall not waive any of Owner's rights to consent to a subsequent j Transfer. Any Transfer made in violation of the terms hereof shall be null and void and of no force and effect. i F:IMWSKER%C M H1Miehigan-Lincoln P1=1YJnoo1nP1=Grn&e8-17a(Bx)wpd August 30,1999(2:49MO -49- T3 . Section 10.5 Required Notices. -t- (a) Tenant shall give notice to Owner of every pro os ale o Pro'e which notice shall contain the following information: i the name and address of proposed + Transferee;(ii)the name and address of proposed transferor;(iii)the nature ofthe transaction;(iv)the percentage interest conveyed;and(v)such other additional information as Owner shall reasonably uest in connection with th Transfer and/or ro osed p--!-c rovided, however Owner shall make such nest within ten 10 Business Da s after receipt of Tenant's i i formation. addition,with respect to any proposed Transfer other than those described in Sections j 10.4(x)through 10.4(c)above and with respect to any Sale of the Project,Tenant shall give or cause ! to be given to Owner written notice requesting approval of the proposed Transfer and/or proposed Sale of the Project and submit all information necessary for Owner to make an evaluation of the proposed Transferees and/or proposed purchaser of a Substantial Controlling Interest and the proposed Transfer and/or Sale of the Project and to obtain Owner's consent to same. Owner shall, within sixty(60)days of its receipt of such information,advise Tenant if it shall consent to same. If Owner shall fail to respond during such sixty(60)days,it shall be deemed to have consented to the proposed-Transfer and/or proposed Sale of the Project in question. If Owner shall not consent to a proposed Transfer and/or proposed Sale of the Project,Owner shall state all of its reasons for such disapproval in its notice to Tenant withholding its consent. (b) In addition to all otherobli agdot s LmM s 2LuX on Tenant here under Tenant shall reimburse Owner,u n lemand,LoLan reasonable costs incurred by Owner in connection with an ft-W suc Transfer and/or Sale of the Project and/or Master Sublease,includin itatio the out- ! o -pocket cos akin in uines and investigations into the acceptabili of the ro osed Transferee '35075'r-purchaser of a Substantial Controlling Interest ii or Master Sublessee,and the reasons e re-g-costs incurred,if any,in connection therewith. Section 10.6 Effectuation of Transfers and Sales of the Project. No Sale of the Project or Transfer of the nature described in Sections 10.3 and 10.4 shall be effective unless and until: (a) executed copies of the documents and other agreements between the parties to effectuate the Sale of the Project and/or Transfer are delivered to Owner;and (b) in the case of a Sale of the Project,the entity to which a Sale of the Project is made,by inslr amentinwriti.ng and in form and substance satisfactory to Owner and in form recordable among the land records,shall,for itself and its successors and assigns,and especially for the benefit of Owner, expressly assume all of the obligations of Tenant under this Lease and agree to be personally liable and subject to all conditions and restrictions to which Tenant is subject;provided, however,that a Recognized Mortgagee shall not be liable under this Lease with respect to any matter arising prior to its actual ownership of the Project,except: i P iMINSKERIC M Michigan-Lincoln P1azaVAco1nPkzn0md1sa8-17aft)wpd August 30,1999(2:49PM) _50- SO4 r (i) unpaid Rental and/or Impositions (but Percentage Rent, Back Rent and/or Impositions only to the extent the Recognized Mortgagee is obligated to pay such Percentage Rent,Back Rent and/or Impositions i pursuant to Article 11),other monetary obligations of Tenant under this Lease,including defaults which can be cured by the payment of j money and are in a liquidated amount,non-monetary defaults which a Recognized Mortgagee can cure or remedy without title and possession,(all such defaults to include any then existing event,matter or occurrence which, with the passage of time or the happening of ! future events,matters or occurrences,becomes an Event of Default), (ii) as provided in Article 11(it being understood,nevertheless,that the limitation of any such liability of Recognized Mortgagee shall not impair, impede or prejudice any other right or remedy available to Owner for default by Tenant and/or the then current transferee). Recognized Mortgagee shall not be liable under this Lease with respect to any matter arising subsequent to the period of its actual ownership of the Project;provided however,that the fact that Recognized Mortgagee has no liability for matters arising subsequent to the period of its actual ownership shall not relieve or except any subsequent transferee or successor of or from such obligations, conditions or restrictions,or deprive or limit Owner of or with respect to any rights, remedies or controls with respect to the Project or the construction of the Improvements. Section 10.7 Office and Retail Muster Subleases. Subject to the terms and conditions of this Lease,Tenant shall have the right to enter into individual office,retail,parking and commercial subleases at any time and from time to time during the term of this Lease with such subtenants,but only for uses that are not prohibited under Article 6, and upon such commercially reasonable terms and conditions as Tenant shall,in its sole discretion, deem fit and proper. At Owner's request,Tenant shall allow Owner to review and inspect any and all subleases for individual office,retail,commercial andparking spaces in the Project. Upon receipt of a written request from Tenant or any sublessee under an office or retail sublease,Owner shall enter into attornment and non-disturbance agreements with sublessees in the office,retail,commercial and parking spaces of the Premises. Such attornment and non-disturbance agreements shall be entered into upon such terms and conditions as are customary for such agreements. Article 11-Mortgages Section 11.1 Right to Mortgage. (a) Except as otherwise expressly provided for in this Lease, Tenant shall not mortgage,pledge,hypothecate or otherwise encumber Tenant's Interest in the Premises. i F.XMWKERIC M B1Michigan-Lincoln Plaza\LincoG►P vAGMd1W8-l7a(Ex)wpd August 30,1999(2 49PM) 51- t C. 18770 8 505 (b) Tenant shall have the right to mortgage,pledge, hypothocate or otherwise ( encumber Tenant's Interest in the Premises to secure Debt by a Recognized Mortgage(s)without Owner's approval. Section 11.2 Definitions. (a) "Debt"means the principal amount of debt and interest thereon secured by ' Tenanfs Interest in the Premises, together with any other amounts owed by Tenant under a Recognized Mortgage to a Recognized Mortgagee. In addition,Debt shall include any debt obtained in connection with(i)a required Casualty Restoration or Condemnation Restoration,as applicable, if the Net Insurance Proceeds are, or the Net Condemnation Award is, inadequate to achieve the required Casualty Restoration or Condemnation Restoration,as applicable and(ii)any advances made by a Recognized Mortgagee with respect to Tenant's Interest in the Premises for the payment of taxes, assessments,insurance premiums or other costs incurred for the protection of Tenant's Interest in the Premises or the liens created by the Recognized Mortgage,and reasonable expenses incurred by such Recognized Mortgagee,by reason of a default by Tenant under such Recognized Mortgage or under this Lease. (b) "Mortgage"means any mortgage or deed oftrust,and all extensions,spreaders, sputters, consolidations,restatements,replacements,modifications and amendments thereof,that constitutes a lien on all or a portion of Tenant's Interest in the Premises,and any security interest in or assignment of the Lease or the rents,issues or profits related thereto. (c) "Recognized Mortgage"means a Mortgage(i)that is held by a Person(other than an Affiliate)which is an Institutional Lender,(ii)which expressly provides that it is subject and subordinate to the terms of this Lease and,except as expressly set forth herein regarding Owner's subordination in certain circumstances of its right to Percentage Rent, to Owner's Interest in the Premises, and (iii) a photostatic copy of which is, following the execution and delivery thereof, delivered to Owner,together with a certification by Tenant confirming that the photostatic copy is a .true copy of the Mortgage and a certification by the Recognized Mortgagee thereunder confirming the address of such Recognized Mortgagee for notices. Notwithstanding anything contained herein to the contrary,an Affiliate may be part of a lending group constituting a Recognized Mortgagee for so long as such Affiliate(i)does not own more than a forty-nine percent(49 11/e)beneficial interest in the debt held by such Recognized Mortgagee with respect:to Tenant or the Project and(ii)is not the lead lender or agent for the lending group. Section 11.3 Effect of Mortgages. (a) Owner's Interest. No Mortgage shall extend to or be alien or encumbrance upon,Owner's Interest in the Premises or any part thereof or any appurtenant rights thereto which have not been granted to Tenant under this Lease. A Mortgage may extend to and be alien or encumbrance upon the entire Tenant's Interest in the Premises. I F:1MndMR1C M BUchigan-Lincoln Plm\LincolnPiaza(lmdboB-17a(Ex).wpd August 30,1999(2:491'11) .52- i %EC. (b) Mortgagee's Rights Not Greater than Tenant's. The execution and delivery of a Recognized Mortgage shall not give or be deemed to give a Recognized Mortgagee any greater rights against Owner than those granted to Tenant hereunder,except as otherwise expressly provided in this Lease. Section 11.4 Notice and Might to Care Tenant Defaults. (a) Notice to Recognized Mortgagee. Owner shall give to the Recognized Mortgagee, in the planner provided by the provisions of Section 26.1 at such address as such Recognized Mortgagee may confirm to Owner in the certification delivered to Owner pursuant to Section 11.2(c)or given by notice to Owner in accordance with Section 26.1,a copy of each notice of Default at the same time as it gives notice of Default to Tenant,and no such notice of Default shall be deemed effective with respect to any Recognized Mortgagee unless and until a copy thereof shall have been so received by or refused by such Recognized Mortgagee,as applicable. Owner shall also give the Recognized Mortgagee notice("Notice of Failure to Cure")in the event Tenant fails to cure a Default within the period, if any,provided in this Lease for such cure,promptly following the expiration of such period(i.e.,an Event of Default). Only Events of Default expressly described in the Notice of Failure to Cure may give rise to a termination of this Lease by Owner pursuant to its termination rights hereunder. (b) Right and Time to Cure. The Recognized Mortgagee shall have aperiod of sixty(60)days after receipt of the Notice of Failure to Cure,in the case of any Event of Default,to (1)cure the Event of Default referred to in the Notice of Failure to Cure or(2)cause it to be cured, subject to the provisions of Section 25.1(b). Nothing contained herein shall be construed as imposing any obligation upon any Mortgagee to so perform or comply on behalf of Tenant. Anything contained in this Lease to the contrary notwithstanding,Owner shall have no right to terminate this Lease prior to the delivery of a Notice of Failure to Cure or following the delivery of a Notice of Failure to Cure if, within sixty (60) days after receipt of Owner's Notice of Failure to Cure, any Recognized Mortgagee shall: (i) notify Owner of such Recognized Mortgagee's desire to cure the matter described in such Notice of Failure to Cure; pay or cause to be paid all Rental and/or Impositions then due and in arrears as specified in the Default Notice from Owner to such Recognized Mortgagee (provided, however, that such Recognized Mortgagee shall not be required to pay or cause to be paid any amounts payable by Tenant under Section 28.1(b)to the extent such amounts relate to any Lease Year other than the Lease Year for which the most recent Annual Financial Statements have been made available to Owner;provided further,however,in the event that the Recognized Mortgagee (A) provides notice to Owner pursuant to Section 11.4(b)(i), and (B) files a foreclosure within sixty (60) days of its receipt of the Notice of Failure to Cure and diligently prosecutes such j I F:\MINSKER\C M B1Miehigen-Lincoln PlaaEtlLincolnPlaz Omdlse8-17a(Sx)wpd August 30,1999(2:49PM) —53. 57 foreclosure, the Recognized Mortgagee's curative obligations with l regard to an Event of Default as provided in this Section 11.4(b)(ii) shall be excused, subject to the provisions of Section 11.4(b)(iv), which shall be applicable during the pendency of a foreclosure); (iii) cure all Defaults by Tenant in the observance or performance of any term, covenant or condition of this Lease on Tenant's part to be observed or performed (other than the payment of Rental and/or Impositions),or if any such Default is of such a nature that it cannot reasonably be remedied within such sixty (60) day period (but is otherwise reasonably susceptible to cure),Recognized Mortgagee shall, (i)within sixty(60)days after the giving of such Notice of Failure to Cure,-advise Owner of such Recognized Mortgagee's intention to institute all steps(and from time to time,as reasonably requested by Owner,such Recognized Mortgagee shall advise Owner of the steps being taken)necessary to remedy such Default(which such steps shall be reasonably designed to effectuate the cure of such Default in a professional manner), and (ii) thereafter diligently prosecute to completion all such steps necessary to remedy the same, it being acknowledged by Owner that if possession or control of the Premises is required to effect such cure,the diligent prosecution of a foreclosure of a Recognized Mortgage, and the continuing efforts by such Recognized.Mortgagee to effect such cure following completion of such foreclosure, shall constitute a part of the steps necessary to remedy such Default. Nothing in this Lease shall require a Recognized Mortgagee or its Designee or Foreclosure Transferee to cure any default of Tenant not reasonably susceptible of being cured by such Person(e.g., defaults stated in Section 25.1(e), (f), (g),(h), 0) and (k);and (iv) if such Recognized Mortgagee files a foreclosure,during the pendency i of such foreclosure, pays or causes to be paid all current monthly Rental and/or Impositions due beginning upon the filing of such foreclosure;provided,however,Percentage Rent shall be due only if, and to the extent that, Project Revenues are sufficient to pay Percentage Rent after the payment of Operating Expenses and Debt Service, and the Recognized Mortgagee shall provide to Owner a i monthly statement setting forth Project Revenues and Operating I Expenses. i Notwithstanding the foregoing provisions of this Section 11.4(b),following the delivery of a Notice of Failure to Cure, within five (5) Business Days following the written request of any i Recognized Mortgagee (which request may be contained in the notice from such Recognized Mortgagee to Owner given pursuant to Section 11.4(b)(i)),Owner shall deliver to such Recognized f I P:VvIINSKBRIC M B1Micbigan-Lincoln Plaza li.tncolnPbzaGmdlse&17a(Bx).wpd August 30,1999(2:49PM) -54- . 1570-8 508 Mortgagee a statement certifying the aggregate amount of Rental and/or Impositions then due and in I arrears hereunder and the estimated per diem increase in such amount, but no such request shall increase any of the time periods provided for in this Section 11.4(b). (c) Acceptance of Mortgagee's Perfamance. Owner shall accept performance by a Mortgagee of any covenant,condition or agreement on Tenant's part to be performed hereunder with the same force and effect as though performed by Tenant. (d) Other lights of Mortgagees. Notwithstanding any other provision of this Lease,no payment made to Owner by any Mortgagee shall constitute the Mortgagee's agreement that such payment was,in fact,due under the terms of this Lease. (e) Ovlrner's Self-Help Rights. Notwithstanding the foregoing provisions of this Section 11.4, if a Recognized Mortgagee fails (for any reason) to cure any Default by Tenant described in Section 11.4(b)(iii)within sixty(60)days following receipt of the Notice of Failure to Cure regarding such Default, then Owner may upon notice, but shall be under no obligation to, perform-the obligation of Tenant the breach of which gave rise to such Default,without waiving or releasing Tenant from its obligations with respect to such Default. Tenant hereby grants Owner access to the Premises in order to perform any such obligation. Any amount paid by Owner in performing Tenant's obligations as provided in this Section 11.4(e),including all costs and expenses incurred by Owner in connection therewith,shall constitute Rental hereunder and shall be reimbursed to Owner - within thirty(30)days following Owner's demand therefor,together with a Hate charge on amounts actually paid by Owner, calculated at the Late Charge hate from the date of notice of any such payment by Owner to the date on which payment of such amounts is received by Owner. (f) Acceptance of Owner's Performance. Tenant shall cause all Mortgages to contain a provision requiring that all Mortgagees shall accept performance by Owner, within the applicable grace periods available to Tenant, to cure defaults under any covenant, condition or agreement on Tenant's part to be performed under such Mortgages with the same force and effect as though performed by Tenant. Section 1105 Recognized Mortgagee or its Designee as Tenant Under this Lease. If a Recognized Mortgagee or its Designee becomes Tenant under this Lease,then,in that event, such Recognized Mortgagee or such Designee shall,during the period of its tenancy: (a) pay all current Rental and/or Impositions less the Percentage Rent commencing as of the date such Recognized Mortgagee or such Designee becomes Tenant(the"Reinstatement Date");Percentage Rent which was due for periods prior to the Reinstatement Date shall be forgiven and shall not thereafter be payable; (b) comply with all the covenants and conditions of this Lease, except that the payment of Rental and/or Impositions shall be as specified in this Section 11.5; i 1 F:IMINSKEM M B1Micliigan-Lincoln PlazaUncoloPlanGrudiseg.17a(Ex)wpd August 30,1999(2:49PM) -55- i IOil: I '1 79$ 1 (c) pay all Back Rent and/or Impositions as of the Reinstatement Date in the following manner: (i) Monthly,but only to the extent sufficient funds are received by such Recognized Mortgagee or such Designee from Project Revenue after deducting Operating Expenses,Debt Service(which shall be retained by the Recognized Mortgagee or its Designee)and amounts paid in Section 11.5(a); (ii) Back Rent and/or Impositions shall continue as an obligation of the Recognized Mortgagee or its Designee until paid in full;and (d) pay all Percentage Rent which accrues subsequent to the Reinstatement Date as follows: (i) For so long as the Recognized Mortgagee or its Designee is Tenant under this Lease,Percentage Rent shall be payable monthly,but only to the extent that funds are available therefor after making the payments set forth in Section 11.5(x),(b)and(c)above. Percentage Rent shall be waived (and not accrued) to the extent that Project Revenue in any Lease Year is not sufficient to pay Percentage Rent after payments have been made with respect to amounts set forth in Sections 11.5(a)-(c). (ii) Upon a Foreclosure Transfer, any amounts of Percentage Rent accrued,but unpaid,shall be forgiven. Section 11.6 Execution of New Tenants Documents. (a) Notice of Termination. If this Lease is terminated by reason of an Event of Default,or by reason of the rej ection thereof by or on behalf of Tenant in bankruptcy or for any other reason,Owner shall give prompt notice thereof to each Recognized Mortgagee. (b) Request for and Execution of Now Tenants Documents. If,within sixty (60) days of receipt of the notice referred to in Section 11.6(x),the Recognized Mortgagee shall request,in writing,a new lease(the"New Tenant's Documents"),to the Recognized Mortgagee or to a Designee or Foreclosure Transferee identified in such request (other than a Foreign Instrumentality(if the Premises are owned by the City or any instrumentality of the Agency or the City)or an Affiliate of Tenant),then,subject to the provisions of Sections 11.6(c)and 11.7,within ninety(90)days after Owner shall have received such request,Owner shall execute and deliver New Tenant's Documents covering the remainder of the Term to the Recognized Mortgagee or to any Designee or Foreclosure Transferee that has satisfied the requirements set forth in Section 10.3, 10.4, and such Recognized Mortgagee(or its Designee or Foreclosure Transferee)shall execute and deliver such New Tenant's Documents to Owner within thirty(30)days following receipt thereof by such f F 1MIMSKBRW M Miebigan-Lincoln P1awWnco1nP1az8Gmd1se&17a(Bx)wpd August 30,1999(2:49PM) -56- i Recognized Mortgagee(or Designee or Foreclosure Transferee). Such New Tenant's Documents shall be effective upon the executions thereof by both Owner and such Recognized Mortgagee or its Designee or Foreclosure Transferee. The New Tenant's Documents shall be at the then current Rental and/or Impositions(subject,however,to Sections 11.4 and 11.5 as to Percentage Rent,Back Rent and/or Impositions)and otherwise contain all of the covenants,conditions,limitations and agreements, and all of Tenant's rights and remedies, contained in this Lease (including, without limitation, a conveyance by Owner of all then-existing Improvements);provided,however,Owner shall not be deemed to have represented or covenanted that such New Tenant's Documents are superior to claims of Tenant,its other creditors or a judicially appointed receiver or trustee for Tenant;provided further, however,such New Tenant's Documents will have the same priority over any encumbrances on the estate of Owner which Tenant has or had by virtue of this Lease and the Recognized Mortgagee(or its Designee or Foreclosure Transferee)will not have any obligation to perform any acts under this Lease which shall at such time have already-been performed by Tenant. Simultaneously with the making of such New Tenant's Documents,the party obtaining such New Tenant's Documents and all other parties junior in priority of interest in the Premises shall,at the option the Recognized Mortgagee or its Designee or Foreclosure Transferee,execute,acknowledge and deliver such new instruments, including new mortgages and new Master Subleases,as applicable,and shall make such payments and adjustments among themselves,as shall be necessary and proper for the purposes of restoring to each of such parties as nearly as reasonably possible,the respective interest and status with respect to the Premises which was possessed by the respective parties prior to the termination of this Lease as aforesaid. Concurrently with the execution and delivery of such New Tenant's Documents,Owner shall assign to the tenant,declarant or co-declarant(the"New Tenant")named therein all of its right,title and interest in and to moneys(including,without limitation,(i)subrents collected which have not been applied or are not being held for application to Rental and/or Impositions and the costs incurred by Owner to operate,maintain and repair the Premises and(ii)insurance and condemnation proceeds which have not been applied or are not being held for application to the costs incurred by Owner to restore the Premises),if any,then held by or payable to Owner which Tenant would have been entitled to receive but for termination of this Lease or Owner's exercise of its rights upon the occurrence of an Event of Default;provided,however,that Owner shall not be required to assign such moneys to such New Tenant unless and until such New Tenant shall have cured all Events of Default that existed under this Lease prior to the execution of such New Tenant's Documents to the extent such Events of Default are reasonably susceptible to cure by such New Tenant. Upon the execution and delivery of New Tenant's Documents under this Section 11.6(b),all Master Subleases which theretofore may have been assigned to Owner shall be assigned and transferred.,without recourse,representation or warranty,by Owner to the New Tenant named in such New Tenant's Documents. Between the date of termination of this Lease and the date of execution and delivery of the New Tenant's Documents(but not later than thirty(3 0)days following receipt of such New Tenant's Documents by such Recognized Mortgagee,as provided in Section 11.6(b)),if a Recognized Mortgagee shall have requested such New Tenant's Documents as provided in this Section 11.6 Owner shall not enter into new Master Subleases,cancel or moth an then (b)� �' modify Y existing Master Subleases or accept any cancellation,termination or surrender thereof(unless such f F:1MiNSKERIC M H1Mi6higan-Lincoln Plat UncolnP1=Gmdlse8-17a(Ex)wpd August 30,1999(2:49PM) -57- 1.677 1511. ' termination shall be effected as a matter of law on the termination of this Lease)without the written consent of a Recognized Mortgagee,except as permitted in the Master Subleases. For so long as the Recognized Mortgagee(or its Designee or Foreclosure Transferee)shall have the right to enter into a new ground lease with Owner pursuant to this Section 11.6(b),Owner shall not enter into a new lease of the Land with any Person other than the Recognized Mortgagee(or its Designee or Foreclosure Transferee), without the prior written consent of the Recognized Mortgagee. The provisions ofSection 11.6(b)shall survive the termination,rejection ordisaffirmance of this Lease and shall continue in full force and effect thereafter to the same extent as if Section 11.6(b) were a separate and independent contract made by Owner, Tenant and any Recognized Mortgagee and,from the effective date of such termination,rejection or disafrma nce of this Lease to the date of execution and delivery of such new ground lease if such Recognized Mortgagee(or its Designee or Foreclosure Transferee)has requested the New Tenant's Documents within sixty(60) days after receipt of the aforesaid notice from Owner,the Recognized Mortgagee may use and enjoy the leasehold estate created by this Lease without hindrance by Owner. The aforesaid agreement of Owner to enter into a new ground lease with the Recognized Mortgagee shall be deemed a separate agreement between Owner and such Recognized Mortgagee,separate and apart from this Lease as well as a part of this Lease,and shall be unaffected by the rejection of this Lease in any bankruptcy proceeding by any ply. (c) Conditions Precedent to Owner's Execution of New Tenant's Documents. i The provisions of Section 11.6(b)notwithstanding,Owner shall not be obligated to enter into New ! Tenant's Documents with a Recognized Mortgagee or its Designee or Foreclosure Transferee unless: (i) the Recognized Mortgagee or its Designee or Foreclosure Transferee shall pay to Owner,concurrently with the execution and delivery of the New Tenant's Documents,all unpaid Rental and/or Impositions due under this Lease(subject,however,to Sections 11.4 and 11.5 as to Percentage Rent, Back Rent and/or Impositions) up to and including the date of the commencement of the terra of the New Tenant's Documents and all reasonable out-of-pocket expenses,as evidenced byreceipted-bills therefor,including,without limitation,reasonable attorneys' fees and disbursements and court costs,incurred in connection with the Default or Event of Default, the termination of this Lease and the preparation of such New Tenant's Documents, less the net revenue of the Premises actually received by Owner from the date of termination of this Lease to the date of execution of the New Tenant's Documents,with any excess of the total of such sums and expenses to be applied by Owner to the payment of Base Rent and Percentage Rent (subject to Sections 11.4 and 11.5)due under such New Tenant's Documents;and (ii) in the case of a Default or Event of Default,the Recognized Mortgagee or its Designee or Foreclosure Transferee shall promptly after execution of the New Tenant's ' Documents,satisfy all obligations and cure all Events of Defaults existing or continuing under this Lease at the time of its termination (as though the Term had not been terminated) and which are ' reasonably susceptible to cure by such Recognized Mortgagee (or its Designee or Foreclosure Transferee). i RW NSKERT M Michigan-Lincoln Plan\LincobPlazaGmd1seg-1711(Ex)wpd i J August 30,1999(2:49PM) -58- I (d) No Waiver of Default. The execution of New Tenant's Documents shall not constitute a waiver of any Default existing or continuing immediately before termination of this Lease and,except as to a Default which is not reasonably susceptible of being cured by the Recognized Mortgagee or its Designee or Foreclosure Transferee(e.g.,the insolvency of Tenant),the New Tenant under the New Tenant's Documents shall cure,within the applicable periods in such Now Tenant's Documents(which periods shall be identical to the periods set forth in Section 25.1), all Defaults existing under this Lease immediately before its termination. Nothing in this Lease shall require a Recognized Mortgagee or its Designee or Foreclosure Transferee,as a condition to the exercise of its right to enter into New 't'enant's Documents, to cure any default of Tenant not reasonably susceptible of being cured by such Person(e.g.,a bankruptcy-related default). (e) Payments under Lease. If the Recognized Mortgagee or its Designee or Foreclosure Transferee shad enter into New Tenant's Documents pursuant to this Article and if,upon such terminatlon of this Lease,Tenant,but for such termination,would have been entitled to receive any amount pursuant to the provisions of this Lease,then Owner agrees that,subject to any rights of setoff Owner may have, the same shall be paid to the Recognized Mortgagee or its Designee or Foreclosure Transferee,as the New Tenant under the New Tenant's Documents,in the same manner and to the salve extent as it would have been paid or apply the same to or for the benefit of the Recognized Mortgagee or its Designee or Foreclosure Transferee as if this Lease had not been terminated. - (f) The provisions of this Section 11.6 shall survive the Expiration of the Term. Section 11.7 Application of Proceeds from Insurance or Condemnation Awards. To the extent that this Lease requires that.insurance proceeds paid in connection with any damage or destruction to the Premises,or the proceeds of an award paid in connection with a tatting referred to in Article 9,be applied to restore any portion of the Premises,no Mortgagee shall have the right to apply the proceeds of insurance or awards toward the payment of the sum secured by its Mortgage,except for the reasonable costs of collection thereof. Section 11.8 Appearance at Condemnation Proceedings. A Recognized Mortgagee shall have the right to appear in any condemnation proceedings and to participate in any and all hearings,trials and appeals in connection therewith. Section 11.9 Rights Limited to Recognized Mortgagees. The rights granted to a Recognized Mortgagee under the provisions of this Lease shall not apply in the case of any Mortgagee that is not a Recognized Mortgagee. F:IMINSKEW M BIMiehigan-Lincoln Plana\LiocolnPlanomdlse8-17a(Ex)wpd August 30.1999(2:49PLO -59- 1 . I BU 513 Section 11.10 No Surrender or 1VModilllication. r Owner agrees not to accept a voluntary surrender,termination or modification of this Lease at any time while such Recognized Mortgage(s)shall remain a lien on Tenant's leasehold estate. It is further understood and agreed that any such Recognized Mortgagee(s)shall not be bound by any surrender,termination or modification of this Lease unless such surrender,termination or modification is made with the prior written consent of such Recognized Mortgagee, and this Lease shall not terminate by merger or otherwise as long as the lien of the Recognized Mortgage(s) remains undischarged. The foregoing is not meant to and shall not prohibit a sale of the fee to Tenant so long as no merger of estates shall result therefrom unless all Recognized Mortgagees are satisfied concurrently therewith. Notwithstanding the foregoing, Owner's waiver or postponement of any obligation of Tenant or any remedy Owner may have under this Lease shall not constitute a ,modification for purposes hereof. Section 11.11 Recognition by Owner of Recognized Mortgagee Most Senior in Lien. If there is more than one Recognized Mortgagee,only that Recognized Mortgagee,to the exclusion of all other Recognized Mortgagees,whose Recognized Mortgage is most senior in lien shall be recognized as having rights under Sections 11.4,11.5 or 11.6,unless such first priority Recognized Mortgagee has designated in writing to Owner a Recognized Mortgagee whose Mortgage is junior in lien to exercise such right. Section 11.12 Recognized Mortgagee's Assignment Rights. (a) Notwithstanding anything contained in Article 10 or elsewhere in this Lease to the contrary,a Foreclosure Transfer(other than to a Foreign Instrumentality for so long as the City is Owner) shall not require the consent of Owner or constitute a breach of any provision of or a Default under this Lease. Upon any such Foreclosure Transfer,Owner shall recognize the Foreclosure Transferee as Tenant hereunder,provided,however,that such new Tenant shall deliver to Owner,or shall cause to be delivered to Owner, within thirty (30) days after the execution thereof, the appropriate instruments provided in Sections 10.5 and 10.6 (subject to the provisions of Section (b) Except as expressly provided otherwise in this Lease,no Mortgagee or other Foreclosure Transferee shall be liable under this Lease unless and until such time as it becomes Tenant hereunder,and then only for so long as it remains Tenant hereunder. (c) Definitions: + i (i) "Foreclosure Transfer"means a transfer occurring as a result of the foreclosure of a Recognized Mortgage,or any sale of Tenant's Interest { + in the Premises,or any other transfer or assignment of Tenant's Interest in the Premises by judicial proceedings pertaining to a Recognized i Mortgage or by virtue of the exercise of any power contained in a i F:IMINSURT M B1Michipn-Lincoln P111za\1-nco1nP1az&GmdW8-17a0N)wpd August 34,1999(2:49PM) .60- OTT mth: Recognized Mortgage,or by an assignment-in-lieu or other consensual conveyance,or otherwise: (x) by or on behalf of Tenant or pursuant to foreclosure proceedings to a Recognized Mortgagee (or its Designee or Foreclosure Transferee);or (y) by or on behalf of Tenant or a Recognized Mortgagee(or its Designee or Foreclosure Transferee)or pursuant to foreclosure proceedings to a purchaser of Tenant's Interest is the Premises at a foreclosure sale pursuant to a Recognized Mortgage or by a Recognized Mortgagee (or its Designee or its Foreclosure Transferee) after consummating a Foreclosure Transfer as described in clause(x)above or after such foreclosure sale. (ii) '°Foreclosure Transferee" means the purchaser, transferee or other assignee in a Foreclosure Transfer. (iii) " Designee"means an A.ffilfiate of a Recognized Mortgagee that is the designee or nominee of such Recognized Mortgagee. (d) If a Recognized Mortgagee or its Designee acquires Tenant's Interest in the Premises pursuant to a Foreclosure Transfer,all accrued but unpaid Percentage Rent shall be forgiven and shall not thereafter be due and payable[except to the extent that the Recognized Mortgagee has failed to pay amounts it was required to pay pursuant to Section 11.4(b)(iv)]. (e) If a Recognized Mortgagee or its Designee acquires Tenant's Interest in the Premises and thereafter conveys or assigns Tenant's Interest in the Premises to a third party(the"First Transferee")then,in that event, (i) all accrued but unpaid Percentage Rent at the time of the conveyance to the First Transferee shall be forgiven and shall not thereafter be due and payable[except to the extent the Recognized Mortgagee has failed to pay amounts it was required to pay pursuant to Section 11.5(d)]; (ii) for a period of five (5)years after the First Transferee acquires the Tenant's Interest in the Premises,Percentage Rent shall not accrue or be due and payable(it being understood that Percentage Rent shall be waived during such five year period);and (iii) Subsequent to the five (5) year period referenced in Section 11.12(e)(ii)above,Percentage Rent shall thereafter accrue and be due and payable in accordance with the provisions of this Lease. i F\MNSKBR\C M.B\Michigen-Lincoln Pla=\LlneolnPlamGmdlse8-l7a(Bx)wpd August 30,1999(2 49PK -61- �. 515 l (f) Notwithstanding the provisions of Section 11.12(e),there shall be no abatement of Percentage Rent if any portion of the Equity Interest in the Person that is the First Transferee is owned, either legally or beneficially,by the tenant wader this Lease that was foreclosed upon(the "Foreclosed Tenant")or any Person who had a legal or beneficial interest in the Foreclosed Tenant. Section 11.13 Notices Under a Mortgage. Tenant shall give to Owner copies of all notices of default received from a Mortgagee within ten(10)days after receiving written notice of same from Mortgagee. (a) Notices. Tenant shall cause all Mortgages to contain aprovision requiring that all Mortgagees shall send to Owner,simultaneously with the sending ofsuch default notices to Tenant, copies of all default notices or other notices relating to the failure of Tenant to keep any Mortgage in good standing,which notices are sent pursuant to any loan document or security document to Tenant. (b) Estoppel Requests, Tenant shall cause all Mortgages to contain a provision requiring that the Mortgagee shall comply with all reasonable estoppel requests of Owner. Owner shall comply with all reasonable estoppel requests of any Mortgagee. Article 12-Subordination Section 12.1 Subordination of Percentage Rent. In the event of a foreclosure under the Recognized Mortgage,Owner's right to Percentage Rent shall be subordinate,expressly as described in this Lease. This subordination shall not extend to(a)any Mortgage,other than a first mortgage by a Recognized Mortgagee on Tenant's Interest in the Premises, now or hereafter existing, (b) any other liens or encumbrances hereafter affecting Tenant's Interest in the Premises or(c)any Master Sublease or any mortgages,liens or encumbrances now or hereafter placed on any Master Subtenant's interest in the Premises. Section 12.2 No Subordination of Owner's Proprietary Interest in Land. Owner's proprietary interest in the Land,including,without limitation,Owner's interest in this Lease,as the same may be modified,amended or renewed in accordance with the provisions of this Lease,shall not be subject or subordinate to(a)any Mortgage now or hereafter existing,(b)any other liens or encumbrances hereafter affecting Tenant's Interest in the Premises or(c)any Master Sublease or any mortgages,liens or encumbrances now or hereafter placed on any Master Subtenant's interest in the Premises. ' I F:VvINSKffit1C M Michigan-Uncotn P1=V.=1nP1azoarnd1w8-17n(Sx)wpd August 30,1999(2:49PM) -62- 1 101. � � 516 Section 12.3 Tenant's Interest in the Premises Subject to Title Matters. t Tenant's Interest in the Premises,including,without limitation,this Lease and the leasehold estate of Tenant hereby created and all rights of Tenant hereunder are and shall be subj ect to the Title Matters. Article 13 a Project Construction Section 13.1 Tenant's Obligation to Construct Project The parties acknowledge that Tenant shall construct the Improvements on the Land described in Section 13.2 and other improvements described in the Plans and Specifications in accordance with the terms of the Development Agreement and the terms hereof(together with any and all permitted additions and/or alterations thereto and replacements thereof, the "Project"). If,with respect to a matter relating to the Construction Work for the initial construction of the Project,a conflict arises between the terms of the Development Agreement and the terms of this Lease, the terms of the Development Agreement shall govern until the Project Opening Date,and thereafter the terms of this Lease shall govern. Section 13.2 Description of the Project. Subject to the provisions of Section 14.5, the Project will consist of a mixed-use project containing a parking g a with approximately seven hundred 700) ark' spaces and rentable area ' (as defined in accordance with ANSIUBOMA Z65.1 -1996 Standards)of approximately one hundred thousand to one hundred twenty thousand (100,000 to 120,000) square feet of office space and approximately thirty thousand to forty thousand (30,000 to 40,000) square feet of retail and/or commercial space;provided,however, that in no event shall the Project exceed the floor area ratio permitted under applicable City Requirements. ' Article 14-Maintenance,Repair and Alterations Section 14.1 Maintenance Standards. (a) Tenant shall, at its own cost and expense, take good care of, and keep and maintain,the Premises in good and safe order and condition,and shall make all repairs therein and thereon,interior and exterior,structural and nonstructural,ordinary and extraordinary,foreseen and unforeseen,necessary to keep the Premises in good and safe order and condition,as other comparable first class projects in similar usage and of similar age are kept(reasonable wear and tear excepted). Further, Tenant shall, at its own cost and expense, maintain the Garage in accordance with the standards set forth in the Parking Garage Maintenance Manual(August 1996),published by the National Parking Association/Parking Consultants Council, a copy of which is attached hereto and incorporated by reference herein as Exhibit 14.1(a),as the same may be revised from time to time and shalt at all times adhere to the operating schedules and standards set forth in Exhibits 14.1(b) and 14.1(c)attached hereto and incorporated by reference herein. F Vv NSKERIC M Michigan-Lincoln Plazav incolnPla=Gmdlses-17a(Bx)wpd August 30.1999(2:49PAA) -63- I Ke'. 