Garage Easement Agrmnt #8
df' ;)'
GARAGE EASEMENT AGREEMENT
between
MIAMI BEACH REDEVELOPMENT AGENCY,
Owner
and
MB REDEVELOPMENT, INC.
Grantee
Dated as of September 20, 1996
PREPARED BY:
Andrew L. Jagoda, Esq.
Squire, Sanders & Dempsey
350 Park Avenue
15th Floor
New York, New York 10022
RECORD AND RETURN TO:
Kolleen O.P. Cobb, Esq.
Hughes Hubbard & Reed LLP
201 South Biscayne Boulevard
Suite 2500
Miami, Florida 33131
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T ABLE OF CONTENTS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2
2. GRANT OF EASEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
3. TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
4. USE FEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
(a) Use Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
(b) Facility Usage Payment .......................... 9
(c) Minimum Facility Usage Payment . . . . . . . . . . . . . . . . . . .. 9
(d) Gross Parking Revenues . . . . . . . . . . . . . . . . . . . . . . . . .. 10
(e) Payment Date ................................ 10
5. GARAGE OPERATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
(a) Garage Operator. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
(b) The Garage Management Agreement .................. 10
(c) Liability.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
(d) Hours and Security ............................. 11
(e) Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
6. USE OF GARAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
(a) Grantee Use. ................................ 11
(b) Owner Use. ................................. 11
(c) Charges For Garage. ............................ 12
(d) Preference. ................................. 12
(e) Intentionally Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . ., 12
(f) Allocation of Parking Spaces ....................... 12
7. OWNER'S COVENANTS AND OBLIGATIONS. ............. 12
(a) Use. ..................................... 12
(b) Construction................................. 13
(c) Compatibility to Hotel ........................... 13
(d) Maintenance.............. . . . . . . . . . . . . . . . . . . ., 13
(e) Equipment... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 13
(f) Repairs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13
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(g) Retail Space Lease ............................. 13
(h) Substitute Parking. ............................. 13
(i) Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
(j) Alterations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
(k) Height..................................... 15
8. FINANCIAL REPORTS AND RECORDS .................. 15
(a) Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15
(b) Audit Results. ................................ 15
(c) Gross Parking Revenues Statements. . . . . . . . . . . . . . . . . . .. 16
(d) SurvivaL.................. . . . . . . . . . . . . . . . .. 16
9. DEFAULT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16
(a) Grantee Default. .............................. 16
(b) Termination of Lease. ........................... 17
(c) Owner Default. ............................... 17
(d) Right To Perform The Other Party's Covenants. ........... 18
10. NOTICE AND RIGHT TO CURE GRANTEE'S DEFAULTS. ..... 19
(a) Notice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19
(b) Cure Right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19
(c) Acceptance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20
(d) Payments............. . . . . . . . . . . . . . . . . . . . . . ., 20
(e) Pnonty....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20
(t) No Surrender or Modification. . . . . . . . . . . . . . . . . . . . . .. 20
11. FACll..ITY MORTGAGES; NOTICE AND RIGHT TO CURE
SUCCESSOR OWNER'S DEFAULTS. . . . . . . . . . . . . . . . . . . .. 20
(a) Right to Mortgage. . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 20
(b) Facility Permitted Debt. .......................... 21
(c) Facility Mortgagee's Rights Not Greater than Owner's. . . . . . .. 21
(d) Notice..................................... 21
(e) Cure Right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22
(t) Acceptance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 23
(g) Payments................................... 23
(h) No Surrender or Modification . . . . . . . . . . . . . . . . . . . . . ., 23
(i) Grantee's Self-Help Rights ........................ 23
(j) Application of Proceeds from Insurance or
Condemnation Awards. . . . . . . . . . . . . . . . . . . . . . . . .. 23
(k) Appearance at Condemnation Proceedings ............... 24
(1) Rights Limited to Facility Mortgagees. ................. 24
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(m) Facility Mortgagee's Assignment Rights ................ 24
12. DAMAGE, DESTRUCTION AND RESTORATION . . . . . . . . . . .. 25
(a) Notice to Grantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 25
(b) Obligation to Restore . . . . . . . . . . . . . . . . . . . . . . . . . . .. 25
(c) Commencement of Construction Work ................. 25
