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Memorandum of Understanding with the Lincoln Road Business Improvement District, Inc.
0.10iC—o2q/V MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF MIAMI BEACH,FLORIDA AND THE LINCOLN ROAD BUSINESS IMPROVEMENT DISTRICT,INC. This Memorandum of Understanding ("MOU") is hereby entered into as of the 2"d day of November, 2015, by and between the City of Miami Beach, Florida, a municipal corporation organized and existing under Florida law, with principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139 (the "City"), and the Lincoln Road Business Improvement District, Inc., a Florida not-for-profit corporation with principal offices at 801 Arthur Godfrey Road, Suite 600, Miami Beach, Florida 33140 (the "LRBID") (collectively, the City and the LRBID may hereinafter be referred to as the "Parties"). RECITALS WHEREAS, on April 15, 2015, the Mayor and City Commission of the City of Miami Beach adopted Resolution No. 2015-28992, creating, pursuant to Chapter 170, the Florida Statutes, and subject further to the approval of a majority of the affected property owners, a special assessment district to be known as the Lincoln Road Business Improvement District (the "District"), for a term of ten (10) years, to stabilize and improve the Lincoln Road retail business district, which is located within a nationally recognized historic district, through promotion, management, marketing, and other similar services; and WHEREAS, the District is bounded on the west by Alton Road; on the east by Washington Avenue; on the north by 17th Street; and on the south by Lincoln Lane South; provided, however, that the following properties are excluded and exempted from the District: (i) residential properties; (ii) properties owned or occupied by a religious institution and used as a place of worship or education (as defined in Section 170.201(2), Florida Statutes); and (iii) common areas owned by condominium associations; and WHEREAS, on May 20, 2015, the Mayor and City Commission adopted Resolution No. 2015-29026, which called for a special mail ballot election (the "Election") to be held from June 29, 2015 to July 24, 2015 to determine whether a majority (50% plus one) of the affected property owners approved the creation of the District; and WHEREAS, the affected property owners overwhelmingly approved the creation of the District; and WHEREAS, the results of the Election are as follows: fifty-seven (57) ballots were cast in favor of the creation of the District, three (3) ballots were cast in opposition to the creation of the District, four (4) ballots were rejected as improperly cast, and twelve (12) ballots were not returned. A copy of the Official Election Certification of the Canvassing Board is attached hereto as Exhibit "A"; and WHEREAS, on July 31, 2015, the Mayor and City Commission approved Resolution No. 2015-29098, adopting the Official Election Certification of the Canvassing Board for the Election, and setting, pursuant to Sections 170.07 and 170.08, Florida Statutes, a public hearing on September 30, 2015, for the owners of the property to be assessed or any other interested persons to appear before the Mayor and City Commission and be heard as to the propriety and advisability of making such improvements, as to the cost thereof, as to the manner of payment therefor, and as to the amount thereof to be assessed against each property so improved; and WHEREAS, following the duly noticed hearing on September 30, 2015, the Mayor and City Commission voted to levy the special assessments; and WHEREAS, thereafter, pursuant to Section 170.08, Florida Statutes, the Mayor and City Commission met as an equalizing board to hear and consider any and all complaints as to the special assessments and to adjust and equalize the assessments on a basis of justice and right, following which the Mayor and City Commission approved Resolution No. 29145, approving the final assessment roll; and WHEREAS, the LRBID was organized by filing Articles of Incorporation (the "Articles") with the Secretary of State of the State of Florida on October 30, 2015 (Document No. N15000010632); and WHEREAS, the LRBID shall apply for a tax exemption under Section 501(c)(6) of the Internal Revenue Code; and WHEREAS, the City and the LRBID desire to enter into this MOU to set forth the obligations of the Parties with respect to the administration of the District. NOW, THEREFORE, in consideration of the foregoing,the Parties agree as follows: 1. Recitals. The Recitals are true and correct and are hereby incorporated into and made a part of this MOU. 2. Purpose. The purpose of the LRBID is to stabilize and improve the Lincoln Road retail business district, which is located within a nationally recognized historic district, through promotion, management, marketing, and other similar services, by (i)representing and advocating for the property owners and business owners located within the boundaries of the District; (ii) promoting and encouraging the continued development of a diverse, vibrant and pedestrian-friendly Lincoln Road mixed-use neighborhood, thereby providing a dynamic setting for businesses, the visiting public, arts and entertainment, as well as area residents; (iii) serving as a cultural and civic hub for the community and fostering a spirit of cooperation and maintenance of high standards of quality among its members; and (iv) bringing transformative projects into the District. A certified copy of the filed Articles of Incorporation of the LRBID and a copy of the Bylaws adopted by the first Board of Directors of the LRBID are attached hereto and incorporated herein as Composite Exhibit"B". 3. Scope of Services. In consideration of the revenue generated by the District from special assessments, the LRBID shall provide, at a minimum, the services set forth in the Budget, Budget Narrative, and Summary of Services, attached hereto and incorporated herein as Composite Exhibit"C". 2 4. Term and Expiration Date. This MOU and the Parties' obligations hereunder shall commence upon the full execution of this MOU and shall terminate on the earlier of the expiration of the District, the dissolution of the LRBID, the exercise of any of the provisions in Section 13 of this MOU, or upon mutual written agreement of the Parties. 5. City's Authorized Representative. The City Manager shall, after consultation with the Executive Committee of the LRBID, appoint an Authorized Representative as a non-voting, ex-officio member of both the Board of Directors and Executive Committee of the LRBID. Notwithstanding the foregoing sentence, the City Manager shall have the sole and final authority to select the City's appointee. 6. Collection of Special Assessments. The City shall collect the special assessments levied to fund the District, in accordance with the following procedure: a. On or before September 1 of each year, the City shall invoice each affected property owner for payment of the assessment levied to fund the District. The assessment shall be payable in one annual installment by October 1 of each year. Payments shall be made payable to the Finance Director of the City, or the Finance Director's designee. Notwithstanding the provisions of this paragraph, for the first fiscal year following the creation of the District (October 1, 2015 — September 30, 2016), the City shall invoice each affected property owner no later than December 1, 2015, and the assessment shall be payable to the City by January 1, 2015. b. The City shall, on a monthly basis, electronically remit the assessments collected to the LRBID. c. Installments not paid when due shall become due and payable in accordance with statutory provisions and shall remain liens, coequal with the lien of all state, county, district, and municipal taxes, superior in dignity to all other liens, titles, and claims, until paid, and shall bear interest, at such rates as specified in Section 170.09, Florida Statutes. d. Notwithstanding the provisions of this Section, the LRBID may elect to transfer the responsibility to collect the assessments from the City to the Miami-Dade County Property Appraiser, provided that LRBID must first notify the City in writing of such election on or before April 1 of the preceding fiscal year. 7. Reimbursement of City's Expenses. LRBID shall reimburse the City for its actual costs of bank transfer fees, as well as postage and mailing supplies for invoices and any other notices. LRBID shall reimburse the City for any actual out-of-pocket expenses incurred by the City in the course of remitting the assessments to the LRBID and collecting unpaid assessments, including, without limitation, the cost of recording liens, court costs, and filing fees. The City shall either(i) deduct any such reimbursable expenses from the City's remittances to the LRBID, and concurrently 3 deliver to the LRBID an invoice detailing the expenses deducted from the remittance, or (ii) invoice the LRBID on a monthly basis for the City's reimbursable expenses. 8. Budget. The LRBID shall not have the power to expend funds in excess of that which is provided for in the current budget of the LRBID, except that the LRBID may enter into contractual commitments scheduled in years following the then current fiscal year. Any such commitment shall be binding upon the LRBID and shall be included in the budget of the LRBID in any and all fiscal years in which any payments required to be made thereunder shall become due and payable. Annually, on or before August 1, the LRBID shall prepare and submit to the City Commission a budget accurately itemizing all estimated revenue and expenses for the succeeding fiscal year beginning October 1. The City Commission's review of the LRBID's budget shall be limited solely to a determination of the legality of the expenditures. The LRBID shall not expend funds or incur any liability which is not authorized or provided for in its current budget, or in any amendment thereto, unless as otherwise provided herein. 9. Annual Report to the Mayor and City Commission. Annually, on or before August 1, the LRBID shall, upon request of the City Manager or the City Manager's designee, provide the City with an annual report detailing the LRBID's activities during the preceding fiscal year, along with a copy of the LRBID's annual budget. 