1877OPC 51 T. (b) Tenant shall not commit,and shall use all reasonable efforts to prevent,waste, damage or injury to the Premises. (c) All repairs,replacements and renovations made by Tenant shall be substantially equal in quality and class to the original quality of the Improvements being repaired and shall be made in compliance with the Requirements. (d) 'Tenant shall keep clean and free from dirt, mud, standing water,rubbish, obstructions and physical encumbrances all areas of the Premises. Section 14.2 Removal of Building Equipment. Tenant shall not,without the consent of Owner,remove or dispose of any Building Equipment from the Premises unless such Building Equipment(i)is promptly replaced by Building Equipment of at least equal utility and quality,or(ii)is removed for repairs,cleaning or other servicing,provided Tenant reinstalls such Building Equipment with reasonable diligence;except,however,Tenant shall not be required to replace any Building Equipment that performed a function that has become obsolete, unnecessary or undesirable in connection with the operation of the Premises in accordance with the terms of this Lease. Section 14.3 No Obligation to Repair or to Supply Utilities. Owner(in its proprietary capacity only)shall not be required to supply any facilities,services or utilities whatsoever to the Premises. Owner shall not have any duty or obligation to make any alteration,change,improvement,replacement,Restoration or repair with respect to the Premises. I Section 14.4 Waste Disposal. Tenant shall dispose of waste from all areas of the Premises in accordance with Requirements and in a prompt and sanitary manner. Section 14.5 Alterations. (a) Subject to the terms and conditions of this Article 14 and the other applicable provisions of this Lease,Tenant may,at any time and from time to time,at its sole cost and expense, make alterations, additional installations, substitutions, improvements, renovations or betterments (collectively, "Alterations");in and to the Premises or any portion thereof provided that: (i) no Alterations(or series of related Alterations)estimated to cost more than One Hundred Fifty Thousand Dollars ($150,000), adjusted for inflation(as estimated by Tenant's architect or engineer)(a"Significant Alteration")and no Alteration affecting the structural portions,roofs or the healing,air conditioning,elevator,plumbing,electrical,sanitary, mechanical or other service or utility systems shall be undertaken except 1?1MINSKBR%C M Michigan-Lincoln Plaza\LincolaPlaxaGnWho8-17a(Px)wpd August 30,1999(2 49PK -64- under the supervision of a licensed architect or licensed professional i engineer, (ii) the Alterations will not result in a violation of any Requirement or change the use permitted in Section 6.1 or violate any other provision of this Lease; (iii) the outside appearance,character or permitted use of the Premises shall not be materially adversely affected unless approved pursuant to the provisions of Section 14.5(4),and the Alterations shall not materially (1)weaken or impair the structure,(2)reduce the size or(3)lessen the value of the Premises; (iv) the proper functioning of any of the heating,air conditioning,elevator, plumbing,electrical,sanitary,mechanical and other service or utility systems of the Premises shall not be materially adversely affected; (v) if any Alteration(excluding interior subtenant improvements that do not materially affect the major building components)is(or related series of Alterations are)estimated to cost more than Five Hundred Thousand Dollars ($500,000), adjusted for inflation (as estimated by Tenant's architect or engineer),'tenant shall obtain the prior written consent of Owner for such Alterations(a"Major Alteration")in accordance with ' the provisions of 26.2 below;and (vi) no Major Alteration in excess of One Million Dollars($1,000,000), adjusted for inflation,shall be undertaken prior to Tenant's delivering to Owner,at Tenant's option,either(x) a performance bond and a labor and materials payment bond(issued by a surety company reasonably satisfactory to Owner and licensed to do business in the State of Florida),each in an amount equal to one hundred percent(100%)of the estimated cost and otherwise in form reasonably satisfactory to Owner or(y)such other security for the completion of the Major Alteration,as may be reasonably satisfactory to Owner; provided, however, this Section 14.5 shall not apply to a Recognized Mortgagee or its Designee during the period that it is Tenant under this Lease. (b) Reimbursement of(Owner's Expenses. Tenant shall reimburse Owner for all actual out-of-pocket architectural and engineering expenses for architectural and engineering review reasonably incurred by Owner in connection with its decision to grant or withhold consent to a proposed Maj or Alteration and inspecting the Major Alteration to determine whether the same is being or has been performed in accordance with the terms of this Lease includin onl the actual reasonable p g . y fees and expenses of any architect or engineer employed for such purposes. Any Major Alteration for which consent has been received shall be performed substantially in accordance with the approved Plans r i F VWIINSKERIC M B1Mic1»gasrLincoln Plaza\L incolnPimOmdlseB-17a(Ex)wpd August 30.1999(2:49PM) -65- Cc: 18770PO 5.19 i and Specifications,and no material amendments or material additions to the Plans and Specifications shall be made without the prior consent of Owner in accordance with the terms hereof. (c) Approvals. Tenant, at its expense, shall obtain all necessary permits and certificates from Governmental Authorities for the commencement and prosecution of any Alterations and finial approval from Governmental Authorities upon completion,promptly deliver copies of the same to Owner and cause the Alterations to be performed in compliance with all applicable Requirements and requirements of Mortgagees and insurers of the Premises,and any Board of Fire Underwriters,Fire Insurance Rating Organization,or other body having similar functions,and in good and workman like manner,using materials and equipment at least equal in quality and class to the original quality of the installations at the Premises that are being replaced. (d) Submission and Review of Alterations. Tenant shall submit to Owner plans and specifications showing in reasonable detail any proposed Major Alteration. Owner shall review the plans and specifications for any proposed Major Alteration and shall approve the same provided that the proposed Major Alteration will not: (i) impair the structural integrity of the Premises;or (ii) reduce Project Revenues after completion of the Major Alterations;or (iii) reduce Floor Area or parking spaces,unless Tenant agrees,in writing, to restore the portion of the Premises so modified to the original condition upon request of Ownerprior to the Expiration of the Term;or (iv) change any exterior ofthe building,unless the DRB,BPB orJoint Board, as applicable,approves the change;or (v) deviate from any approved uses of the Premises. i Within thirty(34)days after Owner's receipt of such plans and specifications,the City Manager of Owner shall notify Tenant of its approval or disapproval thereof and, in the event of the Owner's disapproval, the reasons therefor. If Tenant desires to modify in any material respect previously approved plans and specifications (as such may have been modified by approved plans and specifications),Tenant shall submit any such proposed modifications to Owner for Owner's approval. Within fifteen(15)days of its receipt of the proposed modifications,Owner shall notify Tenant in writing with specificity ofany material inconsistencies of which Owner disapproves between theplans and specifications as modified and the plans and specifications previously approved by Owner. Tenant shall,at its election,have the option of(x)submitting Owner's disapproval to arbitration as to the(i) materiality of the inconsistency and/or(ii)reasonableness of disapproval or(y) submitting revised modifications to the plans and specifications to meet Owner's objections(which revised plans and specifications shall be reviewed as herein above provided), (e) Costs of Alterations. The costs of all Alterations shall be borne by Tenant. P:\MMSKERIC M BlMichipn-Lincoln P1=\Linco1uPfazaGmdlse8-17a(Ex)wpd August 30,1999(2:49PM) 4' N, 520 (f) Prevailing Wages.All Persons employed by Tenant with respect to Alterations of the Project shall be paid,without subsequent deduction or rebate unless expressly authorized by Requirements,not less than the relevant prevailing wage as prescribed by the City of Miami Beach Prevailing Wage Ordinance,Miami Beach City Code,Section 31A-27,as amended,but only to the extent such Prevailing Wage Ordinance is applicable to the Alteration of the Improvements. Article 15-Requirements Section 15.1 Tenant's Obligation to Comply With Requirements. In connection with any Construction Work,and with the maintenance,management,use and operation of the Premises and Tenant's performance of its obligations hereunder,Tenant shall comply promptly with all Requirements,without regard to the nature of the work required to be done,whether extraordinary or ordinary,and whether requiring the removal of any encroachment(but Tenant may seek to obtain an easement in order to cure an encroachment, if permitted by Requirements), or affecting the maintenance,management,use or occupancy of the Premises,or involving or requiring any structural changes or additions in or to the Premises and regardless of whether such changes or additions are required by reason of any particular use to which the Premises,or any part thereof,may be put. No consent to,approval of or acquiescence in any plans or actions of Tenant by Owner,in its proprietary capacity as landlord under this Lease,or Owner's designee shall be relied upon or construed as bbing a determination that such are in compliance with the Requirements, or, in the case of construction plans,are structlnmily sufficient,prudent or in compliance with the Requirements. Section 15.2 Definition. 11Reguirements"means: (a) any and all laws,rules,regulations,constitutions,orders,ordinances,charters, statutes, codes, executive orders and requirements of all Governmental Authorities having jurisdiction over a Person and/or the Premises or any street, road,avenue or sidewalk comprising a part of,or lying in front of,the Premises or any vault in,or under the Premises(including,without limitation,any of the ; foregoing relating to handicapped access or parking,the Building Code of the City and the laws, rules, regulations, orders, ordinances, statutes,codes and requirements of any applicable Fire Rating Bureau or other body exercising similar functions); i (b) the temporary and/or permanent certificate or certificates of occupancy issued for the Premises as then in force;and (c) any and all provisions and requirements of any property, casualty or other 1 insurance policy required to be carried by Tenant under this Lease. j F:IMINSKERT M BUiftan-Lincoln Plan\T.nco1nP1vAGfrnd1se&17ox)wpd August 30,1999(2:49PM) -67- i r � Section 153. Owner's Obligation to Comply With Requirements. In connection with the performance of Owner's obligations hereunder,Owner shall comply promptly with all Requirements. Article 16-Management and Operation of Project Section 16.1 Management of Project, (a) Following the Project Opening Date,and continuing throughout the Term ofthis Lease, Tenant shall be an Acceptable Operator or shall enter into one (1) or more Management Agreement(s)with an Acceptable Operator(s)and shall prudently manage and operate,or cause the Premises to be prudently operated and managed by the Acceptable Operator pursuant to Section 16.3(d) and in accordance with the terms and conditions of this Lease, and pursuant to a written Management Agreement: (i) Providing for services,and containing terms and conditions,reasonable and customary for the operation of comparable first-class buildings of similar age and design; (ii) Providing that the Premises are operated and maintained in good order and condition, including such repair, replacement, renovation, and maintenance, as necessary, reasonable wear and tear excepted;and (iii) Consistent with the standards for garage operation and for public area maintenance and operation as set forth,respectively,in the: (1) Parking Garage Maintenance Manual(August 1996),published by the National Parking A-ssociation/Paddng Consultants Council,a copy of which is attached hereto as Exhibit 14.1(x),as the same may be revised from time to time; (2) Owner's Garage Maintenance Standards, attached hereto as Exhibit 14.1(b), as the same may be revised from time to time by mutual consent of Owner and i Tenant;and (3) Owner's Operating Standards,as set forth in Exhibit 14.1(c),as ! same may be revised from time to time by mutual consent of Owner and Tenant. (b) The services to be performed by the Acceptable Operator shall include,without limitation,the following: (i) Acceptable Operator will provide technical services to assist Tenant in the furnishing and equipping,maintenance and operation of the Premises. These services will include, among other things, (1)review and approval of architectural plans,plans for design, and plans for fixtures and equipment to ensure that the Garage will meet the standards set forth in this Lease;(2) i F-VANSKEMC.M Michigan-Lincoln Plaza\LincoluPlanOmdlse8-17a(Ex)wpd ,August 30,1999(2 49PAQ -68- i 1 offs 522 1 10. develop criteria for fixtures and equipment and assist in obtaining sources of supply;and(3)assistance I in coordinating purchases and installation of fixtures and equipment. (ii) Acceptable Operator will provide required services to Tenant to prepare the Garage for opening,including,without limitation,(1)recruiting,training and employing personnel; (2)pre-opening marketing and advertising;(3)negotiating contracts for supplies and similar items;(4) assistance in obtaining necessary licenses and permits;and(S)assistance in purchasing initial operating supplies. (c) Tenant shall provide in the Management Agreement that Acceptable Operator shall operate and manage the Premises in accordance with the provisions of this Lease, including without limitation,Article 6 hereof. Acceptable Operator shall have authority to operate the Premises in the name of,and for the account of,Tenant. (d) Tenant hereby agrees to incorporate the covenants and agreements contained in this Article in the Management Agreement as covenants and agreements of the Acceptable Operator. (e) The Acceptable Operator's interest in the Management Agreement shall be subject and subordinate to(i)the Owner's Interest in the Premises;and(ii)the terms and conditions of this Lease. As between Owner and Tenant,in the event of any conflict between the terms of this Lease and the terms ofthe Management Agreement,the terms of this Lease shall govern. Tenant shall remain responsible for performing all of its obligations hereunder notwithstanding the fact that the Promises is being managed by the Acceptable Operator. (f) Notwithstanding anything to the contrary contained in this Section 16.1,the Premises may be managed by an operator(including Tenant) that is not an Acceptable Operator, - provided that such operator is approved by the Owner,which approval may be granted or withheld in Owner's sole and absolute discretion, for any reason or for no reason whatsoever. Any operator approved by Owner pursuant to this Section 16.1(1)shall be deemed to be an Acceptable Operator for all purposes of this Lease. Section 1602 Garage Revenue Control Equipment. (a) Tenant shall,at all times from the CO Date to the earlier to occur of(i)the date on which this Lease is terminated for any reason or(ii)the Fixed Expiration Date,maintain and utilize fully automated garage revenue control equipment. (b) On or prior to the earlier to occur of(i) the date on which this Lease is terminated for any reason or(ii)the Fixed Expiration Date,Tenant shall provide fully automated garage revenue control equipment in the Garage that is compatible with the equipment that the City uses for its municipal parking system,in the event that the equipment used for the Garage is not compatible at that time. i I � F-W INSKEM M B1Michipn-Lincoln Pla=UncolnPluaCmdlse&17a(Bx).wpd August 30,1999(2 49PM) -69- 523 Section 16.3 Transfer of Acceptable Operator's Interest in the Management Agreement. If Acceptable Operator effectuates a(i)transfer of the Management Agreement;(ii)termination of Management Agreement or(iii)engagement of a new Manager for the Permises,Owner shall be notified in writing ten(10)days prior to the date thereof.- The notice required by this Section 16.3 shall contain the following information: (i) the name and address of the new Acceptable Operator or transferee; (ii) the nature of such transaction and the percent interest to be conveyed; (iii) in the case of a Management Agreement,a true and complete copy of the instruoaent effectuating such transaction; and (iv) a.copy of any new Management Agreement or any modifications to an existing Management Agreement. Section 16.4 Owner's Rights and Remedies. (a) Tenant will(i)perform or cause to be performed Tenant's material obligations under the Management Agreement, (ii) enforce the performance by Acceptable Operator of all of Acceptable Operator's material obligations under the Management Agreement;and(iii)give Owner prompt written notice and a copy of any notice of default,event of default,termination or cancellation sent or received by Tenant. (b) Upon termination of this Lease,Acceptable Operator shall: (i) to the extent of Acceptable Operator's interest and to the extent permitted by Requirements,surrender and assign to Owner or its designee any and all licenses,permits and/or governmental authorizations required for the operation of the Premises; (ii) deliver to Owner any and all of Owner's properties within the possession of Acceptable Operator,including,without limitation,all keys,locks and safe combinations,ledgers, bank statements for the Premises accounts,books and records,insurance policies,bonds and other documents,agreements,leases and licenses required for the operation of the Premises;and (iii) remit to Owner the balance,of any account of the Premises. (iv) Owner shall not incur any liability to Project Manager under the Management Agreement except to the extent Owner has liability under this Lease; (c). The rights of Owner set forth in this Section 16.4 shall,to the extent in conflict with the rights of any Recognized Mortgage,be subject to the rights of such Recognized Mortgagee P:IMINSKMIC M 13 Michigan-Lincoln P1an\L1ncohiP1anGmdW-17A(Ex)Wd August 30,1999(2:49PM) -'O �. off. O�� -524 BE*. provided such Recognized Mortgagee is in the process of,and is diligently,exercising its rights under the applicable Recognized Mortgage. Section 16.5 Repair,Renovation and Replacement Reserve Account. (a) Maintenance and operation of the Premises will be at no cost to Owner,and Tenant shall itself, or cause (and the Management Agreement shall so provide) the Acceptable Operator, in Tenant's name and for the benefit of Tenant, to establish a separate interest bearing account(the"Reserve Account")for the purpose of funding the repair,renovation and replacement of fixtures and equipment required for the operation of the Premises in accordance with the terms of this Lease,as well as to assure that funds are available for maintenance of the Premises from and after the CO Date. To fund the Reserve Account, Tenant shall deposit, or shall cause the Acceptable Operator to deposit,within thirty(30)days after the end of each month during the Term of this Lease from and after the CO Date for such month one-twelfth(1112)of an amount which is equal to the sum of Twenty-Five Cents($0.25)per square foot annually of office space(including common areas)times the number of square feet of office space in the Premises,plus Ten Cents($0.10) per square foot annually times the number of square feet in the Garage(including common areas). No deposit need be made to the Reserve Account for the square footage of retail space within the Premises. Owner,in its sole and absolute discretion,for any reason and for no reason whatsoever,may consider a reduction of the required payments to the Reserve Account as set forth in this Section 16.5(x)above any time after the CO Date. i (b) Tenant shall cause the Acceptable Operator to make expenditures from the Reserve Account for the purposes permitted hereunder as is necessary to maintain or improve the Premises in accordance with this Lease(including capital expenditures);provided,however,that in the event that a Recognized Mortgage provides for a method or procedure for making or authorizing expenditures from the Reserve Account,the provisions of such Recognized Mortgage shall control over the provisions hereof. (c) Tenant hereby grants to Owner a security interest in the Reserve Account,and all profits and proceeds thereof;in order to secure Tenant's obligations under this Section 16.5,which security interest in such Reserve Account shall be automatically fully subject and subordinate only to the rights of the Recognized Mortgagee and any purchase money lender with regard to Reserve Account. Tenant hereby agrees not to grant a security interest in the Reserve Account to any Person other than a Recognized Mortgagee,Owner or a purchase money lender. Owner shall execute and deliver all such instruments as any Recognized Mortgagee or purchase money lender shall reasonably require in order to confirm Owner's subordination of its security interest as aforesaid. (d) Funding of Reserve Account during Foreclosure or while Recognized Mortgagee or its DesigMee is Tenant. During the period that(i)a Recognized Mortgagee is pursuing a foreclosure against Tenant;or(ii)a Recognized Mortgagee or its Designee is the Tenant under this Lease,such Recognized Mortgagee or its Designee shall have the option of(1)not funding the Reserve Account; provided,however,such relief from funding shall not be deemed to affect in any way the operational RNINSKBRT M S Nflohipa-Lincoln Pla=\UncolnPJazaGmdlse8-17nMx)wpd August 30.1999(2:49PM) -71- OFF rte. I 25 and maintenance standards imposed upon the Project pursuant to this Lease (including, without limitation,Section 6.4);provided further,however,such relief from funding,in any event,shall end upon the earlier to occur of(A)four(4)years after the date of the earlier to occur of(i)the filing of such foreclosure,or(ii)the date upon which such Recognized Mortgagee or its Designee becomes the Tenant under this Lease;or(B)the date a Foreclosure Transferee other than a Recognized Mortgagee or its Designee becomes the Tenant under this Lease;or(2)funding the Reserve Account as provided in this Section 16.5. (e) Notwithstanding anything to the contrary herein contained,to the extent that a Recognized Mortgage contains provisions requiring Tenant to maintain aReserve Account for the same purpose as this Section 16.5,the provisions of this Section 16S shall be waived and the provisions of the Recognized Mortgage shall be controlling. In no event shall Tenant be required to maintain more than one(1)Reserve Account for the purposes set forth herein. Section 16.6 More Than One Acceptable Operator. Tenant may,in its discretion,cause different components of the Premises to be operated and maintained by different Acceptable Operators. Article 17-Discharge of Liens Section 17.1 Creation of Liens. (a) Tenant shall not create,cause to be created,or suffer or permit to exist(i)any lien,encumbrance or charge upon this Lease,the leasehold estate created hereby,the income therefrom or the Premises or any part thereof or appurtenance thereto, which is not removed within the time period required pursuant to Section 17.2,(ii)any lien,encumbrance or charge upon any assets of,or funds appropriated to,Owner,or(iii)any other matter or thing whereby the estate,rights or interest of Owner in and to the Premises or any part thereof or appurtenance thereto might be materially impaired.Notwithstanding the above,Tenant shall have the right to execute Mortgages,subleases and other instruments(including,without limitation,equipment leases)as provided by,and in accordance with,the provisions of this Lease. (b) Owner shall not create,cause to be created,or suffer or permit to exist(i)any lien,encumbrance or charge upon this Lease,the leasehold estate created hereby,the income therefrom (except as otherwise set permitted in Article 2)or the Premises or any part thereof or appurtenance thereto,which is not removed within the time period required pursuant to Section 17.2,(ii)any lien, encumbrance or charge upon any assets of,or funds appropriated to,Tenant,or(iii)any other matter or thing whereby the estate,rights or interest of Tenant in and to the Premises or any part thereof or appurtenance thereto might be materially impaired. Section 17.2 Discharge of Liens. i i (a) If any mechanic's,laborer's,vendor's,materialman's or similar statutory lien f (including tax liens,provided the underlying tax is an obligation of Tenant by law or by a provision of f F WJNSKERIC M B%fichigan-Lincoln P1ana\L1nca1nP1=Gmdlse8-17a(Ex)wpd August 30,1999(2:49PM) -72- ( this Lease)is filed against the Premises or any part thereof,or if any public improvement lien created, or caused or suffered to be created by Tenant shall be filed against any assets of,or funds appropriated to,Tenant or Owner,Tenant shall,within thirty(30)days after Tenant receives notice of the fling of such mechanic's,laborer's,vendor's,materialmanIs or similar statutory lien or public improvement lien, cause it to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise.However,Tenant shall not be required to discharge any such lien if Tenant shall have(a)furnished Owner with,at Tenant's option,a cash deposit,bond,letter of credit from an Institutional Lender(in form reasonably satisfactory to Owner)or other security(such as a personal guaranty or title company indemnity)reasonably satisfactory to Owner,in an amount sufficient to pay the lien with interest and penalties and(b)brought an appropriate proceeding to discharge such lien and is prosecuting such proceeding with diligence and continuity;except that if,despite Tenant's efforts to seek discharge of the lien,Owner reasonably believes that a court judgment or order foreclosing such lien is about to be entered or granted and so notifies Tenant,Tenant shall,-within ten(10)days after notice to such effect from Owner (but not later than three (3)business days prior to the entry or granting of such j udg went or order of foreclosure),cause such lien to be discharged of record or Owner may thereafter discharge the lien in accordance with Section 24.2 and look to the security furnished by Tenant for reimbursement of its cost in so doing. Notwithstanding anything to the contrary contained in this Section 17.2(x), in the case of a public improvement lien which provides for installment payments as a means of satisfying such lien, Tenant shall be required only to pay, on a timely basis, all installments when due. (b) Notwithstanding anything to the contrary contained in Section 17.2, if any mechanic's,laborer's,vendor's,materialman's or similar statutory lien(including tax liens,provided the underlying tax is an obligation of Owner by law or by a provision of this Lease)is filed against the Premises or any part thereof or Tenant's interest therein as a result of any action of Owner,its officers, employees,representatives or agents,Owner shall,within thirty(3 0)days after Owner receives notice of the filing of such mechanic's,laborer's,vendor's,materialman's or similar statutory lien,cause it to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. However,Owner shall not be required to discharge any such lien if Owner shall have(i) furnished Tenant with,at Owner's option,a cash deposit,bond,letter of credit from an Institutional Lender(in form reasonably satisfactory to Tenant)or other security(such as apersonal guaranty or title company indemnity)reasonably satisfactory to Tenant,in an amount sufficient to pay the lien with interest and penalties and (ii) brought an appropriate proceeding to discharge such lien and is prosecuting such proceeding with diligence and continuity;except that if,despite Owner's efforts to seek discharge of the lien,Tenant reasonably believes that a court judgment or order foreclosing such lien is about to be entered or granted and so notifies Owner,Owner shall,within ten(10)days of notice to such effect from Tenant(but not later than three(3)business days prior to the entry or granting of such judgment or order of foreclosure), cause such lien to be discharged of record or Tenant may thereafter discharge the lien in accordance with Section 24.2 and look to the security furnished by Owner for reimbursement of its cost in so doing. F:IMINSKERIC M BUchigowLinooln P1aza\L1nca1nPh=Gmd1se8-17n(Bx)wpd 1 August 30,1999(2;49PM) .73- orr. REC. TT. Section 173 No Authority to Contract in Name of Owner. i Nothing contained in this Article shall be deemed or construed to constitute the consent or request of Owner,express or implied,by implication or otherwise,to any contractor,subcontractor, laborer or materialman for the performance of any labor or the furnishing of any)materials for any specific improvement of, alteration to, or repair of,the Premises or any part thereof,nor as giving Tenant any right,power or authority to contract for, or permit the rendering of,any services or the furnishing of materials that would give rise to the filing of any lien,mortgage or other encumbrance against Owner's interest in the Land or any part thereof or against assets of Owner,or Owner's interest in any Rental and/or Impositions. Notice is hereby given, and Tenant shall cause all Construction Agreements to provide,that to the extent enforceable under Florida law,Owner shall not be liable for any work performed or to be performed at the Premises or any part thereof for Tenant or any Master Subtenant or for any materials furnished or to be.furnished to the Premises or any part thereof for any of the foregoing,and no mechanic's,laborer's,vendor's,materialman's or other similar statutory lien for such work or materials shall attach to or affect Owner's interest in the Land or any part thereof or any assets of Owner,or Owner's interest in any Rental and/or Impositions. The foregoing shall not require Tenant to request advance waivers of lien from contractors or subcontractors. Article 18-Representations Section 18.1 No Brokers. Each of Owner and Tenant represents to the other that it has not dealt with any broker,finder or like entity in connection with this Lease or the transactions contemplated hereby,and each party shall indemnify the other against any claim for brokerage commissions,fees or other compensation by any _ Person alleging to have acted for or dealt with the indemnifying party in connection with this Lease or the transactions contemplated hereby. Section 18.2 No Other Representations. Tenant acknowledges,represents and confirms that it or its authorized representatives have visited the Premises and are fully familiar therewith,the physical condition thereof(including but not limited to subsurface conditions)and Title Matters affecting the Premises. Tenant accepts the Premises in existing condition and state of repair and Tenant confirms that: except for the representation contained in Section 18.1 (and any other representation expressly set forth in this Lease), (i) no representations, statements,or warranties,express or implied,have been made by, or on behalf of, Owner with respect to the Premises or the transactions contemplated by this Lease,the status of title thereto(except as set forth in Exhibit 2.1),the physical condition thereof,the zoning,wetlands or other laws,regulations,rules and orders applicable thereto or the use that may be made of the Premises,or the presence or absence of"hazardous substances"(as defined in the Comprehensive Environmental Response,Compensation and Liability Act of 1980,as amended,42 US CA§9601 et seq.)on or under the Premises, (ii) Tenant has relied on no such representations, statements or warranties, and (iii) Owner shall not be liable to Tenant,in any event whatsoever,to correct any latent or patent defects in the Premises. F:1MINSKBR%C M Michigan-Lincoln P1aza\Linco1nP1=Gmd1m8.17a(&)wpd August 30,1999(2:49PM) -74- OR -81RAX .5 9B Article 19-No Liability for Injury or Damage Section 19.1 Liability of Owner or Tenant. (a) OwnerNotLiableforlu jury orDamage,Etc.The Ownerindemnified Parties shall not be liable to any Tenant Indemnified Party for,and Tenant shall indemnify and hold Owner Indemnified Parties harmless from and against, any loss, cost, liability, claim, damage, expense (including,without limitation,reasonable attorneys'fees and disbursements),penalty or fine incurred in connection with or arising from any injury(whether physical(including,without limitation,death), economic or otherwise)to Tenant or to any other Person in,about or concerning the Premises or any damage to,or loss(by theft or otherwise)of,any of Tenant's property or of the property of any other Person in, about or concerning the Premises, irrespective of the cause of injury, damage or loss (including,without limitation,the acts or negligence of any tenant or occupant of the Premises or of any owners or occupants of adjacent or neighboring property or caused by any Construction Work or by operations in construction of anyprivate,public or quasi-public work)or any latent orpatent defects in the Premises,except to the extent any of the foregoing is due to the gross negligence or willful misconduct of any Owner Indemnified Party.The Owner Indemnified Parties shall not be liable,to the extent of insurance proceeds paid by insurance carriers under Tenant's insurance policies,for any loss or damage to any Person or property even if due to the gross negligence or willful misconduct of any Owner Indemnified Party and,to that extent,Tenant relieves Owner Indemnified Parties from such liability. Without limiting the generality of the foregoing,except to the extent caused by the gross negligence or willful misconduct of any of Owner Indemnified Parties(and then only in such Owner Indemnified Party's proprietary capacity as opposed to its governmental capacity),Owner Indemnified Parties shall not be liable for(i)any failure of water supply,gas or electric current,(ii)any injury or damage to person or property resulting from gasoline,oil,steam,gas,electricity,or hurricane,tornado, act of Clod,act of war,enemy action,flood,wind or similar storms or disturbances,water,rain or ice, or(iii)leakage of gasoline or oil from pipes,appliances,sewer or plumbing works. (b) Zoning Changes. Except when Owner(if Owner,at the time of application is the City),acting in its proprietary capacity,is the applicant,Owner hereby assigns to Tenant any and all rights of Owner,as owner of the Land,under Requirements to execute objections or waivers of objections to applications for variances or other exceptions or exemptions from zoning or other Requirements by the owner of any property with respect to which,under applicable Requirements,the owner of the Land would have the right to object or consent to variances or other exceptions or exemptions from zoning or other Requirements. Such assignment shall in no way limit or otherwise restrict any other rights of the City, any instrumentalities of the City, or any elected or appointed officials or employees of the City,in its respective governmental capacities,from taking or refraining from taking any action or expressing any views and opinions in connection with such application.If Owner is required to j oin in such application by Requirements,Owner shall do so provided Tenant pays all costs,including reasonable attorneys fees,for same. , i l F:1Artll`TsKMkC M lilMiahigan-Lincoln Pla7a\Unao1nPiMGnUMe8-t7a(Ex)wpd August 30,1999(2:49PM) —75- i 2 OFF. WNM Sfi�. _Section 19.2 Owner'S Exculpation. (a) Except as such liability may be eliminated or reduced by any constitutional, statutory,common law or other protections afforded to public bodies or governments(for such time as Owner is a Governmental Authority),including,but not limited to,sovereign immunity statutes,the liability of Owner (including, without limitation, with respect to any gross negligence or willfal misconduct),or of any other Person who has at any time acted as Owner(for such time as Owner is a Governmental Authority)hereunder,for damages or otherwise,arising out of or in connection with any breach of this Lease or any injury(whether physical(including death) economic or otherwise) incurred in connection with this Lease or the Premises, shall be limited to One Million Dollars ($1,000,000), adjusted for inflation, under this Lease and the Development Agreement, in the aggregate. As used in the preceding sentence, the terms "breach" and "injury" shall include all breaches and injuries arising out of the facts and circumstances resulting in such breach or injury. (b) Except for conversion,fraud or willful misconduct(and then only to the extent such party acted in its proprietary capacity as opposed to its governmental capacity),none ofthe Owner Indemnified Parties(except Owner as provided in Section 19.2(x))shall have any liability(personal or otherwise) hereunder, and except for Owner's Interest in the Premises (to the extent permitted by applicable Requirements),no property or assets of the Owner Indemnified Parties shall be subject to enforcement procedures for the satisfaction of Tenant's remedies hereunder or any other liability of the Owner Indemnified Parties arising from or in connection with this Lease or the Premises. Nothing contained herein shall be deemed a waiver of any equitable remedies available to Tenant. (c) Nothing contained in this Section 191 or elsewhere in this Lease is in any way intended to be a waiver of the limitation placed upon Owner's liability as set forth in§768.28,Fla.Stat., _ or of any other constitutional,statutory,common law or other protections afforded to public bodies or governments. Section 19.3 Notice of Injury or Damage. Tenant shall notify Owner within thirty(30)days of any occurrence at the Premises of which j Tenant has notice and which Tenant believes could give rise to a claim of One Hundred Thousand Dollars($100,000),adjusted for inflation,or more,whether or not any clafin has been made,complaint filled or suit commenced;however,Tenant's failure to so notify Owner shall not constitute or result in a breach or default of any of the terms or conditions of this Lease or result in a loss of any benefit or right granted to Tenant under this Lease. Section 19.4 Tenant's Exculpation. Except for(a)Tenant's liability for conversion,willfid misconduct or fraud,(b)liabilities of Tenant arising under applicable Requirements when Owner is acting in or pursuant to its governmental , capacity,and(c)liability with respect to Tenant's obligation to pay Rental and/or Impositions that is past due but not yet paid,and except with respect to any rights or remedies for non-monetary relief (including,without limitation,equitable relief),the liability of Tenant under this Lease and with respect I FAMINS1ERIC M BlMichigan-Lincoln Pleza%1nw1nP1=Grnd19e8-17aTx)wpd August 30,1999(2:49PA4) .76- lip, �d,sv 5,M 1 to the Premises for damages or other monetary amounts shall be limited to One Million Dollars ($1-,000,000)adjusted for inflation,under this Lease and the Development Agreement,in the aggregate. Notwithstanding anything to the contrary in this Lease,Owner's right to terminate this Lease and force Tenant to surrender title to and possession of the Improvements to Owner shall not be subject to the -limitation of liability contained in this Section 19.4. Other than Tenant's Interest in the Premises,no other property or assets of Tenant shall be subject to levy of execution or enforcement procedure for the satisfaction of Owner's remedies hereunder or any other liability of Tenant arising from or in connection with this Lease or the Premises. Without limiting the preceding sentence,if,and only if, a Tenant Indemnified Party other than Tenant engages in conversion,fraud or willful misconduct,then such Tenant Indemnified Party shall have personal liability hereunder and the property and assets of such Tenant Indemnified Party shall be subject to levy of execution or enforcement procedure for the satisfaction of Owner's remedies hereunder with respect to such conversion, fraud or willful misconduct. Nothing contained herein shall be deemed a waiver of any equitable remedies available to Owner. Section 19.5 No Punitive Damages. Neither Owner nor Tenant shall be liable to the other for any punitive damages in connection with this Lease and Owner and Tenant agree not to seek punitive damages from each other in connection with any lawsuit or other claim relating to this Lease. Section 19.6 Survival. i The provisions of this Article 19 shall survive the Expiration of the Term. Article 20-Indemnification Section 20.1 Indemniflication of Owner. (a) Tenant shall indemnify and hold Owner Indemnified Parties harmless from all loss,cost,liability,claim,damage and expense(including,without limitation,reasonable attorneys'fees and disbursements),penalties and fines, incurred in connection with claims by a Person against an Owner Indemnified Party arising from(a)the use or occupancy or manner of use or occupancy of the Premises by Tenant or any Person claiming through or under Tenant or(b)any acts, omissions or negligence.of Tenant or any Person claiming through or under Tenant,or of the contractors,agents, servants,employees,guests,invitees or licensees of Tenant or any Person claiming through or under such Person,in each case to the extent in,about or concerning the Premises either during or after the expiration of,the Term,including,without limitation,any acts,omissions or negligence in connection with any Construction Work or in the making or performing of any repairs,restoration,alterations or improvements, except to the extent any of the foregoing is caused by the gross negligence or willful misconduct of any of the Owner Indemnified Parties. (b) In the event that any suit, action or proceeding is brought against Owner to compel disclosure of any document described in Article 27 or Article 28,whether such suit,action or j I F 11 INSKERT M B1Miahipn-Lincoln P1aza\Linco1nPJa=Gmd1se8.174Ex)wpd I August 30,1999(2:49PM) -77- OFF. 53.1j RM proceeding is brought under Chapter 119,Florida Statutes or any otherprovision oflaw,Tenant agrees to defend,indemnify and hold the Owner Indemnified Parties harmmless from and against any loss,claim, damage,expense(including,without limitation,reasonable attorneys'fees and disbursements,including both in-house and outside counsel,and also including any attorneys'fees and disbursements which any court of competent jurisdiction may award to the plaintiffin such suit,action or proceeding,in all cases including any appeals thereof or post judgment proceedings relating thereto),penalty or fine incurred in connection with or arising from such suit,action or proceeding. Owner shall notify Tenant of any such public records request but failure to give such notice shall not impose any liability on Owner. Notwithstanding the foregoing,in the event that Owner receives a proper notice under Chapter 119, Florida Statutes,as amended,to produce a document,and Owner has such document in its possession and Owner fails to produce such document due to Owner's own negligence, malfeasance or misfeasance,Tenant shall not be liable for any loss,claim,damage,penalty or fine as aforesaid. Section 20.2 Indemnification of Tenant. Owner shall indemnify and hold the Tenant Indemnified Parties harmless from all loss,cost, liability, claim, damage and expense (including without limitation, reasonable attorneys' fees and disbursements),penalties and fines,incurred in connection with claims by a Person against a Tenant Indemnified Party arising from any acts,omissions or negligence of Owner made in its proprietary capacity or any Person claiming through or under Owner(in its proprietary capacity only),or of the contractors, agents, servants, employees, guests, invitees or licensees of Owner(in its proprietary capacity only)or any Person claiming through or under such Person,in each case to the extent in,about or concerning the Premises either during,or after the expiration of,the Term,except to the extent any of the foregoing is caused by the gross negligence or willful misconduct of any of the Tenant Indemnified Parties. Section 20.3 Contractual Liability. (a) The obligations of Tenant under this Article 20 or Article 19 shall not be affected in any way by the absence or presence of insurance coverage (or any limitation thereon, including any statutory limitations with respect to Workers'Compensation insurance),or by the failure or refusal of any insurance carrier to perform an obligation on its part under insurance policies affecting the Premises;provided,however,that if Owner actually receives any proceeds of Tenant's insurance with respect to an obligation of Tenant under this Article,the amount thereof shall be credited against, and applied to reduce, any amounts paid and/or payable hereunder by Tenant with respect to such obligation. (b) The obligations of Owner under this Article 20 or Article 19 shall not be j affected in any way by the absence or presence of insurance coverage,or by the failure or refusal of any insurance carrier to perform an obligation on its part under insurance policies affecting the Premises; provided,however,that if Tenant actually receives any proceeds of Owner's insurance with respect to an obligation of Owner under this Article,the amount thereof shall be credited against,and applied to reduce,any amounts paid and/or payable hereunder by Owner with respect to such obligation. P 1MWSKBRIC M B1M obigan-Lincoln P1azca\1bw1nP1azaQrndW-17a(Ex)wpd August 30,1999(2:49PM) -78- 1877M 5 ' Section 20.4 Defense of Claim,Etc. (a) If any claim; action or proceeding is made or brought against any Owner Indemnified Party by reason of any event to which reference is made in Section 20.1 or Article 19, then,upon demand by Owner or such Owner Indemnified Party,Tenant shall either resist,defend or satisfy such claim,action or proceeding in such Owner Indemnified Party's name,by the attorneys for, or approved by,Tenant's insurance carrier(if such claim,action orproceeding is covered by insurance) or such other attorneys as Owner shall reasonably approve. The foregoing notwithstanding, such Owner Indemnified Party may at its own expense engage its own attorneys to defend such Owner Indemnified Party, or to assist such Owner Indemnified Party in such Owner Indemnified Party's defense of such claim,action or proceeding,as the case may be. (b) If any claim., action or proceeding is made or brought against any Tenant Indemnified Party by reason of any event to which reference is made in Section 20.2 or Article 19, then,upon demand by Tenant or such Tenant Indemnified Party,Owner,or any successor owner,as applicable, shall either resist, defend or satisfy such claim, action or proceeding in such Tenant Indemnified Party's name,by the attorneys for,or approved by,Owner's insurance carrier(if such claim, action or proceeding is covered by insurance)or by such other attorneys as Tenant shall reasonably approve. The foregoing notwithstanding, such Tenant Indemnified Party may at its own expense engage its own attorneys to defend such Tenant Indemnified Party,or to assist such Tenant Indemnified Party in such Tenant Indemnified Party's defense of such claim,action or proceeding,as the case may be. Section 20.5 Notification and Payment. (a) Each Owner Indemnified Party shall promptly notify Tenant of the imposition of,incurrence by or assertion against such Owner Indemnified Party of any cost or expense as to which Tenant has agreed to indemnify such Owner Indemnified Party pursuant to the provisions of this Article 20. Tenant agrees to pay such Owner Indemnified Party,as Rental hereunder,all amounts due under this Article 20 within sixty(60)days after receipt of the notice from such Owner Indemnified Party. (b) Each Tenant Indemnified Party shall promptly notify Owner of the imposition of,incurrence by or assertion against such Tenant Indemnified Party of any cost or expense as to which Owner has agreed to indemnify such Tenant Indemnified Party pursuant to the provisions ofthis Article 20. Owner agrees to pay such Tenant Indemnified Party all amounts due under this Article 20 within sixty(60)days after receipt of the notice from such Tenant Indemnified Party. '. Section 20.6 Governs Lease. I The provisions of this Article 20 shall govern every other provision of this Lease. The absence of explicit reference to this Article 20 in any particular provision of this Lease shall not be construed f to diminish the application of this Article 20 to such provision. I FAMQVSKEMC M MMIchigan-uncoln P1aza\Unco1nP1=aQmd1w3-17a(Ex)wpd August 30,1999(2 49PK -79- 533 Section 20.7 Survival. t The provisions of this Article 20 shall survive the Expiration of the Term. Article 21-Covenant Against Waste and Inspection Section 21.1 Waste. Except as otherwise permitted by this Lease, Tenant covenants not to do or suffer any demolition,waste or damage,disfigurement or injury to the Premises or any part of it. The provisions of this Section 21.1 shall not apply to any demolition or disfigurement involved with repairs, renovations, upgrading or new construction. Section 21.2 Inspection of Premises. Owner,its agents,employees and authorizedrepresentatives may enter the Premises at anytime in response to an emergency,and at reasonable times as Owner deems necessary to,incident to,or connected with the performance of Owner duties and obligations hereunder or in the exercise of its rights and functions. Article 22-Owner's Security Interest in Building Equipment Section 22.1 Grant of Security Interest. Solely for the purpose of securing Tenant's obligations to deliver to Owner the Improvements _ upon Expiration of the Term,Tenant hereby grants to Owner a security interest in all of the Building Equipment now or hereafter located on the Premises and owned by Tenant,and in all products and proceeds thereof; provided, however, that Owner's security interest shall be automatically fully subordinate and subject to any purchase money financing permitted hereunder and any Recognized Mortgagee's security interest in the Building Equipment. Upon the Expiration of the Term,Owner shall be entitled to all of the rights,remedies,powers and privileges available to a secured party under(and subject to the provisions of)the Uniform Commercial Code enacted by the State of Florida. Tenant shall execute and deliver all such instruments and take all such action as Owner,from time to time,may reasonably request in order to obtain the full benefits of the security interest described in this Section 22.1 and of the rights and powers herein created and to maintain and perfect the security interest granted above. To the extent permitted by Requirements,Tenant irrevocably authorizes Owner to file financing statements and continuation statements with respect to the foregoing collateral without the signature of Tenant. Owner shall execute and deliver all such instruments as any Recognized i Mortgagee or permitted purchase money lender shall reasonably require in order to confirm Owner's subordination of its security interest as aforesaid. Subject to Section 14.2,Tenant may,during the Term,remove,replace and otherwise deal with the Building Equipment in the ordinary course of the operation of the Project. 