(d) Effect of Casualty on This Agreement. . . . . . . . . . . . . . . . .. 25
(e) Restoration Funds with respect to a Successor Owner ........ 26
13. CONDEMNATION................................. 27
(a) Substantial Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27
(b) DefInitions................................... 28
(c) Less Than A Substantial Taking ..................... 28
(d) Obligation to Restore the Garage . . . . . . . . . . . . . . . . . . . .. 28
(e) Commencement of Construction Work ................. 29
(t) Temporary Taking ............................. 29
(g) Intention of Parties ............................. 29
(h) Restoration Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 29
14. INSURANCE REQUIREMENTS. ....................... 31
(a) Liability Insurance. ........................ . . . .. 31
(b) Property Insurance ............................. 31
(c) Other Insurance ............................... 31
(d) Construction Insurance . . . . . . . . . . . . . . . . . . . . . . . . . .. 32
(e) General Provisions Applicable to All Policies ............. 32
(t) No Representation as to Adequacy of Coverage . . . . . . . . . . .. 34
(g) Blanket or Umbrella Policies ....................... 34
(h) Subleases....... . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 35
(i) Grantee Fee Mortgagees . . . . . . . . . . . . . . . . . . . . . . . . .. 35
15. NO PARTNERSHIP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 35
16. NOTICES....................................... 35
(a) In Writing .................................. 35
(b) Effectiveness................................. 37
(c) References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 37
(d) Effect of Granting or Failure to Grant Approvals or Consents ... 37
(e) Standard................... . . . . . . . . . . . . . . . .. 37
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17. LIABILITy...................................... 37
(a) Limitation on Liability of Owner and the City . . . . . . . . . . . .. 37
(b) Owner Exculpation ... . . . . . . . . . . . . . . . . . . . . . . . . .. 38
(c) No Waiver of Limitation on Liability . . . . . . . . . . . . . . . . .. 38
(d) Limitation on Grantee Liability . . . . . . . . . . . . . . . . . . . . .. 38
(e) Grantee Exculpation ............................ 38
18. HAZARDOUS MATERIALS .......................... 38
(a) Use of Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . .. 38
(b) Compliance.......... . . . . . . . . . . . . . . . . . . . . . . .. 38
(c) Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39
(d) Survival.................................... 39
19. INDEMNIFICATION AND DEFENSE OF CLAIM ............ 39
(a) Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39
(b) Contractual Liability ............................ 39
(c) Defense of Claim, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . .. 40
(d) Notification and Payment ......................... 40
(e) Governs Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 41
(t) Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 41
20. INVALIDITY OF CERTAIN PROVISIONS. . . . . . . . . . . . . . . .. 41
21. EASEMENT AND COVENANTS RUN WITH LAND . . . . . . . . . .. 41
22. NO THIRD PARTY BENEFICIARY ..................... 41
23. NO DISCRIMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 42
24. APPLICABLE LAW ............................... 42
25. ENTIRE AGREEMENT; NO WAIVER . . . . . . . . . . . . . . . . . . .. 42
26. RECORDATION.................................. 42
27. RIGHT OF FIRST OFFER. . . . . . . . . . . . . . . . . . . . . . . . . . ., 43
28. ADDITIONAL PHASE OF FACILITY .................... 44
29. DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 44
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30. REFERENCES................................... 45
(a) Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 45
(b) Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 45
(c) Reference to Party ............................. 45
(d) Agency's and City's Governmental Capacity . . . . . . . . . . . . .. 45
(e) Reference to "herein", "hereunder", etc. ............... 45
31. REMEDIES CUMULATIVE . . . . . . . . . . . . . . . . . . . . . . . . . ., 45
32. PERFORMANCE AT EACH PARTY'S SOLE COST AND
EXPENSE ...................................... 45
33. CORPORATE OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . .. 46
34. NONLIABILITY OF OFFICIALS AND EMPLOYEES . . . . . . . . .. 46
35. CONFLICT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . .. 46
36. TIME PERIODS .................................. 47
37. INFLATION ADJUSTMENT .......................... 47
38. LATE CHARGES ................................. 47
EXHIBITS
Exhibit A
Exhibit B
Exhibit 2
Exhibit 5(a)
Exhibit 5(e)
Exhibit 6(t)
Exhibit 7 (g)
Exhibit 27(a)
Exhibit 27(d)
Legal Description of Grantee Land
Legal Description of Land
Floor Plans
List of Garage Operators
Standards of Quality and Operation for Garage
Remedies
Terms of Master Lease of Retail Space
Terms of Right of First Offer Transaction
Description of Territory of Disqualified Persons
008:[04984. DOCS.MIAMI]GARAGE_ EASEMENI' _9-19-96.