10. Uniform Special District Accountability Act. The Parties acknowledge and agree that the LRBID is an independent special district as defined in the Uniform Special District Accountability Act, which is set forth in Chapter 189, Florida Statutes. As such, the LRBID shall fulfill and comply with all applicable requirements of Chapter 189, Florida Statutes, as may be amended from time to time. The LRBID's compliance with Chapter 189 is a material term of this MOU. 11. Sunshine Law. All meetings of the Executive Committee, Board of Directors, or general membership of the LRBID shall be publicly noticed and open to the public, pursuant to Chapter 286, Florida Statutes, as may be amended from time to time. 12. Public Records Law. The LRBID shall be subject to Florida Public Records Law including, without limitation, Chapter 119, Florida Statutes, as may be amended from time to time. 13. Termination for Cause. If the LRBID shall fail to fulfill in a timely manner, or otherwise violates, any of the covenants, agreements, or stipulations material to this MOU, the City, through its City Manager, shall thereupon have the right to terminate this MOU for cause. Prior to exercising its option to terminate for cause, the City shall notify the LRBID of its violation of the particular term(s) of this MOU, and shall grant LRBID thirty (30) days to cure such default, provided however that if the default cannot be reasonably cured within such time period, the LRBID shall not be in breach of this Agreement, if the LRBID commences to cure the breach within such time period and in good faith continues to cure the breach, I 4 but in no event shall such time period for cure be extended beyond ninety(90) days. If such default remains uncured after the time period set forth above, the City may terminate this MOU without further notice to LRBID. Upon termination, the City shall be fully discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this MOU. Notwithstanding the above, the LRBID shall not be relieved of liability to the City for damages sustained by the City by any breach of the MOU by the LRBID. The City, at its sole option and discretion, shall be entitled to bring any and all legal/equitable actions that it deems to be in its best interest in order to enforce the City's right and remedies against the LRBID. The City shall be entitled to recover all costs of such actions, including reasonable attorneys' fees. 14. Indemnification. The LRBID agrees to indemnify and hold harmless the City of Miami Beach and its officers, employees, agents, and contractors, from and against any and all actions (whether at law or in equity), claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees and costs, for personal, economic, or bodily injury, wrongful death, or loss of or damage to property, which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other wrongful conduct of the LRBID, its officers, employees, agents, contractors, or any other person or entity acting under the LRBID's control or supervision, in connection with, related to, or as a result of the LRBID's performance of the services pursuant to this MOU. To that extent, the LRBID shall pay all such claims and losses and shall pay all such costs and judgments which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and attorneys' fees expended by the City in the defense of such claims and losses, including appeals. The provisions of this Section and of this indemnification shall survive termination or expiration of this MOU. 15. Choice of Law, Venue, and Waiver of Jury Trial. This MOU shall be construed in accordance with the laws of the State of Florida. This MOU 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 this MOU shall lie in Miami-Dade County, Florida. By entering into this MOU, the LRBID and the 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 MOU. 16. Limitation of Liability. The City desires to enter into this MOU only if in so doing the City can place a limit on the City's liability for any cause of action, for money damages due to an alleged breach by the City of this MOU, so that its liability for any such breach never exceeds $100,000. The LRBID hereby expresses its willingness to enter into this MOU with the LRBID's recovery from the City for any damages and/or action for breach of contract to be limited to $100,000. Accordingly, and notwithstanding any other term or condition of this MOU, the LRBID hereby agrees that the City shall not be liable to the LRBID for damages in 5 an amount in excess of $100,000, 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 MOU. Nothing contained in this section or elsewhere in this MOU is in any way intended to be a waiver of the limitation placed upon the City's liability, as set forth in Section 768.28,Florida Statutes. 17. Audit and Inspections. Upon reasonable verbal or written notice to the LRBID, and at any time during normal business hours (i.e. 9:00 am—5:00 pm, Monday through Friday, excluding nationally recognized holidays), and as often as the City Manager may, in his/her reasonable discretion and judgment, deem necessary, there shall be made available to the City Manager, and/or such representatives as the City Manager may deem to act on the City's behalf, to audit, examine, and/or inspect, any and all other documents and/or records relating to all matters covered by this MOU. The LRBID shall maintain any and all such records at its place of business at the address set forth in the "Notices" section of this MOU. In addition to the provisions in this Section, the LRBID shall also comply with the audit and reporting requirements set forth in Chapter 189,Florida Statutes. 18. Independent Contractor/No Joint Venture. This MOU shall not constitute or make the Parties a partnership or joint venture. For the purposes of this MOU, the LRBID shall be deemed to be an independent contractor, and not a partner, agent, agency, department, or ad hoc committee of the City. No agent or employee of LRBID shall attain any rights or benefits under the Civil Service or Pension Ordinance of the City, or any right generally afforded classified or unclassified employees, including annual leave and sick day accrual. Further, no agent or employee of LRBID shall be deemed entitled to Florida Worker's Compensation Benefits as an employee of the City or accumulation of sick or annual leave. 19. Notices. All notices and communications in writing required or permitted hereunder, shall be delivered personally to the representatives of the LRBID and the City listed below, or may be mailed by U.S. Certified Mail, return receipt requested, postage prepaid, or by a nationally recognized overnight delivery service. Unless changed by notice in writing, all such notices and communications shall be addressed as follows: To LRBID: President and Executive Director Lincoln Road Business Improvement District, Inc. 801 Arthur Godfrey Road, Suite 600 Miami Beach, Florida 33140 To the City: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 6 With a copy to: Lincoln Road Property Manager Property Management Division City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Notice may also be provided to any other address designated by the party to receive notice if such alternate address is provided via U.S. certified mail, return receipt requested, hand delivered, or by overnight delivery. In the event an alternate notice address is properly provided, notice shall be sent to such alternate address in addition to any other address which notice would otherwise be sent, unless other delivery instruction is specifically provided for by the party entitled to notice. Notice shall be deemed given on the day on which personally served, or the day of receipt by either U.S. certified mail or overnight delivery. 20. Changes and Additions. This MOU cannot be modified or amended without the express written consent of the parties. No modification, amendment, or alteration of 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. 21. Severability. If any term or provision of this MOU is held invalid or unenforceable, the remainder of this MOU shall not be affected and every other term and provision of this MOU shall be valid and be enforced to the fullest extent permitted by law. 22. Entirety of Agreement. The City and LRBID agree that this MOU constitutes the entire agreement between the parties. This MOU supersedes all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein, and there are no commitments, agreements or understandings concerning the subject matter of this MOU that are not contained in this document. Title and paragraph headings are for convenient reference and are not intended to confer any rights or obligations upon the parties to this MOU. [Signature Page to Follow] 7 IN WITNESS WHEREOF,the Parties hereto have affixed their signatures, effective on the day first above written. CITY OF MIAMI BEACH,FLORIDA ATTEST: 1 F By A % CORP.OR�T �' � �. R. a- rardo, City.Clerk '1' e, yor „;74......7.7.7....''..,\C%r ' LINCOLN ROAD BUSINESS IMPROVEMENT DISTRICT,INC. APPROVED AS TO FORM & LANGUAGE By: - &FOR EXECUTION Steve-('r-binski, President ..9.-.., as;.(_ 1 l ^ 5+ (3 City Attorney Date NV . 8 EXHIBIT"A" Official Election Certification of the Canvassing Board [See attached] A-1 MO - AIIIMMIllb, '10 ..