1 FAM NSKE W MAMichigan-Lincoln P1aza\Linoo1nP1=0md1se8-l7a(Bx)wpd August 30,1999(2:49PM) -go jp- T?M 534 Article 23-Leasehold Condominium Section 23.1 Creation of Leasehold Condominium. (a) Tenant shall have the right to create a leasehold condominium for Tenant's Interest in the Project,provided that at the time of creation of said leasehold condominium,the declaration of condominium(the"Declaration")is in compliance with Chapter 718,Florida Statutes,as amended, and this Article 23;and further provided that the original Tenant,the declarant,shall not self,convey, assign or otherwise transfer any of the condominium units until Substantial Completion of the Project. Owner shall consent to the Declaration,provided,however,that Owner shall have the right to approve the form and substance ofthe Declaration. Tenant shall pay all reasonable costs of Owner's review of the proposed Declaration,including,but not limited to reasonable fees and costs of Owner's outside counsel. (b) For purposes of this Lease,in the event of the creation of a leasehold condominium,the following terms and provisions shall apply to said leasehold condominium and the Declaration shall so provide: (i) The leasehold condominium shall be limited to three(3)units consisting of an office unit,a retail unit and a garage unit. The garage unit shall be the Garage, as defined in this Lease. l (ii) Unless otherwise provided in the Declaration, the new Tenant(the "Condominium Tenant") shall be a Florida not-for-profit condominium association,created to operate and maintain the leasehold condominium. The Declaration may provide, as agreed to by Owner and Tenant prior to the recording of the Declaration, that Rental and/or, if payable to Owner, Impositions shall be paid directly by unit owners to Owner,rather than to the condominium association, in proportions reasonably acceptable to Owner; provided,however,that in no event shall the mechanism or procedure for the payment of Mental and/or Impositions,or any other amounts required by this Lease to be paid to Owner,affect the priority of Owner's right to receive Rental and/or,if payable to Owner,Impositions or any other payments due under this Lease. Tenant shall,at Tenant's sole cost and expense,provide Owner with an opinion of counsel(which counsel shall be acceptable to Owner)to the effect that the aforementioned provisions of the Declaration do not affect the priority of Owner's right to receive Rental and/or Impositions or any other payments under this Lease. (iii) There shall be an Acceptable Operator for each unit and there may be a Property Manager and a Management Agreement for each unit. 1 1 � F:\MCNSKBR\C M MMichigan4*coln Plaza\LincolnPlaza(3radW8-17a(6x)wpd August 30,1999(2 49PM) -S� l RL`Vo `IC/s '1 535 (iv) There may be a Recognized Mortgagee and a Recognized Mortgage for eacb l unit, and the rights and obligations of said Recognized Mortgagees shall be limited to the units burdened by their respective Recognized Mortgages. (v) If a lease of a unit meets the definition of Master Sublease as to such unit,such lease shall be treated as a Master Sublease for purposes of this Lease. (vi) Percentage Rent shall be based upon Project Revenue derived from the operations of each of the three(3)units,individually. (vii) Article 10 relating to transfers and sales shall be separately applied to each of the individual condominium units;provided,however,that the Twenty Million Dollar($20,000,000),adjusted for inflation,equity requirement described in Section 10.3(c)(A), shall be changed to Ten Million Dollars($10,000,000), adjusted for inflation, for each unit at the time of acquisition and provided further, however, if a Person acquires two (2) units, the aggregate equity requirement computed pursuant to Section 10.3(c)(A)for such Person shall be Ten Million Dollars($10,000,000),adjusted for inflation,or if a.Person acquires three (3) units, such aggregate equity requirement shall be Twenty Million Dollars($20,000,000),adjusted for inflation. All other provisions ofthis Lease shall be separately applied to each of the individual condominium units. (viii) A Recognized Mortgagee holding a Recognized Mortgage on a unit shall not become the Tenant under this Lease;provided,however,the Condominium Tenant's obligation to pay Percentage Rent derived from a condominium unit _ which has been transferred to a Recognized Mortgagee pursuant to a Foreclosure Transfer shall be subordinated as provided in this Lease, and Percentage Rent derived from such unit,when payable,shall be paid to Owner in accordance with Article 11 and Article 12 of this Lease. The rights and obligations of a Designee and a First Transferee from such Recognized , Mortgagee relative to Percentage Rent shall similarly apply. (ix) Owner's rights to review financial records of Condominium Tenant shall include the right to review corresponding financial records of all of the unit owners. To the extent Condominium.Tenant is obligated to pay costs and fees to Owner relating to such review,Condominium Tenant shall pay such additional costs and fees resulting from reviews of the financial records of three(3)unit owners as opposed to a single Tenant. (x) The Declaration shall provide for appropriate easements, covenants and restrictions such that the operation,use and management of the condominiarn is consistent with this Lease including,without limitation,Article 6 hereof and all applicable Land Development Regulations(as such term is defined in the Development Agreement). P.VAMKBR\C M 81Michipn-Lincoln Pkm\LincalnPlazuOrndlsa-17a(Ex).WrA August 30,1999(2;49PM) -82- I tlrr• 77M .536 1 (xi) A unit owner which is in default of its obligations under the Declaration,after 1 reasonable notice and grace periods as provided in the Declaration,shall lose its right to vote as a member, officer, director or in any other capacity of the condominium association so long as the default remains uncured. (xii) In the event a unit owner fails to pay any condominium assessment to Owner or Condominium Tenant,as applicable,which includes that unit's proportionate share of Rental and/or,if payable to Owner,linpositions,Owner shall accept payments of Rental and/or Impositions to the extent paid to Condominium Tenant,and/or by the other unit owners,and the balance of the Rental and/or Impositions shall be treated as Back Rent and/or Iinpositions,and Owner shall not proceed with remedies available to Owner for non-payment of Rental and/or Impositions unless and until Condominium Tenant and the Recognized Mortgagee holding a Recognized Mortgage on the defaulting unit have failed to diligently proceed with their respective remedies against the defaulting unit owner. In the event the Condominium Tenant by foreclosure or deed in lieu of foreclosure of its lien for assessments, or a Recognized Mortgagee or its Designee,obtains title to the unit after such a default,the obligations of such new unit owner relative to payment of Back Rent and/or Impositions and Percentage Rent under such circumstances shall be governed by the applicable provisions of this Lease. (xiii) The condominium a'ssociation's lien for the payment of assessments for common expenses,including Rental and/or Impositions,shall be subordinate to the lien of any and all Recognized Mortgages on the respective units, provided, however, that in no event shall the relative priority of said condominium association's lien affect the superior priority of Owner's right to receive Rental and/or Impositions or any other payments due under this Lease. Tenant shall, at Tenant's sole cost and expense,provide Owner with an opinion of counsel (which counsel .shall be acceptable to Owner) to the effect that the aforementioned provisions of the Declaration concerning the relative priority of said condominium association's lien do not affect the superior priority of Owner's right to receive Rental and/or Impositions or any other payments due under this Lease. (ix) The Declaration shall cease to exist and shall become null and void as of the Fixed Expiration Date. i The Declaration provided for in this Article 23 shall not alter the legal effect of any of the provisions of this Lease which were in effect prior to the recording of such Declaration(i.e.,the legal rights of Owner shall not be impaired,dmi finished or improved after the recording of such Declaration ; except as otherwise specifically provided in this Article 23). Therefore,to effectuate the provisions of this Section 23.1, all legal issues and interpretations under this Lease regarding the rights and F:VaNSKERIC M 8WIchigan-Lincoln P1azaUnca1nP1ara0md1sa-17s(Bx)wpd August 30,1999(2:49PM) "83m ar. I BUTO 53T. obligations of Owner,including but not limited to all payments due Owner,shall be made as if the Declaration did not exist subject to the provisions of this Article 23. Article 24-Right to Perform the Other Party's Obligations. Section 24.1 Right to Perform the Other Party's Obligations. (a) If a Default shall occur and be continuing beyond any applicable grace period, Owner may,but shall be under no obligation to,perform the obligation of Tenant the breach of which gave rise to such Default,without waiving or releasing Tenant from any of its obligations contained herein,provided that Owner shall exercise such right only in the event of a bonafide emergency or after five (5) Business Days notice, and Tenant hereby grants Owner access to the Premises in order to perform any such obligation. (b) If a default by Owner under this Lease shall occur and be continuing beyond any applicable grace period,Tenant may,but shall be under no obligation to,perform the obligations of Owner(other than those which are governmental as opposed to proprietary obligations)the breach of which gave rise to such default or event of default,without waiving or releasing Owner from any of its obligations contained herein,provided that Tenant shall exercise such right only in the event of a bona fide emergency or after five(5)Business Days notice to Owner or the City,as applicable. i Section 24.2 Discharge of Liens. (a) If Tenant fails to cause any mechanic's, laborer's,vendor's,materialman's or similar statutory lien(including tax liens,providing the underlying tax is an obligation of Tenant bylaw or by a provision of this Lease)to be discharged of record in accordance with the provisions of Article 17,Owner may,but shall not be obligated to,discharge such lien of record either by paying the amount claimed to be due or by procuring the discharge of such lien by.deposit or by bonding proceedings. If Owner's title is threatened or a material interest of Owner is impaired,Owner may also,if Tenant has not done so(or bonded such lien),compel the prosecution of an action for the foreclosure of such lien by the lienor and the payment of the amount of the judgment in favor ofthe lienor with interest,costs and allowances. (b) If Owner fails to cause any mechanic's, laborer's, vendor's,materialman's or similar statutory lien(including tax liens,providing the underlying tax is an obligation of Owner by law or by aprovision ofthis Lease)to be discharged ofrecord in accordance with the provisions ofA.rticle 17,Tenant may,but shall not be obligated to,discharge such lien of record either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings. If Tenant's leasehold interest in the Premises(or any portion thereof)is threatened or a material interest j of Tenant is impaired,Tenant may also,if Owner has not done so(or bonded such lien),compel the prosecution of an action for the foreclosure of such lien by the lienor and the payment of the amount of the judgment in favor of the lienor with interest,costs and allowances. i F.VAMKBR%C M B1Michigan-Uncoln Pia=kLincolnPlazaomdlsoS-17a(Bx)wpd August 30,1999(2:49PM) -84- - M.-1 87708 538 Section 24.3 Reimbursement for Amounts Paid Pursuant to this Article. f (a) Any amount paid by Owner in performing Tenant's obligations as provided in this Article 24,including all costs and expenses incurred by Owner in connection therewith,shall constitute Rental hereunder and shall be reimbursed to Owner within thirty(30) days of Owner's demand,together with a late charge on amounts actually paid by Owner,calculated at the Late Charge Rate from the date of notice of any such payment by Owner to the date on which payment of such amounts is received by Owner. (b) Any amount paid by Tenant in performing Owner's obligations as provided in this Article 24,including all costs and expenses incurred by Tenant in connection therewith,shall be reimbursed to Tenant within thirty (30) days of Tenant's demand, together with a late charge on amounts actually paid by Tenant,calculated at the Late Charge Rate from the date of notice of any such payment by Tenant to the date on which payment of such amounts is received by Tenant. Section 24.4 Waiver,Release and Assumption of Obligations. (a) Owner's payment or performance pursuant to the provisions of this Article 24 shall not be,nor be deemed to constitute,Owner's assumption of Tenant's obligations to pay or perform any of Tenant's past,present or future obligations hereunder. (b) Tenant's payment or performance pursuant to the provisions of this Article 24 shall not be,nor be deemed to constitute,Tenant's assumption of Owner's obligations to pay or perform any of Owner's past,present or future obligations hereunder. Article 25-Events of Default,Conditional Limitations,Remedies,Etc. Section 25.1 Definition. j Each of the following events shall be an"Event of Default"hereunder: (a) if Tenant fails to make any payment (or any part thereof) of Rental and/or Impositions due hereunder and such failure continues for a period of thirty(30)days after notice is given by Owner that the same is past due; (b) if Tenant shall default in the observance or performance of any term,covenant or condition of this Lease on Tenant's part to be observed or performed(other than the covenants for the payment of Rental and/or Impositions or as expressly set forth below) and Tenant shall fail to remedy such Default within thirty (30) days after notice by Owner of such Default (the "Default Notice"),or if such a Default is of such a nature that it cannot reasonably be remedied within thirty(30) days(but is otherwise susceptible to cure),Tenant shall not(i)within thirty(30)days after the giving of such Default Notice,advise Owner of Tenant's intention to institute all steps(and from time to time, as reasonably requested by Owner,Tenant shall advise Owner of the steps being taken)necessary to I remedy such Default(which such steps shall be reasonably designed to effectuate the cure of such � I P WINSKERW M B\Mfohipn-Unc&PkuV-h=1nP1azaGmd1se8-17a(Ex)wpd August 30,1999(2:49PM) Default in a professional manner),and(ii)thereafter diligently prosecute to completion all such steps necessary to remedy the same; (c) failure of Tenant to deliver the special warranty deeds subject to the provisions of Section 2.1(a)to Parcel 2(as described on Exhibit A)on or before the Possession Date; (d) if Tenant fails to operate the Garage as a parking facility as described in Section 6.1(b)in which event such failure shall be treated as a Default as described in Section 25.1(b); (e) if a default by Tenant under the Development Agreement shall have occurred and be continuing beyond any applicable cure period, including any cure period applicable to a Recognized Mortgagee; (f) to the extent permitted by law,if Tenant admits,in writing,that it is generally unable to pay its debts as such become due; (g) to the extent permitted by law,if Tenant mares an assignment for the benefit of creditors; (h) to the extent permitted by law,ifTenant files a voluntary petition under Title 11 of the United States Bankruptcy Code,or if Tenant files a petition or an answer seeking,consenting to or acquiescing in, any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future Federal bankruptcy code or any other present or future applicable Federal,state or other bankruptcy or insolvency statute or law,or seeks, consents to, acquiesces in or suffers the appointment of any trustee, receiver,custodian, assignee, sequestrator,liquidator or other similar official of Tenant,of all or any substantial part of its properties, or of all or any part of Tenant's Interest in the Premises,and the foregoing are not stayed or dismissed within one hundred and fifty(150)days after such filing or other action; (i) to the extent permitted by law,if,within one hundred and fifty(150)days after the commencement of a proceeding against Tenant seeking any reorganization, arrangement, composition,readjustment,liquidation,dissolution or similar relief under the present or any future Federal bankruptcy code or any other present or future applicable Federal,state or other bankruptcy or insolvency statute or law,such proceeding has not been dismissed,or if,within one hundred and eighty(180)days after the appointment,without the consent or acquiescence of Tenant,of any trustee, receiver,custodian,assignee,sequestmtor,liquidator or other similar official of Tenant,of all or any substantial part of its properties, or of all or any part of Tenant's interest in the Premises, such appointment has not been vacated or stayed on appeal or otherwise, or if, within one hundred and eighty(180)days after the expiration of any such stay,such appointment has not been vacated; (j) if a levy under execution or attachment in an aggregate amount of One Hundred Thousand Dollars($100,000),adjusted for inflation,at any one time,is made against the Premises or any part thereof or rights appertaining thereto(except for a levy made in connection with actions taken by Owner(other than solely as holder of Owner's Interest in the Premises)),the income therefrom,this MONSKERT M BVAchigao-Lincola P1anUJnwJnPla=Gmdlse8-17a(Ex)wpd August 30,1999(2 49PM) -86- ' OFF- 54. 0 1 Lease or the leasehold estate created hereby and such execution or attachment is not vacated or -removed by court order,bonding or otherwise within a period of sixty(60)days after Tenant becomes aware of such levy or attachment,subject to Unavoidable Delays;or (k) if any of the representations made by Tenant in Article 18 is proved to be or becomes false or incorrect in any material respect and the circumstances are not cured or modified so as to eliminate such material incorrectness within thirty(30)days after notice; (1) any event described in Section 35.8 which is not cured by Tenant as provided in Section 35.8. In the event of a Default which with the giving of notice to Tenant and the passage of time would constitute an Event of Default, Owner's notice of such Default to Tenant shall state with specificity the provision of this Lease under which the Default is claimed,the nature and character of such Default,the facts giving rise to such Default,the date by which such Default must be cured,and that the failure of TwanLto cure such Default by the date set forth in such notice will result in Owner having the right to terminate this Lease. Notwithstanding the foregoing,no Event ofDefaultshall be deemed tohave occurred until such time as Owner shall have given Tenant notice of the occurrence of an Event of Default(an"Event of Default Notice"). Section 25.2 Enforcement of Performance;Damages and Termination. If an Event of Default occurs and Owner chooses to pursue a remedy with respect to that Event of Default,Owner shall elect to:(a)enforce performance or observance by Tenant of the applicable provisions of this Lease; (b) recover damages for breach of this Lease; or(c)terminate this Lease pursuant to Section 25.3(x). Owner's election of a remedy hereunder with respect to an Event of Default shall not limit or otherwise affect Owner's right to elect any of the remedies available to Owner hereunder with respect to any other Event of Default. Section 25.3 Expiration and Termination of Lease. (a) If an Event of Default occurs, provided Owner has elected the remedy of termination, Owner may,within ten(10)Business Days after the date of entry by a court of a final judgment that an Event of Default exists(but without Tenant waiving any rights it may have to stay the termination pending appeal),give Tenant and any Recognized Mortgagee notice stating that this Lease and the Term shall terminate on the date specified in such notice,which date shall not be less than ten (10)days after the giving of the notice,and this Lease and the Term and all rights of Tenant under this Lease shall expire and terminate as if the date specified in the notice were the Fixed Expiration Date, and Tenant shall quit and surrender Tenant's Interest in the Premises and possession thereof forthwith. If such termination is stayed by order of any court having jurisdiction over any case described in i Sections 25.1(h)or 25.1(i),or by federal or state statute,then,following the expiration of any such stay, or if the trustee appointed in any such case,Tenant or Tenant as debtor-in-possession fails to F 1MINSKERIC M B1Michigen-Liacoln Pla=\LfiMnPla=Gnt se&17a(Ex)wpd August 30,1999(2 49AM) -87- 541. assume Tenant's obligations under this Lease within the period prescribed therefor by law or within { thirty(3 0) days after entry of the order for relief or as may be allowed by the court, Owner,to the extent permitted by law or by leave of the court having jurisdiction over such case,shall have the right, at its election,to terminate this Lease on live(5)days°notice to Tenant,Tenant as debtor-in-possession or the trustee. Upon the expiration of the five(5)day period,this Lease shall expire and terminate and Tenant,Tenant as debtor-in-possession and/or the trustee immediately shall quit and surrender Tenant's Interest in the Premises and possession thereof forthwith. (b) If this Lease is terminated as provided in Section 25.3(x),Owner array,without notice,re-enter and repossess t'enant's Interest in the Premises(which may include,but not be limited to,re-entering and repossessing the Premises)and may dispossess Tenant by summary proceedings, writ ofpossession,proceedings in bankruptcy court or otherwise,subject to applicable Requirements. (c) If this Lease is terminated as provided in Section 253(a); (i) Tenant shall pay to Owner all Rental and/or Impositions payable tinder this Lease by Tenant to Owner to the date upon which the Term shall have expired and come to an end and Tenant shall surrender to Owner Tenant's Interest in the Premises(and possession thereof)in the manner required by this Lease,and both parties shall be relieved of all further obligations hereunder,except to the extent this Lease expressly provides that an obligation hereunder shall survive the]Expiration of the Term; and 1 (ii) In no event shall Tenant be entitled to receive any credit or payment with respect to the value of the Land and Improvements,title to which shall automatically vest in Owner upon such termination. Section 25.4 Waiver of Rights of Tenant and Owner. i To the extent not prohibited by law,Owner and Tenant hereby waive and release all rights now or hereafter conferred by statute or otherwise that would have the effect of/igniting or modifying any of the provisions of this Article. Notwithstanding the foregoing,(i)neither party shall be deemed to have waived the benefit of any automatic stay provisions under any present or fillture bankruptcy code and(ii)Owner shall not be deemed to have waived or released any rights conferred by any sovereign i immunity conferred by statute or otherwise,as provided in Section 19.2(c)hereof. Section 25.5 Receipt of Moneys After Notice or Termination. No receipt of money by Owner from Tenant after the termination of this Lease,or after the giving of any notice of the termination of this Lease,shall reinstate,continue or extend the Term or affect any notice theretofore given to Tenant,or operate as a waiver of the right of Owner to recover f Tenant's Interest in the Premises(which may include,but not be limited to,recovering possession of the Premises) by proper remedy. After the service of notice to terminate this Lease or the j F%4NSMR\C M B1Michipn-Lincoln P1amV-r*1uP1=GrndUe8-I7a(Ex)wpd August 30,1999(2;49Piv1) -88- I commencement of any suit or summary proceedings or after a final order or judgment for the f possession of Tenant's Interest in the Premises(which may include,but not be limited to,a judgement for possession of the Premises),Owner may demand,receive and collect any moneys due or thereafter falling due without in any manner affecting the notice,proceeding,order,suit or judgment,all such moneys collected being deemed payments on account of the use and occupation of Tenant's Interest in the Premises (including, without limitation, the use and occupation of the Premises) or, at the election of Owner,on account of Tenant's liability hereunder. Section 25.6 Strict Performance. No failure by Owner or Tenant to insist upon strict performance of any covenant,agreement, term or condition of this Lease or to exercise any right or remedy available to such party by reason of the other party's default or an Event of Default,and no payment or acceptance of full or partial Rental and/or Impositions during the continuance (or with Owner's knowledge of the occurrence) of any Default or Event of Default,shall constitute a waiver of any such Default or Event of Default or of such covenant, agreement, term or condition or of any other covenant, agreement, term or condition. Subject to Section 11.11,no covenant,agreement,term or condition of this Lease to be performed or complied with by either party,and no default by either party,shall be waived,altered or modified except by a written instrument executed by the other party.No waiver of any Default or Event ofDefault shall affect or alter this Lease,but each and every covenant,agreement,term and condition of this Lease shall continue in full force and effect with respect to any other then existing or subsequent Default. Payment by Tenant to Owner of any Rental and/or Impositions shall be without prejudice to,and shall not constitute a waiver of,any rights of Tenant against Owner provided for under this Lease or at law or in equity.Tenant's compliance with any request or demand made by Owner shall not be deemed a waiver of Tenant's right to contest the validity of such request or demand. Section 25.7 Right to Enjoin Defaults. In the event of Tenant's Default or Event of Default,Owner shall be entitled to seek to enjoin the Default or Event of Default and shall have the right to invoke any rights and remedies allowed at law or in equity or by statute or otherwise,except to the extent Owner's remedies are expressly limited by the terms hereof. In the event of any default by Owner of any term,covenant or condition under this Lease,Tenant shall be entitled to seek to enjoin the default and shall have the right to invoke any rights and remedies allowed at law or in equity or by statute or otherwise,except to the extent Tenant's remedies are expressly limited by the terms hereof Provided however,in the event of any such default, Tenant shall be required to give Owner notice of such default and Owner shall have thirty(30)days from receipt of such notice to effect a cure of such default or if such default is not reasonably susceptible of being cured within such thirty(30)day period,Owner shall have a reasonable time to effect a cure of such default so long as Owner is diligently prosecuting such cure. Each right and remedy of Owner and Tenant provided for in this Lease shall be cumulative and shall be in addition to every other right or remedy provided for in this Leaso or now or hereafter existing at law or in equity or by statute or otherwise except to the extent Owner's remedies and Tenant's remedies are expressly limited by the tens hereof,and the exercise or beginning of the exercise by Owner or Tenant of any one or more of the rights or remedies provided for in this Lease or now or hereafter existing at law or I P;\MINSKI?R\C M B1Michipn-Lincoln Pla=\Lineo1nPkmGmd1se6-170x)%Pd August 30,1999(2 49PM) err REG: 18T10�c 543 in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by Owner or Tenant of any or all other rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise, except to the extent Owner's remedies and Tenant's remedies are expressly limited by the terms hereof. Section 25.8 Remedies Under Bankruptcy and Insolvency Codes. If an order for relief is entered or if any stay of proceeding or other act becomes effective against Tenant or Tenant's Interest in the Premises or Owner or Owner's Interest in the Premises as applicable,in anyproceeding which is commenced by or against Tenant or Owner,as applicable,under the present or any future Federal Bankruptcy Code or in a proceeding which is commenced by or against Tenant or Owner, as applicable, seeking a reorganization, arrangement, composition, readjustment, liquidation,dissolution or similar relief under any other present or future applicable federal,state or other bankruptcy or insolvency statute or law,Owner or Tenant,as applicable,shall be entitled to invoke any and all rights and remedies available to it under such bankruptcy or insolvency code,statute or law or this Lease,including,without limitation,such rights and remedies as may be necessary to adequately protect Owner's or Tenant's,as applicable,right,title and interest in and to the Premises or this Lease or any part thereof and adequately assure the complete and continuous future performance of the other patty's obligations under this Lease. Owner or Tenant,as applicable,may petition the Bankruptcy Court to determine that adequate protection of Owner's or Tenant's, as applicable,right,title and interest in and to the Premises or this Lease,and adequate assurance of the complete and continuous future performance of the other party's obligations under this Lease,shall include,without limitation,all of the following requirements: (a) that the other party shall comply with all of its obligations under this Lease; (b) in the case of a proceeding concerning Tenant,that Tenant shall continue to use the Premises in the manner required by this Lease; (c) in the case of a proceeding concerning Tenant,that Owner shall be permitted to supervise the performance of Tenant's obligations under this Lease; (d) in the case of a proceeding concerning Tenant, that Tenant shall hire such securitypersonnel as may be necessary to insure the adequate protection and security of the Premises; (e) in the case of a proceeding concerning Tenant,that Tenant shall have and will continue to have unencumbered assets after the payment of all secured obligations and administrative expenses to assure Owner that sufficient funds will be available to fulfill the obligations of Tenant under this Lease;and (f) in the case of a proceeding concerning Tenant,that Owner shall be granted a security interest acceptable to it in property of Tenant to secure the performance of Tenant's obligations under this Lease,subject to the rights of any Recognized Mortgagee under the Recognized Mortgage. I F:VvDNSKERIC M Michigan-Lincoln Plaa \LincolnP1mzGmdlse8-17a(Ex)wpd August 30,1999(2 49PM) -90- I 544, Section 25.9 Funds Held By Tenant. From and after the date,if any,on whichan Event ofDefault(including,without limitation,any Event of Default that occurs during the course of the Construction Work for the initial construction of the Project)has been deemed to have occurred and while such Event of Default shall be continuing, Tenant shall not pay, disburse or distribute any rents, issues or profits of the Premises, or portion thereof, the proceeds of any insurance policies covering or relating to the Premises or any portion thereof,or any awards payable in connection with the condemnation of the Premises or any portion thereof (except to the extent such insurance proceeds or condemnation awards are required in connection with any Restoration to be performed pursuant to Article 8 or 9)or any undistributed proceeds from any sale or financing except to(i)creditors which are not Affiliates,in payment of amounts then due and owing by Tenant to such creditors with respect to work at the Premises,(ii) Affiliates,in payment ofamounts then due and owing by Tenant to such Affiliates for items and services provided to Tenant in connection with its operations conducted at the Premises or any portion thereof, only to the extent such amounts do not exceed that which is customarily and reasonably paid in arms-length transactions to Persons who are not Affiliates for comparable items and services,and(iii) the holder of a Recognized Mortgage,in payment of the principal amount of,and all unpaid and accrued interest then outstanding under,such Recognized Mortgage and any other amounts payable pursuant to such Recognized Mortgage and any instruments and documents related thereto. Section 25.10 Inspection. Owner and its representatives shall have the right,upon twenty-four(24)hours prior notice to Tenant,to enter upon the Premises(a)to inspect the operation,sanitation,safety,maintenance and use of the same(but Owner shall not thereby assume any responsibility or liability for the performance of Tenant's obligations hereunder,nor any liability arising from the improper performance thereof and (b)to conduct inspections for the purpose of determining whether a Default or Event of Default has occurred,provided that Owner shall be accompanied by a representative of Tenant(in areas of the Project other than areas readily available to the general public),and provided further that such entry shall not unreasonably interfere with the operation of the Premises. Tenant agrees to make a representative of Tenant available to accompany Owner on any such inspection. Article 26-Notices,Consents and Approvals Section 26.1 Service of Notices and Other Communications. (a) In Writing. Whenever it is provided herein that notice, demand,request, consent,approval or other communication shall or may be given to,or served upon,either of the parties by the other(or any recognized Mortgagee),or whenever either of the parties desires to give or serve upon the other any notice,demand,request,consent,approval or other communication with respect hereto or to the Premises, each such notice, demand, request, consent, approval or other communication(referred to in this Section 26.1 as a"Notice")shall be in writing(whether or not so indicated elsewhere in this Lease)and shall be effective for any purpose only if given or served by i FAMNSKERT M H1Michigen-Lincoln P1=VAnoo1nP1=Gmd1se6-17a(Bx)wpd August 30,-1999(2:49PM) � �. 'A ' i certified or registered U.S.Mail,postage prepaid,return receipt requested,personal delivery with a r signed receipt or a recognized national courier service,addressed as follows: if to Tenant: Lincoln Plaza Partners LLC. • clo SRC Lincoln Plaza LLC 230 Fifth Street Miami Beach,FL 33139 Attention: Scott Robins,Managing Member with a copy to: Stuart K.Hoffman,Esq. l Holland&Knight � ' 701 Brickell Avenue Suite 3000 Aj R aA Miami,FL 33131 if to Owner: City of Miami Beach City Manager 1700 Convention Center Drive Miami Beach,Florida 33139 with a copy to: City of Miami Beach i City Attorney 1700 Convention Center Drive Miami Beach,Florida 33139 and with a copy to: i Bloom&Minsker Suite 700 1401 Brickell Avenue Miami,Florida 33131 Attention:Joel N.Minsker,P.A. Any such Notice may be given,in the manner provided in this Section 26.1,(x)on either party's behalf by its attorneys designated by such party by notice hereunder,and(y)at Tenant's request,on its behalf by any Recognized Mortgagee designated in such request. (b) Effectiveness. Every Notice shall be effective on the date actually received,as indicated on the receipt therefor or on the date delivery thereof is refused by the recipient thereof. (c) References.All references in this Lease to the"date"of Notice shall mean the effective date,as provided in the preceding Section 26.1(b). F%MSKERNC M Wichigan-Lincoln PIaza\LincolnPb=Gmd1se8-17a(Ex)wpd August 30,1999(2:49PM) 1 i - Section 26.2 Consents and Approvals. (a) Effect of Granting orFailare to Grant Approvals or Consents.All consents and approvals which may be given under this Lease shall,as a condition of their effectiveness,be in writing. The granting by a party of any consent to or approval of any act requiring consent or approval sunder the tenns of this Lease,or the failure on the part of a party to object to any such action taken without the required consent or approval,shall not be deemed a waiver by the party whose consent was required of its right to require such consent or approval for any other act. (b) Standard. All consents and approvals which maybe given by a party under this Lease shall not(whether or not so indicated elsewhere in this Lease)be unreasonably withheld or conditioned by such party and shall be given or denied within the time period provided,and if no such time period has been provided,within a reasonable time.In furtherance of the foregoing,in determining whether Owner has acted reasonably in not giving its consent or approval,the trier of fact shall take into consideration(for so long as Owner is the City or any Governmental Authority)that Owner is a political body governed by elected officials or persons that are appointed,directly or indirectly,by ` elected officials. Upon disapproval of any request for a consent or approval,the disapproving party shall, together with notice of such disapproval, submit to the requesting party a written statement setting forth with specificity its reasons for such disapproval. (c) Deemed Approval. (i) If a party entitled to grant or deny its consent or approval(the "Consenting Party")within the specified time period shall fail to do so, _ then,except as otherwise provided in Section 26.2(c)(ii)and(iii),and provided that the request for consent or approval(and the envelope in which such request is transmitted to the extent permitted by the carrier) bears the legend set forth below in capital letters and in a type size not less than that provided below, the matter for which such consent or j approval is requested shall be deemed consented to or approved,as the case may be: "FAILURE TO RESPOND TO THIS REQUEST WITHIN THE ZTME PERIOD PROVIDED IN THE LEASE AGREEMENT BETWEEN CITY OF MIAMI BEACH, FLORIDA [NAME OF CURRENT TENANT] SHALL CONSTITUTE AUTOMATIC APPROVAL OF THE MATTERS DESCRIBED HEREIN WITH RESPECT TO SECTION[FILL IN APPLICABLE SECTION]OF SUCH LEASE AGREEMENT. i I (ii) If the matter to which consent or approval s requested pertains to Article 10 or Article 16, then such matter shall not be deemed ` consented to or approved unless(i)the Consenting Party fails to timely F 1MIN5KRRIC M MMoh1pn-Lfnco1n P1am\UnoWnPk=(3 nd1sa&I Ai(Ex)wpd August 30,1999(2 Who -93- OTF REG: 1877M 54. 7 respond to the other party's(the"Requesting Party's")initial request, ! which request(and the envelope in which such request is transmitted to the extent permitted by the carrier)shall bear the legend set forth above and(ii)the Requesting Party shall thereafter send a second request to the Consenting Party which request(and the envelope in which such request is transmitted to the extent permitted by the carrier) conspicuously bears the legend set forth above,and Owner shall fail to timely respond to such second request. - (iii) Notwithstanding anything to the contrary contained in this Lease, including,without limitation,Sections 26.2(c)(i)and 26.2(c)(ii)above, if the City or any instrumentality of the City shall be the "Owner" hereunder and the matter(other than a matter referred to in Section 26.2(c)(iv))to be consented to or approved requires the consideration of the City Commission and/or the governing body of such instrumentality' of the City as applicable (whether pursuant to Requirements or the written opinion of the City Attorney,or the chief legal officer of such other instrumentality of the City)then,provided Owner gives Tenant notice of such requirement within the time period provided for such consent or approval,such matter shall not be deemed approved or consented to unless Owner shall fail to respond to Tenant's request(or second request if the provisions of Section 26.2(c)(v)are applicable)by the date which is fifteen(15)days after the Pint regular meeting of the City Commission(and/or such other instrumentality's governing body,as applicable)which occurs no earlier than ten(I0) days following the receipt of such request (or second request, as applicable); but in any event not later than sixty(60)days following such request(or second request),as applicable. (iv) Ownerhereby agrees,for so long as the City or anyother Governmental Authority shall be the "Owner" hereunder, that, subject to Requirements,the City Manager or the chief operating officer of such other Governmental Authority, as applicable, shall be authorized to grant consents or approvals on behalf of the City and/or other Governmental Authority as applicable,with respect to the following Sections of this Lease: Article 7 and Sections 8.3, 9.3, 10.7 (for execution of instruments), 14.2, 14.5, 16.1, 20.4, 27.2, 32.2(b) and 32.3. (v) The foregoing provisions of this Section 26.2(c)shall not be construed to modify or otherwise affect a party's right to litigate the failure of a party to act reasonably in granting or denying a request for consent or to timely respond to a request for a consent,but such right to litigate I P\M NSMXC M BWcbigan-Linooln Plaza\Llno*PlazRGmdlse8-17a(Ex)wpd August 30,1999(2:49PM) —94- oFF. Iff7M . M REC. shall not serve to delay the time period within which a grant or denial of r such request is required hereunder. (d) Remedy for Refusal to Grant Consent or Approval. If,pursuant to the terms of this Lease, any consent or approval by Owner or Tenant is alleged to have been unreasonably withheld,conditioned or delayed,then any dispute as to whether such consent or approval has been unreasonably withheld,conditioned or delayed shall be settled by litigation. In the event there shall be a final determination that the consent or approval was unreasonably withheld,conditioned or delayed so that the consent or approval should have been granted,the consent or approval shall be deemed granted and the Requesting Party shall be entitled to any and all damages resulting therefrom,subject to the limitations provided in this Lease. (e) No Fees,etc. Except as specifically provided herein,no fees or charges of any kind.or amount shall be required by either party hereto as a condition of the grant of any consent or approval which may be required under this Lease(provided that the foregoing shall not be deemed in any way to limit Owner acting in its governmental, as distinct from its proprietary, capacity from charging governmental fees on a nondiscriminatory basis). (f) Governmental Capacity.Notwithstanding anything to the contrary contained in this Section 26.2,the City shall not be required by this Lease to give its consent to any matter arising from or in connection with this Lease when the City is acting in its governmental capacity. Article 27-Certificates By Owner and Tenant Section 27.1 Certificate of Tenant. (a) Tenant shall, within fifteen (15) days after notice by Owner,execute, acknowledge and deliver to Owner,or any other Person specified by Owner,a written statement(which may be relied upon by such Person)(a)certifying(i)that this Lease is unmodified and in full force and effect(or if there are modifications,that this Lease,as modified,is in full force and effect and stating such modifications)(and,if so requested,that the annexed copy of this Lease is a true,correct and complete copy of thi s Lease),and(ii)the date to which each item of Rental and/or hnpositions payable by Tenant hereunder has been paid,and(b)stating(i)whether Tenant has given Owner written notice of any default, or any event that, with the giving of notice or the passage of time, or both, would constitute a default,by Owner in the performance of any covenant,agreement,obligation or condition contained in this Lease,which default or event has not been cured, and (ii)whether, to the actual knowledge of Tenant(but without independent inquiry),Owner is in default in performance of any covenant,agreement,obligation or condition contained in this Lease,and,if so,specifying in detail each such default. (b) Tenant shall file with Owner at least annually,a sworn affidavit,signed by an authorized officer of Tenant,to the effect that since the date of the last such affidavit(or in the case of the first such affidavit, since the Commencement Date)(1) no changes have been made to the operating agreement or other organic document under which Tenant is organized (the "Tenant F:IMMSKERIC M B1N Ichigan-Lincoln Pl=\UncolnPla=Grndlse8-17e(Sx)wpd August 30,1999(2:49PM) -95- I � KC, a� Documentf4), or, if changes shall have been made to the Tenant Document, a statement as to the t specific nature of the changes and a notification to Owner that the amended or modified Tenant Document is on file at the office of Tenant located in Miami-Dade County, Florida, and that it is available for inspection by Owner,(2)the full names and addresses of holders of membership interests in Tenant(who hold at least two percent(2%)interest in Tenant)are only those that are listed in such affidavit,and that the Managing Member(s)confirms its continued ownership in Tenant(if Tenant is an entity different than a limited liability company, this provision shall apply to the nature of the appropriate ownership interests for the entity in question),and(3)the obligation of Tenant's Members to each other related thereto under the operating agreement have not been amended or modified in any way that is materially adverse to Owner,and(4)if the Managing Member of Tenant is a corporation, it remains a Florida.corporation in good standing and the annual report of said corporation,required to be Filed with the Department of State of the State of Florida pursuant to Chapter 607, Florida Statutes,as amended(the "Annual Report"),and any fees required for the filing thereof,are not delinquent;or,if not a Florida corporation,it is a corporation properly authorized to do business in the State of Florida,and a statement to the effect that the Substantial Controlling Interest in said Managing Member or any successor thereto has not changed. A copy of the latest Annual Report of the Managing Member of Tenant shall be attached to the aforesaid certificate. Section 27.2 Certificate of Owner. Owner shall,within fifteen(15)days after notice by Tenant,execute,acknowledge and deliver to Tenant,or such other Person specified by Tenant,a written statement(which may be relied upon by such Person)(a)certifying(i)that this Lease is unmodified and in full force and effect(or if there are ` modifications,that this Lease,as modified,is in full force and effect and stating such modifications) (and,if so requested,that the annexed copy of this Lease is a true,correct and complete copy of this Lease),and(ii)the date to which each item of Rental and/or Impositions payable by Tenant hereunder has been paid,and(b)stating(i)whether an Event ofDefault has occurred or whether Owner has given Tenant notice of any event that, with the giving of notice or the passage of time, or both, would ' constitute an Event of Default,which Default or Event of Default has not been cured,and(ii)whether, to the actual knowledge of Owner (but without independent inquiry), Tenant is in default in the performance of any covenant,agreement,obligation or condition contained in this Lease,and,if so, specifying,in detail,each such Default or Event of Default. Article 28-Financial Reports and Records Section 28.1 Books and Records;Audit Rigbts. (a) Tenant shall at all tames during the Term of this Lease keep and maintain (separate from any of Tenant's other books,records and accounts),and shall cause the Project Manager to keep and maintain, accurate and complete records pertaining to the Premises related thereto, including, without limitation, books of account reflecting the Project Revenue of the Acceptable Operator and such other matters referenced in this Lease,in accordance with the Accounting Principles with such exceptions as may be provided for in this Lease, and provided that Tenant (and the Acceptable Operator) may make such reasonable modifications in such books of account as are F:IMINSKERW M BUichigan-UmIn Plaza\LincolnPlazaOrndlse8-17a(Ex)wpd August 30,1999(2:49PM) -96- orr. .' 