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GARAGE EASEMENT AGREEMENT
THIS GARAGE EASEMENT AGREEMENT (the "Agreement") is made and entered
into as of the 20th day of September, 1996, by and between MB Redevelopment, Inc., a Florida
corporation, its successors and/or assigns ("Grantee"), and the Miami Beach Redevelopment
Agency (the" Agency") and its successors and assigns.
RECITALS
A. The Agency and Grantee have entered into that certain Agreement of Lease (the
"Lease") of even date herewith, pursuant to which, among other things, Grantee has agreed to
own and operate a fIrst class convention center hotel (the "Hotel") in accordance with the terms
thereof on the land described therein (the "Grantee Land"), and as more particularly described
on Exhibit A attached hereto; and, the Agency has agreed to cause the construction of the
Facility (as hereinafter defmed).
B. The Agency and St. Moritz Hotel Corp., a Florida corporation ("SMHC"), have
entered into that certain Garage Development Agreement (the "Garage Development
Agreement"), pursuant to which SMHC has agreed to develop on the Agency's behalf a facility
(the "Facility") containing a municipal parking garage and appurtenances containing
approximately eight hundred (800) parking spaces (the "Garage") and certain retail space (the
"Retail Space") located in an area bounded by Washington and Collins Avenues in the proximity
of 16th Street, City of Miami Beach, Metropolitan Dade County, Florida, as more particularly
described on Exhibit B attached hereto (the "Land").
C. In connection with the operation of the Hotel, Grantee requires the use of parking
spaces at the Garage.
D. The Agency desires to grant Grantee an easement over the Land and the Facility
(other than the Retail Space) in order to provide to Grantee such parking spaces and access,
ingress and egress for pedestrian and vehicular passage and traffIc upon and subject to the terms
and conditions contained herein.
NOW, THEREFORE, inconsideration of the payment often ($10.00) dollars, the mutual
covenants and payments hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be
legally bound, agree as follows:
DOB: [04984, DOCS. M IAMI)GARAGE _ EASEM E,,", _ 9-19-96.
1. DEFINITIONS. For all purposes of this Agreement, the terms defmed in this
Section 1 shall have the following have the following meanings and the other provisions of this
Section 1 shall apply:
"Affiliate" shall mean, 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 the purposes hereof, the term "control" (including the terms
"controlled by" and "under common control with") shall mean the possession of a Controlling
Interest.
"Building Index" has the meaning provided in Section 14.
"Casualty Restoration" has the meaning in Section 12.
"City" means the City of Miami Beach, a Florida municipal corporation.
"Commencement Date" has the meaning provided in Section 3.
"Condemnation Restoration" has the meaning in Section 13.
"Construction Plans" has the meaning provided in the Garage Development Agreement.
"Controlling Interest" means the ownership of greater than 50 % of voting ownership
interests in a Person or the ownership of greater than 50% of the votes necessary to elect a
majority of the Board of Directors or other governing body of such Person.
"Date of Taking" has the meaning in Section 13.
"Designee" has the meaning provided in Section 11.
"Development Drawings" has the meaning provided in the Garage Development
Agreement.
"Disqualified Person" means any of the following Persons:
(A) Any Person (or any Person whose operations are directed or controlled by
a Person) that has been convicted of or has pleaded guilty in a criminal proceeding for a felony
or that is an on-going target of a grand jury investigation convened pursuant to applicable
Requirements concerning organized crime; or
(B) For so long as the Agency or the City, or any instrumentality of the
Agency or the City is Owner, a Foreign Instrumentality; or
(C) Any Person organized in or controlled from a country, the effects of the
activities with respect to which are regulated or controlled pursuant to the following United
States laws and the regulations or executive orders promulgated thereunder: (x) the Trading
DOB:[04914.DOCS.MIAMI]OARAGE_EASEMENT _9-19-96.