=ANIMMEMI.4■111...... ..r r.. --• 1915•2015 L. ■ SPECIAL MAIL BALLOT ELECTION HELD IN THE CITY OF MIAMI BEACH FROM JUNE 29, 2015 TO JULY 24, 2015, TO DETERMINE WHETHER A MAJORITY OF THE AFFECTED PROPERTY OWNERS APPROVE THE CREATION OF A SPECIAL ASSESSMENT DISTRICT TO BE KNOWN AS THE LINCOLN ROAD BUSINESS IMPROVEMENT DISTRICT **OFFICIAL ELECTION CERTIFICATION OF THE CANVASSING BOARD** STATE OF FLORIDA) COUNTY OF MIAMI-DADE) We, the undersigned, Raul J. Aguila, City Attorney, Nick Kallergis, Assistant City Attorney, and Rafael E. Granado, City Clerk, constituting the Canvassing Board for the Special Mail Ballot Election to approve the creation of the Lincoln Road Business Improvement District, do hereby certify that we met on the 24th day of July 2015, and proceeded to publicly count the votes cast. We do hereby certify the results as follows: Shall a special assessment district known and designated as the Lincoln Road Business Improvement District (the "District") be created for a term of ten (10) years, with an estimated annual budget of$1,426,237, to stabilize and improve the Lincoln Road retail business district, which is located within a nationally recognized historic district, through promotion, management, marketing, and other similar services, which district is to be funded by special assessments against benefited properties? YES VOTES 57 NO VOTES 3 UNRETURNED BALLOTS 12 REJECTED BALLOTS 4 Le„ AN ASSING BOARD k„.":„ Ra I J. Aguila, City Attorney a , ,_,- _; ick allergis, Assis:< nt G if Attorney f j\it7 2`1; ZoIc Rafael E. Gr. .do, City Clerk Date: July 24, 2015 F:I CLER',CLERl000_ELECTIONl000_LINCOLN ROAD BID ELECTIOMCANVASSINGIOFFICIAL CERTIFICATION RESULTS REG.Docx jJ • e t t - ;'• ., ,_t Composite'•Exhibit «B '. ,;; 1'''-''''::. , • .Filed Articles of Incorporation and Adopted Bylaws - i [See attached] 1..." I T_,.,ry r r+r' • (Y , IJ 1 w.Y t c } L T T T. w ro. - J ' Y • it 7 t h fl L + I F 850-617-6381 11/2/2015 10 :29: 14 AM PAGE 2/002 Fax Server 47X November 2, 2015 FLORIDA DEPARTMENT OF STATE Division of Corporations LINCOLN ROAD BUSINESS IMPROVEMENT DISTRICT, INC. 801 ARTHUR GODFREY RD STE 600 MIAMI BEACH, FL 33140 The Articles of Incorporation for LINCOLN ROAD BUSINESS IMPROVEMENT DISTRICT, INC. were filed on October 30, 2015, and assigned document number N15000010632 . Please refer to this number whenever corresponding with this office. Enclosed is the certification requested. To be official, the certification for a certified copy must be attached to the original document that was electronically submitted and filed under FAX audit number H15000259895. To maintain "active" status with the Division of Corporations, an annual report must be filed yearly between January 1st and May 1st beginning in the year following the file date or effective date indicated above. It is your responsibility to remember to file your annual report in a timely manner. A Federal Employer Identification Number (FEI/EIN) will be required when this report is filed. Apply today with the IRS online at: https: //sa.www4 . irs.gov/modiein/individual/index. jsp. Please be aware if the corporate address changes, it is the responsibility of the corporation to notify this office. Should you have questions regarding corporations, please contact this office at (850) 245-6052 . Jessica A Fason Regulatory Specialist II New Filings Section Division of Corporations Letter Number: 315A00023067 P.O BOX 6327—Tallahassee,Florida 32314 • 850-617-6381 11/2/2015 10 :29: 14 AM PAGE 1/002 Fax Server I I / / / I ♦ r l l ! I ncyt I V V V V � V � V V V V � � � � � V V �/DCDaDCDCDCDCDQDCDCDCDC© C- CD A '11 ri A bill DnaDAC ,,��„ma�ntxmr,m1 nom ���� A n �n`� n ‘vf H., _ n V Rg —=� ^vk ., -` ..sw ••:+ •mot• `�♦;•... ✓AC ■ 'NJ: .. . a_ ... . .„At'., •-•-_.I.,,,ie DAU° ✓ C ~ OD w �aUS` PC^ 57E �9epurtment of #tote Svc n13 C true and correct copy of the Articles of P I certify the attached is a t py Y D C Incorporation of LINCOLN ROAD BUSINESS IMPROVEMENT DISTRICT, INC. , a 2 SFlorida corporation, filed on October 30, 2015, as shown by the records of��C this office. pq�•c.,n I further certify the document was electronically received under FAX audit'U C number H15000259895 . This certificate is issued in accordance with d be 1 ow 7 section 15. 16, Florida Statutes, and authenticated by the code noted !t D,C ?�'n ,"� corporation is N15000010632 . The document number of this corpor oV� EM2 lC]r .... DCIC Authentication Code: 315A00023067-110215-N15000010632-1/1 tn R. ��o Fl gE V allz � t Mr ^E g.,7,6- rJ ow ��ns V�0 x LA N., :nc Og Given under my hand and the V Great Seal of the State of Florida, �nC this the at Tallahassee, the Capital, R DV�C o . Second day of November, 2015 al ,,,N.Y., ��',- ,.-%' M ri :`�i1 ifs. ♦il!lIlI''{{11111tt��t� �b• M J4Jtl'�-.t�• t. ki VPIAA. fliWJA FA .... x.en )et)ner ,N5 gnrzetai•p of a)tate %p R 0 • % �V �V V V V V �� �'��V�°������'' Cw C� CD CDACDA O.—OCDnCeDnCdACDA,c� ARTICLES OF INCORPORATION OF LINCOLN ROAD BUSINESS IMPROVEMENT DISTRICT,INC. (A Florida Not For Profit Corporation) The undersigned, a natural person over the age of 18, hereby files these Articles of Incorporation of LINCOLN ROAD BUSINESS IMPROVEMENT DISTRICT, INC. (hereafter referred to as the "Corporation"), in compliance with Chapter 617, Florida Statutes,the Florida Not For Profit Corporation Act(the"Act"). ARTICLE I ORGANIZATION 1.1 Name: The Corporation shall be known as Lincoln Road Business Improvement District, Inc. 1.2 Offices: The principal offices of the Corporation shall be located in the State of Florida at such place or places as the Board of Directors may from time to time, designate. The initial principal office and mailing address of the Corporation shall be located in care of Lincoln Road Property Owners Association, Inc., 801 Arthur Godfrey Road, Suite 600, Miami Beach, Florida, 33140, Attn: Ozzie Dominguez. ARTICLE II PURPOSES, The purposes for which the Corporation is organized is to stabilize and improve the Lincoln Road retail business district, which is located within a nationally recognized historic district in the Miami Beach, Florida(the "District"), through promotion, management, marketing and other similar services. The District is bounded on the west by Alton Road; on the east by Washington Avenue; on the north by 17`" Street; and on the south by Lincoln Lane South;provided, however, that the following properties are exempted and excluded from the District (1) residential properties, (2) properties owned or occupied by a religious institution and used as a place of worship or education (as defined in Section 170.201(2), Florida Statutes), and (3) common areas owned by condominium associations. The District is a special assessment district created by the Mayor and City Commission of the City of Miami Beach, pursuant to Chapter 170, Florida Statutes, and approved by majority vote of the affected property owners in the special mail ballot election held pursuant to Resolution No. 2015-29026, from June 19, 2015 through July 24, 2015. On September 30, 2016, the Mayor and City Commission approved Resolution No. 2015-29145, approving the final assessment roll for the District. In furtherance of those purposes, the Corporation shall, without limitation, conduct or support the following activities: 1) Represent and advocate for the property owners and business owners located within the boundaries of the District; 2) Promote and encourage the continued development of a diverse, vibrant, and pedestrian- friendly Lincoln Road mixed-use neighborhood, thereby providing a dynamic setting for businesses, the visiting public, arts and entertainment, as well as area residents; 3) Serve as a cultural and civic hub for the community; 4) Foster a spirit of cooperation and maintenance of high standards of quality among its members; and 5) Bring transformative projects into the District. The Corporation shall be limited in all events to exempt purposes described in Section 501(c)(6) of the Internal Revenue Code of 1986 (hereinafter, the "Code", which term shall include the corresponding section of any future federal tax code). The Corporation may engage only in activities that are either permitted or not prohibited under the laws of the State of Florida, including Chapter 170, Florida Statutes, and laws of the United States of America, as such laws are amended from time to time, and that constitute activities in furtherance of such exempt purposes. ARTICLE III TAX EXEMPT STATUS The Corporation is a not-for-profit corporation organized to provide a broad source of support for businesses in the District. It is the express purpose of these Articles of Incorporation to limit the authority, powers and purposes of the Corporation and to require the Corporation to conform to the limitations set forth in the Code with reference to organizations which are exempt from tax under section 501(c)(6) of the Code, and nothing herein shall be construed to grant to the Corporation any powers or purposes not contemplated and authorized under the Code. No substantial part of the assets or the net earnings of the Corporation shall inure to the benefit of, nor be distributed to, any officer, director or member of the Corporation, or to any other private person, in such a fashion as to constitute an application of funds not within the purpose of exempt organizations described in the Code. However, reimbursement for expenditures or the payment of reasonable compensation for services rendered to the Corporation shall not be deemed to be a distribution of earnings or assets. 2 In the event of the complete or partial liquidation or dissolution of the Corporation, whether voluntary or involuntary, the balance of all money and other property received by the Corporation from any source, after the payment of all debts and obligations of the Corporation, shall be distributed to the City of Miami Beach, Florida. The Corporation will distribute its income for each tax year at a time and in a manner as not to become subject to the tax on undistributed income imposed by Section 4942 of the Code; the Corporation will not engage in any act of self-dealing as defined in Section 4941(d) of the Code; the Corporation will not retain any excess business holdings as defined in Section 4943(c) of the Code; the Corporation will not make any investments in a manner as to subject it to tax under Section 4944 of the Code; and the Corporation will not make any taxable expenditures as defined in section 4945 of the Code. ARTICLE IV MEMBERSHIP AND CORPORATE EXISTENCE The Corporation shall have members the qualification for which shall be set forth in the By- Laws of the Corporation. The Corporation shall have perpetual existence. ARTICLE V BY-LAWS The initial By-Laws of the Corporation shall be adopted by the first Board of Directors of the Corporation. Thereafter, the power to amend, alter or repeal any part or all of the By-Laws of the Corporation shall be vested in the Board of Directors of the Corporation unless otherwise provided in the By-Laws of the Corporation. ARTICLE VI DIRECTORS The qualifications, manner of election, duties, terms and other matters relating to the Board of Directors of the Corporation shall be provided in the By-Laws of the Corporation as amended from time to time in accordance therewith. The first Board of Directors of the Corporation shall be elected by the Incorporator. ARTICLE VII INDEMNIFICATION OF OFFICERS AND DIRECTORS Each person who acts as a director or officer of the Corporation shall be indemnified as and to the extent, provided in the By-Laws of the Corporation. 