550 MI. consistent with Acceptable Operatoes standard practice in accounting for its operations under management contracts generally. Owner and its representatives shall have,during normal business hours and upon reasonable advance notice,access to inspect the books and records of Tenant and the Acceptable Operator pertaining to the Project Revenue,including,without limitation,books of account properly reflecting the operations of the Premises, which books and records shall be kept at the Premises. Owner shall have the right to cause an audit by Owner's internal auditors(in accordance with the Accounting Principles)of such books and records to be made at any time (but not more frequently than one (1) time in any twelve (12) month period and only with respect to Project Revenue),at Owner's expense(a copy of which shall be delivered to Tenant). Such right of inspection and audit may be exercised at any time within three(3)years after the end of the Lease Year to which such books and records relate,and Tenant and Acceptable Operator shall maintain all such books and . records for at least such period of time.and,if any Dispute between the parties has arisen and remains unresolved at the expiration of such period of time,for such further period of time until the resolution of such Dispute. Notwithstanding anything to the contrary contained herein,at Tenant's option,the audit described in this Section 28.1(a)shall be performed by Owner's external auditors(which shall be a Recognized Accounting Firm),in which case Tenant shall pay the reasonable fees and expenses of said external auditors;and,provided further that in the event that Owner determines to have such audit performed by its external auditors, Owner shall pay the fees and expenses or said external auditors. (b) if,upon any audit by Owner as described above of the books or records of Tenant or Acceptable Operator, (i)an error(which shall mean a mistake in calculation of Project Revenue, an accounting error, but shall exclude any error based on assertions dud Tenant acted imprudently or unwisely in connection with the collection of the Project Revenue)shall be revealed which results in there being due to Owner Percentage Rent for any Lease Year for which Annual Financial Statements are being audited pursuant to Section 28.1(a), the amounts of any such underpayments of Percentage Rent which may be disclosed by such audit, together with interest accrued thereon at the Late Charge Rate from the date on which such underpayment was made until the date of payment of the correct amount,shall be paid to Owner upon thirty(30)days demand or(ii) an error(as defined in clause(i)above)shall be revealed which resulted in an overpayment by Tenant to Owner of Percentage Rent,Owner shall remit the amount of such overpayment(less the cost of such audit)to Tenant within thirty(30)days after the completion of such audit. If Owner does not notify Tenant of any error in the calculation of Percentage Rent within three(3)years after the end of any Lease Year,then Owner shall be deemed to have conclusively waived any and all objections with respect to any Percentage Rent payments with respect to such Lease Year. (c) As soon as available,but in no event later than the date which is one hundred fifty(150) days after the end of each Lease Year, Tenant shall make available at the Prelises for inspection and examination(or photocopying)by Owner or its representatives a copy of the annual I financial statements(the"Annual Financial Statements")for such Lease Year(which statements shall be audited by any Recognized Accounting Firm) accurately reflecting receipt of Project Revenue J�J certified b Tenant and such independent certified public accountant in accordance with prepared and y p P the Accounting Principles. i 1 F WWSK13MC M B1Michigau-Lincoln Plat U!=olnPlazaGrndIW8-17a(Ex)wpd August 30,1999(2:49PM) -97- REF. C. 18770P0 NE (d) As soon as available,but in no event later than thirty(30)days after the end of ! each month, Tenant shall make available at the Project for inspection and examination (or photocopying)by Owner or its representatives an unaudited statement of Project Revenue for both the current month and Lease Year to date. .r (e) As soon as available,but in no event later than thirty(30) days prior to the commencement of each Lease Year,Tenant shall make available at the Project for inspection and examination(or photocopying)by Owner or its representatives an informational copy of a projected income and expense statement reflecting the budget for the Project for such coming Lease Year(the "Budget"). . (f). Notwithstanding any of the foregoing provisions of this Article 28,so long as Owner is the City or any instrumentality of the City,the following provisions shall be applicable to the books and records of the Project, the Annual Financial Statements, the Budget and any other documents (collectively, the "Project Documents")required to be delivered or made available to Owner under this Article 28: W All Project Documents shall be maintained at the Premises. (ii) All Project Documents shall be made available to Owner and its representatives as provided above. (iii) If a copy of any Project Document is made by Owner or any of its representatives and delivered to Owner's offices,there shall be attached to the front of the first page of such Project Document a sheet of paper bearing the legend set forth below in capital letters and in a type size not less than that provided below: "THE ATTACHED DOCUMENT CONTAINS BUSINESS OR FINANCIAL INFORMATION.THE ATTACHED DOCUMENT IS TO BE KEPT SOLELY IN THE OFFICE OF THE CITY ATTORNEY OF THE CITY OF MIAMI BEACH, FLORIDA. THE ATTACHED DOCUMENT IS TO BE REVIEWED ONLY IN SUCH OFFICE AND SHALL BE RELEASED SOLELY IN ACCORDANCE WITH APPLICABLE LAW." (g) Any third party representatives(including,without Limitation,any Recognized Accounting Firm) of Owner that review any Project ]Documents shall execute a confidentiality agreement mutually acceptable to Owner and Tenant, If a copy of any Project Document is made by any such representative for use in the offices of such representative,there shall be attached to the front of the first page of such Proj ect Document a sheet of paper bearing the legend set forth below in capital letters and in a type size not less than that provided below: a FWWSKERT M B1MUdgan-Lincoln P1axaW=o1nP1uaGmd1se8-176(E%)wpd August 10,1999(2:49PM) _ arr: 18770PO 552 ' "TIM ATTACHED DOCUMENT CONTAINS BUSINESS OR FINANCIAL INFORMATION. THE ATTACHED DOCUMENT IS SUBJECT TO A CONFIDENTIALITYAGREEMENT AND SHALL BE KEPT SOLELY IN THE OFFICES OF [INSERT NAME OF REPRESENTATIVE]. THE ATTACHED DOCUMENT IS TO BE REVIEWED ONLY IN SUCH OFFICES AND SHALL BE RELEASED SOLELY IN ACCORDANCE WITH SUCH CONFIDENTIALITY AGREEMENT AND APPLICABLE LAW.' (h) Promptly following receipt of a request under any Requirement for the release of a copy of any Project Document,Owner shall send notify Tenant of such request,but neither Owner nor any Owner Indemnified Party shall incur any liability to'Tenant or any Tenant Indemnified Party if Owner fails to provide any such notice. (i) Neither Owner nor any Owner Indemnified Party shall incur any liability to Tenant or any Tenant Indemnified Party in the event any Project Document is stolen,misplaced or otherwise released in violation of the foregoing provisions of this Section 25.1. (j) The obligations of Tenant and Owner under this Article 25 shall survive the Expiration of the Term. (k) Any third party representatives(including,without limitation,any Recognized Accounting Firm) of Owner that review any Project Documents shall execute a confidentiality agreement mutually acceptable to Owner and Tenant. If an extract of any Project Document is made by any such representative for use in the offices of such representative,there shall be attached by Owner _ or its representative to the front of the first page of such Project Document a sheet of paper bearing the legend set forth below in capital letters and in a type size not less than that provided below; "THE ATTACHED DOCUMENT CONTAINS BUSINESS OR FINANCIAL INFORMATION THAT HAS BEEN DESIGNATED AS CONFIDENTIAL BY [INSERT NAME OF TENANT]. THE ATTACHED DOCUMENT IS SUBJECT TO A CONFIDENTIALITY AGREEMENT AND SHALL BE DEPT SOLELY IN THE OFFICES OF [INSERT NAME OF REPRESENTATIVE]. THE ATTACHED DOCUMENT IS TO BE REVIEWED ONLY IN SUCH OFFICES AND SHALL BE RELEASED SOLELY IN ACCORDANCE WITH SUCH CONFIDENTIALITY AGREEMENT AND APPLICABLE LAW." f 1 i F q"SKEMC M B M ehlgtm•Lincoln P1sza%inco1nPlam0md1se8"17a(Ex)wpd August.30,1999(2 49PM) -99 553, Article 29-Surrender at End of Terns Section 29.1 Surrender of Premises. Upon the Expiration of the Term(or upon a re-entry by Owner upon the Premises pursuant to Article 25),Tenant,without any payment or allowance whatsoever by Owner,shall surrender the Premises to Owner in good order, condition and repair,reasonable wear and tear excepted and(subject to the provisions of Article 8)damage from casualty excepted,free and clear of all Master Subleases,liens and encumbrance other than as set forth below and the Title Matters. Tenant hereby waives any notice now or hereafter required by law with respect to vacating the Premises on the Expiration of the Term. Section 29.2 Delivery of Subleases,Etc. Upon the Expiration of the Term(or upon a re-entry by Owner upon the Premises pursuant to Article 25),Tenant shall deliver to Owner the following(to the extent then in Tenant's possession or control): Tenant's original executed counterparts, if available (and if not available, true and correct copies thereof), of all subleases then in effect, any service and maintenance contracts then affecting the Premises,true and complete maintenance records for the Premises,all original licenses and permits then pertaining to the Premises,permanent or temporary certificates of occupancy then in effect for the Premises,and all warranties and guarantees then in effect which Tenant has received in connection with any work or services performed or Building Equipment installed in the Premises(such to be delivered without representation or warranty by Tenant), together with a duly executed assignment thereof (without recourse)to Owner in form suitable for recording,and all financial reports required by Article 28 and any and all other documents of every kind and nature whatsoever relating to the operation of the Premises and the condition of the Improvements. Section 293 Title to Improvements. Owner recognizes and agrees that until Expiration of the Term,ownership of and title to the Improvements shall be in Tenant and that until such time,Tenant has,and shall be entitled to,all rights and privileges of ownership of such Improvements. Ownership of and to all Improvements shall j automatically vest in Owner upon the Expiration of the Term,without the payment of consideration therefor, and without the necessity for the execution and delivery by Tenant of any instrument transferring title. Notwithstanding the foregoing,Tenant covenants and agrees that upon the Expiration of the Term, Tenant shall, upon Owner's request,execute and deliver to Owner any instrwnent or document reasonably requested by Owner to confirm title to said Improvements in Owner. Section 29.4 Title to Reserve Account. Ownership of and to the Reserve Account and all proceeds thereof shall automatically vest in Owner(subject to the lien therein of the Recognized Mortgagee)upon the Expiration of the Term, without the payment of consideration therefor,and without the necessity for the execution and delivery by Tenant of any insi ment transferring title thereto.Notwithstanding the foregoing,Tenant covenants and agrees that upon the Expiration of'the Term, Tenant shall,upon Owner's request, execute and F 1MINSKER1C M B1Miehigun-Lincoin Plau\LincolnPImOrodlse8-17a(Ex)wpd August 30,1999(2:49PM) -100- 5 1 deliver to Owner any instrument or document reasonably requested by Owner to confirm title to said 1 Reserve Account and proceeds thereof in Owner. Section 29.5 Cash and Accounts Receivable. .Tenant shall retain the right to all cash and accounts receivable on or in connection with the Premises existing as of the Expiration of the Term and Owner shall pay Tenant for all unopened consumable supplies located at the Premises upon the Expiration of the Term(based on Tenant's actual cost therefor); provided, however that Tenant shall turn over to Owner all deposits, accounts - receivables and other payments for periods after the Expiration of the Term. K after the Expiration ofthe Tenn,Owner collects any accounts receivable to which Tenant is entitled,Owner shall promptly remit such amounts to Tenant,subject to the rights of any.Recognized Mortgagee, Section 29.6 Personal Property. Any personal property of Tenant or of any Master Subtenant which remains on the Premises after the termination of this Lease or after the removal of Tenant or such Master Subtenant from the Premises,may,at the option of Owner,be deemed to have been abandoned by Tenant or such Master Subtenant, and either may be retained by Owner as its property or be disposed of, without accountability, in such manner as Owner may see fit, in its absolute and sole discretion, but in compliance with applicable Requirements. Owner shall not be responsible for any loss or damage occurring to any such property owned by Tenant or any Master Subtenant. Section 29.7 Survival Clause. _ The provisions of this Article 29 shall survive the Expiration of the Term. Article 30-Quiet Enjoyment Section 30.1 Quiet Enjoyment. Owner covenants that as long as this Lease is in full force and effect without an Event of Default existing hereunder,Tenant shall and may(subject to the exceptions,reservations,terms and conditions of this Lease)peaceably and quietly have,hold and enjoy Tenant's Interest in the Premises for the Term without molestation or disturbance by or from Owner(solely in its proprietary capacity) or any Person claiming by,under or through Owner(solely in its proprietary capacity). i t F%GNSKEPW M B1Miabigan Wcoln III= =obWWaGmcUse8-170x)wpd i August 30,1999(2:49P1vn -101- 1 � 555 Article 31-Reserved Article 32-Administrative and Judicial Proceedings,Contests,Etc. Section 32.1 Tax Contest Proceedings. Tenant shall have the right(subject to the provisions of Section 32.2),at its sole cost and expense,to seek reductions in the valuation of the Premises assessed for real property tax purposes and to prosecute any action or proceeding in connection therewith by appropriate proceedings diligently - conducted in good faith and in accordance with applicable Requirements. Section 32.2 Imposition Contest Proceedings. Tenant shall have the right to contest,at its sole cost and expense,the amount or validity,in whole or in part,of any Imposition by appropriate proceedings diligently conducted in good faith,in which event payment of such Imposition may be postponed,subject to Requirements,if,and only as long as: (a) Neither the Premises nor any part thereof would, by reason of such postponement or deferment,be,in the reasonable judgment of Owner,in danger of being forfeited to a Governmental Authority and Owner is not in danger of being subj ected to criminal liability or penalty or civil liability or penalty in excess of the amount for which Tenant has furnished security as provided in Section 32.2(b)by reason of nonpayment thereof;and (b) Tenant has deposited with a Recognized Mortgagee,ifany(or ifnot,with a third party escrow agent proposed by Tenant,subject to Owner's consent,not to be unreasonably withheld (failure to respond within fifteen(15)days after notice being conclusively deemed approval)),cash in the amount so contested and unpaid or,alternatively,at Tenant's option,a surety company bond or an irrevocable letter of credit issued by an Institutional Lender(in form reasonably satisfactory to Owner) or other security(for example,a personal guaranty)reasonably satisfactory to Owner,in the mnount so contested and unpaid,together with all interest oadpenaities in connection therewith and all charges relating to such contested Imposition that may or might,in Owner's reasonable judgment,be assessed � against,or become a charge on,the Premises or any part thereof in or during the pendency of such proceedings; provided,however, any amount deposited with any governmental entity, the making of which deposit is required by law in order for Tenant to contest such matters, shall be considered part of the amount so required of Tenant by Owner (the intent being that Tenant shall not be required to make duplicitous deposits under this Section 32.20). Upon the termination of such proceedings,Tenant shall pay the amount of such Imposition or part thereof as finally determined in such proceedings,the payment of which was deferred during the prosecution of such proceedings, together with any costs, fees (including, without limitation, reasonable attorneys' fees and disbursements),interest,penalties or other liabilities in connection therewith,and,upon such payment, any Recognized Mortgagee or escrow agent holding any amount or other security deposited with it with respect to such Imposition shall(subject to the terms of any agreement between Tenant and any i Recognized Mortgagee or escrow agent)return the same,together with the interest, if any,earned F\WNSKBRT M Michigan-Uncola PinaVAncolnPlaza(3md1se8-17a(Bx)WN August 30,1999(2:49PM) -102- *T. 161709 M thereon. However,if such Recognized Mortgagee or escrow agent is so requested by Tenant,such Recognized Mortgagee or escrow agent shall disburse said moneys on deposit with it directly to the Person to whom or to which such Imposition is payable. If at any time during the continuance of such proceedings Owner,in its reasonable judgment,deems insufficient the amount or nature of the security deposited,Tenant,within ten(10)days after Owner's demand,shall make an additional deposit of such additional sums or other acceptable security as Owner may request,and upon failure of Tenant to so do,the amount theretofore deposited,together with the interest,if any,earned thereon,shall,upon demand by Owner,be applied by such Recognized Mortgagee or escrow agent tothepaymeA removal and discharge of such Imposition and the interest and penalties in connection therewith and any costs, fees (including,without limitation,reasonable attorneys' fees and disbursements)or other liability accruing in any such proceedings and the,balance, if any, remaining thereafter, together with the interest,if any,earned thereon and remaining after application by Owner as aforesaid,shall be returned to Tenant or to the Person entitled to receive it.If there is a deficiency,Tenant shall pay the deficiency to Owner or the Person entitled to receive it within ten(10)days after Owner's demand. Section 32.3 Requirement Contest. Tenant shall have the right to contest the validity of any Requirement or the application thereof During such contest, compliance with any such contested Requirement may be deferred by Tenant provided that before instituting any such proceeding,Tenant shall furnish such Recognized Mortgagee, if any(or if not,with a third party escrow agent proposed by Tenant,subject to Owner's consent,not to be unreasonably withheld(failure to respond within fifteen(15)days after notice being conclusively deemed approval)),with a surety company bond or,alternatively at Tenant's option,a cash deposit,an irrevocable letter of credit issued by an Institutional Lender or other security(e.g.,a personal guaranty), in form and amount reasonably satisfactory to Owner, securing compliance with the contested Requirement and payment of all interest,penalties,fines,civil liabilities,fees and expenses in connection therewith; provided, however, any amount deposited with any governmental entity,the making of which deposit is required by law in order for Tenant to contest such matters,shall be considered part of the amount so required of Tenant by Owner(tile intent being that Tenant shall not be required to make duplicitous deposits under this Section 32.3). Any such proceeding instituted by Tenant shall be commenced as soon as possible after the issuance of any such contested Requirement and shall be pre diligence prosecuted with dill to final adjudication,settlement,compliance or other mutually acceptable J disposition of the Requirement so contested. The furnishing of any bond,deposit,letter of credit or other security notwithstanding,Tenant shall comply with any such Requirement in accordance with the provisions of Section 15.1 if, in Owner's reasonable judgment_(i)noncompliance therewith would create an emergency condition involving the health or safety of persons,(ii)the Premises,or any part thereof,are in material danger of being forfeited to an authority(other than Owner when the Agency ' or the City or an instrumentality thereof is Owner)or(iii)Owner is in danger of being subjected to criminal liability or penalty, or civil liability in excess of the amount for which Tenant shall have furnished security as hereinabove provided by reason of noncompliance therewith,and any security posted by Tenant shall(subject to the terms of any agreement between Tenant and any Recognized i Mortgagee or escrow agent)be returned to Tenant with any interest accrued thereon. l FAMWSKERT M B1Michipan-Lincohi P1azuUAco1nP1a=GrndlseB-17a(Ex)wpd August 30,1999(2;49PM) -103- t i Section 32.4 Owner's Participation in Contest Proceedings. Owner shall not be required to join in any action or proceeding referred to in this Article 32.4 unless the provisions of any law,rule or regulation at the time in effect require that such action or proceeding be brought by and/or in the name of Owner. If so required,Owner shall join and cooperate in such proceedings or permit them to be brought by Tenant in Owner's name,in which case Tenant shall pay all reasonable costs and expenses .(including, without limitation, attorneys' fees and disbursements)incurred by Owner in connection therewith. Notwithstanding the foregoing,Owner's joinder and cooperation shall be limited to actions necessary to enable Tenant to satisfy technical requirements of any such action or proceeding and in no event shall Owner be required to join in any such action or proceeding in any substantive capacity. Section 32.5 Non applicability of this Article 32. None of the rights granted to Tenant in this Article 32 shall apply to any matters covered by Section 3.2(f). The provisions of Section 3.2(f)shall govern and control over the provisions of this Article 32 when in conflict. Article 33-Nondiscrimination Section 33.1 Nondiscrimination. Tenant shall be an equal opportunity employer, and shall not engage in any unlawful discrimination against any Persons because of race,religion,creed,national origin,sex,age,disability, marital status or sexual orientation. Article 34-Indictment,Investigations,Etc. Section 34.1 Cooperation in Investigations. i To the extent required by Requirements,Tenant shall cooperate fully and faithfully with any investigation,audit or inquiry conducted by any Govermnental Authority that is empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath, or conducted by a Governmental Authority that is a party in interest to the transaction,submitted bid, submitted proposal,contract,lease,permit,or license that is the subject of the investigation,audit or inquiry.In addition,Tenant shall promptly report in writing to the City Attorney of the City of Miami Beach,Florida any solicitation,of which Tenant's officers or directors have knowledge, of money, i goods, requests for future employment or other benefit or thing of value, by or on behalf of any employee of the City or other Person relating to the procurement or obtaining of this Lease by Tenant or affecting the performance of this Lease. i F:MNS'M\C M 81Micliipn-Lincoln Plm\UncolnPlanGmdise8-17&(6x)vied August 30,1999(2:49PM) .104- i r MUM 5.5 Article 35-Environmental Matters t Section 35.1 IDefmitions. For the purposes of this Lease,the following terms shall have the following definitions: (a) "Hazardous Materials"shall mean(i)petroleum and its constituents;(ii)radon gas, asbestos in any form which is or could become friable, urea formaldehyde foam insulation, transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyls in excess of federal,state or local safety guidelines,whichever are more stringent;(iii)any substance,gas,material or chemical which is or may hereafter be defined as or included in the definition of "hazardous substances," "hazardous materials," "hazardous wastes," "pollutants or contaminants," "solid wastes" or words of similar import under any Requirement including the Comprehensive Environmental Response,Compensation and Liability Act,as amended,42 U.S.C. §9061 et lea.:the Hazardous Materials Transportation Act,as amended,49 U.S.C. § 1801,et mg,; the Resource Conservation and Recovery Act, as amended,42 U.S.C. § 6901,It etc.-,the Federal Water Pollution Control Act,as amended,33 U.S.C. § 1251,ktt sec..;and Florida Statutes,Chapters 376 and 403; and(iv)any other chemical,material,gas or substance,the exposure to or release of which is regulated by any governmental or quasi-govermnental entity having jurisdiction over the Premises or the operations thereon; (b) "Environmental Laws"shall mean all Requirements relating to the protection of human health or the Environment,including: (i) all Requirements relating to reporting,licensing,permitting, investigation and remediation of Releases or Threat of Release into the Environment,or relating to the manufacture,processing,distribution, use,treatment; storage, disposal,transport or handling of Hazardous Materials;and (ii) all Requirements pertaining to the protection of the health and safety of employees or the public; (c) "Environment" shall mean soil, surface waters, groundwaters, land,stream sediments, surface or subsurface strata and ambient air; (d) "Environmental Condition" shall mean any condition with respect to the Premises,whether or not yet discovered,which could or does result in any Environmental Damages, ; including any condition resulting from the operation of Tenant's business or the operation of the business of any subtenant or occupant of the Premises or that of any other property owner or operator in the vicinity of the Premises or any activity or operation formerly conducted by any Person on or off the Premises; 1 F WWSKERIC M B1Michipn-Lincoln Phial h=InPlamGrndlse9-17a(E q wpd August 30,1999(2:49PM) . ff- .559 it (e) "Environmental Damages" shall mean all claims, judgments,damages (including punitive damages),losses, ties,fines,liabilities(including strict liability),penalties, ( g encumbrances, liens,costs and expenses of investigation and defense of any claim,whether or not such is ultimately defeated, and of any settlement or judgment, of whatever kind or nature, contingent or otherwise, matured or unrnatured,foreseeable or unforeseeable,any of which are incurred at any time as a result of the assessment,monitoring,remediation or mitigation of an Environmental Condition(and shall include any damages for the failure to do so), including, without limitation, fees incurred for the services of attorneys, consultants, contractors, experts, laboratories and all other costs incurred in connection with investigation and remediation,including the preparation of any feasibility studies or reports and the performance of any remedial, abatement, containment, closure, restoration or monitoring work; (f) "Permit"shall mean any environmental permit,license,approval,consent or authorization issued by a federal,state or local governmental or quasi-governmental entity; (g) "Release"shall mean anyreleasing,seeping,spilling,leaking,pumping,pouring, emitting,emptying,discharging,injecting,escaping,leaching,disposing or dumping of a Hazardous Material into the Environment;and (h) "Threat of Release" shall mean a substantial likelihood of a Release which requires action to prevent or mitigate damage to the Environment which may result from such Release. r Section 35.2 Representations and Warranties of Tenant. ' Tenant represents and warrants that it has made such physical inspection of the Land,and has - inspected such records of the City,Miami-Dade County,Florida,the State of Florida,and the United States of America,as Tenant deemed necessary to make an informed business decision that it would enter into this Lease with the knowledge that Tenant shall be solely responsible forthe remediation and abatement of any Environmental Condition existing as of the Commencement Date, including any ' Environmental Condition caused by Owner or any prior owner of the Land,that must be remediated and/or abated pursuant to any Environmental Laws. Tenant agrees to expeditiously undertake such assessment,remediation,and monitoring of the soil and ground water as required under applicable Environmental Laws;and to take such action as necessary to obtain allo Further Action determination from DERM or DEP, if required under Environmental Laws as soon as may be practical after the Possession Date,and,in any event;prior to the commencement of construction of the Project. Tenant agrees that in connection with any remediation or abatement pursuant to this Section 35.2 it will provide to Owner all correspondence,reports,studies and other documents exchanged.between Owner, its consultants,and DERM or DEP promptly after those documents are provided to or received from DERM or DEP. ' i 1 P 1MIN3KERIC M B\Michipn-Lincoln.PlazalLincolnPl=Gmdlse8-17a(Ex)wpd 1 August 30,1999(2:49PM) -106- i Section 35.3 Use of Hazardous Materials. Tenant shall not cause or permit any Hazardous Material to be brought on,kept or used in or about the Premises except as necessary or useful to Tenant's business and in compliance with all Environmental Laws. Section 35.4 Tenant Indemnification of Owner. Tenant hereby indemnifies and holds harmless the Owner Indemnified Parties from and against any and all Environmental Damages to the Premises during the term of this Lease except for Environmental Damages to the Premises caused by any of the Owner Indemnified Parties during the Term. Such obligation of Tenant shall include the burden and expense of defending all claims,suits and administrative proceedings(with counsel reasonably satisfactory to Owner),even if such claims,struts or proceedings are groundless,false or fraudulent,and conducting all negotiations of any description, and paying and discharging,when and as the same become due,any and all judgments,penalties or other sums due against any of the Owner Indemnified Parties. Without limiting the foregoing,if the presence or Release on or from the Premises caused or permitted by Tenant results in contamination of the Premises,Tenant shall promptly take all actions at its sole cost and expense as are necessary to remediate the Premises in compliance with Environmental Laws in effect from time to time and to comply with any requirements imposed by any Governmental Authorities; provided that Owner's approval of such actions shall first be obtained. Section 35.5 Compliance. Tenant,at its sole cost and expense(except as otherwise provided in this Lease),shall comply - and cause the Acceptable Operator, all Master Subtenants and all subtenants to comply with all Environmental Laws with respect to the use and operation of the Premises. Section 35.6 Notices. If Tenant or Owner receives any notice of a Release, Threat of Release or Environmental Condition or a notice with regard to air emissions, water discharges, noise emissions, recycling, violation of any Environmental Law or any other environmental, health or safety matter affecting Tenant or the Premises (an "Environmental Complaint") independently or by notice from any Governmental Authority having jurisdiction over the Premises,including the EPA,or with respect to any litigation regarding Environmental Conditions at or about the Premises,then such party shall give prompt oral and written notice of same to the other party detailing all relevant facts and circumstances. Section 35.7 Owner's Remedies. i Provided Tenant does not diligently commence to remediate the applicable Environmental Conditions promptly after becoming aware of the same and thereafter diligently pursue the completion I�I thereof in a reasonable time(and in any event in accordance with Requirements),Owner shall have the right,but not the obligation,to enter onto the Premises and remediate the Premises in compliance with i i - nc P1a7d\UncolnPlanGmdb08-17a d I F tMII�ISKBRIC M B1Niich gin L! oln (Bx)wp Augod 30,1999(2:49PM) -107- Section 35.3 Ilse of Hazardous Materials. Tenant shall not cause or permit any Hazardous Material to be ffv�A p" r about the Premises except as necessary or useful to Tenant's busine Ul )C t 1 Environmental Laws. Section 35.4 Tenant Indemnification of Owner. Tenant hereby indemnifies and holds harmless the Owner Indemnified Parties from and against any and all Environmental Damages to the Premises during the term of this Lease except for Environmental Damages to the Premises.caused by-any of the Owner Indemnified Parties during the Term. Such obligation ofTeaant shall incude the burden and expense ofdefending all claims,suits and administrative proceedings(with counsel reasonably satisfactory to Owner),even if such claims,suits or proceedings are groundless,false or fraudulent,and conducting all negotiations of any description, and paying and discharging,when and as the same become due,any and all judgments,penalties or other suns due against any of the Owner Indemnified Parties. Without limiting the foregoing,if the presence or Release on or from the Premises caused or permitted by Tenant results in contamination of the Premises,Tenani shall promptly take all actions at its sole cost and expense as are necessary to remediate the Premises in compliance with Environmental Laws in effect from time to time and to comply with any requirements imposed by any Governmental Authorities; provided that Owner's approval of such actions shall first be obtained. Section 35.5 Compliance. Tenant,at its sole cost and expense(except as otherwise provided in this Lease),shall comply _ and cause the Acceptable Operator, all Master Subtenants and all subtenants to comply with all Environmental Laws with respect to the use and operation of the Premises. Section 35.6 Notices. If Tenant or Owner receives any notice of a Release,Threat of Release or Environmental Condition or a notice with regard to air emissions, water discharges, noise emissions, recycling, violation of any Environmental Law or any other environmental,health or safety matter affecting Tenant or the Premises (an "Environmental Complaint") independently or by notice from any Governmental Authority having jurisdiction over the Premises,including the EPA,or with respect to any litigation regarding Environmental Conditions at or about the Premises,then such party shall give prompt oral and written notice of same to the other party detailing all relevant facts and circumstances. Section 35.7 Owner's Remedies. Provided Tenant does not diligently commence to remediate the applicable Environmental Conditions promptly after becoming aware of the same and thereafter diligently pursue the completion thereof in a reasonable time(and in any event in accordance with Requirements),Owner shall have the right,but not the obligation,to enter onto the Premises and remediate the Premises in compliance with 1;AM1NSKEK%C.M.B\Michipn-Lincoln Pl an\LincolnPI=Grndlsc&17gEx).wO August 30,1999(2:49PM) -107- I K C; ��'QPG Environmental Laws in effect from time to time and to comply with any requirements imposed by any Governmental Authorities,at Tenant's sole cost and expense, upon its obtaining knowledge of such matters independently or by receipt of any notice from any Person,including the EPA. Section 35.8 Defaults. From and after the Possession Date, the occurrence of any of the following events shall constitute an Event of Default under this Lease: (a) if the EPA or any other federal,state or local body or agency creates a lien upon the Premises which is not discharged by payment or bonding within ninety(90)days except inthe event said lien is the result of Environmental Damages caused by any of the Owner Indemnified Parties during the Tenn;or (b) if the EPA or any other federal, state or local body or agency makes a claim (which shall mean,for the purposes of this Section 35.8,issuance of a warning notice,citation,notice of violation or adminisirative complaint)against Tenant(or any subtenant,licensee or other occupant of the Premises),the Premises or Owner, for damages or cleanup costs related to a Release or an Environmental Complaint on or pertaining to the Premises;provided however,such claim shall not constitute an Event of Default if,within thirty(30)days of the lien or claim: (i) Tenant has commenced and is diligently pursuing either: (x) cure or correction of the event which constitutes the basis for the lien or claim and continues diligently to pursue the cure or correction to the satisfaction of the Governmental Authority that asserted the lien or claim and obtains the discharge of any lien,or(y)proceedings for an injunction, restraining order, administrative or other appropriate emergency relief contesting the validity of the claim and,if such relief is granted,the emergency relief is not thereafter dissolved or reversed on appeal;and (ii) Tenant has posted a bond,letter of credit or other security satisfactory in form and substance to Owner to secure the proper and complete cure or correction of the event which constitutes the basis of the claim. The amount of the bond,letter of credit or other security shall be determined in the following manner: (A) Owner, Tenant and their respective I consultants shall use their best efforts to agree upon the most probable i cost to cure or correct the event which constitutes the basis of the claim; (B)in the event Owner and Tenant are unable to agree despite their best efforts,Owner's consultant and Tenant's consultant shall select a third consultant who shall provide an estimate of the most probable cost of curing or correcting the event which constitutes the basis of the claim. Owner and Tenant shall each pay the cost of their own consultant under F kN MSKSRIC M Mfohigen-Liucoln PlazalLincoMazRQMdlse8-17a(Bx)wpd Augusf30,1999(2 49PK I i i OFCF.. 18 �2 RF this 35.8(b)(ii)and shall share evenly the cost of the third consultant should use of a third consultant become necessary. Section 35.9 Owner Responsibility. Owner(in its proprietary capacity)is responsible for all Environmental Damages resulting from an Environmental Condition caused by any of the Owner Indemnified Parties during the Term. Section 35.10 Survival. The provisions of this Article 35 shall survive the Expiration of the Term. Article 36-Reciprocal]nights of First Refusal Section 36.1 Tenant'a Reciprocal Right of First Offer. (a) If, during the Term, Owner shall desire to sell,convey or otherwise transfer, directly or indirectly, all of such Owner's estate in and to the Premises (a"Right of First Offer Transaction"),such Owner shall first deliver to Tenant a Notice(an"Offer Notice")thereof setting forth the material terms of such proposed Right of First Offer Transaction. For a period of forty-five (45)days after Tenant's receipt of the Offer Notice,Tenant shall have the right to elect in writing to consummate the Right of First Offer Transaction described therein at the price and upon such other i material terms set forth in the Offer Notice. As used in this Section 36.1,the material terms of a Right of First Offer Transaction shall be the terms set forth in Exhibit 36.1(a) attached hereto and incorporated by reference herein. - k (b) If Tenant does not consummate a Right of First Offer Transaction pursuant to this Section 36.1,Owner shall have the right to consummate the proposed transaction with any other Person upon such terms and conditions as shall be no less favorable to Owner than those which are set forth in the Offer Notice,within one hundred eighty(180)days following the earlier of(i)the expiration of such forty-five (45)day period or(ii)the receipt by Owner of a notice from Tenant stating that Tenant does not elect to consummate such Right of First Offer Transaction. If Owner shall fail to consummate the Right of First Offer Transaction as set forth in such Offer Notice within such one hundred eighty 180 da eriod subject to extensions not to exceed in the aggregate,sixty(60)days), g tY( ) YP (subject � Y ), the provisions of this Section 36.1 shall be applicable to any future Right of First Offer Transaction, Notwithstanding anything to the contrary contained herein,Owner may,in good faith,negotiate with any other Person the terms and conditions of a Right of First Offer Transaction that Tenant has elected not to consummate; provided, however, that if the material terms of such Right of First Offer Transaction are modified so that such terms,when so modified,are less favorable to Owner,then such i transaction shall be deemed a new Right of First Offer Transaction and the provisions of this Section ! 36.1(including,without limitation,Section 36.1(a)),shall be applicable with respect to such Right of 1 First Offer Transaction;provided,further,however,that such Owner may modify the material terms of any such Right of First Offer Transaction and provide notice thereof to Tenant as provided herein, i only once. Owner shall give twenty(20)days'notice to Tenant of the terms of any Right of First Offer P VA NSKERT M B1M1cb1pn-1inco1n Plaza\L1nco1nP1mGrnd1se8-17a(Bx)wpd Augost 30,1999(2:49PM) ®g- t A c-. 