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with the Enemy Act of 1917,50 D.S.C. App. ~1, et seq., as amended (which countries are, as
of the date hereof, North Korea and Cuba); (y) the International Emergency Economic Powers
Act of 1976,50 D.S.C. ~1701, et seq., as amended (which countries are, as of the date hereof,
Libya, Iran and Iraq); and (z) the Anti-Terrorism and Arms Export Amendments Act of 1989,
codified at Section 6(j) of the Export Administration Act of 1979, 50 D.S.C. App. ~ 2405(j),
as amended (which countries are, as of the date hereof, Iran, Sudan and Syria); or
(D) Any Person that has owned at any time in the preceding three (3) years any
property which, while in the ownership of such Person, was acquired by Metropolitan Dade
County, Florida by tax deed foreclosure or other proceeding relating to the failure of taxes to
be paid, other than a property in which Metropolitan Dade County, Florida has released (or is
in the process of releasing) its interest to such Person; or
(E)
Instrumentality ;
A Person registered under any Requirement as a lobbyist for any Foreign
(F) A Person that owns or operates a hotel within the area described on
Exhibit 27(d) hereto; or
(G) Any Affiliate of any of the Persons described in paragraphs (A), (C), (D),
(E) or (F) above.
"Easement" has the meaning provided in Section 2.
"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
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 or other
voting 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.
"Excess Parking Spaces" shall mean the number of Parking Spaces in the Facility equal
to the excess, if any, of (x) the total number of Parking Spaces in the Facility over (y) 560.
"Excess Usage Payment Amount" has the meaning provided in Section 4.
"Facility" has the meaning provided in the Recitals.
"Facility Usage Payment" has the meaning provided in Section 4.
"Facility Mortgage" means a Mortgage (i) that is held by a Person (other than an
Affiliate of a Successor Owner, except as provided below) which is an Institutional Lender, (ii)
which expressly provides that it is subject and subordinate to the Easement and to the terms of
this Agreement, (Hi) that is in a principal amount not more than the then Permitted Debt and (iv)
a photostatic copy of which is, following the execution and delivery thereof, delivered to
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Grantee, together with a certification by Owner confirming that the photostatic copy is a true
copy of the Mortgage and a certification by the Facility Mortgagee thereunder confirming the
address of such Facility Mortgagee for Notices. Notwithstanding anything contained herein to
the contrary, an Affiliate of a Successor Owner may be part of a lending group constituting a
Facility Mortgagee for so long as such Affiliate (i) does not own more than a forty-nine (49%)
percent beneficial interest in the debt held by such Facility Mortgagee with respect to Owner or
the Facility Premises and (ii) is not the lead lender or agent for the lending group. Grantee
shall, within ten (10) days after receipt of a Facility Mortgage, execute an instrument
acknowledging such receipt of such Facility Mortgage; provided, however, that Grantee's failure
to execute such an instrument shall not affect the status or validity of the Facility Mortgage or
the rights of the Facility Mortgagee.
"Facility Mortgagee" means the holder of a Facility Mortgage; provided, however, that
a Facility Mortgagee may not be an Affiliate of Owner (except if Owner is an Affiliate of a
Facility Mortgagee that has caused the Facility Premises to be transferred to such Affiliate in
lieu of the foreclosure of the Facility Mortgage of such Facility Mortgagee).
"Facility Permitted Debt" has the meaning provided in Section 11.
"Facility Premises" means, collectively, the Facility and the Land.
"Fiscal Year" shall mean a twelve (12) month period commencing on October 1 and
ending on September 30.
"Foreclosure Transfer" has the meaning provided in Section 11.
"Foreclosure Transferee" has the meaning provided in Section 11.
"Foreign Instrumentality" means a foreign (i.e. non-United States) 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
directs or causes the direction of the management and policies of such Person.
"Garage" has the meaning provided in the Recitals.
"Garage Development Agreement" has the meaning provided in the Recitals.
"Garage Management Agreement" has the meaning provided in Section S.
"Garage Operator" has the meaning provided in Section S.