3 • • • • __ ARTICLE'VIII REGISTERED OFFICE AND AGENT The mailing address of the.initial registered'office of the Corporation is'c/o Stearns Weaver Miller Weissler Alhadeff& Sitterson, P.A.; Museum Tower, 150 West,Flagler Street, Suite 2200, Miami,Florida, 33.130. The name'of the initial registered agent at this office is Stuart D. Ames. The Board of Directccrs of the Corporation may from time to time.designate such other person as its registered.agent or such other`address and place for the registered office oI'the Corporation as it may deem appropriate. _ - ARTICLE IX., • INITIAL INCORPORATOR ' • - The Initial Incorporator of the Corporation who is executing these Articles of Incorporation is Steven Gombinski, whose address is 3737 Collins Avenue, Suite 1504, Miami Beach, Florida, 33140 The undersigned Incorporator has executed these Articles of Incorporation as of October 2015. • �Steven f gins ki Incorporator • • • • • ACCEPTANCE OF APPOINTMENT As REGISTERED AGENT Having been named as registered agent for the above-named corporation at the place designated in these Articles of Incorporation, I hereby accept the appointment as registered agent and agree to act in this capacity. I further agree to comply with the provisions of all statutes relating to the proper and complete performance of my duties, and I am familiar with and accept the obligations of my position as registered agent as provided for in Chapter 617, Florida Statutes. 4ki' S art D. Ames, Registered Agent Dated: October'1, 2015 5 42000.0001 #4585158 vl 10/29/2015 5:15 PM As adopted by the Board of Directors of the Corporation on October 30, 2015 BY-LAWS Of LINCOLN ROAD BUSINESS IMPROVEMENT DISTRICT, INC. (A Florida Not-for-Profit Corporation) Section 1. Definitions, Purposes and Powers. 1.1 Name. The name of this Corporation shall be LINCOLN ROAD BUSINESS IMPROVEMENT DISTRICT, INC. It is a not-for-profit corporation organized and existing under the laws of the State of Florida. 1.2 Definitions. The quoted terms set forth below will have the following meanings unless otherwise required by the context in which they may be used: 1.2.1 "Act" means the Florida Not for Profit Corporation Act, Chapter 617, Florida Statutes. 1.2.2 "Authorized Owner Representative" means, at any time, a natural person who at such time has been designated in writing to the Corporation by a Member as the person who is authorized to represent such Member in all matters either relating to or affecting the Corporation, including but not limited to voting; provided that such person is an executive officer, shareholder, partner or manager with direct operational responsibility for the business of the Member conducted on such property. 1.2.3 "Authorized Tenant Representative" means, at any time, a natural person who at such time has been designated in writing to the Corporation by a retail ground floor tenant or restaurant operator in the District as the person who is authorized to represent such tenant or operator in all matters either relating to or affecting the Corporation; provided such person is an executive officer, shareholder, partner or manager with direct operational responsibility for the business of the of such tenant or restaurant operator conducted in the District. 1.2.4 "Articles of Incorporation" means the Articles of Incorporation of the Corporation filed with the Department of State of Florida on the 30`h day of October, 2015, and any amendments thereto. 1.2.5 "Board of Directors" means the Board of Directors of the Corporation elected as provided in these By-Laws. 1.2.6 "City's Authorized Representative" means an individual who shall be appointed by the City Manager, in his or her sole discretion and authority, after consultation with the Executive Committee and the Board of Directors. The City's Authorized Representative shall be a non-voting, ex-officio member of both the Board of Directors and Executive Committee of the Corporation. 1.2.7 "Code" means the Internal Revenue Code of 1986, as amended, or the corresponding provision of any future United States Internal Revenue Law. 1.2.8 "Corporation" means Lincoln Road Business Improvement District, Inc., a Florida not-for-profit corporation. 1.2.9 "Director" means an individual who is a member of the Board as described in Section 4. 1.2.10 "District" has the meaning specified in the Articles of Incorporation. 1.2.11 "Entire Board" means, at any time, the total number of then authorized Directors, assuming no vacancies. 1.2.12 "Executive Committee" means the committee of the Board constituted as provided in Section 5.1. 1.2.13 "Majority" means in excess of 50 percent of the applicable total number. 1.2.14 "Member" means an individual or entity who/which qualifies as a Member in accordance with Section 3. 1.2.15 "Officer" means one or more of the positions described in Section 7. 1.2.16 "President" means the President of the Corporation as set forth in Section 7.5.1. 1.2.17 "State" means the State of Florida. The above definitions shall be equally applicable to the singular and plural forms thereof. References in these By-Laws to "Section" means a section of these By-Laws unless otherwise indicated. 1.3 Statement of Purpose. The Corporation is organized and to be operated as a business league within the meaning of Section 501(c)(6) of the Code. The purposes of the Corporation shall be to stabilize and improve the Lincoln Road retail business district, which is located within a nationally recognized historic district, through promotion, management, marketing, and other similar services, by (i) representing and advocating for the property owners and business owners located within the boundaries of the District; (ii) promoting and encouraging the continued development of a diverse, vibrant and pedestrian-friendly Lincoln Road mixed-use neighborhood, thereby providing a dynamic setting for businesses, the visiting public, arts and entertainment, as well as area residents; (iii) serving as a cultural and civic hub for the community and fostering a spirit of cooperation and maintenance of high standards of quality among its members; and (iv) bringing transformative projects into the District. In furtherance of this purpose, the Corporation will work toward creating a favorable environment which will increase commercial and cultural activity within the District. The Corporation will encourage a spirit of cooperation and maintenance of high standards among its Members. 1.4 Powers of the Corporation. Except as limited by the Articles of Incorporation and these By-Laws, the Corporation shall have and exercise all rights and powers in furtherance of its purposes as are now or may hereafter be conferred on not-for-profit corporations pursuant to the Act and in accordance with other applicable law. 2 1.5 Limitations on Activities. (a) No part of the net earnings of the Corporation shall inure to the benefit of, or be distributable to any Member, Director or Officer or any other private individual (except that reasonable compensation may be paid for services rendered to or for the Corporation in effectuating one or more of its purposes), and no Member, Director or Officer, or any other private individual, will be entitled to share in the distribution of any of the corporate assets upon dissolution of the Corporation. (b) Notwithstanding any other provision of the Articles of Incorporation or these By-Laws, the Corporation shall not conduct or carry on any activities not permitted to be conducted or carried on by an organization exempt from taxation under Section 501(c)(6) of the Code. Upon the dissolution of the Corporation, the Board, after paying or making provisions for the payment of all of the liabilities of the Corporation out of the assets thereof, shall distribute all residual assets of the Corporation to the City of Miami Beach, Florida. Section 2. Offices and Registered Agent. The Corporation shall have and continuously maintain in the State a registered office and registered agent (whose office will be identical with such registered office) and may have such other offices within or without the State as the Board may from time to time determine. Section 3. Membership. 3.1 Qualification. Members shall consist of the owners of any parcel of real property located in the District except for owners of: (i) residential property; (ii) properties owned or occupied by a religious institution and used as a place of worship or education (as defined in Section 170.201(2), Florida Statutes); and (iii) common areas owned by condominium associations. 3.2 Voting Rights. Each voting Member shall have one vote for each tax folio for each property it owns in the District. In the case of a Member which is not a natural person, such Member shall designate an Authorized Owner Representative as the person who shall exercise such Member's right to vote as a Member. Only owners of real property located within the District who are current in payment of their District tax assessments shall be entitled to vote. Voting by proxy and by absentee ballot shall be permissible in any election of Directors or on any other matter to be voted upon by Members entitled to vote. 3.3 Meetings of Members. The annual meeting of the Members shall be held at a time and place to be determined by the Executive Committee within sixty (60) days of the end of each fiscal year. The Secretary of the Corporation shall send notice of the time and place of each annual meeting of the Corporation to each voting Member at least thirty (30) days prior to the date set for the meeting. In lieu of mailing such notice, the Executive Committee may authorize electronic mail delivery as provided in Section 8.10.1. At the annual meeting, the Members shall: (i) hear reports from the Board, the President and the Executive Director, (ii) elect Directors for the ensuing year, and (iii) transact such other business as may lawfully come before the meeting. In addition, special meetings of the Members for any purpose may be 3 called at any time upon written notice mailed at least ten (10) days in advance of such meeting. Such special meetings shall be called at the instance of a majority of the Executive Committee, a majority of the Board or upon written request of twenty percent (20%) or more of the voting Members. A quorum for the conduct of business at any meeting of the Members shall consist of forty percent (40%) of the voting Members present in person, or represented by proxies and absentee ballots, at the meeting. 