1877OF9 563 r Transaction as so modified prior to consummating the same,so that Tenant may determine whether such modifications are sufficiently material that Tenant now desires to consummate such Right ofFirst Offer Transaction. If Tenant does not elect to consummate a Right ofFirst Offer Transaction pursuant to this Section 36.1, Owner shall provide Tenant with a true, complete and correct copy of the executed purchase agreement for such Right ofFirst Offer Transaction not less than ten(10)days prior to the closing of such Right of First Offer Transaction. (c) Owner and Tenant shall diligently undertake to consummate any Right of First Offer Transaction involving Tenant under this Section 36.1 as soon as practicable after Tenant's election as hereinabove described. If Tenant defaults in its obligation to close the Right ofFirst Offer Transaction in accordance with the terms thereof(subject to reasonable extensions not to exceed,in the aggregate,sixty(60)days),the foregoing right of first offer shall be null and void with respect to any f tture Right of First Offer Transaction. (d) In addition,Owner may not sell such interest in the Premises together with any other interests or other assets. Any sale of the Premises together with any other interests or other assets,shall be null and void and of no effect. (e) If Tenant does not exercise its right of first offer and Owner consummates its Right of First Offer Transaction,the purchaser shall be deemed to have acquired the Premises subject to the provisions of this Lease and the purchaser shall be deemed to have assumed the obligations of Owner hereunder accruing from and after the effective date of such consummation,and Owner shall � deliver to Tenant, or shall cause to be delivered to Tenant,within ten(10)business days after the execution thereof,a true,complete and correct copy of an executed instrument of transfer and a true, complete and correct copy of an instrument of assumption by the transferee of Owner's obligations under this Lease accruing from and after the date of such transfer. (f) If an owner does not comply with the terms of this Section 36.1,any Right of First Offer Transaction entered into by such owner shall have no validity and shall be null and void and without effect. (g) Notwithstanding the foregoing provisions of this Section 36.1,Owner may not institute the procedures set forth herein for a Right of First Offer Transaction more than once in any fiscal year,except with respect to any modifications of the Right ofFirst Offer Transaction as provided in Section 36.1(b). Section 36.2 Owner's Reciprocal Right of First Refusal. (a) If,during the Term,Tenant shall desire to sell,convey or otherwise transfer, directly or indirectly, all of such Tenant's estate in and to the Premises (a "Right of First Offer Transaction"),such Tenant shall first deliver to Owner a Notice(an"Offer Notice")thereof setting forth the material terms of such proposed Right of First Offer Transaction. For a period of forty-five (45)days after Owner's receipt of the Offer Notice,Owner shall have the right to elect in writing to ; consummate the Right of First Offer Transaction described therein at the price and upon such other F 1MINSKERIC M BNichi n-Lincoln Plazs\LincoMe=Qmdlse8-17a(Ex)wpd August 30,1999(2:49PM) -110- A BnUX- 564 R material terms set forth in the Offer Notice. As used in this Section 36.2,the material terms of a Right I of First Offer Transaction shall be the terms set forth in Exhibit 36.2(x) attached hereto and incorporated by reference herein. (b) If Owner does not consummate a Right of First Offer Transaction pursuant to Y this Section 36.2,Tenant shall have the right to consummate the proposed transaction with any other Person upon such terms and conditions as shall be no less favorable to Tenant than those which are set forth in the Offer Notice,within one hundred eighty(180)days following the earlier of(i)the expiration of such forty-five (45)day period or(ii)the receipt by Tenant of a notice from Owner stating that Owner does not elect to consummate such Right of First Offer Transaction. If Tenant shall fail to consummate the Right of First Offer Transaction as set forth in such Offer Notice within such one hundred eighty(180)dayperiod(subjectto extensions not to exceed,in the aggregate,sixty(60)days), the provisions of this Section 36.2 shall be applicable to any future Right of First Offer Transaction. Notwithstanding anything to the contrary contained herein,Tenant may,in good faith,negotiate with any other Person the terms and conditions of a Right of First Offer Transaction that Owner has elected not to consummate; provided, however, that if the material terms of such Right of First Offer Transaction are modified so that such terms,when so modified,are less favorable to Tenant,then such transaction shall be deemed a new Might of First Offer Transaction and the provisions of this Section 36.2(including,without limitation,Section 36.2(x)),shall be applicable with respect to such Right of First Offer Transaction;provided,further,however,that such Tenant may modify the material terms of any such Right of First Offer Transaction,and provide notice thereof to Owner as provided herein, only once. Tenant shall give twenty(20)days'notice to Owner of the terms of any Right of First Offer Transaction as so modified prior to consummating the same,so that Owner may determine whether such modifications are sufficiently material that Owner now desires to consummate such Right of First Offer Transaction. If Owner does not elect to consummate a Right of First Offer Transaction pursuant _ to Section 36.2,Tenant shall provide Owner with a true,complete and correct copy of the executed purchase agreement for such Right of First Offer Transaction not less than ten(10)days prior to the closing of such Right of First Offer Transaction. (c) Tenant and Owner shall diligently undertake to-consummate any Right of First Offer Transaction involving Owner under this Section 36.2 as soon as practicable after Owner's election as hereinabove described. If Owner defaults in its obligation to close the Right of First Offer Transaction in accordance with the terms thereof(subject to reasonable extensions not to exceed,in the aggregate,sixty(60)days),the foregoing right of first offer shall be null and void with respect to any future Right of First Offer Transaction. (d) In addition,Tenant may not sell such interest in the Premises together with any other interests or other assets. Any sale of the Premises together with any other interests or other assets, shall be null and void and of no effect. (e) I£Owner does not exercise its right of first offer and Tenant consummates its Right of First Offer Transaction,the purchaser shall be deemed to have acquired the Premises subject to the provisions of this Lease and the purchaser shall be deemed to have assumed the obligations of Tenant hereunder accruing from and after the effective date of such consummation,and Tenant shall f P:VvUNSKERIC M Michigan-Uncoln P(m\UncoluPimOmdlse8-17a(Ex).wpd August 30,1999(2:49PM) .�� WEHORM 555 deliver to Owner, or shall cause to be delivered to Owner, within ten (10)business days after the f execution thereof,a true,complete and correct copy of an executed instrument of transfer and a true, complete and correct copy of an instrument of assumption by the transferee of Tenant's obligations under this Lease accruing from and after the date of such transfer. (0 If a tenant does not comply with the terms of this Section 36.2,any Right of First Offer Transaction entered into by such tenant shall have no validity and shall be null and void and without effect. (g) Notwithstanding the foregoing provisions of this Section 36.2,Tenant may not institute the procedures set forth herein for a Right of First Offer Transaction more than once in any fiscal year,except with respect to any modifications of the Right of First Offer Transaction as provided in Section 36.2(b). Section 36.3 Assignment. The rights of Tenant pursuant to Sections 36.1 and 36.2 above shall not be severed from Tenant's Interest in the Premises and shall be assigned, transferred or otherwise conveyed to the transferee only upon a Sale of the Project or a Foreclosure Transfer. Section 36.4 No Merger. Notwithstanding anything set forth to the contrary in Sections 36.1 through 36.3,under no circumstances shall the fee estate of Owner and the leasehold estate created hereby merge,even though owned by the same party,without the prior written consent of the holder of a Recognized Mortgage. Article 37-Miscellaneous Section 37.1 Governing Law. This Lease shall be governed by,and construed in accordance with,the laws of the State of Florida,both substantive and remedial,without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Lease shall be Miami-Dade County,Florida,if in state court, and the U.S.District Court,Southern District of Florida,if in federal court. Section 37.2 References and Interpretation of Lease. (a) Captions. The captions of this Lease are for the purpose of convenience of reference only,and in no way define,limit or describe the scope or intent of this Lease or in any way affect this Lease. All captions,when referring to Articles or Sections,refer to Articles or Sections in this Lease,unless specified otherwise. (b) Table of Contents. The Table of Contents is for the purpose of convenience of reference only,and is not to be deemed or construed in any way as part of this Lease. f P VvII =x1C M B%miehigan-Lincoln Plan\LhminPlazaGmdlse8-17a(Ex).wpd August 30,1999(2 4MO -112- REC. (c) Reference to Owner and Tenant. The use herein of the neuter pronoun in any ! reference to Owner or Tenant shall be deemed to include any individual Owner or Tenant,and the use herein of the words"successors and assigns"or"successors or assigns"of Owner or Tenant shall be deemed to include the heirs,legal representatives and assigns of any individual Owner or Tenant. (d) City's Governmental Capacity. Nothing in this Lease or in the parties'acts or omissions in connection herewith shall be deemed in any manner to waive,impair,limit or otherwise affect the authority of the City in the discharge of its police or governmental power. (e) Reference to"hereinf°,"hereunder",etc. All references in this Lease to the terms "herein", "thereunder"and words of similar import shall refer to this Lease,as distinguished from the paragraph,Section or Article within which such term is located. (f) Reference to"Approval"or"Consent",etc. All references in this Lease to the terms"approval"."consent"and words of similar import shall mean"reasonable written approval" or"reasonable written consent"except where specifically provided otherwise. (g) Singular and Plural,Gender,Etc. Words importing singular number shall include the plural number in each case and vice versa,and words importing"persons"shall include fiinlns,associations,corporations,and other entities,including governments and governmental bodies, as well as natural persons,unless the context shall otherwise indicate. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders,and vice versa,as the context may require. Section 37.3 Entire Agreement. This Lease, together with the attachments hereto, contains aU of the promises, agreements, conditions,inducements and understandings between Owner and Tenant concerning the Premises and there are no promises, agreements, conditions, understandings, inducements, warranties or representations, oral or written, express or implied,between them other than as expressly set forth herein and in such attachments hereto or as may be expressly contained in any enforceable written agreements or instruments executed simultaneously herewith by the parties hereto. Notwithstanding anything to the contrary set forth in this Lease,the terms of this Lease shall supersede the terms of the RFP and Tenant's response thereto. Section 37.4 Counterparts. i i This Lease may be executed in counterparts,each of which shall be deemed as original but all of which together shall represent one instrument. i Section 37.5 Waiver,Modification,Etc. No covenant,agreement,term or condition of this Lease shall be changed,modified,altered, f waived or terminated except by a written instrument of change,modification,alteration, waiver or j F:IMIIVSKER\C M B%Wchigan-Lincoln Pla=V-h InPl=Gmdlse&.17a(F%)wpd August 30,1999(2 49PM) _ �3 AEC. termination executed by Owner and Tenant. No waiver of any Default or default shall affect or alter I this Lease,but each and every covenant,agreement,term and condition of this Lease shall continue in full force and effect with respect to any other then existing or subsequent Default or default thereof. Section 37.6 Effect of Other Transactions. No Master Sublease, Mortgage or other agreement of any kind, whether executed simultaneously with this Lease or otherwise, and whether or not consented to by Owner, shall be deemed to modify this Lease in any respect,and in the event of an inconsistency or conflict between this Lease and any such instrument,this Lease shall control,except where specifically stated otherwise herein. Section 37.7 Severability. If any provision of this Lease or the application thereof to any Person or circumstances is,to any extent,finally determined by a court of competent jurisdiction to be invalid and unenforceable,the remainder of this Lease,and the application of such provision to Persons or circumstances other than those as to which it is held invalid and unenforceable,shall not be affected thereby and each term and provision of this Lease shall be valid and enforceable to the fullest extent permitted by law. Section 37.5 Merger. Unless Owner,Tenant and all Mortgagees execute and record an agreement to the contrary, �. there shall be no merger of this Lease or the leasehold estate created hereby with the fee estate in the Premises or any part thereof by reason of the same Person acquiring or holding,directly or indirectly, _ this Lease and the leasehold estate created hereby or any interest in this Lease or in such leasehold estate as well as the fee estate in the Premises. Section 37.9 Remedies Cumulative. Each right and remedy of either party provided for in this Lease shall be cumulative and shall be in addition to every other right or remedy provided for in this Lease,or now or hereafter existing at law or in equity or by statute or otherwise(except as otherwise expressly Heated bythe terms of this Lease),and the exercise or beginning of the exercise by a party of any one or more of the rights or remedies provided for in this Lease,or now or hereafter existing at law or in equity or by statute or ' otherwise, except as otherwise expressly limited by the terms of this Lease, shall not preclude the simultaneous or later exercise by such party of any or all other rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise except as otherwise expressly limited by the terms of this Lease. i I 4 I FAMNSIERIC M B1Michipn-Lincoln PIaza\L.incoInPI=Gmd15e$-17a(&)"d August 30,1999(2;49PM) —114- REC OF 18770?0 Section 37.10 Performance at Each Party's Sole Cost and Expense. l Unless otherwise expressly provided in this Lease,when either party exercises any of its rights, or renders or performs any of its obligations hereunder,such party shall do so at its sole cost and expense. Section 37.11 Recognized Mortgagee Charges and Fees. Tenant shall pay any and all fees,charges and expenses owing to a Recognized Mortgagee in connection with any services rendered by it as a depositary pursuant to the provisions of this Lease. Section 37.12 Successors and Assigns. The agreements,terms,covenants and conditions herein shall be binding upon,and inure to the benefit of, Owner and Tenant and,except as otherwise provided herein,their respective permitted successors and permitted assigns and shall be construed as covenants running with the Land. Section 37.13 Recording of Lease. Tenant shall cause this Lease and any amendments hereto to be recorded in the Public Records of Miami-Dade County,Florida promptly after the execution and delivery of this Lease or any such amendments and shall pay and discharge all costs,fees and taxes in connection therewith. Section 37.14 Notice of Defaults. Notwithstanding anything to the contrary set forth in this Lease,under no circumstances shall any party to this Lease lose any right or benefit granted under this Lease or suffer any harm as a result of the occurrence of any Default or default of such party as to which Default or default such party has not received notice thereof from the other party. . i Section 37.15 No Liability of Officials and Employees of Owner or Tenant. It is expressly understood that this Lease and obligations issued hereunder are solely corporate obligations,and,except as otherwise provided in Article 19,that no personal liability will attach to, or is or shall be incurred by,the incorporators,stockholders,officers,members,partners,holders of other ownership interests,directors,elected or appointed officials(including,without limitation,the Mayor and Commissioners of the City and the members of any other governing body of Owner)or employees,as such,of Owner or Tenant,or of any successor corporation or other successor entity,or any of them,under or by reason of the obligations,covenants or agreements contained in this Lease or implied therefrom; and,except as otherwise provided in Article 19, that any and all such personal liability,either at common law or in equity or by constitution or stdtute,of,and any and all such rights and claims against, every such incorporator, stockholder,officer,member,partner,holder of other ownership interest,director,elected or appointed official(including,without limitation,the Mayor and Commissioners of the City and the members of any other governing body of Owner)or employee,as A WINSKEW M Michigan-Lincoln PIaza\UneoInPhnGmdlse8-I7a(Ex)wpd August 30,1999(2 49PM) w X�5 i IRE' 1 877OP9 569 such,or under or by reason of the obligations,covenants or agreements contained in this Lease or implied therefrom are expressly waived and released as a condition of,and as a consideration for,the execution of this Lease. Section 37.16 Conflict of Interest. Tenant represents and warrants that,to the best of its actual knowledge,no member,official or employee of the City has any direct or indirect financial interest in this Lease,nor has participated in any decision relating to this Lease that is prohibited by law. Tenant represents and warrants that,to the best of its knowledge,no officer,agent,employee or representative of the City has received any payment or other consideration for the making of this Lease,directly or indirectly,from Tenant.Tenant represents and warrants that it has not been paid or given,and will not pay or give,any third person any money or other consideration for obtaining this Lease, other than normal costs of conducting business and costs of professional services such as architects, engineers, and attorneys. Tenant acknowledges that Owner is relying upon the foregoing representations and warranties in entering into this Lease and would not enter into this Lease absent the same. Section 37.17 No Partnership or Joint Venture. The parties hereby acknowledge that it is not their intention under this Lease to create between themselves a partnership,joint venture,tenancy-in-common,joint tenancy,co-ownership or agency relationship for the purpose of developing the Project, or for any other purpose whatsoever. Accordingly,notwithstanding any expressions or provisions contained herein,nothing in this Lease or the other documents executed by the parties with respect to the Project, whether based on the calculation of Rental or otherwise,shall be construed or deemed to create,or to express an intent to create, a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or agency relationship of any kind or nature whatsoever between the parties hereto. The provisions of this Section 37.17 shall survive Expiration of the'T'erm. Section 37.18 Time periods. Any time periods in this Lease of less than thirty(30)days shall be deemed to be computed based on business days(regardless of whether any such time period is already designated as being computed based on business days). In addition,any time period which shall end on a day other than a Business Day shall be deemed to extend to the next Business Day. i Section.37.19 Time is of the Essence. ' Time is of the essence with respect to all matters in,and requirements of,this Lease as to both Owner and Tenant,including,but not limited to,the times within which Tenant must commence and i complete construction of the Project. I� i f FAMINSKEM M B1M Aigan-Lincoln Pla=WneolnPlaaaamdlse817a(Ex)wpd August 30,1999(2:49PM) -116- 1 RED: 18770M 570 Section 37.20 Radon Notice. Chapter 88-285,Laws of Florida,requires the following notice to be provided with respect to the contract for sale and purchase of any building,or a rental agreement for any building: "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 inf ormation regarding radon and radon testing may be obtained from your county p ublic health unit." Section 37.21 No Third Party Beneficiaries. Nothing in this Lease shall confer upon any Person, other than the parties hereto and their respective successors and permitted assigns,any rights or remedies under or by reason of this Lease; provided, however,that a Recognized Mortgagee or its Designee shall be an intended third party beneficiary hereunder to the extent such Recognized Mortgagee or such Designee is granted rights hereunder. EXECUTION IN WMQSS WHEREOF,Owner and Tenant,intending to be legally bound,have executed this Lease as of the day and year first above written. WITNESSES: CITY OF MIAMI BE CH,FLOREDA, a municip oration of the State of Florida By: , Print Name: , a�- Neisen .Kasdin,Mayor �A . . ATTEST: f ,vifit ``''';� ;' ,` vb , ; Le By: Robert Pat6i,C ity [SEAL] APPROVED AS TO FORM&LANGUAGE &FOR MCU710N F.WNSKERT M BMohipn-Lincoln P1e=Ujnco1nF`J=Gmd1w8-17e(Ex)wpd Augast 30,1999(2:49PM) q -117- ..... 10 AA#tom&eWY tOU \" JLa STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADS ) The foregoing instrument was acknowledged before me this � day o 1999,by Neisen O.Kasdin,as Mayor,and Robert Parcher,as City Clerk,of the+COF MIAMI BEACH,FLORIDA, a municipal corporation of the State of Florida,on behalf of such municipal corporation. They are person! own to me or-p uenws=-as--- My commission expires: / FFI�'.fALNOTAR S �•G ' LILLUN BEAUCI"P [INGrARY PUBLIC sr Kfa of FLORIDA otary Public,State of Florida CUMIv1M10N NO CC7':18971 Print Name: IVIY(DM IS„;(UN fi}ci -.292002 S S LINCOLN PLAZA PARTNERS LLC, a Florida limited liability company By: SRC Lincoln Plaza LLC,a Florida tN /e: - to 'ability company,as Managing Member e By: Prin �'o , N anaging Member STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me l y of 1999,by Scott Robins,as Managing Member of SRC Lincoln P za LC lorida limited liability company,the Managing Member of LINCOLN PLAZA PAR E a Flo ' a limited liability company,on behalf of such limited liability company. He is rs nall o me or produced a valid Florida driver's license as identification. i My commission expires: otary Public, State o Florida Print Name: ' i Stuart K.Hoffman : 1=MY COMNCSSION#00499242 EXPIRE& • Oat*r 6,1999 90NDM M M PAf N IN6UBAdICa,IK - I F:IMINSKERIC M B%Gchigan-Lincoln P1a=VA=olnPkmomdlse8-17a(Ex)wpd August 30,1999(2:49PM) -118- 1 �• 7M 51Z List of Exhibits Exhibit"A" Legal Description of the Land Exhibit 2.1 Title Matters Exhibit 8.2 Article 2 of the Development Agreement Exhibit 10.4 Ownership Interest in Tenant Exhibit 14.1(a) Parking Garage Maintenance Manual Exhibit 14.1(b) Parking Facility and Common Grounds Maintenance Schedule Exhibit 14.1(c) Owner's Operating Standards Exhibit 36.1(a) Terms of Tenant's Right of First Offer Transaction Exhibit 36.2(a) Terms of Owner's Right of First Offer Transaction i F:1 ANSKERT M Michigan-Lincoln PI=\LincoI0Pk=Gmdlse8-17e(Bx)wpd ' August 30,1999(2:49PM) 1 1 8770FU 5Z3 EXHI T"A" LEGAL DESCRIPTION PARCEL_1 Lots 7 through 10,and Lots 16 through 20,Block 37,PALM VIEW SUBDIVISION, as recorded in Plat Book 6,Page 29 of the Public Records of Miami-Dade County, Florida PARCEL 2 Lots 14 and 15,Block 37,PALM VIEW SUBDIVISION,according to the Plat thereof, recorded in Plat Book 6,at Page 29,of the Public Records of Miami-Dade County, Florida. f I F IMWSKERIC M H1Michigan-Linooln.l h=XLinoolnPlezELGM1se8-17s(Ex)wpd . August 30,1999(2:49PM) f 574 EX-MIT 2.1 t MLE MATTERS As to Parcels 1 and 2 Taxes for the year 1999 and subsequent years. i r 1 i i r P IMINSKERIC M B1Michigan-Lincoln Plm\LincolnPbzaGmdIseB-17a(Bx)wpd August 30,1999(2:49PM) , i � urr: 167TOM 5T5 EMBI T'8.2 1 ARTICLE 2 OF DEVELOPMENT AGREEMENT ARTICLE 2. CONSTRUCTION Section 2.1 Consistency!with City's Comprehensive Plan and ZoninRe ations. The City has adopted and implemented the Comprehensive Plan, The City hereby finds and declares that the provisions of this Development Agreement dealing with the Land are consistent with the City's adopted Comprehensive Plan and Land Development Regulations,subject to all applicable Requirements, Permits and Approvals. Section 2.2 Planning Board A al. (a) Developer has heretofore submitted an applicationto the Planning Board for its review of the Project,and the Planning Board has reviewed the Project. I (b) If at any time in the future it shall be necessary in connection with the construction,reconstruction or renovation of the Premises to apply to the Planning Board for its review or approval of any changes or modifications to the Premises,Developer shall be solely responsible for making such application. '. Section 2.3 pesign of the Project. (a) The Developer shall be solely responsible for the design of the Project,and such design shall be(1)substantially in accordance with the design shown in Developer's response to the Request for Proposals (RFP No. 20-97/98 (Amended))issued by the City on December 30, 1997, except to the extent that changes thereto have been negotiated with,and approved,by Owner,and(2) ; at the sole cost and expense of Developer. Developer shall be solely responsible for obtaining the approval of the City's Design Review Board,and the City's Historic Preservation Board or the Joint Board,if applicable,and the City shall have no duty or obligation to approve any particular design. Prior to submission of the Project design to the DRB and HPB or Joint Board,if applicable,Developer shall submit to Owner(acting in its proprietary capacity as owner of the Land)all of the Preliminary Plans and Specifications for the Project which shall include,but not be limited to,a detailed site plan, elevation drawings of each facade, a detailed door plan for each of the floors of the Project, a calculation of the floor areas for each floor of the Project, and a calculation of the total floor area dedicated to each use within the Project(the"Preliminary Plans and Specifications")which shall be i submitted to Owner's City Manager for approval within twenty-four(24)weeks of the Commencement Date. The City Manager shall have twenty(20)Business Days to review the Preliminary Plans and Specifications,and shall review the Preliminary Plans and Specifications solely for consistency with the F:V&NSKM\C M Me-hignn Lincoln P1ow\Unco1nP1=Gmd1se8-17a(Bx)wpd August 30,1999(2:49PhQ IT'- 1077, 191 -5T6 Developer's response to the RFP. If Owner disapproves the Preliminary Plans and Specifications,then Developer shall,at its election,either(x)submit Owner's disapproval to expedited arbitration pursuant to Section 3.6 and Section 22.1 as to the reasonableness of the disapproval,or(y)submit a revised modification to the Preliminary Plans and Specifications to meet Owner's objections,which revised modification shall be submitted and reviewed as provided in Section 3.1(b). Failure of the Developer to submit Preliminary Plans and Specifications by the date which is twenty-four(24)weeks from the Commencement Date shall constitute a Default under this Development Agreement. (b) Developer shall,within eight(8)weeks of Owner's approval of the Preliminary Plans and Specifications,submit an application for approval of the Project designto the City's Design Review Board and to the fistoric Preservation Board or Joint Board,if applicable. Failure of the Developer to submit its application,as provided in this Section,to the DRB and HPB or Joint Board, if applicable,by the date which is eight(8) weeks from the receipt of Owners Approval as above provided shall constitute a Default under this Development Agreement. (c) Developer shall pursue approval of its application to the DRB,HPB or Joint Board,if applicable,diligently and in good faith. Section 2.4 Public Facft—es and Concurrency. (a) Owner and Developer anticipate that the Project will be served by those roadway transportation facilities currently in existence as provided by state,county and local roadways.It is also anticipated that the Project will be served by public transportation facilities currently in existence, including those provided by Miami-Dade County,the City,and other governmental entities as may presently operate public transportation services within the City. Sanitary sewer,solid waste,drainage, and potable water services for the proposed Project are expected to be those services currently in existence and owned or operated by Miami-Dade County,the Miami-Dade County Water and Sewer Department,and the City. The Project will also be serviced by any and all public facilities,as such are ' defined in Section 163.3221(12), Florida Statutes (1997), as such are described in the City's Comprehensive Plan, specifically including, but not limited to, those facilities described in the Infrastructure Element and Capital Improvements Element therein,a copy of which is available for public inspection in the offices of the Planning,Design and Historic Preservation Department of the City of Miami Beach. The foregoing,however,shall not be deemed to be an approval of,nor shall it be deemed to relieve Developer of the obligation to comply with,Section 163.3180,Florida Statutes (1997). (b) Developer shall be solely responsible for obtaining all land use permits,including, ; but not limited to,all permits and approvals required pursuant to Section 163.3180,Florida Statutes (1997),with respect to concurrency requirements for roads, sanitary sewer, solid waste,drainage, potable water,parks and recreation(the "Concurrency Requirements"). Developer shall,within twenty-four (24) weeks of the Commencement Date, apply to the appropriate Governmental Authorities for letters or other evidence that the Project is pursuing all applicable Concurrency Requirements, and shall diligently and in good faith pursue such letters or other evidence that the i F\AMSKBRIC.M 81Miahigan-Lincoln P1aza\Uno01nP18=Gmd1se8-17a(Fx)wpd August 30,1999(2 49PM) Project meets all applicable Concurrency Requirements, or shall attempt to negotiate agreements t acceptable to Tenant to mitigate the impacts of developing the Project. Section 2.5 Plans and Specifications. (a) Upon receipt of the DRB's approval of the Project, and the HPB's or Joint Board's approval if applicable,Developer shall prepare Plans and Specifications for construction of the Project,consistent with the Preliminary Plans and Specifications,as approved by the DRB,and the BPB or Joint Board's, if applicable,for review by Owner. The Plans and Specifications shall be submitted to the Owner within thirty two(32)weeks from the date on which the DRB and the HPB or Joint Board, as applicable, approves the Project. Failure of the Developer to submit Plans and Specifications to the Owner within thirty-two(32)weeks from the date on which the DRB approves the Proj ect shall constitute a Default under this Development Agreement. The Plans and Specifications shall be reviewed by the City Manager solely for consistency with the Preliminary Plans and Specifications as the same have been modified by the DRB and HPB,or Joint Board,if applicable. If Owner disapproves the Plans and Specifications,then Developer shall,at its election,either(x)submit Owner's disapproval to expedited arbitration pursuant to Section 3.6 and Section 22.1 as to the reasonableness of the disapproval,or(y)submit a revised modification to the Plans and Specifications to meet Owner's objections,which revised modification shall be submitted and reviewed as provided in Section 3.1(b). (b) Developer shall pursue approval by the City of the Plans and Specifications diligently and in good faith. Section 2.6 Conditions Precedent to Developer's,Commencement of Construction o the Project. , (a) Developer shall obtain a Building Permit for the entire Project by not more than twenty-four(24) months from the Commencement Date and failure to do so shall constitute a Default under this Development Agreement. Subject to Section 2.6(c), Developer shall not Commence Construction of the Project unless and until(i)Developer shall have obtained and delivered to Owner's Consultant copies of all Permits and Approvals required to Commence Construction and(ii)Developer shall have delivered to Owner original certificates of the policies of insurance required to be carried pursuant to the provisions of Article 7 of this Agreement. (b) Owner(solely in its capacity as the owner of the Project Site and not in its governmental capacity) shall reasonably cooperate with Developer in obtaining the Permits and Approvals required by Sections 2.2(a)and 2.10(a)and any necessary utility access agreements,shall sign any application reasonably made by Developer which is required in order to obtain such Permits and Approvals and utility access agreements and shall provide Developer with any information and/or documentation not otherwise reasonably available to Developer (if available to Owner) which is necessary to procure such Permits and Approvals and utility access agreements. Any such accommodation by Owner shall be without prejudice to,and shall not constitute a waiver of,Owner's rights to exercise its discretion in connection with its governmental functions. Developer shall F WI[NSKERIC M BlMichigan-Lincoln Plen9\LincolaPlanarndlse8-17e(Ex)wpd August 30,1999(Z 49PM) Inc. 187708 518 reimburse Owner,within ten(10)days after Owner's demand,for any reasonable out-of-pocket cost f or expense payable to Owner's technical consultants(other than Owner's Consultant and Owner's employees), such as architects and engineers, so incurred by Owner in connection with Owner's assistance in obtaining the Permits and Approvals and utility access agreements required by Sections 2.6(a)and 2.10(x). (c) Developer shall not Commence Construction of the Project, or any portion thereof, unless and until Owner shall have approved the Plans and Specifications, as provided in Section 2.5. However, if Developer chooses to perform any Construction of the Project on a "fast-track"basis,Developer may request the necessary approval of Owner in stages and perform that portion of the Construction Work which has been approved(provided Developer shall comply with all other requirements with respect to such portion of the Construction Work),even if progress plans and specifications for other portions of the Construction Work have not yet been prepared. (d) Payment and Performance Bond. Prior to Commencement of Construction of the Project, Developer shall cause the General Contractor to furnish to Owner a payment and performance bond (the "Payment and Per°fomance Bond"), in a form reasonably acceptable to Owner, issued by a surety listed in the most recent United States Department of Treasury listing of approved sureties, guaranteeing the performance of the General Contractor under that certain guaranteed maximum price contract for the Construction of the Project. Owner may accept,in its sole and absolute discretion,for any reason and/or for no reason whatsoever,a completion guarantee from the General Contractor in substitution for such Payment and Performance Bond. Owner shall be named as a dual obligee under the Payment and Performance Bond;provided,however,Owner's rights under the Payment and Performance Bond shall be subordinate to the Recognized Mortgagee's(as defined in the Ground Lease)rights under the Payment and Performance Bond and Owner shall agree in writing i with such Recognized Mortgagee that Owner shall only seek to enforce its rights under the Payment and Performance Bond if the Ground Lease is terminated and such Recognized Mortgagee fails to exercise its rights under Section 11.6 of the Ground Lease for the execution of New Tenant's Documents(as defined in the Ground Lease). Section 2.7 Qommencement and Completion of Construction of the Proj,.ect. ' Developer shall at its expense(a)Commence Construction on or before sixty(60)days after all Permits and Approvals necessary for the Commencement of Construction are issued (the "Construction Commencement Date")and(b)thereafter continue to prosecute Construction of the Project with diligence and continuity to completion.If,after Developer has Commenced Construction, Developer fails to diligentlyprosecute Construction of the Project(subject to Unavoidable Delays),and such failure continues (subject to Unavoidable Delays) for thirty (30) consecutive days after Developer's receipt of notice of such failure,Owner shall,in addition to all of its other remedies under this Agreement and the Ground Lease,have the right to seek such equitable relief(either mandatory or injunctive in nature) as may be necessary to cause diligent and continuous prosecution of Construction of the Project(subject to Unavoidable Delays)by Developer,it being understood that Construction of the Project is a material inducement to Owner to enter into the Ground Lease and monetary damages shall be inadequate to compensate Owner for harm resulting from such failure. j F 1MIIQSKERIC M B1Michigatt-Lincoln PlazalLincoinPlaraQrnd l9e8-17a(Ex)wpd i August 30,1999(2:49PM) 1 I 1 Notwithstanding anything to the contrary contained herein,if Developer fails to Substantially Complete Construction of the Project by the Default Date,then the same shall constitute a Default sander this Agreement and under the Ground]Lease. Section 2.8 Completion of Construction of the.Project. (a) Substantial Completion ofthe Project shall be accomplished in a diligentmanner, and in any event by the Completion Deadline,and final completion ofthe Construction of the Project, including but not limited to completion of all punch-list items, shall be accomplished in a diligent manner thereafter,in each case in a good and workerlike manner,in substantial accordance with the Plans and Specifications (with no material deviations except as expressly permitted herein), in accordance with all applicable Requirements and,except as provided in Article 6,at Developer's sole cost and expense. (b) Upon Substantial Completion of Construction of the Project,Developer shall furnish Owner with the following: (i) a certification of the Architect(certified to Owner on the standard A.IAA certification form)that it has examined the Plans and Specifications and that,in its professional judgment, after diligent inquiry, Construction of the Project has been Substantially Completed in accordance with the Plans and Specifications applicable thereto and,as constructed,the Improvements complywith all applicable Requirements; (ii) if Requirements require the same, a copy or copies of the temporary certificates of occupancy for the Project(or portion thereof as applicable)issued by the City of Miami Beach Building Department; ; (iii) lien waivers in form and substance reasonably satisfactory to Owner from each contractor,subcontractor,supplier or materialman retained by or on behalf of Developer in connection with the Construction of the Project,evidencing that such Persons have been paid in full for all work performed or materials supplied in connection with the Construction of the Project; (iv) a complete set of "as built" plans and a survey showing the Improveanent(s)(excluding personalty)for which the Construction of the Project has been completed. Owner shall have an unrestricted license to use such"as built"plans and survey for any purpose related to the Project Site without paying any additional cost or compensation therefor,subject to copyright and similar rights of the Architect to prohibit use of designs for purposes unrelated to the Project Site,as such rights exist ' in law or may appear in the Architect's contract, and subject to applicable public records laws. The foregoing requirement with respect to "as built" plans shall be satisfied by Developer furnishing to Owner,at Developer's expense,a complete set of Plans and Specifications,with all addenda thereto and change orders in respect thereof, F WINSKEPW M B1Mlehigan-Lincoln Plaza\Mnco3nPJazaGmdW-17aMx)WO 1 Augnat 30,1999(2:49PM) i i C: 187, 01 550 marked to show all changes,additions,deletions and selections made during the course of the Construction of the Project;and (v) a Contractor's Final Affidavit in form and substance reasonably satisfactory to Owner executed by the General Contractor (i) evidencing that all contractors, subcontractors, suppliers and materialmen retained by or on behalf of Developer in connection with the Construction of the Project have been paid in full for all work performed or materials supplied in connection with the Construction of the Project and (ii)otherwise complying with all of the requirements under the Florida Construction Lien Law,Chapter 713,Florida Statutes,as amended. (c) In the event that Developer has not Substantially Completed construction ofthe Improvements by the Completion Deadline,Developer shall forfeit the Security Deposit held pursuant to Section 3.6 of the Lease to Owner as liquidated damages,and not as apenalty,the Parties agreeing that it is impossible to ascertain actual damages to Owner in the event that Developer does not Substantially Complete construction of the Improvements by the Completion Deadline. Section 2.9 Confirmation of Land Development Regulations. The City Commission held a duly noticed public hearing on July 7, 1999, after which it determined,pursuant to Section 142-425 of the City Code,that the zoning district classification of the Land under the Lease is CD-3,as defined in the Land Development Regulations. Section 2.10 R-gguke-d Development Permits. (a) Developer shall be solely responsible for obtaining the Development Approvals listed in Exhibit 2.10 attached hereto,if applicable. (b) There are no reservations and/or dedications of land for public purposes that are proposed under the terms of this Development Agreement. Section 2.11 Pwposed Permitted Development. The proposed permitted development on the Land shall not exceed a Floor Area Ratio (as defined in the City's Land Use Regulations)of 2.75,and the height of the development on the Land shall not exceed eighty(80)feet. Section 2.12 Developer's Right of Termixlat�on. Notwithstanding anything to the contrary contained herein,Developer shall have the right to be released from its liability and obligations[except the obligation to pay Rental and/or Impositions j prior to the Possession Date pursuant to Section 3.2(a)of the Ground Lease] and to terminate this Development Agreement and the Ground Lease prior to the Possession Date because(a)changes to the Preliminary Plans and Specifications required by the DRB,Joint Board,or any other(governmental l RWINSKEPW M Michigan-Lincoln P18=\Linoo1nP1awGmdr1se6-17eP)wpd August 30,1999(2 49PM) i Authority(including the City),render the Project economically unfeasible in the reasonable business i judgment of Developer,(b)the Project cannot meet concurrency requirements under Section 163.3180, Florida Statutes(1997),or the costs of concurrency mitigation are,in the reasonable business judgment of Developer,economically unfeasible,or(c)Developer,after good faith efforts,has been unable to obtain a full building permit for the Project pursuant to the Plans and Specifications submitted by Developer. In the event oftermination ofthis Development Agreementand the Ground Lease pursuant to this Section 2.12,each Party shall bear its own costs and expenses incurred in connection with this Development Agreement and the Ground Lease and neither Party shall have any farther liability to the other. i F-WMSKERVC M.B Mlahipn-Lincoln Pla=\UacobPlazaGmdlse8-17a(Ex)wpd August 30,1999(2:49PNI) I orr REC EXHIBIT 10.4 OWNERSHIP INTEREST IN T NANT Member Percentage Membership Interest Owned SRC LM* cola Plaza LLC, a Florida limited 49 liability company - owned by Scott Robins(100%) RDP Lincoln Plaza LLC, a Florida limited 49 liability company - owned by R.Donahue Peebles(100%) Michael A ilberg 2 TOTAL 100 i I F V4WSKERIC M B1MIchl Lincoln Plaza\Linc hMozaOrndlsa8-17aP)wpd 1� August 30.1999(2:49PM) RMG GARAGE __ '�C NAN' 'MAMIAL A.Publication of the National Parkin'Associati-onlPi arking Consultants Council OTC 440 �j�o x r ® C t'' PARKIIV A A MAIIVT IVAIV MAIVUA August 1995 A NP"CC Maintenance Manual Committee James E. Stai f, Chairman Larry D. Church Mark Hof f=n Thomas J.D'Arcy Froward R. May Abraham Gutman Stephen J. Shannon Forrest N. Hibbard .Ronald J. Van Der Mead i Q 1996!National Parkin g Association {i 1112 16th Street, NV� Suite 300 Washington, DC 20036 r. H a..•« Telephone 800/647-PARK or 2021296-4336 Fax 202/331.8523 ITT 554 'PAR1{1IV[�C!]NSiaLT�1►, . • :C[1U11fCII CL MMITT E;MEMB w I • IUchard S.Beebe Larry Donoghue Forrest Hibbard C Group Larry Donoghue &Associates Carl Walker,Inc. Mt.Prospect,IL Park Badge,LL Atlanta, GA Richard N.Best Robert S.Engle• Mark Hoffman Richard N BestAssodates,L= Oakland, CA THP Limited Levittown,PA Cincinnati, OH Thomas Feagaius,Jr. Charles V.Boldon Parking Pros Norman G.Jacobson,Jr: International Parking Design Humble, TX N.G.Jacobson&Associates Inc. Sherman Oaks, CA Seattle, WA John.F 4iw= George NI.Burton Desman Associates Dan Jeremitsl3y GAL Burton Consulting. New York,NY Square Industries Bondi,N.S.W.Australia Jersey Cary,NJ Neale D.George J.Richard Choate Read Jones Christoffersen,Ltd. Robert P.Jurasin,F.E. Walker Parking Vancouver,British Columbia 'Wilbur Smith Dissociates C rs,Inc. New haven, CT Newport Beach, CA Norman Le Goldanan Desman Associates,IucJPDI Jean,X Keneipp Anthony P.Cbrest Farmington, CT Barton Aschman.Associates Walker Paring Chicago,IL Consultants/Engineers,Inc. Abraham Gutman $alamarzoo,MI Lev Zetli3a Associates Kenneth Kowall New York,NY Consulting Engineers Group Larry Church mt. Prospect,LL Walker Parking Dewey Hemba Consultants/Engineers,Inc. G•raef,Anhalt,Schloemer& Robert A.Leisk,P.E. Elgin,IL Associates,Inc. Zbrcon Milwaukee, W7 Radnor,PA Thomas J.D'Arcy Consulting Engineers Group Scott B.Herman L Paul Lew San Antonio, TX FIMA/Pacaf.c Lev Zetlin Associates Redondo Beach; CA New York,NY i U EC. 187TOPC P�+f►�i4I�t CAIV!S i�i'A►1'1DT �C[][JNC�L �ON�I�!{�TE:�MEMBERS Howard D.Li'nders Richard C.Rich William Surna Walker Parking Mich and Associates, Inc. Graef j Anhalt,Schloemer& Consultant ngia®.eers,Inc. Southfield,W Associates,Inc. Kalamazoo,MT Milwaukee, WI Gerald Salzman Flax B.I nk Barton-Aschmar Associates Keith C.Thornton Rex B. Link&Associates Chicago,m Thornton Engineering P.C. Los Angeles CA Hackensack,NJ Richard Sawka Chri a Luz,P.E. Allright Planning Inc. Ronald Van Der Weid HNTB.Corporation Houston.. TX Sear Brown Group Milwaukee, WI Rochester,NY Michael P.Schaefer Howard R.May Springsted Incorporated Will Van Dyke Desinan Associates St Paul,DIN Barton-Aschman Associates Chicago,IL Chicago,FL gold J.Schulke Donald Monahan Mmr ey-Horn and David,Vogel ° Walker parking Associates,Ina Alinght Planuasng,Into Consultants/Engineers,Inc. Houston, TS Houston, IX Englewood, CO Stephen J.Shannon FL Carl Walker Dip Nandwania Carl Walker,Inc. Carl Walker,Ina. International Parking Design Turnerw lre,NJ Halamazoa,W Oakland, CA. f Maxi*Smith Robert Weaat Bryan Redlin Walker Parking Muforry CT GRAELIC Cans ultantslEngineers,Inc. _ Cleveland, OH Indianapolis,IN Norman R.Webster Read Janes ChzieWfleisen,Ltd Richard A.Rich James E.Staif Calgary,Alberta Rich and Associates,Inc. Carl Walker,Inc. Southfield,*ff Dallas, TX i i I {: .•.,:.•xw "i.wi+,vri •t+,•�•.«• .•••t„MT_.tt-{7'J�'JJ1a♦�7;%;!'x►+•r::y '••ta++a: ,..a. 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Y'r••�•(•• r•+.1. •..L•�'•�j%6•: •r�'.•�'"..�r+w• 3: i �'+:.a"LAi+.rt►►t�•'+•:wr .•y ,Jr4•wI• �R_ •• -+ E: •,-0�iL 1.- CA+ t, ♦ • •J•_fir•{• !