"GDP Implicit Price Deflator Index" means the implicit price deflator index for gross
domestic product as published by the U.S. Department of Commerce (1987 = 1(0), or any
successor index thereto, appropriately adjusted.
"Governmental Authorities" means the United States of America, the State of Florida,
the City, Metropolitan Dade County, the Agency (in its governmental as opposed to proprietary
008:(04984, DOCS. M lAMI]GARAGE. EASEMENT _9-19-96.
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capacity) and any agency, department, commission, board, bureau, instrumentality or political
subdivision (including any county or district) of any of the foregoing, now existing or hereafter
created, having jurisdiction over Owner or over or under the Facility Premises or any portion
thereof or any street, road, avenue or sidewalk comprising a part of, or in front of, the Facility
Premises, or any vault in or under the Facility Premises, or airspace over the Facility Premises.
"Grantee Indemnified Parties" shall mean Grantee and its directors, officers,
shareholders, employees, successors, assigns, subtenants, agents, contractors, subcontractors,
experts, licensees, lessees, mortgagees, joint venturers, members, partners of a partnership
constituting a partner of Grantee, trustees, partners, principals, invitees and Affiliates.
"Grantee's Lien" shall have the meaning in Section 9.
"Grantee Land" has the meaning provided in the Recitals.
"Gross Parking Revenues" has the meaning provided in Section 4.
"Gross Parking Revenues Statement" has the meaning provided in Section 8.
"Hotel" has the meaning provided in the Recitals.
"Hotel Development Agreement" means that certain Hotel Development Agreement
entered into on the date hereof between the Agency and Grantee regarding the development,
construction, furnishing and equipping of the Hotel.
"Hotel Manager" has the meaning provided in the Lease.
"Hotel Opening Date" has the meaning provided in the Lease.
"Institutional Lender" means a Person which, at the time it becomes an Institutional
Lender, is a state or federally chartered savings bank, savings and loan association, credit union,
commercial bank or trust company or a foreign banking institution (in each case whether acting
individually or in a fiduciary or representative (such as an agency) capacity); an insurance
company organized and existing under the laws of the United States 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 Code 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); an employees' welfare,
benefit, pension or retirement fund; an institutional leasing company; any 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 (y) have assets of not less than $100,000,000
adjusted for inflation and (z) not be an Affiliate of the Agency or any Successor Owner (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
008: [04914. DOCS. MIAMIJGARAGE. EASEMENT _9-19-96.
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Lender (whether acting individually or in a fiduciary or representative (such as an agency)
capacity. The term "Institutional Lender" also includes an Affiliate of an Institutional Lender
as described in this paragraph.
"Land" shall have the meaning provided in the Recitals.
"Late Charge Rate" shall mean interest at a rate equal to the lesser of (i) four percent
(4%) per annum in excess of the prime rate in effect from time to time at Citibank, N.A. (or
The Chase Manhattan Bank, N .A., if Citibank, N .A. shall not then have established a prime
rate; or the prime rate of any major banking institution doing business in New York City, as
selected by Owner, if none of the aforementioned banks shall be in existence or have established
a prime rate), and (ii) the maximum interest rate permitted by law.
"Lease" has the meaning provided in the Recitals.
"Mortgage" means any mortgage or deed of trust, and all extensions, spreaders, splitters,
consolidations, restatements, replacements, modifications and amendments thereof, that
constitutes a lien on all or a portion of the Facility Premises and any security interest in or
assignment of the rents, issues or profits related thereto.
"Net Insurance Proceeds" has the meaning in Section 12.
"New Tenant's Documents" has the meaning provided in the Lease.
"Notice" shall have the meaning provided in Section 16.
"Notice of Facility Failure to Cure" has the meaning provided in Section 11.
"Notice of Failure to Cure" shall have the meaning in Section 10.
"Offer Notice" has the meaning provided in Section 27.
"Offeror Owner" has the meaning provided in Section 27.