3.4 Telephonic Participation in a Meeting. One or more Members (including Authorized Owner Representatives) may participate in a meeting of Members by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can communicate with each other at the same time. Participation in a meeting pursuant to the foregoing sentence shall constitute presence in person at such meeting. Section 4. Board of Directors. 4.1 General Powers. All of the business and affairs of the Corporation shall be managed by, and under the direction of, the Board in a manner consistent with the Act, these By-Laws and other applicable laws and regulations. The Board shall make appropriate delegations of authority to the Officers. 4.2 Qualifications of Directors. Directors need not be residents of the State or Members;provided that each Director shall be at least eighteen (18) years of age at the time of election. 4.3 Number and Classification of Directors. The Board shall consist of eleven (11) voting Directors and up to five (5) ex officio, non-voting Directors, including the City's Authorized Representative. At least nine (9) Directors must be Members or Authorized Owner Representatives, and up to two (2) Directors may be retail ground floor tenants or restaurant operators in the District or Authorized Tenant Representatives. The total number of Directors, including those who vote and those who do not vote, shall be determined from time to time by a majority vote of the Entire Board upon the recommendation of the Executive Committee. No . reduction in the number of voting Directors shall shorten the term of any incumbent voting Director. The voting Directors shall be classified with respect to their terms of office by dividing them into three classes consisting, as nearly as possible, of an equal number of the voting Directors. Each voting Director shall hold office until his successor shall have been elected and qualified or until his earlier resignation, removal from office or death. At each annual election, the successors to the class of Directors whose terms shall expire that year shall be elected to hold office for a term of three (3) years, so that the term of office of one class of Directors shall expire in each year. Each ex officio Director, except the City's Authorized Representative, shall serve at the pleasure of the Board but in no event longer than such person holds the position that result in his becoming an ex-officio Director. For example, if the Executive Director's employment with the Corporation terminates for any reason whatsoever, he shall cease being an ex officio Director. 4.4 Composition of Board of Directors. Each voting Director shall be a person who is either (i) a Member, (ii) an Authorized Owner Representative, (iii) a retail ground floor tenant or restaurant operator in the District or (iv) an Authorized Tenant Representative. The non- voting ex officio Directors shall be composed of: 4 (a) The Executive Director of the Corporation; (b) The City's Authorized Representative; and (c) Three(3) other persons appointed by the Executive Committee. 4.5 Election of Directors. 4.5.1 Nominating There shall be a Nominating Committee (the "Nominating Committee") consisting of three (3) members of the Executive Committee chosen by the President and approved by the Executive Committee plus one (1) Director who is not a member of the Executive Committee plus one (1) Member who is not a Director. The Nominating Committee shall nominate individuals to serve on the Board. 4.5.2 Inspectors of Election. The President shall appoint three (3) individuals, who may be Members, Directors, Officers or Corporation staff personnel, chosen by the President and approved by the Executive Committee (collectively, the "Inspectors of Election"). The same persons who serve on the Nominating Committee may also be Inspectors of Election; however, no nominee for any office shall be eligible to serve as an inspector of election in connection with any election in which such nominee is a candidate for office. 4.5.3 Procedure. No later than forty-five (45) days prior to the annual meeting of Members, the Nominating Committee shall meet and consider nominations for the position of Director. No person shall be nominated by the Nominating Committee unless the Nominating Committee shall have first obtained that person's consent in writing to run if nominated and to serve if elected. (a) Nominations for Directors also may be made by a petition of the Members delivered to the Secretary/Treasurer of the Corporation not later than thirty (30) days prior to the annual meeting and signed by fifteen (15) Members. Such a petition shall bear the written acceptance of the person so nominated. The nominations contained in such petition shall be included in the ballot for the annual meeting. (b) No later than twenty (20) days prior to the annual meeting, the Secretary of the Corporation or the Inspectors of Election shall cause to be prepared for mailing to all Members entitled to vote, ballots listing the number of Director positions to be filled at the election, with the names of all candidates. The ballots shall also allow for a voting Member to write in additional candidates for Director on the ballot and to cast a vote for the additional candidate or candidates so written in. (c) In addition to the ballots, the Secretary shall also mail to each Member entitled to vote (i) a blank envelope in which said Member's marked ballot shall be enclosed and (ii) a return addressed envelope that the Member shall sign and put said Member's name and return address so that each envelope can be checked to determine that the ballot has been returned by a Member who is eligible to vote. All such envelopes which shall be received by the Corporation not later than the commencement of the annual meeting, including those delivered by hand, shall be turned over to the Inspectors of Election. The Inspectors of Election shall verify the eligibility of the senders, open the mailing envelopes and cause the ballots contained therein to be tabulated. In addition, any Member may receive a ballot and vote in 5 person at the annual meeting. The Inspectors of Election shall maintain a list of those Members who shall have voted as evidenced by the receipt of their ballot envelopes. The Inspectors of Election shall tabulate the ballots at the annual meeting and the candidates receiving the greatest number of votes, up to the number of Directors to be elected, shall be the Directors and declared duly elected effective at the time that the ballots are tabulated. The results of the balloting shall be formally announced by the President at the annual meeting of Members. 4.6 Term of Office for Directors. Each Director shall serve for a term of three (3) years except as otherwise provided in Section 4.3. Directors may serve a maximum of two (2) consecutive terms (for an aggregate term of six (6) years), unless such limitation is waived by a majority of the members of the Executive Committee; provided, however, that, subject to the limitation in Section 4.14, a person who is elected by the Board to fill a vacancy on the Board, who will serve to the next annual meeting may serve for up to two (2) consecutive three-year terms thereafter. After being off the Board for one (1) year, a former Director shall again be eligible for nomination and election to the Board. The provisions of this paragraph shall not apply to the City's Authorized Representative. 4.7 Regular Meetings. Regular meetings of the Board shall be held not less than four (4) times a year (with at least one (1) meeting in each quarter-annual period), at such times and places in Miami Beach, Florida as the Executive Committee may determine. The first regular meeting of the Board shall be held within sixty (60) days after the election of Directors. 4.8 Special Meetings. Special meetings of the Board may be called by or at the direction of either the President, Vice-President or upon the written request of six (6) Directors, such meeting to be held at such time and place as will be designated in the notice thereof, provided that the place of special meetings of the Board shall be in Miami Beach, Florida. 4.9 Notice. Notwithstanding any other provision in these By-Laws, the Corporation shall publicly notice all meetings of the Board of Directors or general membership of the Corporation, pursuant to Chapter 286, Florida Statutes. Except as otherwise provided herein, notice of the time and place of any regular or special meeting of the Board shall be provided to each Member and Director at least three (3) days prior to such meeting in writing, by facsimile/telefax, electronic mail or posting to the Corporation's internet website, or by telephone or word of mouth, provided that the giving of any oral notice shall be recorded in the minutes of the meeting by statement of the Officer, Director or employee giving such notice. Any Director may waive notice of any meeting. The attendance of a Director at any meeting shall constitute a waiver of notice of such meeting by that Director, except where the Director attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the waiver of notice of such meeting. Notice shall also be posted in a conspicuous place in the office of the Corporation. 