• (y '•S 5��, _ •___I'CM � �.w.. .3"_�•r•v. J�•Y•`t�j -y,1 r'n^•/^.L� •P •1.- '�+�y.,��,=it .d• 'r� .;x '�: " ,=.•ti, �i�j'(! •Tt Mat%, ...,h,j�..+..it• •.1i`su.'n .., n7••!'••'-.r-"�« ra "'`�.,'��1T 1 t �'�� ve��, I:'Y�r�i�iT; '•Jr.q•: ..fi:.i•7•.��.�ti Pli.lr:i!.�.lf:r..: "��".1...� ..•"°4-L•l�_,7j��wl.'.�•��• �^-r��k��'�,.jJSdJ�rT�',y t IM RU dkz- Alk Introduction . • . . . • . . . . ■ . • . .. . • . . . . • • • • • • • • . . e . . . • • . • e• a + • • • e . • • . . • . • • ♦ ■ • .2 Maintenance Progr'a= 1. Cleaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .. . . . . . . . . . . . . . . .5 2. Doors and Hardware . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . .. . .8 S. Electrical Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .9 4. Elevators . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 5. Heating, Ventilation and Air Conditioning(HVA.C) . . . . . . . . . . . . . . . . . . • . . • . . .14 6. Landscaping.. • • e • • . . • • • • . . • ■ . • • . • • . • . . . . • . • . • . . . . . . . • . . . • . . . • . . • . ..16 7. Painting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . .. . . . . ... . . . . . . . .IS S. Pa rldng Control Equipment • • e • • • • • . • • . . . • . • . • • . . . . . • • . . . . • • . • .. . .. ...21 9. Plumbing bing Sys1 ems . • • • • • • e • e • . • . . • . • . • • • o • e • • e . • ■ • • s • e • e • o • e •. e • e • . •27 10. Roofing and Waterproofing. • • • . . e • • • e . . . . • . • •. . eoe. • . . . . . . . . . . •a a a 0 a 003 SafetyChecks . . . . .. . . . . . . . • • •. • ■ • • • • + • e • • s • s • • • e ■ • •oeo•e • e • ■ oeeo• • •37 12. Security-Systems . . e • • • • . . • • • • . . . . . . . . . . ■ . . . . . . . . . . . . . . . . . . . .. . e • . ..39 13• Signs(Graphics) • e . • . . . . . . . . . . . . . . . . . . . . . . .. • as • , • e • o . • • ee . e ■ • • e • • • .41 14. Structural Sys ems • . . . • • . • • • • . •• • • • • . . + • . e • • e • • • • s • • . o •e e . . •• . . . • • • .42 15. Snow and Ide Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . .62 Recommended Maintenance Program and Checklist . . . . . . . . . . . . . . . . . . . . . . .. . . . .65 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . .71 I i i I r °�. 1877015881 This manual is intended to provide the owner and/or operator with guidelines for maintaining '"a parking garage in a serviceable condition that mimes safety hazards and maintains the structural integrity of the facility. This manual includes practices and procedures considered essential to the prevention of the deterioration of the concrete and steel structure and equip. anent failures. These items are discussed along with other aspects of maintenance that involve cleaning or repairs. Various geographic areas result in widely varying exposure conditions for parking garages such as exposure to de-icing salts in northern climates or salt air in coastal regions.Thus,this man, ual can only point out the problem areas and present broad guideline recommendations.Use of these guidelines must be tailored for each structure and its specific climate.It is recommended that the owner/operator engage an engineer experienced in parking structure design and main tenance to assist in developing a specific maintenance program for each parking garage. The service environment of a parking garage is more severe than most other buildings and is more nearly like that of highway bridges. In some areas of the country, extensive use of deicing salt iu winter often causes contamination of the concrete with chlorides, which can result in corrosion of reinforcing steel, structural steel, and damage to the concrete. In all geographic areas,exposure to temperature changes and moisture poses a more severe service environment for parking garages than for other buildings. This manual is intended to apply to parking garages of all types. This includes free-standing parking garages, underground parking garages, and parking garages that are constructed integrally with other facilities such as apartments and office.buildings. Many diferent terms are used to describe structured parking facilities. The reasons for the different terms include building code definitions, local custom, and others. Common terms ; include parking deck, parking ramp, parking structure, garage, parking garage, miuld-level a parking deck, parking facility, and open parking structure. This manual will use the term "parking garage" to apply to all situations. In many instances,the guidelines presented here- in may also be applicable to surface parking lots. While the maintenance requirements of many parking garage elements are similar to their counterparts in other building types, the frequency of required attention may be different due to more severe exposure conditions. Because very little has been written about the specific =aintenance required for the structural system of parking garages,this subject is discussed in greater detail than other aspects of maintenance. The terms'housekeeping,""preventive maintenance,"and"repairs"are used with the following meaning in the manual: "Housekeeping"'is the general cleaning and maintaining of the facility.These are routine tasks that have to be done in order for the parking garage to function safely such as sweeping, emptying trash receptacles, mopping elevator floors, replacing lights, cleaning windows, and periodic repainting � I 2 1 UR 00 'preventive 1VSaintenance"are those tasks to prevent the need for major repairs at some futur, time such as sealing cracks,resealing floors,and washdowns. ` `Repairs"are those items done to restore or replace certain portions of the parking garage struc tural elements on an ongoing basis to forestall the need for major repairs to the facility An example would be the patching and sealing of a concrete spall (pothole) in the floor of thf parking garage.This repair procedure may be required on an ongoing basis to prevent the aeec for major repairs such as concrete slab overlays or even full-depth concrete slab replacement. The amount of maintenance required for an individual parking garage will depend on the orig final design details,materials,and workmanship involved in original construction,as well as the environmental exposure conditions. The details and materials for some parking garages ma3 have been selected specifically with minimum maintenance and long-term performance in mind while in others,less importance may have been placed on these items. In the Appendix("Recommended Maintenance Program'), a checklist provides a recommender frequency and m;n* frequency for many maintenance items.The text indicates the amount of effort typically associated with each item. Where appropriate, each chapter is divided into three categories: housekeeping,preventive maintenance,and repairs.Many of the items on the checklist are simply condition inspections and performance testing. If abnormalities are fouac during the inspection, appropriate corrective action should be implemented. Some of the items are related to the appearance presented to the public, some are related to safety, while others pertain to preventive maintenance that will help avoid costly fixture repairs. Preventive main- tenance is usually more cost effective than repetitive repairs and certainly less disruptive to operations. Many parking garages are leased to a contract parking operator for day-to-day operation. Although "maintenance" is often designated as the responsibility of the operator, the level of - maintenance desired or the need of regular preventive maintenance is often neglected in such agreements. It is essential that lease agreements clearly define the party responsible for main- tenance and also the responsibility for identifying and informing that party of observed mainte- nance or repair needs. What are some Qf the consequences of deferred maintenance? Failures associated with some operational features such as lighting, parking equipment, or security-monitoring devices are relatively easy to correct and may only cause inconvenience or short-term loss of revenue. Deferred structural maintenance can lead to deficiencies that, in extreme cases, may result in partial collapse of the structure. Premature deterioration of concrete floors is costly--both for the repairs and for the revenue loss while repairs are underway. In multi-purpose structures where parking is integrated with other building uses,deterioration of parking floors could affect the integrity and use of the entire structure. A comprehensive maintenance program requires that an adequate budget be established to sup- port the maintenance program.This should be an annual budget,be�,�g with the first Year of operation. Major items, such as the re-application of protective concrete sealers and sealing of joints in the concrete,occur at intervals of several years and must be anticipated in the mam 3 NEB: s � � 590 tenance budget.Annual maintenance reserve funding should be included in the operating bud- get when the facility opens to account for re-application at the end of useful life. This will help elimixate the unexpected major costs when replacement and/or major repairs are necessary. `In sumffiary,a comprehensive maintenance program of housekeeping,preventive maintenance, and repairs is requited and must be tailored to each individual parking garage. The specific program for a given structure will depend on many factors including original design details, quality of materials, constrncdon quality, and exposure conditions. It may prove beneficial to employ an engineer experienced in parking fa'' 'ty design, operation, and restoration to develop a cost-effective m ai�ntenance program. To function at required performance levels, all elements of a parking garage need periodic maintenance. e i 1 ji I 4 NOTES AW - n - lit 1'ncluded in this section are discussions of- Sweeping floors Washing floors ?rash pick-up . Windows Other cleaning: Walls Elevators Public areas Rest rooms Parking control equipment 0 Housekeeping Cleaning relates to the appearance of the.parking garage and the resulting image that is portrayed to the public. Some items can cause problems if neglected. For example, trash may clog drains and result in ponding or flooding, and trash left on stairs or land- ings. may become hazards for pedestrians. In part, the suggested frequencies of cleaning are based on the concept that people have less tendency to litter in a clean, neat environment than in an environment that is already messy. A clean, well-kept parking garage promotes a good reputation and invites people to return and use the f acility again- Often the increased revenue more than offsets the cost of keeping the fatality clean. One of the most frequently overlooked aspects of parking garage maintenance is proper floor cleaning. It is recommended that all parking floor areas, including curbs, be swept weekly, but no less often than monthly. Sweeping can be done either with hand brooms or mechanized sweepers designed for use in parking garages. Between sweepings it is desirable to pick up any litter daffy. Expansion joints should be cleaned of debris periodically. Grease and oil dripping from vehicles can build up within parking spaces and at entrance and exit lanes. These grease buildups and oil,deposits represent a potential safety hazard to pedestrians,and, v ...............__.........__.. ��„A,�.�._...._...._._.._._._......._.. TM, p�11r� mZ� NOTES there="ore, should be removed with appropriate degreasers such as an industrial detergent- A m in i-num frequency of twice a year is recommended for such clnann g. r or garages with membrane water prooung, the de?rease+ should be tes`ed to assure that it will lop not harm the membrane. =tile-brane manufact-srers should be conraned for recommendamo= rega-d±ing cleaning materials and procedures. - —_`.G�..•-. .+rte. �ti .-r„_, "• ` �.^"' •�[r0i�'°-et��:1��.1 ter;..- .-�^'• i :mss-� ,, :'- ,-�• �i�.�v---- � ...a `.��••titer i i Dint and trash Worker cleaning trench drain Some floor areas should 'nave daily cleaning by sweeping or mop- ping. These include lobbies or wait':na areas, toilet rooms, cashier booth's, offices, elevators, elevator lobbies, and entrance and exit lanes. Sca=rs shLould be cleaned wi.a the same frequencti-as the park- ing areas and more frequently if they are heavily used.Heavily used stairs should be checked daily for-:ash and swept at least weekly. -• lobbies, d elevator cabs should be Windows in cashier booths, an washed daily. Other windows such- as those in o=nce areas, lobbies, stairways, elevator cabs, or elevator shafts, should be washed at a frev_uenev of once a month to once a quarter depending on them contrition and accessibility. Other areas that need to be cleaned on a regular basis include walls in rest rooms, walls in elevator cabs, and walls in other areas used by the public. Trash cans should be emptied regularly, preferably daily. Stair handrails should also be cleaned, preferably each time r the stairs are sweat. 6 _UVr.�..... ICI r Parking control equipment should be cleaned weekly. The control NOTES equipment housing should be waxed periodically to protect against corrosion. In many situations, the use of a large trash receptacle (duinpster) provided by a refuse hauling service may prove desirable. 9 Preventive Maintenance In addition to sweeping, a semi-annual washdown of the parking floors with a high-pressure, high-volume water hose (minimum 1-1/2 inch diameter) is recommended for all climates. In areas where salt is used to melt snow and ice, it is especially important to wash the floors in early spring. This recommendation is also important in coastal salt water areas.Sweeping should precede the washdown. More frequent washing of high-traffic areas such as entrance lanes and'main driving aisles is desirable and in cold climates may be performed during winter whenever moderate tem- peratures occur. In cold climates,if moderate temperatures do not occur, then squeegees or brooms should be used to remove salt laden slush or water. Before and after washing floors, all drains should be checked to see that they are functioning properly. Sand washed off the floors can clog drains. Temporary burlap or straw filters may be used to prevent sand from getting into drains, but those temporary filters must be removed immediately after wa.Shin;. Nigh-pressure water may be used for removing grease spots on the floor slab when care is taken to avoid damage to joint sealant materials and membrane waterproofing. Particular care should be given to frequent and regular cleaning of the tracks and grooves in elevator sills.These tracks are in both the _ elevator cab door sill and each landing door sill.Dirt in these tracks can cause the elevator doors to malfunction. A cleaning program should be established for the facility that directs personnel to perform required cleaning tasks regularly 7 .................................... 'Y&I . s NOTES "R. -'-13QGRS':-:";ANW*HARUWA'1 Included in this section are discussions of Pedestrian access doors Vehicle access doors/rolling gates is Housekeeping Many types of pedestrian and vehicle access doors are used in park- ing garages. Their use is related primarily to safety, security, and building code requirements. Doors are also used for temperature control of heated or air conditioned spaces, and other occupied areas. Vehicle access doors include sliding and roll-down security grilles and overhead solid doors. It is recommended that all doors • be checked daily to see that they operate properly. The check of access doors and hardware should include latch sets, panic hard- ware, door closers, door sweeps,hinges, locks, mechanized opening and closing equipment, and tracks for sliding, rolling, or overhead doors. When a malfunction is noted,it should be corrected as soon as pos- sible to maintain the safety and security of the parking garage. Pedestrian doors that are propped open may reduce safety and/or security functions of the parking garage.Propping open such doors may violate fire or building codes. Similarly,this breach of security - could lead to a negligence nce action if it is determ ined that this action contributes to an assault or robbery. C Preventive Maintenance Doors and hardware require lubrication at regular intervals. Lubrication should be scheduled in accordance with the manufac- turer's recommendations but at least semi annuallY. Painting also should be a part of the preventive maintenance program—refer to Section 7. 8 ....................... NOTES 595, =3 ° FX:EC7TRI[:AL-�5Y5T'FM% . .5 1 Included in this section are discussions of General lighting Exit lights Emergency lighting . ,Distribution panels and conduit Emergency power ' Contactor switches n Housekeeping Operating a parking garage properly requires sufficient lighting and electrical power to ensure that users can move easily and securely within the facility. The most common problem with light- ing is dirty lenses, as well as burned-out lamps and ballasts. Lamps should be replaced regularly, either when needed as shown by regular inspections,or by scheduled replacement based on antic- ipated lamp life. Lamps and ballasts should be stocked for prompt replacement. Operating controls for lighting such as time clocks and photocells should be checked monthly and maintained as required. Time clocks that are not astronomically corrected may re airs resetting periodically to compensate for daylight savin=gs 4 and astronomical changes of time if they are not coupled with photo electric cell operation. Pedestrian "exit" lights should be visually checked frequently. Battery-pack-powered emergency light units are generally located close to "exit" lights and may be checked at the same time. Most _ battery-operated lighting packs have a visible status indicator light that will indicate if the unit has power and is operative.All battery packs have test buttons that should be activated at regular inter- vals to verify working condition. Battery packs should be main tained according to manufacturer's recommendations. Internally illuminated signs are covered in Section 13 - Signs (Graphics) of this manual.However,provisions for general lighting system inspections in this section also apply to sign lamps. Electrical metallic conduit (EMT) exposed to water leaks or the elements should be protected from potential corrosion problems. Proper repair or replacement procedures should be instituted 9 ............................... }�• NOTES Whenever any conduit (E.Afr or plastic) is damaged oz exposed wiring from improper installation and support, or . adverse conditions. Cover plates should be in place on junco, boxes and outlets. Electrical outlets should be working. r Rusted conduit Rusted Light E=4.u,-e w Preventive Maintenance Periodic inspection of the entire electrical system is a good practice. Electrical equipment and conduits should be inspected for corrosion and deterioration where exposed to moisture. If electrical equip- ment exposed within the garage area proper is not designed to withstand the rigors of weathering character*:stics of open garage environments,this equipment should be provided with acorrosion- resistant treatment to prevent further deterioration. Periodic painting of all a=osed,electncal conduit and boxes should be imple- mented as deemed necessary. Electrical panels, if e..xposed within the unprotected environs of the garage, should be provided with a corrosion-protective coating. Regular inspection and maintenance is required for battery- powered emergency lighting. Some battery systems require replen- ishment of the water/electrolyte. Electrical service for parking and revenue control equipment is covered in Section 3-Parting Control Equipment. R g lar inspection or lighting fixture interiors and plastic refrac- tors is important. Many plastic refractors (light diffusers) tend to vellow after five years, resulting in diminished light output. These discolored diffusers should be replaced and the insides of the fraures should be cleaned. lt3 o-rT ? �� 57 - 187- 7, Under a pied Preventive maiatenancae program,a group rel=p* NOTES program should be instituted when the lamp burn time reaches 70 pert of its rated life to assure the reliability of adequate light- ing at all times, particularly • high-security applications. Fixture In cleaning programs could be instituted at the same time. Time clock control of exterior lighting systems should be checked periodically to insure proper function of time-switch-controlled applications. photocell controls should also be calibrated and adjusted. f 11 . 8T 7A)t 598 NOTES t ="..*y... ..-„,..M7L::.-'�'ii f.'�7sKT_"�"'«14^`a,�ti.ti.+...,..-r'�.�r..r:.��w.'��” ` �•�'!C: a Housekeeping P g In those instances where the operator is responsible for elevator maintenance,all lamps,including ceiling and indicator lights,both inside and outside the cab, should be checked daily and replaced as required. Emergency lighting, which is required by most codes, should be checked daily. The elevator cabs should be maintained in a clean, neat manner. A discussion on cleaning is given in Section I - Cleaning. Cleaning of windows within the elevator shaft requires safety precautions, and may require involvement of qualified elevator maintenance personnel. The overall performance of the elevator system should be reviewed during peak usage times. Long waiting times may discourage parkers from returning to the facility. A sudden change in the response times could indicate an equipment problem. M Preventive Maintenance Preventive maintenance is essential for proper operation of eleva- tors and their associated hardware. Additionally, the American National Standard Safety Code for Elevators requires periodic safety checks and maintenance services for all elevators,shafts,and hard- ware. Local building codes may have more stringent requirements The level and frequency of the inspection program will vary with the type of equipment, its intended use, and the appropriate state and local code provisions. Water accumulation is the most frequent cause of elevator egml- ment problems.Leakage into the elevator shaft or equipment room should be corrected as soon as it is discovered. Elevator pit sump pumps, if installed, should be checked periodically to ensure proper operation. Pumps and elevator pits should be cleaned as required. The equipment rooms should also be monitored to ensure the heating and ventilation systems are operating properly. Allowing the equipment to become too hot or too cold may result in improper operation, or equipment damage if system components use computer chips. 12 I l877. i9N 599 It is omen more practical for elevator equipment to be placed under NOTES a service contract with a reputable elevator service company than relying on having properly trained in-house staff. 8 Repairs Repairs to elevator equipment should be performed by an elevator service company. Repairs to other elevator-related items such as heating and ventilation and sump pumps can be handled in-house (if properly trained staff is available) or contracted out as needed. Also refer to Sections 5-HVAC, and 9 -Plumbing Systems. As building codes and other regulations have become more com- plex, the alder systems may need upgrades in the control panels and door operation. Some enhancements may also improve safety and performance of the elevator system. l 13 ��E . 'd�ri►r Mt JbW NOTES � ^�.:.ta^..:.:- i.1 d.±►-�.- .r:,t:.ri'.. '1 =w: y ; TE 5: :HEATING _-VENTILATIOtr 22 Nn , = "'=AIR..'CONDITIONINW(HVA,CI I' Housekeeping In underground or enclosed garages, ventilation equipment must be checked daily for proper operation. The presence of ventilation air may be checked manually or by automatic equipment. Carbon monoxide sensors must be checked for proper operation as well. Dangerous levels of carbon monoxide can build up quickly if sys- tems fail to operate. Noisy operation of HVAC equipment may be the result of dirty air filters, inadequate lubrication, and/or bad bearings, and should be reported immediately. Any water leaking into equipment rooms should also be reported and the cause corrected immediately, as corrosion, freeze-ups, and electrical short-circuit grounding can render equipment inoperable. Self-contained parking control booths many times have self- contained heating and cooling units. Filters on these units should be cleaned and replaced periodically. 10 Preventive Maintenance Dirty filters increase fan operating costs.Filters should be replaced or cleaned on a regular basis as required by local conditions. Like filters, dirty heating and cooling coils increase operating costs and reduce heat transfer. These coils should be checked at least annu- ally for the build-up of foreign. matter. If filter failure is observed, cons, dampers, and fans downstream should be checked and cleaned as necessary. Motors, motor drives, and fan wheels should be checked monthly and lubricated according to manufacturer's instructions. Dampers and their actuators should be checked quar- terly, at least for proper operation. This equipment May seize up, resulting in improper ventilation and excessive energy use. Service manuals provided by the manufacturers should be checked for appropriate maintenance action. All required servicing should be performed as specified by the manufacturer. Belt drives should be checked for proper belt tension to prevent belt slippage. Replacement belts and pulleys for fans should be kept in stock. 14 - � n ` 1877 60J B�ora or damage belts or other parts should be replaced to ra�zu- NOTES znize the chance of a'breakdown. it is recommended that the control systems be calibrated annually, 5 either by trained maintenance 'personnel or by a control system A :contractor. All control system components should be checked for proper operation in accordance with she manufacturer's specifics- bons, including temperature and/or containment sensors, relays,. switches, actuators,etc. Rep airs equipment should be P erformed P romptly `Repairs to faulty:I3VAC equip to ensure that adequate air quality is maintained, and to prevent further damage fromr improper operation. Water leaks :into the equipment rooms should also be:corrected au?aediately to protect. the equipment. i " ��,_• �"��j�_�'�ref�`•_ • • • i • • �• J A�� !•'� ,fir:-°�"`'�� I ,,� jam••.. = f�• 1• � J�:?h.,•._ /• ••• • ••. •_ '� =-�'."-t '�•�,"-`' 'y'''am � � •y'qv��-�= •• a• jd t „�.--fit �� ; • � ra,v d r • • - - ' �S.Yy:,;3:`..,,,y.•:.:�r1�� '�•0.. -;,..fir- � • • • • a • ,+'yy •=°�r,•'r�-�� `�►-•ism:"�i..�•'�..• 'ie.�„` Ji��!•-�.,C„�;�"�1� - •- --�:rA►=�;;"- �.y��. ,,,ys► `.�' -^�.i•�-•!� tom; - - -�r•� r�...'R.�'�•,?=_ yam=:"•�''�; �.=-,:�y K. • • w • a• • .•fir .'�_ � .:� �.I,., v•' � :.+M' -. Ito. •Y b,�.."t3 .-;� .. ,5:�,,;�..,.�-��°�t''• :� • • f • l t' •fog to f • a • .• • • / • • •• • - 9 Biel • •' • • - •• • s •- t• i`mfr. 187709 633, developing schedules for this work. These tasks can be contracted NOTES out to a landscape service, or performed by in-house staff. - lip Adequate on-site storage for supplies and equipment must be pro- vided if the work is to be performed by in-house stag. E Preventive Maintenance 7=ely maintenance is a must to preserve landscaping. A mainte- nance schedule should be developed and adhered to. Consulting with a local landscaping specialist will aid in determining when basic tasks, such as cultivation, fertilizing, reseeding, etc., should be performed.A professional should also be consulted for insect and disease control. The type of landscaping used should be selected to minim??e the amount of maintenance required. Plants requiring minimum watering should be used in dry areas; plants that can tolerate cold should be used in northern states, etc. Care should be taken to place plants in locations where they will not be damaged by salt spray during the winter months. Use of salt-resistant plants offers an alternative. Alternative landscaping, such as timbers, rock gardens, etc., should also be considered for areas susceptible to damage from salt spray, or in desert areas, as these require mini- mal maintenance. Maintenance of automatic sprinkler systems also should be part of any maintenance plan. If possible,landscaping materials should not be placed on supported structural members due to excessive loading requirements or ' chemical attack to concrete members. An experienced engineer should review landscape loading that is to be placed an supported structural members. R Repairs Damaged or dying plants should be replaced each spring. Leaving dead plants in place severely detracts from the appearance of the facility. 17 b04 NOTE S- != P.A�NTIIVG Included in this section are discussions of.- Inspection of painted surfaces , Metals Stall striping Concrete I masonry Painted signs, symbols, and supergraphics Touch up Repainting Painting serves several purposes: • Protection of metals against corrosion and resulting loss of structural capacity • Enhancement of appearance • Safety • Information ® Housekeeping 3 Painted elements that are operations or safety related should be inspected monthly to verify they are fulfilling their intended pur- pose. This group of.painted elements includes parking stall strip- ing, curb delineations,and garage surface painted signs.When the paint is faded, soiled, or becoming warn away, then cleaning or repainting should be done promptly. Parking space striping is a basic element of all parking garages- Parking space stripes should be repainted whenever the paint fades or deteriorates. With the increasing number of small cars on the road, many parking facilities are being restriped to reflect smaller vehicle sizes.The mix of vehicle sizes in the facility should be carefully considered whenever restriping is considered. It is rec- oTn vended that when changing the striping, the old stripes be removed completely by shot blasting or water blasting rather tban being painted over.Painting over old stripes usually results '�two sets of stripes being visible, thereby confusing the user. A check should also be made with state and local traffic departments for White or yellow striping preferred p g color and basic stall dimensions. 18 &A 8T79D � are typically used. Gravity-fed paint for stall striping tends to last NOTES longer than sprayed paint.The type of striping paint must be com- patible with the parking surface.For example,a water-based paint will not adhere to a concrete surface that has been treated with a water repellent such as a silane or siloxane sealer. painting of curbs is usually safety related. Curbs should be repainted more frequently than other elements. Semi-annual painting is recommended. Painted signs and symbols on walls, beams and floor should be maintained in conjunction with Muminated and non-illuminated signs in Section 13 - Signs (Graphics). IE preventive Maintenance All painted metal surfaces should be inspected to determine their condition, and small rust spots that are observed should be cleaned and touched up. Complete repainting should be done whenever required by the elements,type of paint,and/or exposure conditions. Paint as a protective coating depends on its adherence to the under- lying surface.Therefore,before painting any surface,it is extremely important to properly clean and prepare that surface. Preparation for painting may include removal of rust,removal of previous coats of paint, application of caulking or sealant, waterproofing concrete or masonry, or other preparation appropriate to the surface and exposure conditions. if deterioration is observed on structural metal, an engineering evaluation is recommended. Paints should be carefully selected to be appropriate for each particular application. Handrails and guardrails serve safety-related functions. They should be inspected and painted at intervals as required to ensure retention of their t capacity. Regular painting of exposed metals such as doors, door frames, pipes, and pipe guards helps to prevent corrosion and provides an attractive appearance. Metal pan stairs must be inspected and painted on a regular basis. The painting or staining of interior or exterior concrete and masonry is usually done for appearance. Some moasonry paints also serve as waterproofing. At regular intervals, these elements should be repainted. Anti-graffiti paints are effective for that purpose and should be considered Where graffiti is a problem. 19 NOTES Some metals such as anodized aluminum and stainless steel do not = 'require painting. Galvanized.steel surfaces do not initiallY require painting: however, because the galvanizing is sacrificial, under dome exposure conditions, cleaning and paindng MAY be required -to maintain-the corrosion protection as the surfaces age. 3 i 3 1 2Q W-4 WIN 01011001MUM 0 07 6 . RK1IVWXONTR01 EQUIP�MEN?s NOTES ��r�,:,,,G ...-r:.n--�er:-_'. ^•cis;, "" AP included in this section are discussions of.• Operation checks Preventive maintenance ,emergency service Inventory of parts gj Housekeeping Ali parking control equipment should be checked at least once each dap to ensure proper function and to mining?e the down time during peak activity periods. Ticket stocks in ticket dispensers must be replenished as appropriate for each dispenser. Cleaning of the exterior of the parking control equipment is dis- cussed in Section 1 -Cleaning. a preventive Maintenance A preventive maintenance program should be implemented to lain imize breakdowns. A service a=crreemeat with an authorized park ing equipment supplier is recommended. This agreement should include regular preventive maintenance service, as well as emer- gency repair service. Quick response to calls for emergency service, as well as local availability of appropriate replacement parts, . should be considered when selecting a service firm- Consideration also should be given to special training for in-house staff to take care of preventive maintenance and most emergency situations. Copies of operating and service manuals for all equipment in the facility should be kept on hand for easy reference. It is desirable to establish a log of maintenance and service work completed on each piece of equipment. It is also prudent to maintain an inventory of critical replacement parts so that equipment can be repaired quickly. 21 �- 7011 6, D8 NOTES A maintenance program should be based on the following kev items: 1) Safety first r fi, 2) Good, low-surge electrical power using CRTs,UPS systems, lightning protection, etc., as appropriate 3) Installation per manufacturer's specifications 4) Operation, supervision, and maintenance trn g F 5) Documentation !E C:4 {i !f -...a•:.ti.=�+•.•• •�, „�..., w .G...•w•.1••: y' w.r:`�s�:i;._.� i -,ir.: ti.a►.M:r'- K • r_�� : ...��''Sfi« ....:^: e. r •li��'�`:.tli�+'r�A",M�'J4•sA: J^••`y• n•; ,d?: 51,:^v± S•+:��T.i+:,T '.� ,.:. .. �-e:'''.�s.Y;".•"!.. <AJ�"'i::. � �,"','a..ew�ati»��`'�,y..T�."..'.'�v-_.�'^:�.-=='3..w:« f?ti+'^A".•.,.a..:._^e:.:'�•^•.:-� .'�°'•�iw -GENER UMAINTENANCE:SCHEI]tJLE FaR�4:. 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In all cases, however, it is always best to follow the manufacturer's recommendations as to procedure, mate- rials, intervals, test equipment, check-points, tools, consumable items, replacement parts, etc. a Repairs Repair of parking control equipment is best performed by in-house staff or an outside organization specifically trained for that equipment. Autogates • a. V'ee-belt tension should be checked every 30 da ys, 14 s da Y after a new installation. b. Vee-belts should be changed every six to nine months depending on usage. c. A coat of automotive-type wax will reduce corrosion and prolong cabinet or post life. d. Cam-operated switches should be mechanically and electrically checked. e. Gear reducers should be topped off with Mobil SHC 629 or an equivalent synthetic gear lubricant to the sight glass level f. Heaters and thermostats should be checked for proper operation. g. All nuts, bolts, flanges,screws, connecting rods,mounting bolts, other miscellaneous hardware, etc., should be mechani- cally sound and tight. h. All sockets, cables, and connectors should be unplugged and replugged several times per scheduled maintenance cycle to clean corrosion and oxidation from contacts and to ensure electrical and mechanical integrity. i, inspect for vehicular damage. 23 =off. 18, 77-IN ' NOTES 27chet Dispenser a. Dirt is the enemy! Using compressed air and a long-handled artist paintbrush,keep the entire mechanism free of ticket dust or other contaminants. b. Degrease and re-lubricate sparingly the ticket cutter assembly, type section bearing points, and the ribbon reverse mechanism with light machine oil. Degrease and re-lubricate sparingly the index cam with white grease. Do not lubricate the clutch assembly. c. Adjust cutter so the dispensed ticket has a short tab on the back of the ticket. Don't cut on the perforation. d. Adjust type section clock as nec-essary for accurate time stamping. e. All nuts, bolts, Ranges, screws, mounting bolts, and other miscellaneous hardware should be mechanically sound and tight. f. All sockets, cables, and connectors should be unplugged and replugged several times per scheduled maintenance cycle to clean corrosion and oxidation from contacts and to insure electrical and mechanical integrity. g. Inspect for vehicular damage. h. Heaters and thermostats should be checked,particularlY in colder climates. , Fee Computer&Accessories a. Exterior of all equipment should be kept clean. b. Ensure all external displays, lights,etc., are clear,bright, and functional. c. Test all buttons on keypads for proper function- d. Dirt is the enemy in the printer mechanism.Using compressed air and a long-handled artist paintbrush,keep the entire printer mechanism free of ticket dust or other cont�*�+T��ts. e. Lubricate printer mechanism drive cam and gears using MM #23 or equivalent grease. 24 ._..........._W_ f, Clean all vend relay contacts where appropriate. NOTES g. Ensure coffee, soft drinks, other foodstuffs, paper clips, eraser residue, staples, etc., are kept away from and out of the equipment. h. Check cash drawer(s)interlock switch for proper operation. i. Verify CVT,UPS system.,lightning protection equipment, etc., are working properly. j. All nuts,bolts,flanges, screws, mounting bolts,and other miscellaneous hardware, etc., should be mechanically sound and tight. k. All sockets, cables, and connectors should be unplugged and replugged several times per scheduled maintenance to clean corrosion and oxidation from contacts and to ensure electrical and mechanical integrity. Coin & Token a. Clean all foreign material from rejector mechanism using soap and water. - b. Ensure mechanism works freely without binding. c. Verify that only proper coinage vends mechanisms. d. Verify all enclosures and stands are securely mounted and , have not sustained damage. Card Access a. Clean all read heads using compressed air, brushes, or factory supplied or recommended cleaning materials. b. Ensure security cards can be inserted and removed smoothly from the read head. c. Verify all enclosures and stands are securely mounted and have not sustained vehicular damage. 25 .._............... I TYE 6 1 , 1,87 NOTES Controllers a. :dean the exterior surfaces of all gate and dispenser controllers. b. Using compressed air, clean the interior of all,controllers. c. Polish,the contacts of all circuit breakers.after power ;is.removed. d. Polish the'contacts of all accessible relay_ contacts. eration- o e. Test.for prop er. P Detectors &Lo®p► f a. '`Verify that aU loop detectors are properly sealed using agood- quality butyl-based caulk. b. Test loops electrically, preferably using.a megohm tester made .for this purpose. c. Verify correct mode for specific lane operation. d. Ensure,sensitivity settings are proper. 2s � �� i OR. 1877018 1613 NOTES 'pi:LIMBIN .STEM - wP egintow included in this section are discussions of.• Water supply Sanitary facilities Washdown Irrigation Water heater Sanitary plumbing Storrnwater drainage Trench, roof and floor drains Sediment basins Grease traps Sump pumps Fire protection Sprinklers Standpipes Fire pumps Hose cabinets Fire extinguisher Housekeeping • Hose cabinets and hoses, while required by some local authorities, are often targets for vandalism. Consequently, they should be checked often for damage and replaced if necessary. Many naunici palities require that the local fire department furnish their own hoses at times of fire. This requirement may the necessity of maintaining hose cabinets,thus preventing theft and vandalism as the standpipe outlets will only be provided with a cap and chain. Portable fire extinguishers and their cabinets are also targets for vandalism,and should be checked frequently to see that they are in place,charged, and operable.Where theft or vandalism of fire extin- guishers is a problem,a glass front cabinet with a lock and/or warm, where permitted by local code,can provide security while maintain- ing access in the event of a fire.An extra fire isher should be kept in the parking garage office.See also Section U-Safety Checks. 27 REC, 87TOR ' NOTES The fire protection system should be inspected, maintained and ' checked periodically in accordance With local fire code requirements. Sanitary and storm Lines need to be maintained in working order. 0 Preventive Maintenance The water supply piping for sanitary facilities (e.g., toilets, wash- basins, mop sinks) is generally protected against freezing and usually requires only a periodic check for leaks and working order. The piping for washdown and irrigation,if exposed to freezing tem- peratures in the winter, must be drained each fail, in addition to periodic checks. If there is a water heater,it should be checked and flushed annually. A check of sanitary plumbing can be done at the same time the water supply is checked- Regular inspection of heater components such as relief valves, gas pilots, etc., is recommended. The most extensive plumbing in a parking garage is the storm-water collection and drainage piping system. Neglect of the system can have expensive consequences. Floor drain inlets and basins must be kept clear of rubbish and sediment to prevent ciogamg and pond- have Drains at the lowest floor may have backwater valves that should be checked for operation. When washing down the floors, temporary filters of burlap may be put over the drain inlets to keep them clear. Periodically, especially before and after washdowns, sediment basins and traps must be checked to ensure continued . proper operation. Sump pumps, sand buckets in drains, pump motors, and control switches should all be checked for proper oper- a ation. Inspection of drainage systems for leaks during rainstorms and washdown operations is recommended. Fire protection sprinklers used in p arkinQ garages are usually dry I, systems. Equipment for the sprinklers include an air compressor, dry pipe valve, alarm devices, tamper switches, and test drains. Inspection and servicing should be performed only by qualified personnel. Dry systems should be drained and left dry after each use.If the system is wet,or always charged,similar checks must be made. Sprinkler heads must be checked for operation and freedom from corrosion. 28 ._........... a Fire standpipes-in parking garages are usually dry They may be. NOTE S interconnected ,and are _supplied through a sianaese pumper connection. at street level. The connections should be checked periodically hr. lubrication and damaged threads. Check valves at sianaese inlets should be monitored for proper operation.Dry systems should be left dry and unclogged after each use. Wet systems and- fire pumps must be checked and maintained by qualified people. For all systems, the pipes, sleeves and pipehangers must be kept a free of rust.- See-Section 7--.Painting. 'tackf low prevention devices are an absolute necessity. These require extensive usel of hoses,and the possibility of contamination of potable water supply exists. Periodic inspection and/or mainte- nance of these devices is essential. W Repairs AlI plumbing and fire protection :repairs. should be performed by qualified plumbers and fire systems installers in.accordance with local codes aad ordinances. If a sump pump is removed for maintenance, even if for gjust a few hours,"a working replacement should be installed.Just a few hours :could become several days,and rainwater runoff could flood.an area with no working pump. F f1 g� r E �7 #gfi Eo1 i f. i[# } `3 yy 29 f�x �R 5j j< !§ �xw.ee»res2'9J.9.RCS"^....GS.'3:C#y.pA �.'.: ....K2+•,eor 'S'•'' .:.., `�..iaa'AF.....�^•.kc'`, E u'...k Rsif 16- 717flK b I b NOTES J�:►aw+tir.wr.+.ca+iwT�. :DN��.if — 70 =PROOFING`AND: 11Y ?'I=RPROOPR The comments and information in this section are intended to apply to the many different types of waterproofing applications that may occur in a parking garage.The cornmon waterproofing applications include: • Joint sealant at construction joints, control joints, and cracks in floors and walls • Expansion joints in floors and walls • Concrete sealers on floors • Membrane waterproofing system on floors • Membrane waterproofing system on basement walls i • Coating on basement wails and block walls • Roofing • Sealant at doors and windows • Rubber window gaskets Nearly all of these waterproofing systems have finite life spans. The elastomeric materials used for joint sealant and some expan- sion joints commonly have a life expectancy of eight to 10 years. i Those materials in areas exposed to direct sunlight will often have 3 a shorter life than in areas not exposed to direct sunlight. i 3 E Background Information on Waterproofing Systems A. Deck Sealers A sealer is a liquid applied to protect and preserve concrete by fill- ing the concrete pores or by sealing the concrete surface against penetration by water-borne deicing salts and other deterioration- causing contaminants. A quality material, properly applied and renewed periodically, will provide supplemental protection against freeze-thaw damage, corrosion., and wear. It is important to note that sealers do not bridge moving cracks. 