"Owner" means the Agency (or the City, or any instrumentality of the Agency or the
City, if the City or any such instrumentality shall succeed to the interest of the Agency
hereunder), acting in its proprietary capacity, or any Successor Owner, and any assignee of the
Agency (or the City, or any instrumentality of the Agency or the City, if the City or any such
instrumentality shall succeed to the interest of the Agency hereunder), or any Successor Owner
of its interest in the Facility Premises and this Agreement, from and after the date of the
assignment or transfer pursuant to which such interests were assigned or transferred to such
assignee or transferee.
"Owner Indemnified Parties" shall mean, collectively, the Agency, the City, any
Successor Owner and their respective elected and appointed officials (including, without
limitation, the Agency's Chairman and Members and the City's Mayor and City
Commissioners), directors, officials, officers, shareholders, members, partners, employees,
DOB:[04984.DOCS,MIAMI]GARAGE_EASEMENr _9-19-96.
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successors, assigns, agents, contractors, subcontractors, experts, licensees, lessees, mortgagees,
trustees, joint venturers, partners, partners of a partnership constituting a partner of the owner
of the Facility, trustees, principals, invitees and Affiliates. An "Owner Indemnified Party"
shall mean any of the foregoing.
"Parking Space" has the meaning provided in Section 2.
"Partial Taking" has the meaning in Section 13.
"Permitted Users" has the meaning provided in Section 2.
"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.
"Project Document" has the meaning provided in the Lease.
"Recognized Accounting Firm" means Ernst & Young/Kenneth Leventhal; Coopers &
Lybrand; Arthur Andersen; Price Waterhouse; Deloitte & Touche; KPMG Peat Marwick;
Pannell, Kerr & Foster; or any successor entity of any of the foregoing or any other national
certified public accountants mutually acceptable to Owner and Grantee.
"Recognized Mortgage" has the meaning provided in the Lease.
"Recognized Mortgagee" has the meaning provided in the Lease.
"Recognized Mortgagee Designee" has the meaning provided to the term "Designee"
in the Lease.
"Recognized Mortgagee Foreclosure Transferee" has the meaning provided to the term
"Foreclosure Transferee" in the Lease.
"Replacement Value" has the meaning provided in Section 14.
"Requirements" means: (i) any and all laws, rules, regulations, constitutions, orders,
ordinances, charters, statutes, codes, executive orders and requirements of all Governmental
Authorities having jurisdiction over Owner and/or the Facility Premises or any street, road,
avenue or sidewalk comprising a part of, or lying in front of, the Facility Premises or any vault
in, or under the Facility 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); (ii) the temporary and/or permanent certificate or
certificates of occupancy issued for the Facility Premises as then in force; and (iii) any and all
OOB: [04984,DOCS. MIAMI)GARAGE_EASEMENT _~1~96.
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provisions and requirements of any property, casualty or other insurance policy required to be
carried by Owner under this Agreement.
"Retail Space" has the meaning provided in the Recitals.
"Right of First Offer Transaction" has the meaning provided in Section 27.
"Site I-B Users" has the meaning provided in Section 6.
"SMHC" has the meaning provided in the Recitals.
"Substitute Spaces" has the meaning provided in Section 7.
"Successor Owner" shall mean an owner of the Facility Premises that is not the Agency,
the City or any instrumentality of the Agency or the City.
"Term" has the meaning provided in Section 2.
"Total Taking" has the meaning in Section 13.
"Unavoidable Delays" has the meaning provided in the Lease.
"Use Fee" has the meaning provided in Section 4.
"Use Fee Commencement Date" has the meaning provided in Section 4.
"Vehicles" has the meaning provided in Section 2.
2. GRANT OF EASEMENTS. The Agency, as the fee owner of the Land and the
Facility, hereby grants and creates for the benefit of Grantee, and its customers, contractors,
agents, servants, employees, guests, invitees, tenants and licensees (collectively, the "Permitted
Users") a non-exclusive easement (the "Easement") solely for the purpose of parking of up to
560 Vehicles (as hereinafter defmed) in and on Parking Spaces (as hereinafter defmed) existing
in the Garage, and for access, ingress, and egress for pedestrian and vehicular passage and
traffic over and upon the Facility Premises in connection with such parking, subject to and in
accordance with this Agreement.