4.10 Quorum. The greater of (i) six (6) or (ii) a majority of the Directors shall constitute a quorum for the transaction of business at any meeting of the Board, unless otherwise specifically provided by law, the Articles of Incorporation or these By-Laws. Attendance shall be either in person or by telephone connection whereby the distant member(s) and those members present in person all hear and may speak to and be heard by one another on 6 the matters raised therein. If less than a majority of the Directors are present at such meeting, one-third (1/3) of the Directors actually present may adjourn the meeting from time to time without further notice, until a quorum is present. 4.11 Manner of Acting. 4.11.1 Formal Action by Board. The act of the majority, but in no event less than five (5), Directors present at a meeting.at which a quorum is present shall be the act of the Board, unless the act of a greater number is required by the Act, the Articles of Incorporation or these By-Laws. 4.11.2 Action by Board without a Meeting. No action of the Board shall be valid unless taken at a meeting at which a quorum is present. 4.11.3 Telephonic Participation in a Meeting. One or more Directors may participate in a meeting by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can communicate with each other at the same time. Participation in a meeting pursuant to the foregoing sentence shall constitute presence in person at such meeting. 4.12 Resignations and Removal. Any Director may resign from the Board at any time by giving written notice to the President or the Secretary and, unless otherwise specified therein, the acceptance of such resignation will not be necessary to make it effective. Any Director, except the City's Authorized Representative, may be removed from office at any time with or without cause by a vote of two-thirds (2/3) of the Entire Board at a meeting called for that specific purpose. If a Director, other than the City's Authorized Representative, is absent without adequate reason, as determined by the President, from two (2) consecutive meetings of the Board, such Director may be removed from office by a majority vote of the Entire Board. 4.13 Proxies Prohibited. A Director may not vote by proxy. 4.14 Vacancies. Any vacancy occurring in the membership of the Board will be filled by a majority vote of the Board, and such appointee shall serve as Director until the next annual meeting at which time the Members shall elect a new Director to fill the remaining unexpired term of such Director's predecessor in office. 4.15 Compensation. Directors, as such, will not receive any stated salaries for their services, but by resolution of the Board may receive a reasonable amount for attending to their authorized duties; provided, however, that subject to the provisions herein concerning self- dealing, nothing herein contained will be construed to preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor subject to the requirements set forth in Section 8.1. Section 5. Executive Committee. 5.1 Composition and Election. There shall be an Executive Committee consisting of the President, Vice President, Secretary and Treasurer of the Corporation, the City's Authorized Representative, and one non-officer Director to be elected annually by the Board at its annual meeting; provided, however, that each voting member of the Executive Committee shall either 7 be a property owner within the District or a principal owner of an entity which is a property owner within the District. The Executive Director of the Corporation and the City's Authorized Representative shall serve as ex officio (non-voting) members of the Executive Committee. 5.2 Authority and Restriction. The Executive Committee shall be responsible for carrying out the overall program of the Corporation within the policy as set forth by the Board and shall appoint all committees (other than the Executive Committee) of the Corporation. The Executive Committee shall exercise the full powers of the Board in the management of the Corporation during periods between meetings of the Board, except for those actions prohibited to such committee by these By-Laws or the Act. In particular, the Executive Committee shall not have the power to amend these By-Laws or the Articles of Incorporation or appoint Officers of the Corporation. In addition, any powers authorized herein to be exercised by the Executive Committee may be also exercised by the Board at a duly constituted meeting. All significant actions taken by the Executive Committee shall be brought to the attention of the Board at the next succeeding meeting of the Board. 5.3 Term and Vacancies. Members of the Executive Committee, except for the Executive Director of the Corporation and the City's Authorized Representative, shall hold office for a period of one (1) year or until their successors are duly elected and qualified. Vacancies on the Executive Committee may be filled by the Board at any meeting, or in the interim between meetings of the Board, may be filled temporarily by the President until the next regularly scheduled meeting of the Board. 5.4 Quorum and Voting. A majority of the members of the Executive Committee shall constitute a quorum at any duly called meeting of the Executive Committee. The majority vote, but in no event less than three (3), of those members of the Executive Committee present at a meeting at which a quorum is participating shall constitute the act of the Committee. Attendance at any meeting of the Executive Committee may be by conference telephone or similar communications equipment in the manner provided in Section 4.11.3 for Board meetings. The Executive Committee shall establish its own rules and procedures for matters not covered by these By-Laws. 5.5 Meetings. Regular meetings of the Executive Committee shall be held monthly or as often as is necessary to conduct the affairs of the Corporation at such times and places as the President may determine; special meetings may be called at any time by the President or any three (3) other members of the Executive Committee. The Secretary shall cause written notice (including by facsimile, telefax, electronic mail or posting on the Corporation's internet website) or telephonic or word of mouth notice of the time and place of all regular and special meetings of the Executive Committee to be delivered, at least three (3) days prior to the date of such meeting, to each member of the Executive Committee at such address, facsimile/telefax or telephone numbers as shall appear on the records of the Corporation. Each Notice shall also be posted in a conspicuous place in the office of the Corporation. If the Board authorizes the use of electronic mail, the same shall be effective when sent to the email address of the recipient on file with the Corporation. Notwithstanding any other provision in these By-Laws, the Corporation shall publicly notice all meetings of the Executive Committee of the Corporation, pursuant to Chapter 286, Florida Statutes. 8 Section 6. Committees, Task Forces and Councils. The Executive Committee by resolution may form from time to time such other committees, task forces or councils as may be deemed desirable in forwarding the program of the Corporation, and each of such committees shall exercise and perform such duties as may be prescribed by the Executive in such resolution. Members shall be appointed by the Executive Committee by resolution. Members of each such committee shall be composed of Directors if the committee is authorized to perform duties normally considered duties of the Board or the Executive Committee. Other committees may be composed of persons who are not Directors but shall be composed of representatives of Members. No such committee shall have the authority to take actions prohibited to such committee by the Act. Each committee shall have two or more members, and shall serve at the pleasure of the Executive Committee. Section 7. Officers. 7.1 Officers. The Officers of the Corporation shall be a President, one of more Vice- President(s), a Secretary, a Treasurer and an Executive Director who shall also be Directors. The Corporation may, at the discretion of the Executive Committee, provide for different categories of Officers and may have additional Officers to those enumerated above. No person may simultaneously hold more than one office of the Corporation. The duties of the principal executive Officers are set forth herein. When the incumbent of an office is unable to perform the duties thereof or when there is no incumbent of an office (both such situations referred to thereafter as the "absence" of the Officer), the duties of the office will, unless otherwise provided by the Executive Committee or these By-Laws, be performed by the next Officer set forth in the following sequence: President, Vice President, Secretary, Treasurer and Executive Director. 7.2 Appointment and Tenure. All Officers shall be elected each year by the Board at a meeting to be held immediately following the annual meeting of the Members, but in no event later than thirty (30) days following such annual'meeting. Each such Officer shall hold his office beginning with the adjournment of such meeting of the Board and until his successor has been duly elected and qualified, or until his earlier death, resignation or removal from office. Officers may be elected to serve one or more successive terms by the Board;provided, however, that the term of the President shall be limited to three (3) consecutive years. After not serving as President for one (1) year, a former President shall again be eligible for nomination and election to the Office of President. 7.3 Resignations and Removal. Any Officer may resign at any time by giving written notice to the President, and, unless otherwise specified therein, the acceptance of such resignation will not be necessary to make it effective. Any Officer may be removed with or without cause by the Board whenever, in its judgment, the best interest of the Corporation would be served thereby, by majority vote of the Entire Board. 