30 I BU{Is b. , "T Sealers are not cure-ails, however, and the concrete to which it is NOTES applied must be sound for the sealer to be effective. Sealers do wear ,, under use and some are subject to ultraviolet light deterioration. They must be reapplied at intervals ranging from one to 10 years, depending on the product,rate of application,and conditions of expo- sure and use.Life-cycle costs should be evaluated in m along a choice of sealers. •r+ r J•4. _ Worker spraying deck sealer With many sealers on the market, and more coming, seek profes- sional advice as to which is best suited for a particular use and expo sure.Some help in evaluating sealers may be obtained from a review of American Society for Testing and Materials (ASTM C672-76, "Standard Test Method for Scaling Resistance of Concrete Surfaces Exposed to De-Icing Chemicals"and the 1981 National Cooperative s Highway Research program Report 244 "Concrete Sealers for Protection of Bridge Structures." To date,no ASTM test exists that satisfactorily measures penetrating sealers performance. NCBRP Report 244 does describe a test program.Another publication by the Ontario Minis-tzy of Transportation and Communications(Report No. M1-79,April 1983) provides additional guidance for sealer selection. Once a sealer is selected, it should be applied by a manufaeturer- approved applicator in accordance with the manufacturer's instruc- tions. Some coatings may produce a slippery glaze on the concrete surface, reducing traction, and increasing the possibility of cars skidding. The sa=ne caution applies to application of sealers on stairs, landings, and lobby floors. A small test application of the sealer at proposed coverage rates should be applied and tested for both wet and dry skid resistance before full-scale application. 31 � � y • i( I V NOTES B. Crack and Joint Sealants Sealants ar°used to seal control and cons-tuc:.ion joints in floors to Ap protect against moisture intrusion. Caulking is normaLy used on walls and architectural elements. The materials may be self Ievei- in.g or aon-sag, depending on whether they are intended for use on horizontal or vertical surfaces. Sealant--S are intended to remain rel- atively sor"ti and fie.-Mlibie t;rroughout their service lives and must be designed for exterior use. They seal properly prepared joints through adhesion to the surrounding concrete. Sealants for rela- tively narrow joints are applied to joints in horizontal surfaces by pouring or with a caulking c un, and are applied to vertical surfaces by a caulking gun. Sealants should meet or exceed the require.- ments of Federal Specuication TT S-00227OE, for Sealants, Class A, Type 1 and 2, self-leveling and non-saa. IN PINIA i r� •v �'. �""- .f/+ - '.=fir.. Routing crack Completed sealant joint Expansion(isolation)joint waterproof glands and sealants function , similar to those for control and coast.uction joints. Expansion joints are more vulnerable to wear because they experience greater lateral/transverse movement and are directly exposed to whee-I traffic. Prefabricated joint seals installed by experienced factory- approved contractors tend to give better performance than poured expansion joint sealants. r Installed expansion joint _ 22 I 86a. z C'. 73-ccf j�ic Betuzng Membrdnes NOTES tective membrane systems are generally installed to eliminate _Pro - leaks through a floor slab and reduce moisture ingress beyond the capabilities of concrete sealers. Since sealers cannot.bridge moving cracks and are sometimes not effective in. slowing reinforcement corrosion to acceptable levels, (depending on the amount of moisture and salt contaminafaon),it may be necessary to apply a membrane to eliminate moisture penetration. :,+j�:i. {; ` _ :APT•��•r,�'� •..wYi... Applying traffic-bearing membrane Several types of membranes are available: i roi Thin Traffic•Bearing Membracnes �'hese.systems typically consist of a this elastomene base layer , (neoprene or urethane) covered by a thin Wearing course.usually including grit (epoxy, modified epoxy, or urethane) with the total system thickness in the order of 40 to 80 mils. ASTM Standard C957 outlines criteria for evaluating performance.and properties of thin elastoraeric membranes. C.2 Asphaltic or Rubberized Wear:Course Systems • These systems icaal consist of a hot-or cold-applied rubberized Th syste typ y asphalt membrane overlaid by either mastic or asphaltic concrete pavements.. Thicknesses of 5/8 inch for mastic wear courses and mastic about 1-1f2 inches for.asphaltic concrete overlays are:usual: It should be recognized that asphaltic concrete-wearing courses are porous:to some degree and,may allow build-up of salts and moisture at the level of the membrane. For this reason,they are not recorn- :mended on elevated concrete slabs.:Dra:ins should have weepholes at the level of the membrane to rsimize build-up of moisture on >� - -. ..,,,,..w..,,.,.,,:�:�xx:.x�:m: -;;:;»:«.,e,:•.W;: aaz>cz;az-:k:r.oe��::->.:::u.:.�as��t%.£'ec'm"f""=^Yitt%»,';'�.w`AS�"':�;:a�°'i.. >sz".�x'. h"`i Tit t t NOTES the top of the membrane. If the membrane is damaged,contamina- tion of the structure could occur at an accelerated rate. On roof decks, black asphalt surfaces increase the heating and associated thermal movement of the structure. This may present problems with expansion joints or structural elements. Asphalt should be well compacted with sufficient stability to avoid displacement in drive aisles, ramps, or under vehicle wheels in stalls. Asphaltic or rubberized membrane should be continuously bonded to the substrate to prevent water from penetrating under the mem- brane through breaks or pinholes. Flashing should be installed to protect asphalt membranes applied to exposed vertical surfaces. 0 Housekeeping Housekeeping requires observation of visible waterproofing elements, looking for signs of failure such as leaks,stains,cracks,etc. It is rec- ommended that all areas of the parking garage be inspected for water leakage monthly,and in no case less than semi-annually. Take advantage of rain storms to locate leaks from the underside of parking decks,roofs, and joints,then try to assess where any problems origi- nate on the surface above.Inspection for leaks through parking decks can also be performed during garage washing, hosing down of the parking decks, or when snow accumulation melts. Check all visible waterproofing elements for deterioration semi-annually, or at least annually. Remember to look at the stairwell roofs,sealant in exterior wall surfaces,and any other waterproofing that is not normally seen. 12 Preventive Maintenance Inspection The first step in maintaining a waterproofing system,whether for a new or old garage, is a regularly scheduled visual inspection of the entire facility.Items to be noted include visible wear of surface sealers or membranes, cracking, bubbling, debonding, discoloration, soften- ing, tearing or displacement of membranes, sealants, and wear course overlays.If possille,the visual inspection should be done during and after a washdown of the decks in order to detect any leakage through the structure indicating membrane or sealant failure,and to ensure any damage does not go unnoticed under a layer of sand or accumulated debris. 34 iFi`L4 &TAX b2l. E Spat Repair NOTES Thin Traffic Bearing Membrane Reapplication of wearing course layers in high-traffic areas such as ramps and drive aisles is typically required at three- to five-year intervals. particular care must be taken to ensure the membrane is not dam- aged by snowplow blades. Asphalt Membrane and Wear Coarse System Maintenance of these systems consists of periodic replacement of asphalt softened by vehicle oil drippings and an application,approx- imately every two years, of seal coat emulsions to wear course surfaces to offset oxidation and embrittlement of the asphalt. SealantslRepairs ' Sealants, being soft and flexible, are susceptible to tire abrasion and tearing by improperly used snowplows. Sealants that have famed will allow leakage and, thus, possible deterioration of the concrete substrate and reinforcing steel. The man nfacturer and/or installer of the sealant should be consulted for proper materials and methods of repair. Also review sealant warranties; some products come with warranties as long as f ve years. Depending on the type and exposure conditions, most sealants have a useful life of seven to 10 years and somewhat less on roofs due to ultraviolet exposure. When old sealants are removed, examine the underlying concrete for deterioration, make necessary repairs, and apply a compatible primer to the concrete before installing the new sealants. As a rule of thumb, When 30 percent of the sealant joints in the structure need repair or have been repaired, it is time to start planning for replacement of the sealant in all joints. Traffic Deck Membranes/Repairs Repairs to membranes, particularly the proprietary thin traffic- bearing systems,involve specialized surface preparation and mate- rial application procedures. Finding damage to traffic-bearing systems and performing repairs is relatively straightforward. However, failures in asphalt membrane and wear course systems are detected indirectly through leaks on the underside of the strvc: ture. Finding and repairing such leaks may require tearing up the 35 ..... ILI: I VrMt E22 NOTES wearing surface above the leak so that the membrane can be patched. Repair of rutting or displacement of asphalt wear courses in high- A0 traffic volume areas may involve removal of both the wear course and membrane in affected areas as the membrane will likely be damaged during topping removal. Consult the membrane installer and/or manufacturer for proper repair materials and methods. The membrane may have a warranty that should be checked for applicability Foundation Wall Waterproofing Repairs Damage to foundation waterproofing usually shows up after the waterproofing has been made inaccessible by backfilling around the garage walls. Sometimes leaks in basement or rera;n*ng walls below ground level may be sealed from the inside, using any of the • number of available techniques including quick-setting grouts, pressure-injected epoxies or other materials. If that fails,bentonite, a clay that swells when wetted, may be injected into the outside ground adjacent to the leak. Bentonite installers with specialized equipment operate under a number of trade .names and can be hone books. Be sure to check the most metropolitan found in P installer's references. If all other repairs fail, it may be necessary to eliminate the source of groundwater or alternatively, the earth next to the foundation wall may have to be excavated and the waterproofing repaired directly. Other repair methods are possible, but are beyond the scope of this manual. Consultation with a qualified geotechnical or structural engineer should be considered. I F 36 (RU, tD NOTES �i i:�:�A►F E-1'��CH F CK A Included in this section are discussions of- Carbon monoxide monitors Guardrails and handrails Pedestrian exit signs Emergency lights Fire safety equipment Tripping h=ards Air handling systems a Housekeeping When an operator is responsible for maintaining the foregoing, safety checks of the above items should be made daily or at least weekly. There are some elements in a parking garage that merit special safety checks. Carbon mono3dde monitors, noise alarm systems, and commumca Lion systems are often used in enclosed or underground parking garages. These monitors and the ventilation systems should be checked daily for proper performance. The instruction and opera- tion manuals for this equipment should be consulted and followed. Metal handrails and guardrails at the edges of parking floors are subject to damage from impact and corrosion. It is recommended that these handrails and guardrails be checked monthly to verify that they are rigid, are not damaged, and can serve their intended purpose. Tess susceptible to damage,but equally deserving of peri- odic safety checks,are concrete guard wails,stair handrails,railing bases, and stair nosings. F 3 Most building codes require illuminated exit signs to be placed by each stairway on all floors and at other points of pedestrian ingress or egress.Many tinges these signs are white with red letters.These illuminated signs should be checked daily to see that the light bulbs are working, and the sign faces are intact. Special emergency lights and the total lighting system should be checked regularly for proper operation. See Section 3 - Electrical Systems. 37 ace. V4 NOTES Fire safety equipment should be checked regularly. This includes pre extingguishers,standpipes,hose cabinets,fire s-arnkler systems, and fire pumps, as well as pre safety informational signing. See ec=on 9 -Plumbing Systems. k_J] ..� � Z., r�yQ. Above: Clean.lobby ght: Damaged fire hose cabinet �.' Preventive Maintenance Due to deterioration, concrete floors, sidewaL , or other walkway suriacss can develop holes or pockets that can cause tripping haz- ards. These holes or pockets should be tilled immediately, even if on a temporary basis. See Section is-Structux-al Systems, for causes of deterioration and cautions about temporary pa"t..b.ina materials. Z Repairs Oniv experienced and Qual'Red personnel should install and repair ca:bon mono.-dde and air handling equipment. 38 mFT. 1877(raz j.. 2 NOTES tECC1RITY 5Y5TEM5: AV Included in this section are discussions of Audio monitoring Call for assistance buttons Closed circuit television Elevator cab communication Alarms - Cashier booths Doors Elevators m Housekeeping It is suggested that in those instances when the operator has the responsibility to maintain the security system that the system be checked daily as part of a Walk-through inspection,but no less often than weekly, to determine if the system appears to be functioning properly Security systems that may be used in parld g garages include the following: • Audio monitoring devices may be located in stairs, elevator cabs, and/or parking areas. Both the monitoring devices and i the sequencerAistening stations should be checked. j • Two-way aucho systems that may be incorporated with audio monitoring system and/or activated by"call for assistance but- tons"placed at elevator cabs, stairways,and/or other locations. • Telephones in elevator cabs,cashier booths,or other locations. • Alarms in elevator cabs, cashier booths, and offices. • Alarms or other Warning devices on stairway doors to indicate that they have been opened and/or are not closed properly. • Closed-circuit television in special areas or throughout the parking garage. 39 NOTES `� 'Preventive Maintenance Preventi . m e iii resent`is v..e.mainten ance and repair of security.system q p best left to those ,specially trained ..for 'the specific equipment Elaborate systems may also merit a service.contract:to help assure quick response.of qualified repair personnel wIaen neaded. 3 3 jS i 3 F 2 S i 4■ ..........:.............:.:.:.::.:....__..-:........--.....--..--_..... W..._.._...._.....................................-.....,.... ......................,,..... ..........».........,...ww....,w.«....w..w........M..,..............,,....msc mac: 6--rm &2 ' NOTES i Included in this section are discussions of muminated signs Cinternal and external) Non-illuminated sums Graphics on walls, beams,floors, etc- (not painted) The signs inside and outside any parldng garage play important roles directing and informing the users. These signs may include illuminated graphics or other graphics mounted or painted on walls, posts, floors,beams, columns, or suspended from ceilings. For painted signs or superg rapbics, see Section 7 -Painting. a - Lr- Easy-to-read signage E Housekeeping 3 i It is recommended that all mounted signs be checked weekly to ver- ify that they are in place and visible for proper functioning. Most illuminated signs such as "full"signs,fee indicators, and exit signs should be checked daily. _ Replacement or cleaning should be done as required to maintain all signs and graphics in a clean and legible condition,at least quarterly. ® Preventive Maintenance Quarterly,the sign or facing material should be examined for dete- rioration and dirt. See also Section 1- Cleaning. Graphics applied on floors should be carefully inspected twice annually to determine their legibility to the motorist. Dirt,oil,etc., should be removed and the graphics i-eplaced as needed. 41 I 7 t t ��V• B7 5 I G;32;f ' NOTES .-14= iTRUC?URA; - L�5Y.5TE11I�S=� - . +inn. +,!..,a•r-r _ _ �. F • Included in this section are discussions of. Floors Expansion joints Control joints Construction joints Stair and elevator towers Beams, columns and walls Structural steel elements The structural system is the main element of any parking garage and usually represents the largest portion Cup to two-thirds or more) of the construction investment. Protection of that investment requires an adequately budgeted programs of regular inspection and preven- tive maintenance. Deferred maintenance can lead to costly repairs. Certain precautions dining construction can also improve perfor- mance of the structure.Adequate drainage, proper concrete quality control,crack control, and proper sealant deta'i.Bing are key items. The garage structure support system may be one of many common types of steel and/or concrete framing- Common to all systems is steel, whether concrete reinforcement or structural steel shapes. Unless protected, steel will corrode (rust). Corrosion of the steel may we the garage structure. There have been cases where a car has broken through a floor, or where par; of a garage has col- ; lapsed because of excessive corrosion. f In planning new structures or repairing structures,one of the keys to proper long-term performance of a parking structure is proper concrete cover over the reinforcing steel. This is Particularly imF°r- tart for reinforcing steel located near the driving surface. Whether the reinforcing steel is mild steel reinforcing bars or post-tensioned tendons,it is recommended that a mom clear concrete cover of 1-1/4 inches be used in any area of the country, with the cover increased to 2 inches for field-placed concrete where deicer salts or airborne salts are present. Equally important for new construction or repair is the quality of the concrete. A minimum concrete d strength of _,000 p si is recom- mended and 5,000 psis preferred. of primary importance is the water-cement ratio. A ratio of no more than 0.40 is recommended. 42 WIN IN ��rr�� il� I SUM r This should provide high-quality, low-porosity concrete with NOTES increased ability to resist the penetration of chloride ions. • In the typical garage,the floor surface is subject to the most severe conditions of load,wear, and exposure. The floor (containing steel reinforcement, construction joints, expansion joints,joint sealants, electrical conduit, electrical junction boxes, and possible heating cable or piping) may also have sprinklers, drain piping, and signs suspended from it. The above elements, plus the application of deicing salts, combine to make the floor susceptible to premature deterioration if not properly drained, sealed, and maintained. Types of deterioration which tend to occur in a concrete floor are spelling, cracIdng,leaching,Scaling,and joint deterioration. Spallang, leaching, and scaling may be controlled,or at least reduced by good concrete quality control during construction and by the periodic application of a high.-quality concrete sealer or membrane system. Joint leaking also contributes to concrete deterioration and is the cause of many durability problems experienced by parking struc- tures today. The deterioration is especially prevalent in areas that use deicer salts, and in areas adjacent to or near salt water. Spans or potholes in reinforced concrete surfaces caused by corrosion are usually dish-shaped cavities. They can be up to several inches deep and cover one to several square feet of surface area. Spalls can occur individually or in groups covering several hundred square feet. 3 Horizontal fractures called"delaminati=7 often develop parallel to the exposed concrete surface when the reinforcement is closely spaced.Fractures originate where corrosion has damaged embedded reinforcement or other embedded metal,especially ferrous electrical conduit. Freeze-thaw cycles, vehicular traffic, and additional corro- sion influence the rate of fracture migration and spall development. SpalIs can also develop from concentrated loads at edges or corners of members or from a sharp blow from external sources. W Contamiaaation Concrete is a naturally porous material. During construction, excess e s water not aired for hydration eventually evaporates, g rconnected network of ores and capillaries. leaving behind an rote p Concrete capillaries have diameters ranging from 10 to 1,000 Angstroms in diameter.The chloride ions are less than 2 Angstroms 43 '61 NOTES in diameter. Penetration of chloride ions into concrete and subse- quent accumulation occurs readily on surfaces exposed to deicing E salts, wetting and drying, and freeze-thaw cycles. lip Locations in coastal areas are also exposed to salts. Essentially, all concrete is susceptible to chloride ion contamination by virtue of its natural porosity. Concrete porosity can be reduced during construction by reducing the amount of mixwater,and by additives.By removing excess mix- water, permeability is reduced. Silica fume has been used success- fully to lower the permeability of the concrete. Other a s are generally called pore blockers and pore liners. Reinforcement embedded in concrete is usually protected by a thin oxide film remaining after manufacturing and the passive effect of highly alkaline concrete. Salts, either calcium or sodium. chloride, • can penetrate sound high-quality concrete and accumulate in suffi- cient quantities to cause corrosion of embedded reinforcement. Research indicates that the corrosion threshold (when corrosion can begin) is when chloride ion accumulation exceeds 1.1 to 1.6 pounds per cubic yard (300-400 ppm). Metallic corrosion is an elec tro-chemical process that induces pro- gressive deterioration. Corrosion by-products, rust,"develop at the steel surface causing high stress in the surrounding concrete. Rust expands to a volume of two to three times that of the parent metal. The by-product accumulation creates internal pressure on th in e adja- cent concrete,which results in cracks developing the surrounding } concrete (see Figure 1). Initial cracking due to corrosion can occur i REINFORCED CHLORIDE ION CONCRETE DECK MIGRATION INTO DECK s0 ° c COCK $%L � � D=DEPTH OF CLEAR COVER OVER REBARS E=DIFFERENTIAL POTENTIAL(GALVANIC) IN REBARS Figure I -R.ebar corrosion spelling mechanism 44 �C b3l. �REC. when the section loss of the parent metal is as low as 5 percent. NOTES Cracks may appear vertically over the reinforcement nearest the exposed surface. These cracks allow direct access of moisture and AO additional chloride to the reinforcement.This causes accelerated cor- rosion and subsequent delamination. The problem may be further accelerated when cracks form from a total horizontal delamination. Once initiated, corrosion stops only when the supply of oxygen and moisture is cut off completely, when an opposing electrical current is applied to the reinforcement network(cathodic protection), or if the electrolyte(Water)is removed, or if the parent metal is entirely consumed by rusting. The corrosion process consists of microcell and macrocell corrosion. Microcell corrosion occurs when electrical current discharges from reinforcement at the anode and returns to the same reinforcement at a cathode. Macrocell corrosion occurs between different areas of floor slab reinforcement, which has different levels of*chloride contamination, different moisture content, or for some other cause creates differential electrical poten- tials.A battery effect occurs,which causes rapid corrosion and related deterioration. The corrosion process and its subsequent effect on a reinforced member is progressive.The rate of corrosion is related to the chloride E content. The rate of corrosion correlates directly with the occur- rence of additional delarninations and subsequent spaiiing. The corrosion rate is generally thought to be controlled primarily by the availability of moisture, oxygen., and chlorides, and, secondly, by the amount of surface area of the anode and cathode. Also, corrc sion is accelerated by increased heat. Corrosion is basically dormant below freezing; the rate of corrosion approximately doubles for every 10 degrees Centrigrade above freezing. Corrosion and subsequent deterioration can be slowed by reducing the avail- ability of moisture and oxygen. The effect that corrosion has on a structural member is variable. Four things happen, all of which are detrimental to structural integrity: • Surface spalling occurs, causing a maintenance and serviceability problem. • The reinforcement loses cross-section and stress redistribution throughout the rerna.n.ng network occurs. The reinforcement loses its bond with the concrete. 45 NOTES • Concrete cross-section loss, in addition to reinforcement cross-section loss and bond loss, impairs the load capacity of floor slabs and beams (see Figure 2). AO ROAD S.1LT 1. Moisture with chloride ion penetrates concrete and reaches steel in sufficient quantity to I ` I o cause corrosion.Corrosion �1 proceeds at a raze controlled by chloride concentration L and availability of — moisture and oxygen. .e o 40 MOISTURE AND i•� �� REINFORCED CHLORIDE ION � CONCRETS 00 FLOOR SLAB =REINFORCEMENT 2 Rust builds up around stem causing high stress or pressure.Cracking occurs I �►�� and migrates to surface under I influence of traffic action '. l and freeze thaw cycling. ' A. DELAMINATION CR FRACTURE � do , � I RUST BUILD-UP CAUSING PRESSURE 3. Concrete breaks away leaving open spall r-OPEN SPALL or pothole.Full circumference corrosio proceeds until complete debonding \ 1 of reinforcing occurs;section loss accelerated. _ —_——— ,r1� a f SALT WATER • cotmuuoUs CORROSION Figure 2 - Corrosion-induced spalling process One aspect of the corrosion phenomena that makes repairs difficult is that multiple delaminations may occur as the chlorides migrate deeper into the floor slab. Where top surface spaIIing coincides With fuIl-depth floor slab cracks,it is common to find ceiling spalls dire Y below floor spalls.The bottom reinforcement corrodes similarly to the top, thus causing a multiple effect of concrete and reinforcement section loss. Surface spalt�can reduce the concrete section.At the same time, severe corrosion of tension-reinforcement(top reinforce- ment at supports and bottom reinforcement at mad-span) can result in over-stressing and possible reinforcement yielding or failure. 46 b3 Spa 1i,n can occur on all stnictural members. Floor slab systems NOTES frequently experience the most extensive and widespread effect of . spaRing.Beams,columns,and Walls are also susceptible to corrosion- induced spalling when subject to chloride contamination from runoff or spray (see Figure 3). 1.CHLORIDE INTRUSION EMBEDDED REINFORCEMENT A)MILD STEEL Q. @)PRESTRESSED STEEL .Q SEWI OR COLUMN FACE L PRIMARY fRAMRE I SECONDARY FRACTURE PROCESS OESCRIMON 1. Chloride ion intrusian contaminates concrete—lowers pH and induces corrosion of embedded reinforcement 2 Corrosion by-products'rUSr develop at bar surface and require egansion room. 3. Rust expansion causes pressures which crack surrounding concrete. Figure 3 .Span development in beam and cola n N Influence Factors Iu the absence of a permanent protective barrier between the slab surface and the reinforcement(such as a membrane or epoxy coat- ing on the reinforcement), the depth of concrete cover over embed- ded reinforcement and the permeability of the concrete are the most important aspects of design and construction that can delay the onset of spalling.Floor slabs with less than?eCommended cover over the reinforcement, which are subject to intense deicing expo- ' 47 iREG. '+B- 7- 709 634 NOTES sure, undergo rapid and severe corrosion-induced spalling. Floor slabs constructed with lower water-cement ratio concretes, addi- tional concrete cover at top reinforcement and with protection from intense deicing exposure will provide increased service life_ In preparing maintenance programs for parldng facilities, consid- eration should be given to the areas where concentrations of rein- forcement occur near the surface. With flat slab design., this involves areas ad}acent to the column. For one-way slab and beam designs, the area above the beam typically has more top reinforce- ment than at mid-span.Maintenance efforts directed at protecting these areas from intense exposure will pay off in reduced spalling and extensions of repair-free service life. In order to properly prepare restoration construction documents, it is first necessary to evaluate the effect spalling has had on the carrying capacity of individual members and then to evaluate the cost effectiveness of repair procedures with regard to the total restoration prorg A structural engineer experienced in p ar'xing garage restoration should be retained to perform the required investigation, analysis, and evaluations. E Cracbdnd Concrete cracking is caused by tensile stress. This may be either construction or service related. Cracking commonly attributed to construction may be caused by improper concrete placement, improper consolidation,improper curing of the concrete,premature , removal of form supports, or by plastic or drying shrinkage of the concrete. Service-related cracldng is usually due to temperature changes, load, settlement, or internal stress. Corrosion of rein- forcement and aggregate chemical reaction are common causes of internal. stress. Not all cracking is detrimental to the concrete member. In many cases, cracks are anticipated and reinforcement is provided to transfer stress across the crack.Properly positioned reinforcement arrests crack development by keeping cracks short and limiting their width. Cracking can be detrimental when it occurs to an extent and frequency,not expected. If this happens, steps are nec- essary to e the effect cracldn►g has on long-term durability. 48 187 70C 05 (mt. I a Leaching NOTES Leaching is caused by frequent water migration through the floor slab or cracks. As Water migrates through the concrete, it takes along a part of the cementing constituents, depositing them as a white film, stain, or a stalactite on the ceiling below. This process may weaken the concrete over a period of years.It is accelerated by porous or perpetually moist concrete.Leaching frequently occurs at cracks beneath gutterlines in the concrete surfaces above. Leaking construction joint Reinforcing steel corrosion M Scaling Concrete scaling is a deterioration mSec�a*��*�+ that attacks the mor- tar fraction (cement paste) of the concrete mix. It is characterized initially as a minor flaking and rlisi itegration of the concrete surface. With passing time it progresses deeper into the concrete, eventually - exposing aggregate, which breaks away. This further contnibutes to the process by exposing more paste to the elements.In extreme cases, apparently sound concrete can be reduced to a gravel-like condition in a short period of time(see Figure 4-following page). Concrete scaling is generally caused by freeze-thaw action. When dry concrete is frozen, there is little damage. If saturated concrete is frozen, excess water freezing in the concrete causes high stress and weakens the mortar. Exposure to cyclic freeze-thaw action is very destructive to concrete in a saturated state if the original con- crete is not of sufficient high quality. Concrete with a proper to Scaling. amount and distnbution of entrained air is resistant g- . 49 NW T'� NOTES WA r 1. Concrete becomes saturated by water Al penetrating through pores and - �.o �;•� capillaries. �4 • 1 . Q0� C 2 Concrete is frozen in a saturated state causing high stress.Loose flakes appear As V4 •, on the surface as the mortar breaks Dc away. - c G_. 'p .1 • 3. As flaking progresses,aggregate is - ..._- exposed and eventually breaks away, thereby exposing more paste to freeze- �• ;c :- thaw damage.In extreme cases ; apparently sound concrete can be reduced to a gravel-like state in a shag d period of time. t Figure 4-Concrete surface scaling M Joint Deterioration The two most common provisions made for crack control or relief of restraint in concrete slabs are control joints and isolation joints. Such joints have long been a source of maintenance problems. Joints on supported floor slabs must be sealed against water leak- age and 'intrusion of incompressible materials. Both situations are damaging to the joint system. Construction joints deteriorate for several reasons, usually associ- ated with failure of the sealant or failure of the adjacent concrete. Joint sealants may not have the required degrees of flexiiilit9, bond,strength,or durability for a particular application.If concrete adjacent to the joint is not sufficiently durable, then local scali ng will cause failure of the joint sealant by destroying its bond to the concrete. 50 �RE�. • Isolation joints are also susceptible to premature deterioration.The NOTES most common causes of early deterioration are improper joint - ,,, design or sealant material specifications, incorrect installation of the expansion device, and in-service damage from traffic or snow plows. Cracks in concrete are common. The existence of a crack does not necessarily mean that the structure is in structural danger. Cracks are generally serious when they occur in a pattern or frequency that is not considered typical for a particular structural member. Cracks are also a problem when they allow water leakage and sub- sequent contamination of the concrete and accelerated corrosion of embedded reinforcement. Cracks also allow leaching and surface staining, which can also cause vide deterioration of a structure, and staining of panted vehicles from dripping water. The extent and nature of cracking is influenced by design details,construction methods, and quality. Cracking generally results from three basic actions: restraint of volumetric movement; shrinkage of the con- crete;or structural tension. Methods of sealing a crack to prevent or limit moisture penetration will depend on the cause of the crack and a prediction of what the crack will do in the future. Some crack repairs require restoration of the concrete into its original monolithic state; others can be sealed and left free to move. The restoration of cracked concrete to its original monolithic state is typically accomplished with epoxy injection. For very shallow f ne cracks a low-viscosity epoxy may be poured into the joints until it fills and seals the crags.Larger and deeper cracks(> .003 inches to.0005 inches)may require the use of pressure epoxy injection.This injection should proceed from the bottom of a crack and either be considered filled when it emerges from the top surface of an unsealed crack or from an upper access port for a sealed crack. Manufacturers'recommeudations should be followed regarding the mix0 , installation, application, temperature, and curing of such epoxy applications. Cracks that are to be left free to move and do not require structural restoration should be sealed to avoid water penetration. Typify, these cracks should be sealed from the top only.They may be sealed by routing out the cracks and using an appropriate sealant. These cracks are typically routed out using a grinder to achieve a uniform width and depth to a sound surface prior to sealant application. Typically a urethane sealant is then applied into the crack for its length_Sealant size should be at least 1!2-inch deep and]1'2 inch wide. 51 ......................_.__._......_._... ..m_.__..r•............ -�Y.. . � b3P IREC.. NOTES Some "joints" are designed and built into the typical garage to accommodate movement and shrinkage vt airs within the garage, (expansionAsola on joint;, cons-racoon joints, control joints, and • precast member joints). no M. Ni • .I.._� -•+.}+•.yea ' yam .cY i`+ ,F•+�rV ,��at`,-'(s _ ._r�ry.CtlL� _rt�.r't.-��`•�±.••y.�-..�� '�� r.+y��a ,..y ��..�.rS.."13.. • -��.tIL.. �..'.-•.-I��••'.....: ', � '- - �` iii. ^�1YrnY.•y �`. '.. _y` •Y YIV;..r1J��Si�;, `► .. - iY -- �aM• -w__ �• .4.Yew, .:^•r..- ,• � �✓��-i7,' � � �. Failed joint sealant Failed expansion joint Isolation (expansioa) joints provide complete separation between sections of a garage and accommodate movements assoc�.ated with temperature changes and long-term shrinkage and c'r'eep.They are generally detailed with a flexible material as a seal. Other joint designs provide a steel traffic plate to bridge the joint opening, or may simply employ a fle:aDle g'�and to seal the joint while allowing for movement. Joints of all lands must be checked regularly for 3 damage and deterioration. Isolation joints work best when diiier- ential deflection between.th° two sides of the joint is minimi ed by ' structural supports crossing the joint. Construction joints are located at predetermined points. These joints typically have a tooled groove nlled with a flesiole sealant, or may have cast-in-place water-stops to prevent leakage.Water-stops are not good solutions in freezin°climates because water can accu- mulate at the stop in the joint and cause damage. Control joints accommodate cracking by creating a series of weak- ened planes at prsdetermined points in floors and walls. in precast parking structures such joints are recommended at tlae junction between all precast deck members. Control joints are groove-tooled or formed in plastic concrete or sawcut in the hardened concrete and then filled with a fle:tiole sealant to prevent water penetration. Sawcutting to form control joints in new consj-rucuon is nor,recom- mended because shrinkage in the concrete frequently develops a 5? ...............................___.....___ .... � -9 • }I1Lc. w iiiLLL.I cracltvng pattern before the sawcutting can take place. Thus the NOTES purpose of the sawcut is defeated. lop For precast,p PP P reto ed as structures,the joints between adja- cent members become control joints and are sealed with a flexible sealant to prevent leakage. Floor slabs at entrance and exit lanes receive the most exposure to deicing salts; neat come gutter lines adjacent to walls and clubs. Areas where cars turn comers or start/stop are subject to heavier wear than other floor areas. Such areas should be more closely monitored for deterioration and treated promptly. Regardless of care taken during construction, garage floors often have some areas where water collects into shallow ponds. Deicing salts will collect with the water, malting the floor in these pond areas more susceptible to salt penetration. If ponds form over floor joints, possibilities for deterioration are especially great. Areas ii . where ponds tend to form should be checked after each rain or snow, and the ponds eliminated by sweeping, squeegeeinb or adding a drain. a Housekeeping Routine housekeeping generally consists of frequent sweeping of the garage and periodic washdowns of the decks. Washdowns should be with sufficient quantities of water to wash away chlorides. Garden hoses are too small to do the job. For cleaning recommendations, see Section 1 - Cle nines. Regular removal of sand and grit accumulations from drive aisles will help to minim a the loss of slab surface through abrasion, as well as help minimize damage to sealers, sealants, and expansion joint systems. It should,however,be noted that in certain cases, washdowns may be detrimental to a structure if damage due to corrosion has already begun, such as if extensive surface delaminatsons have begun to form(e.g.,more than 1 percent of total surface area). The advisability of washdowns for a particular structure should be reviewed with a structural engineer who is knowledgeable in such matters. The removal of loose concrete from delaminated or spalled surfaces should also be reviewed with a qualified engineer.The engi- neer may recommend removal of damaged overhead concrete to Pre- 53 ................_..._._.._.... NOTES _ vent it from falling g on a vehi cle or pedestrian. _ During washdowns, care should be taken to remove -- excess water from slab sur- faces immediately after wash- = _ mg. In enclosed garages, the parking ventilation system should also be operating after washdowns to eliminate - humidity buildup. Both mea- sures will reduce the amount . of potential moisture penetra- tion into the deck or sof'nt Spring washdown surfaces. Snow plowing and ice removal are discussed in Section 105 - Snow and Ice Control. M Preventive Maintenance Inspection Program The first step to any well-planned maintenance program, whether for a new or old garage,is a reguZ~�rly scheduled walk through survey — a visual inspection of the entire garage.An excellent reference for such a survey is the "Guide for Malang a Condition Survey of , Concrete in Service,"published by the American Concrete Institute. During the walk-through survey,observe the location and extent of conditions that could cause, or have already caused, concrete or steel deterioration. Items to look for include surface deterioration on top and bottom surfaces of the floor systems; evidence of water leakage and/or staining through or on the floors, walls, or other st�cuctural elements; cracks in floors, beams, columns, and walls; and rusting of exposed steal. Leaking and staining are often early indicators of future problems.A survey walk-through must be done by a conscientious observer. If evidence of deterioration, scaling, spalling, cracks,or leaks is observed,an engineer experienced with parking garage restoration should be consulted. However, at least every,two years the inspection should be made by a qualified engi- neer to help ensure that no potentially serious conditions have been overlooked. 54 . I g- M _ "I Drainage NOTES Drainage is one of the most important factors affecting the dura bility of all parking structures. The length of time moisture is allowed to collect on concrete surfaces will have a profound impact on salt contamination levels in the decks. Elimination of ponding by providing additional drains and/or building up drainage slopes is recommended as a first line of defense against corrosion. Concrete surfaces protected with sealers and membranes also require good drainage. These protection systems cannot protect concrete under standing water unless special systems are used. Water puddles should be eliminated where deicing salts are used. Comments regarding maintenance of plumbing systems are pre- sented in Section 9 -Plumbing Systems. Corrosion Protection Sealers and waterproof membranes are frequently used to reduce moisture and salt penetration into parking garages, and thereby delay or prevent the onset of corrosion activity in parking garages exposed to salt. Sealers may improve the abrasion resistance of the exposed con- crete surfaces or retard the progression of surface flaking and scal- ing where slabs may not have sufficient air entrainment to resist freeze-thaw damage. Membranes and sealants specifically reduce the rate of chloride penetration into concrete. However, such systems are not com- pletely impervious to chloride ions, and they do have a finite life- time before degradation occurs. There are concrete additives that inhibit corrosion of steel inside the concrete.These additives polar- ize the steel anodically and/or cathodically, thus reducing the rate of corrosion. It is quite effective to combine membrane or sealant waterproofing with internal corrosion inhibitors. Another way of reducing chloride penetration into concrete is to reduce the permeability of the concrete. Silica fume is a concrete admixture designed to increase compressive and flexural strengths, increase durability, reduce permeability, and improve hydraulic abrasions-erosion resistance. 55 Off. BTT01r, 64.2 OT Cathodic protection is gaining, greater `use in limiting corrosion in reamorced concrete parlkina structures. The pr-:v-pal behind cathodic protection is the connection of reia orclg steel to a low voltage direct-current power source to produce an electrical char-ge that electrically impedes the corrosion process.Recent development of conduc=ve coatings, has produced a soffit-mounted cathodic pro- tection system that may offer cost-effective protectiion for some applications. The use of this system in par�n'rages is relate vely new and under coaimuin.g development; however, recent installa- tions of cathodic protect-:.on in pan ng-garages have Gene:ally been successful. Advice of both an independent corrosion engineer and structural engineer should be solicited when a-,%aluatin; system effecZveness, durability, operating costs, and overall feasioili y of cathodic protection. Pr C .•�'-�- -. �.:.� � :.r' �' _..r; '•• ..- .• cam.-..x'.- ^'` ..ee-�:.:�! -+•"r/ r_..,e••~•.�. '�'i �P .rJ'.rrx- rr�e•�'„yY:� 7i-°rt^.r;:. - . . i.:<r�!►:. M: Lnstalling cathodic protection U,nbonded.Post-Tensioned Structures Current unbonded post-tensioned construction, for state-oL the-art Parma garages use encapsulated tendon systems containi�highly stressed, high-streneth steel cables protected by a grease coating and plastic sheathing. It is important that the plastic sheathing, anchorage, and other construction details exclude all water frora contact with the grease or the cable, as the grease itself does not typically provide Dermanent corrosion protection from water. r xtvnded contact with either water or salt water can mouse breakage ao OPT of the cables that often cannot be readily detected from a visual exam-. NOTES !nation of the structure. tion by a structural engineer experienced is such matters Investiga ti on be Warranted is cases Where it is possible for Water t. gain access into the postrtensioning tendons, either during construction or through the anchorage-areas or through discontinuities in the P plastic rhea.ht � . R�ePa�' of ast-tensioned structures can every complex;therefore, a second.opunon(peer review)regardmg.proce- ,lures is often warranted. Note that post-tensioned -systems are without the enca sulated ,protection, used in enclosed buildings P used in parking garages. E Repairs Repairs may be classified as cosmetic (minor) or major. Minor repairs are generally those that, if left undone, do not affect the integrity of the garage. An ezaample of a.minor cosmetic repair would be a repair required to refmish the corner of.a concrete column knocked off by a car bumper. If there is no major damage,then the repair may be made by cleaning and patching,with..new concrete or any of several com- mercially available patching materials. Major repairs to ;concrete :include those for scaling, `spallin91 and cracking. A good reference for evaluation and repair procedures. is the American Concrete Institute .