7.4 Vacancies. A vacancy in any office may be filled by the Executive Committee for the unexpired portion of the term. 9 7.5 Duties of Officers. 7.5.1 President. The President shall be the chief executive officer of the Corporation, a voting Director and a voting member of the Executive Committee. Subject to the directions of the Board and the Executive Committee, the President shall, in general, supervise and control all the business and affairs of the Corporation. The President shall have the power to preside at, and shall be responsible for chairing, all meetings of the Board and all Executive Committee meetings. The President shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board or the Executive Committee from time to time. 7.5.2 Vice President. In the absence of the President, or in the event of the President's death, resignation or refusal or inability to act, the Vice President shall perform the duties of the President and, when so acting, shall have all the powers and be subject to all restrictions upon the President. The Vice President shall be a voting Director and a voting member of the Executive Committee. The Vice President shall perform such duties and have such other powers as the Board shall prescribe or as the President may from time •to time delegate. Additional Vice Presidents may be.elected by the Board, upon the recommendation of the Executive Committee, to fulfill other special purpose officer functions on behalf of the Corporation. 7.5.3 Secretary. The Secretary shall have custody of and maintain all of the corporate records, except the financial records, shall record the minutes of all meetings of the Members and the Board, shall send all notices of meetings out and shall perform such other duties as may be prescribed by the Board or the President. The Secretary shall be a voting Director and a voting member of the Executive Committee. 7.5.4 Treasurer. The Treasurer shall supervise the Executive Director in the performance of his duties as custodian of corporate funds and financial records. The Treasurer shall be a voting Director and a voting member of the Executive Committee. 7.5.5 Executive Director. Employment of the Executive Director will be subject to approval of the Board and will serve at the pleasure of the Board. The Executive Director will serve as the chief operating officer of the Corporation and as such, will devote his time, attention, skills and efforts to the affairs of the Corporation as shall be determined by the Board. The Executive Director shall be responsible for the administration of the affairs of the Corporation and execution of policy as directed by the Board, subject to the supervision and control of the President. The Executive Director will have the following responsibilities: 7.5.5.1 Serve as an ex-officio (non-voting) member of the Executive Committee and the Board. 7.5.5.2 Serve as an ex-officio member of all other committees, task forces and councils. 7.5.5.3 Serve as a professional consultant and facilitator to the Officers, the Board, the Executive Committee, task forces, councils and committees of the Corporation in formulating objectives, programs, policies and in planning, coordinating and executing programs of the Corporation. 10 7.5.5.4 Represent and serve as an advocate for the Corporation before the City of Miami Beach and throughout the Miami Beach community and Miami-Dade County. 7.5.5.5 Have custody of all corporate funds and financial records subject to the supervision and control of the Treasurer, keep full and accurate accounts of receipts and disbursements and render accounts thereof at the annual meetings of the Board, all in accordance with the policies and procedures to be adopted by the Board regarding the custody, disbursement and accounting of corporate funds. 7.5.5.6 Serve as the chief administrative officer of the Corporation, including, without limitation, performance of the following duties: (a) have responsibility for the employment, supervision and termination of employment of the Corporation's staff; (b) keep or causing to be kept all official records of the organization, including the maintenance and control of the budget; (c) present budget recommendations to the Board; (d) act as one of the individuals designated by resolution of the Board to co-sign checks up to an established dollar amount on accounts of the Corporation, and approve disbursements as provided by resolution of the Board; and (e) perform such other duties as are ordinarily incident to the position of chief operating officer or as may be assigned by the Board or President. 7.6 Compensation. Except for the Executive Director (whose compensation shall be set from time to time by the Executive Committee) or any other Officer whom the Board shall determine from time to time to provide with compensation, the balance of the Officers shall serve without compensation. 7.7 Bonds of Officers. The Board may secure the fidelity of any or all of its Officers, employees and/or agents by bond or otherwise, on such terms and with such surety or sureties, conditions, penalties or securities as arc required by the Executive Committee. The premium or premiums for such bond or bonds shall be paid out of the corporate funds of the Corporation. 7.8 Delegation. The President may delegate temporarily the powers and duties of any Officer, in case of such Officer's absence or for any other reason, to any other Officer. In addition, the Executive Committee may authorize the delegation by any Officer of any of such Officer's powers and duties to any agent or employee, subject to the general supervision of such Officer. Section 8. Miscellaneous. 8.1 Interest of Directors and Officers in Contracts. Any contract or other transaction between the Corporation and (a) any Director, (b) any Officer, or (c) any corporation, limited liability company, unincorporated association, business trust, estate, partnership, trust, joint venture, individual or other legal entity (each, a "Legal Entity") (i) in which any Director or Officer has a material direct or indirect financial interest or is a shareholder, partner, member, manager or other equity owner, or (ii) of which any Director or Officer is a director, officer, managing partner, managing member, manager or trustee (collectively a "Conflict Transaction"), shall be valid for all purposes if the material facts of the Conflict Transaction and the Director's or Officer's interest are disclosed or known to the Board, a committee with authority to act thereon, or the Members entitled to vote thereon, and the Board, such committee, or such Members authorized, approved or ratified the Conflict Transaction,provided 11 that such Director or Officer shall not participate in the discussion, vote or be counted in a quorum regarding the matter. Moreover, any such Director or Officer is precluded from exercising any function of office with respect to a matter in which such individual has a financial interest. 8.2 Contracts. The Executive Committee may authorize the Executive Director or in the absence or unavailability of the Executive Director, any Officer of the Corporation, in addition to the Officers so authorized by these By-Laws, to enter into any contract or execute any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances. 8.3 Checks, Drafts. Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such Officer or Officers, agent or agents of the Corporation and in such manner as, from time to time, may be determined by resolution of the Executive Committee. In the absence of such determination by the Executive Committee, such instruments shall be signed by either the President, the Secretary or the Treasurer and countersigned by the Executive Director. 8.4 Deposits. All funds of the Corporation shall be deposited from time to time to the credit of the Corporation in one or more such banks, trust companies, securities firms, or other depositories as the Executive Committee from time to time designate, upon the terms and conditions determined by the Executive Committee. The Executive Committee may, from time to time, authorize the opening and keeping, with any such depository as it designates, of general and special bank accounts or other forms of account and may make such special rules and regulations with respect thereto, not inconsistent with the provisions of these By-Laws, as it deems necessary. 8.5 Grants and Gifts. The Corporation may accept any grants, contributions, gifts, bequests, or devises for and consistent with the general purposes, or for and consistent with any specific purposes, of the Corporation. The Corporation shall comply with any applicable conflict of interest requirements with respect to any grants that it may receive. 8.6 Books and Records. The Corporation shall keep correct and complete books and records of account and shall also keep records of the actions of the Corporation, which records shall be open to inspection to the public, pursuant to Chapter 119, Florida Statutes. 8.7 Custody of Corporate Funds; Financial Records. The Board shall periodically adopt formal policies and procedures regarding the custody, use, disbursement and accounting of corporate funds. The Executive Director shall strictly abide by such policies and procedures in the performance of his duties as custodian of corporate funds and shall render periodic accountings to the Board confirming the Executive Director's compliance with such policies and procedures. The Treasurer shall be responsible for ensuring that the Executive Director is at all times in compliance with said policies and procedures. 8.8 Fiscal Year; Accounting Election. The fiscal year of the Corporation shall begin on October 1st and end on September 30`h of each year, and methods of accounting for the Corporation will be as the Board determines from time to time. 12 8.9 Seal. The corporate seal of the Corporation shall be circular in form with the words "Lincoln Road Business Improvement District, Inc., a corporation not for profit" in the outer edge thereof and the year of incorporation is 2015. 8.10 Notice. 8.10.1 Effective Date of Notices. Unless otherwise specified herein, any notice required or permitted to be given pursuant to the provisions of the Articles of Incorporation, these By-Laws or applicable law shall be in writing, shall be sufficient and effective as of the date published, transmitted by facsimile or electronic mail, personally delivered, or, if sent by mail three (3) days after being deposited with the United States Postal Service, prepaid and addressed to the intended recipient at such recipient's last known address as shown in the records of the Corporation. If the Board authorizes the use of electronic mail, the same shall be effective when sent to the email address of the recipient on file with the Corporation. 8.10.2 Waiver of Notice. Whenever any notice is required to be given under the provisions of the Act, or under the provisions of the Articles of Incorporation, these By-Laws or other applicable law, a waiver thereof in writing signed by the person entitled to such notice, whether before or after the time stated therein, will be deemed equivalent to the giving of such notice to such person. The attendance of a Member or Director at any meeting will constitute a waiver of notice of such meeting, except where a Member or Director attends a meeting for the express purposes of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. 8.11 Loans to Officers and Directors and Members Prohibited. No loans shall be made by the Corporation to any Officer, Director or Member. Any Director who, in violation of this section, votes for or assents to the making of a loan, and any Director or Officer participating in the making of such loan, shall be jointly and severally liable to the Corporation for the amount of such loan until the repayment thereof. 8.12 Indemnification of Directors, Officers and Others. (a) The Corporation shall defend and indemnify any Director or Officer made a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding: (i) Whether civil, criminal, administrative or investigative, other than an action, suit or proceeding by or in the right of the Corporation, by reason of the fact that such person is or was a Director or Officer or is or was serving as a director, officer, employee or agent of any other corporation, partnership, joint venture, trust or other enterprise at the request of the Corporation, against judgments, fines, amounts paid in settlement and expenses, including attorneys' fees, actually and reasonably incurred as a result of such action, suit or proceeding or any appeal thereof, if such person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interest of the Corporation, and in criminal actions or proceedings, without reasonable cause for belief that such conduct was unlawful. The termination of any such action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not in itself create a presumption that any such Director or Officer did not act in good faith and in a manner which such person reasonably believed to be in, 13 or not opposed to, the best interests of the Corporation or, with respect to any criminal action or proceeding, that such Director or Officer had reasonable cause to believe that such conduct was unlawful. (ii) By or in the right of the Corporation to procure a judgment in its favor by reason of such person's being or having been a Director or Officer, or by reason of such person's serving or having served at the request of the Corporation as a director, officer, employee or agent of any other corporation, partnership, joint venture, trust or other enterprise, against any expenses, including attorneys' fees, actually and reasonably incurred by such person in connection with the defense or settlement of such action, or in connection with an appeal therein, if such person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interests of the Corporation. Such person shall not be entitled to indemnification in relation to matters as to which such person has been adjudged to be liable for gross negligence or willful or wanton misconduct in the performance of such person's duties to the Corporation unless, and only to the extent that, the court in which such action or suit was brought determines upon application that, despite the adjudication of liability, but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court will deem proper. (b) Any indemnification under paragraph (a), unless pursuant to a determination by a court, shall be made by the Corporation only as authorized in the specific case upon a determination that amounts for which a Director or Officer seeks indemnification were properly incurred and that such Director or Officer acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation, and that, with respect to any criminal action or proceeding, he or she had no reasonable ground for belief that such action was unlawful. Such determination shall be made either (1) by the Board by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding, or (2) by a seventy five percent (75%) super-majority vote of a quorum consisting of Executive Committee Members who were not parties to such action, suit or proceedings. (c) The foregoing rights of indemnification shall not be deemed to limit in any way the power of the Corporation to indemnify under any applicable law. 8.13 Revocability of Authorizations. No authorization, assignment, referral or delegation of authority by the Board, the Executive Committee or the President to any committee, Officer, agent, or other official of the Corporation, or any other organization which is associated or affiliated with, or conducted under the auspices of the Corporation shall preclude the Board from exercising the authority required to meet its responsibility. The Board shall retain the right to rescind any such authorization, assignment, referral, or delegation in its sole discretion. 8.14 Employees and Agents of the Corporation. Consistent with and within the limitation set forth in Section 5.2, the Executive Committee may employ such personnel and/or enter into agreements with such independent contractors as it deems necessary or desirable for the efficient operation of the Corporation. 8.15 Rules. The Board may adopt, amend or repeal rules (not inconsistent with these By-Laws) for the management of the internal affairs of the Corporation and governance of its 14 Officers, agents, committees and employees. Unless the Board adopts rules of procedure which shall not be inconsistent with the Articles of Incorporation, these By-Laws or applicable law, the conduct of all meetings of the Members, Directors and members of Committees shall be in accordance with the provisions of Robert's Rules of Order. 8.16 Vote by Presiding Officer. The person acting as presiding officer at any meeting held pursuant to these By-Laws, if a voting member thereof, shall be entitled to vote on the same basis as if not acting as presiding officer. 8.17 Gender and Number. Whenever the context requires, the gender of all words used herein shall include the masculine, feminine and neuter, and the number of all words will include the singular and plural thereof. 8.18 Section and Other Headings. The Section and other headings contained in these By-Laws are for reference purposes only and shall not affect the meaning or interpretation of these By-Laws. 8.19 Severability. Should any of the conditions, terms or covenants herein imposed, or contained be void or be or become unenforceable at law or in equity, the remaining provisions of this instrument shall nevertheless be and remain in full force and effect. Section 9. Amendments to By-Laws. The power to make, alter, amend or repeal these By-Laws is vested in the Board; provided, however, that (i) any vote of the Board to take such action shall be composed of not less than five (5) Directors, and (ii) the Members entitled to vote may alter, amend or repeal these By-Laws at any duly constituted annual or special meeting of the Members by a vote of not less than two-thirds (2/3) of all the voting Members,provided that a detailed description thereof is included in the notice of such meeting. Any such action taken by the Members shall not be subject to alteration, amendment or repeal by the Board. 15 42000.0001 #4594848 v1 11/4/2015 4:11 PM EXHIBIT"C" LINCOLN ROAD BUSINESS IMPROVEMENT DISTRICT ANNUAL BUDGET NARRATIVE AND SUMMARY OF SERVICES TO BE PROVIDED 1. Revenues The revenues in the attached budget ($1,426,237) represent the total amount of the special assessments to be collected each year. 2. Administrative and Office Expenses Administrative and office expenses for the LRBID shall total $341,532. • Staffing costs, including employment benefits, for two employees (an executive director and a staff assistant) shall total$231,536. • Office expenses for rent, liability insurance, supplies, postage, printing, equipment lease(s), annual report, audit, cell phone, accounting, and consulting fees shall total $89,996. • Other administrative expenses including directors and officers insurance, licensing and permitting, memberships, meeting expenses, parking and auto mileage, and travel shall total$20,000. 3. Marketing Expenses Marketing expenses shall total $534,200 and shall include expenditures to attract people to Lincoln Road to shop, dine, and attend special events and holiday activities, as follows: • Advertising expenses (print, online, outdoor media, agency fees) shall total $354,000. • Other marketing costs, including emaiUfax service, event advertising, holiday lighting and decor, printing, production and design, promotions, public relations, sponsorships, and website expenses, shall total $180,200. 4. BID District Programs LRBID Program expenses, including holiday programs, signage, ambassador services, and supplemental security services, shall total$550,505, as follows: • Holiday programs, related purchases, installation and removal of decorations, technical assistance for programs, rental of equipment for events, and costs of performing artists and related technical crew for presentations shall total $195,500. C-1 • Expenses related to signage creation, installation, and upkeep for the way-finding program shall total$85,000. • Ambassador services and supplemental security expenses shall total $270,000. Total Expenses: $1,426,237 #4594452-v2 42000-0001 Memorandum of Understanding NKfrnal 10-30-15 C-2