{ACD Compilation To 5, "Concrete Repair and Restoration.'It contains a broad range.of ait cles on the subject of concrete repairs. All major repairs are developed through the evaluation of a protec- tion system, Many-protection systems are related to corrosion or :moisture protection- -The:expected life of repairs can,vary from a short one to three years to:much longer .depending on the repair details and the protection system: } Eaal.0 tion of Rep=r:Scope The first step,in repairing concrete damage of any kind is to deter, mine the nature and extant of the.problem, The walk-tihro survey R 5? SfiG. C T UT, UD -9, 4 NOTES is a start, but it must be understood that a visual survey reviews deterioration visible at the concrete surface. Most of the concrete deterioration is related to problems 2 to 3 inches below the surface. A review of the walk-through survey results may indicate need for a more comprehensive survey that would include testing for sub- surface fractures and delaminations and/or salt contamination. Despite a most thorough investigation, some bidden deterioration may be,revealed only after excavating into the concrete member. An experienced engineer may recommend exploratory excavations to review internal structural conditions before the start of repair work. Avoid Makeshift Repairs Repairs to any damaged areas must be undertaken with care. � Improper repairs hide,but do not cure, the problem. An example is • a temporary asphalt patch over a spall. Asphalt is porous and will permit salt-laden water to collect unseen at the bottom of the spalL which will often accelerate corrosion. If steel reinforcement is exposed at the bottom of the spall,the continuous contact with salt water will expedite the corrosion of the steel and weakening of the floor. The improper repair will hide the problem until the corroding steel has caused a larger spall. Surface Repairs Repairs to scaled or severely pitted areas may range in complexity 3 from simple cleaning and sealing, to isolated patching, to installa- tion of a concrete overlay or a protective membrane. Surface scal- ing and pitting is usually caused by a deficiency in the concrete properties. The deficiency can be evaluated by testing to determine the depth and severity of the problem.. Testing is recommended before starting a complex and expensive repair. Clean. has been discussed in Section 1. Spar1Z Repairs A concrete "patch repair' is generally an effective repair for isolated spalls. Concrete "patch repairs" have different expected seance lives. The service life is affected by the repair materials, repair details, protection systems, and the cause of the original damage. Patching with"normal" 4,000 psi concrete can accelerate corrosion 58 M surrounding chloride-contaminated concrete. It is, therefore, NOTES irmportant that repairs consider the specific details and requirements. A good patch must be durable and must bond well to the concrete substrate. Patch edges should not be feathered because the feath- ered edge usually fails. The edge should be a mi r12IIum of 114-inch thick. The patch must also react to temperature changes in the same way concrete does, and be compatible with it. Early failure of many polymeric patching materials is directly due to the difference in coefficients of expansion between the patch material and the underlying concrete. . While many patching materials have been tried, the most widely used and effective are generally Portland cement-based materials. Other successfully used patching materials are various epoxy and polymer concretes, although these are used less extensively due to their greater cost. Polymer concretes are classed as thermosetting and hydrating. Examples of thermosetting polymer concrete are those containing epoxy and those containing methyl methacrylate. Examples of hydrating polymer concretes are those containing styrene-butadene("latex") additives that enhance bond and reduce permeability. In all cases,installation of patching should be performed by a con tractor experienced in similar work and capable of maintaining an acceptable standard of patch quality and installation suitability. American Concrete Institute (ACI) Standard Specifications for epoxy sy stems (ACI Standards 503.1 through 503.4)are good refer- ences. The American Society for Testing Materials (ASfi.NI) Stan- lard material specification "ASTM C 881 Epoxy Resin Based Bonding Systems for Concrete"may also be helpful,but in all cases check expansion coefficients for compatibility with conventional concrete. If none are given, do not assume either compatibility or satisfactory performance. Overlay Repairs When the total area to be patched is a significant part of the floor area, an overlay may be more cost-effective than isolated patches. . An overlay can also be used to modify floor gradients to improve drainage and eliminate ponding. It 59 p b4b,DrF. 1 8F f 1DIB NOTES Overlays will add thickness to the original floor system. Headroom will then be less than was originally designed and the.structure weight (dead load) will be higher_ These considerations must be examined by a qualified engineer to ensure that the overlay does not cause more problems than it solves. Several types of concrete overlay have been used extensively and have been found to be highly effective: low-slump, high-density concrete (LSDC), latex-modified concrete (LMC), and microsilica concrete. Conventional Portland cement concrete has also been used, but less extensively. LSDC (also called "the Iowa Method") overlay consists of a low water-cement ratio,high cement content concrete that has reduced permeability to water and deicing salts.Workability problems char- acteristic of LSDC can be solved by using proper additives. This overlay should not be considered if its weight will be a problem. LMC overlays use a special admixture in the plastic concrete that reduces permeability to water and deicing salts,and is more effective with less thickness than LSDC.The reduced quantities required for an UIC overlay may be offset by its higher unit costs compared to LSDC, so cost comparisons should be made for the specific project. Conventional concrete overlays consist of a cement-rich mix with usual slump and water reducing admixtures to reduce permeability to water and deicing salts. This overlay may be a somewhat less durable overlay than either LSDC or LMC but at somewhat less cost. Polymer concrete overlays have begin used only on a limited scale and have not been fully evaluated. Such systems,whether referred to as polymer or epoxy concrete, can offer, however, solutions to surface deterioration problems, and should not be excluded from consideration. Recently,silica fume concrete overlays have been used successfully. Silica fume concrete has low porosity and high strength. Proper 3 attention to placing and curing techniques is mandatory with silica fume concrete. 3 Overlay cost comparisons should be made only for the specific use intended. General cost comparisons tend to be misleading due to the effects of specific quantities and construction constraints on in- place costs. f { 60 i ........................................_........................................__...._..._....,..._,_...._...._._............_..........._.r......,........-.....,......,........:....,....,..................................h....«..........:.................,.......,.,,..,...,.. 1,87MM R Post Tensioning Repairs NOTES Unbonded post-tensioned structures can sometimes be repaired by removing the old post-tension strand or wires, cleaning the ducts and threading in new strand coated with high-quality grease. In some cases, epoxy-coated strands have been used to provide addi- tional protection agaimst future corrosion.Waterproofing is typically included in the restoration scope to reduce future moisture ingress. Alternatively, the post-tensioning tendons can be abandoned and an alternate structural system provided,for example,by installing new steel beams below a damaged slab or installing an extemal post-tensioning system. Many post tensioned systems can be repaired by replacing the damaged portion of the system.Damaged post-tensioned anchors or spliced sections of the tendon are often replaced. Crack Repaim Isolated leaks may be eliminated by proper crack repairs. If there are many leaks in the floor, installation of a protective membrane may be the best solution. Ongoing Monitoring and Maintenance Since repair procedures are often undertaken after deterioration , has begun, an d since the original construction may not have incor- porated certain design features to reduce corrosion,some continued deterioration must be expected_ An evaluation procedure should be repeated at regular intervals, preferably annually, to detect any onzoing deterioration at an early stage. Should deterioration occur, engage only qualified engineers and contractors with proven records of expertise in parking garage maintenance and repair. 61 Y NOTES i. "`'+_;,:rr-''<" .in..��;,„i...^..,...,,.. •rte.•.......r...�.�, '- �' .. .;n..�,,,r;,.,•f•'«,_�,...#V�� :`��1 r 5t11t7W:AID I CE�COt\iTRCIL::::�' ;ter t'_ rti�5' ..ZS'M a:-,,,..•�•.�.:.i._ =i':.':-'C •sr»"�IStY:i%'4:.�"v"r_ -� L ?•:�_i��QZ^ + Included in this section are discussions of Snow plowing and removal Snore melting Ice control 0 Housekeeping As a rule of thumb, snowplow vehicle axle weights should be kept below 4,000 pounds to avoid over-stressing the parking garage's structural system.. Good practice dictates checking with the garage designer to ensure that the intended vehicle is not too heavy. The snowplow blade must not be allowed to damage the concrete floor, sealants, toppings, or expansion joints.A heavy rubber blade edge may be fitted to the bottom of the plow's steel edge,with plow shoes or casters adjusted to keep the steel plow edge at least one half inch above the floor. Snowfall sufficient to hamper parking operations should be removed.When snow is packed down by car tires,it becomes slippery and can become a hazard. Snow may be plowed to predetermined locations in the garage, particularly on the top floor and simply left to melt, or it may be removed from the structure by a small front- end loader, such as a "Bobcat," or by a heavy-duty snowthrower. Provisions such as gates can be provided in the exterior spandrels to make sure snow is dumped from the structure to a designated area to facilitate removal Snow should not be piled so high as to overstress the structure. If the snow is dumped over the side of the garage, care must be taken to avoid damaging the walls,panels,connections,sealants,or other elements. Reasonable and prudent measures should be used to avoid personal injury or property damage during snow removal operations. Snow dumped over the side may be left on the ground to melt, if space allows. Care must be exercised not to pile snow on or against another structure or to obstruct sight distances or emergency access or cause damage to existing landscaping.In congested areas, or by local ordinance, removal of the snow away from the garage may be required. Removal may have to occur during specific hours. 62 NOTES AP t r 1 ~ Snovvplovv with rubber blade attachment If the snow is left in piles on garage floors, avoid overloading the floor slab beyond its design load. Piles should be located where snow mel t will no t flo w across do aisles. M elted water may refreeze at night, leaving ice patches in the aisle. Frozen chunks of snow or ice that may have fallen from vehicles should be disposed of daily.Melted snow from the roof may run into a shall ow area and freeze,causing slick areas.These areas should be treated with sand. Ice buildup may be controlled by using heated sand or a mixture of sand and salt. Do not apply deicing chemicals containing chloride directly to concrete unless absolutely necessary. Small amounts of . salt (3 to 6 percent by weight) added to sand can be effective in , 3 increasing traction and facilitating ice melt. Apply l the sand/salt mixture to concrete only as needed and flush the deck with a high-power water wash as soon as weather permits. Afire hose or a i i 3L 1-1/2 inch diameter hose is recommended; garden hose volumes are insufficient. Drains should be protected against runoff-related sand accumulation during ice control opera- tions. Temporary* burlap or straw filters may be used to prevent drain and piping from clo �g"zng. Recent technology has seen the development of new products that m;n.m. a the effects of chloride damage from road salts. Calcium magnesium acetate (CMA)is a promising alternative to salt. CMA is a non-corrosive (non-chloride) deicer. 63 I 6770M -'b, 5,f NOTES in Preventive Maintenance Some parking garages contain gas-fired,electric-powered, or steam ,. snow melters. These waits should be checked for proper operation each fall, and periodically during the winter months. To operate properly, some units may need to be turned on several hours before the predicted snowfaiL Some units have a'snow sensor"that turns on the unit when it begins to snow. If the sensor is not effective, a manual switch should be installed. .Some parlting garages have a snow melting system embedded in the floor of certain areas, such as outside stairs or heated drive- ways. Such systems are generally one of two kinds: electrical cable or ethylene glycol fluid. In either case, the system should be checked for operation before the first snowfall of the season. Maintenance should follow the appropriate system manual. • Breaks in cables (the electrical system) or pipes (the fluid system are difficult to trace. Consequently, the system installer should be contacted if operational problems arise. Another snow melting system consists of heat (infrared) lamps mounted above the surface. Maintenance of these lamps is similar to other types of lamps as noted in Section 3 - Electrical Systems. Lamp operation should be checked daily during the snow season. Installation of infrared lamps must account for vehicle queuing at entry/eat points. Vehicles standing in the same posimon below Lamps for long periods of time can have their finishes damaged. Qualified installers should be consulted when contemplating this t type of equipment. Whatever the snow melting system, an indicator light should be installed in a highly visible central location to indicate when the system is in operation. Some operators have learned after they have received their power bill, that their systems were still on in the spring. 64 0 F F. Tf "5 7, UC- M;MENDED-MA INS ELV NCePRGGR 4►M: "t\tII LHECKt I( �, The recommended maintenance program that is outlined in this manual is intended to cover the most typical aspects of maintenance, including those related to cleaning, safety, equipment, and For convenience the maintenance program is divided into 15 descriptive sec cture. tIOIIS, stru p gram These sections are: 1. Cleaning 2. Doors and hardware S. Electrical Systems 4. Elevators 5. Heating,Ventilating,Air Conditioning(H VAC) 6. Landscaping Painting g 8. Parking Control Equipment 3 9. Plumbing Systems 10. Roofing and Waterproofing il. Safety Checks 12. Security Systems 13. Signs (Graphics) 14. Structural Systems 15. Snow and Ice Control It is recommended that for each parking garage, a facility-specific maintenance program be developed. The specific maintenance program should include the following items: . A. A schedule of cleaning,inspection,lubrication, and other recurring maintenance activities. B. A catalog of all equipment,including manufacturer's service manuals for the installed equipment. Product warranties should be included. C. Records of preventive maintenance performed on any element, and logs of both service calls and types of repairs made. D. Establishing responsibility for implementing and carrying out all portions of the program. E. A management control system to verify that the maintenance program is being carried out and is effective. The checklist that follows is a guide to many of the items in a parking garage that should be checked and maintained at regular intervals.A suggested frequency of observation or attention is indicated. 65 TOR b; 5Z pot El"- eIMA�LV�"ENA�C Daily I Weekly Monthly Quarterly Semi- I aaanaUy i Other kamaIIy! (see notes) Y- CT R LNINU I • Sweeping•localized • • Sweeping -all areas • (including curbs) • Expansion joints } • } • Empty trash cans • } } • Toilets --floors,futures • --gulls • • Cashier booths • floors,fixtures • --w►alls • • Elevators —Moors,doors, tracks • windows, glass backs • • Stairs moors,handrails • windows • i x Lobby, office i i floors • --windows • + o Wash down parking floors • (see note below) at Parking control equipment } • 2. DOORS AND HARDWARE 1 Doors close and latch properly • } • Mechanized doors I • ■ Panic hardware at security doors • ■ Lubricate mechanized doors • 'Spring and Fall NOTE.Waslz&wns should be a minimum of two per year,although it is recommended that they occur =rwty This may very due to regional location,however.Northern regions should be washed down more frequently. 66 f. � ,b5 REC. PARKING�:STRUC-TURE�MAi1'1l g-NANE i Daily Weekly Monthly Quarterly Semi- ( Annually Other l Annually (see notes) 3. ELECTRICAL SYSTEM I 0 Check light fixtures and • exposed conduit ■ .Relamp fissures E • y • Special units -inspect ( ( ( I ■ Distribution panels ( 1 • } i 4. ELEVATORS v Check for normal operation ( • X Check indicators and • other lights a 'preventive maintenance service { ( • ( 2 5. FiMMNG,VFWMAMN AND AIR CONDI'T'IONING (SVAC) ■ Check for proper operation ( ( • o Check ventilation in enclosed • or underground garage • Preventive maintenance service • 1 ( 6. LANDSCAPING I a Remove trash • • Gardening-mow,trim,weed • 67 Qf &; Ton v54 fwwf i .,�.ev;�yr_r �'iSa'.�.1 1Y.�ir3r:Mwc3�lc1Y:"lNlrw.+.::-'�C.r^ J,.,n$L:.-,..:�a::..:'i � � .. -A�- • �',.. �' •�:� �'A;RK3htC�-5?'RU •�• i]R�t'V�A1i11?'EN'AiV Daily Weekly Monthly Quarterly Semi. Annually Other lAmma2y (see notes) 7. pAINTIlVG I t ■ Check for rust spots -.--Doors and door frames • Handrails and guardrails • --pipe awards, exposed pipes • and conduits —Other metal • Check for appearance --Striping • __SLns • --Malls • Curbs • .-Zbuch-up paint • ■ Repot } } ( } 1 1 } I S. PARHING CON'T'ROL EQUIPIVMENT ■ Check for proper operation } • I I I } Preventive maintenance { ( I { 9. pLtTMBINGIDRALXAGE SYSTEMS • Check for proper operation --Sanitary facilities • Irrigation • --Floor drains • --Sump pump • Fire protection system I I • • Drain water systems for winter , I I • • Check for-icy spots• • I } • Remove snow and ice • I 68 ................................... 16701 IfL5 AW Daily Weekly Monthly Quarterly Semi- A==Hy Other Annually (see notes) �ROOFING AND WA17ERPROOFING ■ Check for leaks ,Roofing • --Joint sealant in floors • —Expansion joints • --Windows, doors and walls • —Floor membrane areas • N Check for wear and • deterioration* � I � { 1 ! � SAFETY CHECKS r. Carbon monoxide monitor • (Handrails and guardrails • Rmdt lights Emergency lights a Tripping hazards 124 SE CUR=SYS ■ Check for proper operation —Closed circuit TV • —Audio surveillance • —Panic buttons • --Stair door locks and alarms • 13. 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'r � $ �fi' r•♦ a .a' v i lr i�rj r_ y+•tY'\{. ,�. �71 a..t t J r�,k�,. ,. !- y , �} , I a 1',3, 'a�, �_,,;,,'""L'f':�� t,= Y't' rTt-f,:t7r- •.}},t„� :yf�i� S••. fi x�y•.i r'' '+t � 's•+�•.,,wtt ay1 t•, l _ ,r 4 , d Y 3 fw t.� fy r}r�;tl. �r'�J.r� '••"Y a7�t 1�54 h-, � -Zr 'L,�•I r,�,a yV �(t i + ..t� l{�T'-ir r °t tC4M• rj`-' �`';•-�'; �� ti, t''L ;�..r d.�.�s.j``'(1+f'G �j•�a.-•ial�_'�,.r. s i1'-�"t :''..'� - - - -------------------...-- ...............- ..,...,...... RAC. -j-()j ! Ulu U01 . When coating, protection or r. it is planned one T. CONCLUSIO, must be absolutely clear about the ot-jectives and aware of the strengths and weaknesses of the various products and . Develop a long term stategy for procedures available. purely cosmetic work may be of tue in keeping the building welcoming to the user, but maintenance of the car park and its don't fool yourself into thinking it will slow the barriers. _ underking deterioration. Waterproofing without attention to falls to prevent Have a full set of readily accessible as ponding is not likely to be reliable. Repairs need to built drawings and maintenance records. consider developing corrosion around a spall.Concrete is not an easily repaired material and one cannot patch the . Have a survey to establish current trends cover to reinforcement as simply as one can repaint of deterioration and to predict long term corroded steelwork. Repairs should either be considered as 'non trends. structural' to patch a hole with no contribution to strength or should be made 'structural'. Repairs always • Have a structural review carried out to require further cutting out to prepare the surface. This identify the kev areas of structural may require temporary support and the repair may weakness and/or structural sensitivity to deteriorate and lose its structural effectiveness. Specialist deterioration for regular inspection. Structural Engineering advice should be obtained to ensure that safety is maintained at all stages. • Iden tifv where and when protection, It is difficult to make repairs structurally effective unless thev are cut out deep enough to ensure that the strengthening or repair may become appropriate art of the loner term repair is fully linked to the substrate concrete by the PP ro P as P three dimensional reinforcement cage. The dimensional maintenance programme. incompatibilities between repairs and the substrate concrete are such that adhesion at the interface cannot • Protection and local repair can prolong be relied on structurally, even when the underlying active life, but won't achieve immortality, concrete is not bruised by the cutting out. Often full so check the cost and benefit over the �pth cutting out with high pressure water jetting and residual life of the structure as part of Casting with Concrete is the only really effective method your strategy, of repair. In some instances `belt and braces' repair, using additional external strengthening, will be more cost • Before repairs are carried out ensure effective than cutting out and recasting the original poor that a Structural Engineer has checked detail,which can be left to harmlessly deteriorate the structure `as built', `as deteriorated', If structural repair seems a daunting and expensive `as cut out for repair', `as repaired' and business it helps emphasize the need for better initial "with repair delaminated'. construction and earlv action to slow deterioration before structural damage occurs. Insist on a full recorded survey of 6. LESSONS FOR NEW DESIGN condition before problems are hidden_ An improved design basis for car parks should be below patch repairs, coatings or developed by simplifying down from bridge design waterproofing, standards, rather than by uprating building design practice. • Ensure good falls, wash down regularly Owners should ensure that an explicit'Durabilin'and and keep the drains clear and have 'vlaintainability Audit' is carried out on the design, the regular specialist inspections carried out. construction and site supervision procedures before signing the contract. Concrete is an essential material for many parts of At some point, controlled decay until a car park structure. There is a substantial potential reconstruction will become a better for cost effectively creating more robust and durable strateg• than endless repair. concrete car parks by learning from the performance of existing structures. This will require better • When you build a new car park ensure :tailing, the use of higher quality concretes and that durability, maintainability and improvements in the construction practice and quality control during construction have supervision. This cannot be achieved for car parks by relving on traditional procedures covered in current proper priority. building codes. 28 Journal r,/Parkin,, ..-..................._............__.-_......."""""".,.".___...._..__....__...._..,......__...._......................................._........._................ f 558 EXHIBIT 14.1(h) PARKING FACILITY AND COMMON GROUNDS MAINTENANCE SCHEDULE DAILY TASKS: A. General Cleaning 1. Trash pick up: all ramps,stairwells,elevators,common areas and landscaped areas 2. Empty trash receptacles: in facility and on-site replace trash bag and secure same 3. Clean restrooms: sweep and mop floors,clean toilet basin and sink with disinfectant cleanser,clean mirrors stock all paper goods, empty trash receptacles 4. Stairs and Stairwells: stairs swept,handrails dusted,signage and lighting checked,doors to stairs dusted/cleaned if needed 5. Clean all glass: office and/or booth windows,elevators(as applicable) 6. Office area: work areas dusted(cleaned if necessary),floors mopped,rugs vacuumed, bathrooms cleaned and supplies in bathrooms checked and replenished as needed 7. Sweep and hose off sidewalks,loading dock,trash room 8. Sweep and mop all lobby areas B. Lighting,Fire Extinguishers and Fire Protection System,Sianaae and Security S stems : 1. Check all light fixtures:in facility and on-site(replace bulbs as needed) 2. Inventory all fire extinguishers:report any vandalism or missing fire extinguishers 3. Check all signage:both informational and illuminated 4. Check security system:test all radio control boxes,call boxes and speaker horns 5. Check placement of all cameras and reception of camera shots in security office(as applicable) 6. Check elevator cab communication devices and alarms(as applicable) 7. Check elevator lights and replace bulbs as needed C. Parking Control Equipment and Attendant Booths: 1. Check for proper operation of gate arms,ticket spitters,power pads and proximity readers 2. Dust all booth equipment(power pad,verifier,cash drawer and other,as applicable) 3. Sweep all booths and shake out floor mats D. Elevators: 1. Mop floors,clean walls and panels with polish,clean or replace ceiling tiles 2. Dust doorframe and sweep door tracks clear of debris F WINSKEM M Michigan-Lincoln Plaza\Unco1nP1azaGmd1se8-17a(Ex)wpd August 30,1999(2 49PM) ._........... --------.------------......_....................__........._............................._..._._..................... _..__.........._....................... 187708 6.59 i WEEKLY TASKS: A. General Cleaning 1. Wash trash receptacles: in facility and on-site 2. Pressure wash stairwells and landings 3. Mop and sanitize attendant booths and/or cashier office 4. Removal of infestations: cobwebs,nests,etc.as applicable B. Lighting,Fire Extinguishers and Fire Protection System,Signage and Security S stems : 1. Assure replacement/repair of all lighting: in facility and on-site 2. Assure replacement of all fire extinguishers: in facility and on-site 3. Assure replacement/repair of all emergency fire protection and security system components 4. Repair or replace any broken ballasts 5. Check that all illuminated directional signage is in working order C. Parking Control Equipment: 1. Repair any needs reported re:proper operation of gate arms,ticket spitters,power pads and proximity readers,verifier,cash drawer and other,as applicable 3 2. Clean and dust all ticket spitters and check for moisture intrusion D. Elevators: 1. Perform any necessary maintenance for optimum performance of each unit 2. Check all panels for vandalism and repair as needed 3. Dust bulbs,fixtures and diffusers 4. Polish metal work throughout E. Doors and Hardware: 1. Check all door components for proper closure,locking and latching 2. Re-calibrate door components as needed 3. Lubricate overhead door devices F. Painted surfaces and signage: 3 i 1. Inspect the condition of all painted surfaces and facility signage(interior and exterior)and remove any stickers,gum or other foreign objects 2. Prepare work order for areas needing painting or signs that need replacement F:IMINSKERIC M Michigan-Lincoln Plaza lLincolnPlazaGmdlsc8-17a(Ex)wpd August 30,I999(2 49PM) t _...___.-....----............._._._....... _......._....................._....-..............................................._............................................_..... 71'Ci a } MONTHLY TASKS: General Cleaning:_ 1. Power sweep all ramps and common concrete slab areas 2. Inspect all joints and condition of sealants,prepare work order to address needed deficiencies 3. Hose down all ramps (if using pressure,adhere to PSI recommended by builder) 4. Pressure clean stairwells and landings and all sidewalks 5. Seal and wax all file floors in facility and common areas b. Clean or replace all air conditioning filters in facility and common areas 7. Check all drains and remove any foreign objects in facility and common areas 8. Check for any leaks in facility or common areas,offices or booths and repair as needed 9. Check condition of stucco in facility and common areas and repair as needed 10. Remove carbon build up from all exposed surfaces in facility and common areas B. Li_ Ming,Fire Extinguishers and Fire Protection System,Sig,nape and Security S stems : 1. Replace all missing signage in facility and common areas 2. Inspect all fire extinguisher housings in facility and common areas,and repair or replace as needed 3. Test security system as per manufacturers specifications and report any variances or need for repair 4. Check fire protection,standpipes and smoke detectors in facility and common areas,repair and replace components as needed to assure optimum performance C. Parking Control Equipment: 1. Monthly maintenance of all gate arms,ticket spitters,power pads and proximity readers 2. Repair or replace components as needed D. Painted surfaces and signage: 1. Prepare surfaces of handrails and apply a fresh coat of paint 2. Inspect all painted surfaces in facility and common area, and prepare and paint, or touch- up surfaces as needed 3. Replace all missing signage and order back up inventory QUARTERLY TASKS: A. General Cleaning: 1. Degrease all floors and ramps and clean all expansion joints FAMTNSKEW M B1Michipn-Lincoln Plazal LincnlnPla72Gmd1se8-17a(Ex).wpd j August 30,1999(2 49PM) I'll 18770" 66.x. 2. Power scrub or power wash all ramps and concrete slab surfaces(use PSI recommended by builder) B. Lighting,Fire Extinguishers and Fire Protection System,Signage and Security S stems : 1. Check all light fixtures and exposed conduit. Repair and replace as needed. 2. Check distribution and switchgear 3. Check that all timers and photocells are working properly. Repair or replace as needed. C. Landscape Maintenance: 1. Trim shrubs and prune all planted materials in facility and on-site 2. Test all irrigation systems in facility and common areas, and repair as needed 3. Replace flowering plants in facility and common areas seasonally as needed 4. Inspect all landscape lighting and uplighting and repair or replace bulbs,photocells or other components as needed D. Checklist for leaks and water intrusion: 1. Check for leaks at drain basins,inlet grates,leaders,downspouts,floor sleeves,stairwells, elevator roofs, expansion joints,floor joints and cracks,and check basin for buildup 2. Inspect the ceiling below for signs of active leaks 3. Repair and address as required E. Checklist for structural inspections: 1. Check for cracks and spalls at beams,columns,brick and or block work 2. Check floors and ceilings for cracks, spalls,abrasion and stalling 3. Check expansion joints for deterioration,failed or splitting rubber glands and failed nosing materials 4. Check for roofing material deterioration 5. Check and repair all sealants and caulking i 6. Check any waterproofing membrane(if applicable) 7. Repair and replace materials as required ANNUAL TASKS: 1. Test fire protection systems and complete annual inspection with City 2. Test all elevator system operations and complete annual inspection with City 3. Perform annual inspections by maintenance/supply contractors of: a. Revenue control equipment b. Air conditioning equipment C. All maintenance vehicles/equipment FAMMSKER\C M Michigan-Lincoln Plaza\LincolnPlazaGmdlse$-17a(Ex)wpd August 30,1999(2:49PM) .............................................................. ._...__..__...................__.. I 670M 6.6 NEC, BI-ANNUAL TASKS 1. Check floor striping for signs of wear and fading and if warranted,restripe all painted surfaces(stalls,floor directional painting etc.) j 2. Inspection of facility for structural integrity by a qualified engineering firm. Firm shall prepare a condition survey which shall at a minimum contain information on: a. Deterioration of concrete(spalling,corrosion etc.) b. Longevity of concrete sealer C. Water leakage d. Condition of precast connections e. Cracking of concrete f. Rusting of steel g. Condition of waterproofing membrane 3 7 S 3 Y F:IMINSKEM M BMichigan-Lincoln P1aza\Linco1nP1mGmd1se8-17a(Ex)wpd August 30,1999(2 49PM) *0- 167- TOR bu.63 EXHIBIT 14.1(c) OWNER'S OPERATING STANDARDS 1. GENERAL PERSONNEL REGULATIONS AND STANDARDS: Parking Attendants,Cashiers,Supervisors and Management a. All personnel shall present a positive and professional appearance and demeanor when conducting the business of the Garage. b. All personnel shall maintain good grooming standards. C. All personnel shall wear uniforms which display the name of the parking operator. Uniforms shall be clean and pressed. d. All personnel shall wear name tags. e. All personnel shall be responsible for the neat and orderly upkeep of their workstation or attendant booth. E All personnel shall be trained in the use of revenue control equipment and proper maintenance of same. g. All personnel shall be trained in customer service. h. All personnel shall be able to effectively converse, read and write in English. i. All personnel shall be able to complete daily cash reports,inspection reports and related management reports(as applicable to individual responsibility levels). J_ All personnel shall understand their role as an ambassador of,and partner to the City of Miami Beach. The City shall provide"in-service"training opportunities for Garage personnel. The City shall also provide collateral printed materials to the Garage Operator, to assist the parking public and visitors. k. All personnel of the Garage Operator shall be bonded and insured. Contract Labor: Housekeeping,/Janitorial Services, Security Personnel, Landscape Maintenance Personnel 3 a. All contracted personnel shall present a positive and professional appearance and demeanor when conducting their business in the Garage and on the common areas. b. All contracted personnel shall maintain good grooming standards. uniforms which display the name of their company. C. All contracted personnel shall wear p y p Uniforms shall be clean and pressed. d. All contracted personnel shall wear name tags. e. All contracted personnel shall be trained in customer service. f. All contracted personnel shall be able to effectively converse in English. g. All contracted personnel shall understand their role as an ambassador of, and partner to the City of Miami Beach. h. All contracted personnel shall fully understand their contractural responsibilities and scope of work assigned,and shall effectively perform said duties. F:1MINSKERIC M Michigan-Lincoln Plaza\LincolnPlazaGmdlses-17a(Ex)wpd August 30,1999(2:49PM) REC. 18, -t -OR %,4 2. PARKING OPERATION STANDARDS: a. The Garage shall be attended and secured 24-hours per day,seven days per week. b. All personnel shall be professional and courteous in the performance of their duties. C. The Garage shall be sufficiently staffed at all times.At a minimum one cashier/attendant; one manager or supervisor;and one security guard, shall be present and working in the Garage at all times. d. Housekeeping and janitorial services shall be performed a minimum of eight(S)hours per day. The Garage and common areas shall be kept free of litter at all times. e. Security services shall be provided continuously, 24-hours per day. Security personnel shall be licensed and insured.Security services shall provide for continuous "roaming" guard patrol throughout the Garage. C Landscape maintenance shall be performed on a weekly basis. All landscape maintenance shall be in accordance to the specifications of the Landscape Architect on the Project. Furthermore, all landscape maintenance shall be performed in accordance with "Facility and Garage Maintenance Standards"contained herein and described as Exhibit 14.1(b). g. Garage Operator shall assure that maintenance contracts are continuously in effect for elevators, parking revenue control systems and security systems, and that said maintenance contracts, at a minimum, shall adhere to the provisions set forth in the "Facility and Garage Maintenance Standards" contained herein and described as Exhibit 14.1(b). h. Garage Operator shall be responsible for assuring that all contractors(security, houskeeping/janitorial and landscape maintenance) adhere to "Facility and Garage Maintenance Standards" contained herein and described as Exhibit 14.1(b). 3. REPORTING STANDARDS: a. Garage Operator shall maintain daily records of the Garage operation (cash receipts, usage logs, maintenance records,staffing levels,contractural service levels). b. Garage Operator shall report the following to the City on a monthly basis: 1. Daily cash receipts 2. Daily usage log which includes: a. Number of hourly(transient)packers b. Number of flat rate parkers:both daily and special flat rate parkers C. Number of monthly parkers d. Number of valet parkers(if applicable) 3. Daily log of contractural security staff hours , 4. Daily log of contractural janitorial/housekeeping staff hours 5. Copies of monthly landscape maintenance invoices 6. Copies of monthly maintenance service invoices, and/or receipts for P � (elevator,security system,parking control equipment) F WINSKEM M Michigan-Lincoln Plaza\LincolnPI=Gmdise8-17a(Ex)wpd August 30,1999(2:49PM) iOPT. = 3 ' X65 mac.. C. Garage Operator shall report all instances logged on facility security reports,or incidents reported to the City of Miami Beach Police Department. d. The City reserves the right to inspect all Garage operation records,and audit same. e. The Garage Operator shall provide annually to the City, a certified audit of Garage operations and revenues. 4. COMPLIANCE WITH OPERATIONAL AND MAINTENANCE STANDARDS: INSPECTION OF PREMISES,CORRECTION OF DEFICIENCIES, AND DISPUTE RESOLUTION a. Garage Operator shall make Garage and common areas available to the City for P inspection at any time. These areas include,but are not limited to: Garage ramp areas, stairwells,elevators,security system,common areas,garage office and attendant booths. b. Garage Operator shall correct, replace, repair or attend to, any maintenance or operational deficiency identified by the City of Miami Beach as a result of any inspection of the Garage, its common areas,and/or its operation. Notice of deficiency by City to Garage Operator may be verbal,but shall be followed up in written form. Correction of said deficiency shall be handled within seventy-two(72)hours of notice. C. Garage Operator shall address all operational complaints by the public in a professional, courteous and timely manner. Written complaints which are copied to the City shall be responded to in writing,with copies to the City's Parking Director. d. The City reserves the right to arbitrate any Garage operation complaint that has not been resolved to the satisfaction of the customer or the City. The City's Parking Director shall act as the liaison in such matters. f FAVIINSKEW M Michigan-Lincoln Ptm\LincolnPlazaGrndlse8-17a(Ex)wpd August 30,1999(2 49PM) OF R-EG. I U 70K EXHIBIT 36. TERMS OF TENANT'S RIGHT OF FIRST OFFER TRANSACTION 1. Purchase Price. The Purchase Price shall be as set forth by Owner in the Offer Notice and shall be payable at the closing of the purchase by wire transfer of immediately available funds to an account designated in writing by Owner. The Purchase Price may not include seller-financing unless Owner is an Institutional Lender or an Affiliate of an Institutional Lender. The purchaser shall not be permitted to make its obligation to close contingent on obtaining third-party financing. 2. Closing Date. The closing of the purchase shall take place on a date designated by Owner,but in any event not less than sixty (60)days nor more than ninety (90)days following the date such Owner executes a purchase agreement with the purchaser. 3. Deed: Title. At the closing of the purchase,Owner shall convey to the purchaser(i)all of Owner's right, title and interest in and to the Premises by a special warranty deed and (ii) all of Owner's right, title and interest in and to this Lease by an assignment of lease. The form of such deed and assignment of lease shall be mutually acceptable to Owner and Tenant but shall not in any event provide for any representations by Owner other than a representation that Owner has not theretofore transferred or assigned the items being transferred or conveyed thereby and the representations and warranties customarily contained in a special warranty deed. Owner's Interest in the Premises and the Lease shall be conveyed to Tenant subject to all liens, encumbrances and other matters then affecting the title thereto and any state of facts a survey may reveal (but in all cases subject to Owner's obligations under Section 2.2 of the Lease). Owner shall also execute all other documents customarily used in real estate transactions in Miami-Dade County, Florida; provided, however, that if Owner is a Governmental Authority, (x)such documents shall not include those documents from which Governmental Authorities are exempt pursuant to applicable Requirements and (y) with respect to any title affidavit required of Owner, (i)Owner shall not be required to make any statement or certification regarding parties-in-possession and (ii) any statement or certification regarding mechanics' or materialmen's liens shall cover only work or materials directly contracted for by Owner in writing. F.W NSKERIC M Bwichigan-Lincoln Plaza\LincolnPlazaGmdlseg-17a(Ex)wpd August 30,1999(2:49PM) _.._........_......_........................................_....-._._......................................._....................... _._..... 8 7 TOR EL 4. Rent: Prorations. At the closing of the purchase, all Rental and/or Impositions shall be prorated through the date of closing and paid to the party entitled thereto. No other prorations shall be made. 5. Expenses. Each party shall pay its own attorneys'fees. All transfer taxes,title charges,recording fees, survey charges and other expenses incurred in connection with the purchase shall be paid by Tenant; provided, however, that Owner shall pay all documentary stamp taxes and surtax, if any, payable in connection with the purchase. F:IMINSKERIC M Michigan-Lincoln Plaza\LincolnPlazaGmdlse8-17a(Ex)wpd August 30,1999(2 49PM) ...................... ................................................................................................_........................... ..._............._........................................................................................................ SEC. I!1187,1 ' 9 EXHIBIT 36.2(a) TERMS OF OWNER'S RIGHT OF FIRST OFFER TRANSACTION 1. Purchase Price. The Purchase Price shall be as set forth by Tenant in the Offer Notice and shall be payable at the closing of the purchase by wire transfer of immediately available funds to an account designated in writing by Tenant. The Purchase Price may not include seller-financing unless Tenant is an Institutional Lender or an Affiliate of an Institutional Lender. The purchaser shall not be permitted to make its obligation to close contingent on obtaining third-party financing. 2. Closing Date. The closing of the purchase shall take place on a date designated by Tenant,but in any event not less than sixty(60)days nor more than ninety(90)days following the date such Tenant executes a purchase agreement with the purchaser. 3. Deed; Title. At the closing of the purchase,Tenant shall convey to the purchaser(i)all of Tenant's right, title and interest in and to the Premises by a special warranty deed and(ii)all of Tenant's right, title and interest in and to this Lease by an assignment of lease. The form of such deed and assignment of lease shall be mutually acceptable to Tenant and Owner but shall not in any event provide for any representations by Tenant other than a representation that Tenant has not theretofore transferred or assigned the items being transferred or conveyed thereby and the representations and warranties customarily contained in a special warranty deed. Tenant's ' Interest in the Premises and the Lease shall be conveyed to Owner subject to all liens, encumbrances and other matters then affecting the title thereto and any state of facts a survey may reveal (but in all cases subject to Tenant's obligations under Section 2.2 of the Lease). Tenant shall also execute all other documents customarily used in real estate transactions in Miami-Dade County,Florida;provided,however,that if Tenant is a Governmental Authority, (x)such documents shall not include those documents from which Governmental Authorities are exempt pursuant to applicable Requirements and (y) with respect to any title affidavit required of Tenant, (i) Tenant shall not be required to make any statement or certification regarding parties-in-possession and(ii)any statement or certification regarding mechanics'or materialmen's liens shall cover only work or materials directly contracted for by Tenant in writing. 4. Rent:Prorations. At the closing of the purchase,all Rental and/or Impositions shall be prorated through the date of closing and paid to the party entitled thereto. No other prorations shall be made. F:IMINSKERIC M B\Michigan-Lincoln Plaza\l.incolnPlazaGmdlse8-17a(Ex)wpd August 30,1999(2:49PM) ppr i OFF 5. Expenses. Each party shall pay its own attorneys' fees. All transfer taxes,title charges,recording fees, survey charges and other expenses incurred in connection with the purchase shall be paid by Owner;provided,however,that Tenant shall pay all documentary stamp taxes and surtax, if any,payable in connection with the purchase. } y� RECORDERS NOTE: no legibility of writing,typing or printing unsatis- factory in this document when received. RECORDED IN OFFICt 1t RECORDS W0X OF BADE COUNTY,FLORIDA. RECORD VERIFIED HARVEY RUVlN CLERK WROWT COURT F-1MiNSKER\C M MMichigan-Lincoln Piara ll:.incoltiPlazaGmdlse&l?a(Ex)wpd August 30,1999(2 49PM)