The floor plans attached hereto as Exhibit 2 depict (i) the approximate location of the
eight hundred (800) individual Parking Spaces to be provided in the Garage, (ii) the Retail Space
and (iii) the area over which the Easement is granted hereunder. The term "Parking Space"
as used in this Agreement shall mean a space designed for the parking of automobiles, vans,
trucks, motorcycles and other similar vehicles ("Vehicles") and complying with the
Requirements.
008:[04984. DOCS.M IAMIJGARAOE _EASEMENT' _9-19-96.
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3. TERM. Subject to and upon the terms and conditions set forth herein, the term
of this Agreement (the "Term") shall take effect upon the date of this Agreement by the parties
hereto (the "Commencement Date") and shall terminate upon the latest to occur of (x) the
Expiration of the Term of the Lease, (y) the date on which the improvements on the Grantee
Land are no longer operated as a hotel and (z) the date on which the Grantee Land and the
improvements constructed thereon from time to time are no longer subject to parking
requirements under the Requirements.
4. USE FEE.
(a) Use Fee. Grantee agrees to pay Owner, commencing on the later to occur
of (i) the Hotel Opening Date, which, for the purposes of this subsection 4(a), shall not be later
than thirty (30) months after the date Grantee is obligated to commence construction of the Hotel
(subject to Unavoidable Delays) under and in accordance with the Hotel Development Agreement
and (ii) the date on which (x) construction of the Garage is substantially completed in accordance
with the Construction Plans and Development Drawings and (y) the Garage contains at least 560
Parking Spaces for which the Permitted Users have priority access as provided herein and is
opened for business to the general public (the "Use Fee Commencement Date"), an annual use
fee (the "Use Fee") in the amount of Five Hundred Fifty Thousand Dollars ($550,000.00),
which Use Fee shall be payable pursuant to subsection 4(e), subject, however, to the terms
contained in subsections 4(b) and 4(c). The Use Fee shall be in addition to the parking charges
described in Section 6 below. The Use Fee shall be prorated for any period of less than one
full Fiscal Year.
(b) Facility Usage Payment. In consideration of Grantee's obligations
hereunder, Owner agrees to pay to Grantee, from and after the Use Fee Commencement Date,
pursuant to subsection 4(e), a percentage of the annual Gross Parking Revenues of the Facility,
the first $550,000 of which shall be applied as a credit against the Use Fee each Fiscal Year,
which percentage shall be as follows (the "Facility Usage Payment"):
(i) Owner shall pay to Grantee 41. 7 % of annual Gross Parking
Revenues of the Facility up to the first $1,320,000 of annual Gross Parking Revenues of the
Facility; and
(ii) Owner shall pay to Grantee 28.0% of annual Gross Parking
Revenues of the Facility in excess of such $1,320,000.
(c) Minimum Facility Usa~e Pavment. If at any time or from time to time
during the term of this Agreement the amount (the "Excess Usage Payment Amount"), if any,
by which (i) the cumulative aggregate Use Fees paid by Grantee from and after the Use Fee
Commencement Date exceed (ii) the cumulative aggregate Facility Usage Payments received by
Grantee from and after the Use Fee Commencement Date is greater than $1,000,000, the
Facility Usage Payment thereafter shall be payable at a rate equal to the greater of (a) $550,000
for each Fiscal Year or (b) the Facility Usage Payment calculated in accordance with subsection
3(b) above, until the Excess Usage Payment Amount no longer exceeds $1,000,000.
008:(04914, DOCS.MIAMI]GARAGE_EASEMENI' _~1~96.
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(d) Gross Parkin~ Revenues. For purposes hereof, "Gross Parking
Revenues" shall mean, with respect to any Fiscal Year, any and all gross rents, receipts or fees
or other parking revenues from the operation of the Garage. The following shall, however, be
excluded from Gross Parking Revenues:
(i) Federal, state and municipal excise, sales, resort, use, and other
taxes collected from Garage customers as a part of or based upon
the sales price of any goods or services, including without
limitation, gross receipts, parking, garage, or similar taxes
collected from Garage customers;
(ii) Allowances, rebates and refunds not included in Gross Parking
Revenues in accordance with generally accepted accounting
principles;
(iii) The proceeds of any financing or refinancing of all or any part of
the Facility Premises;
(iv) The proceeds of any insurance or any condemnation award;
(v) Proceeds from the sale of all or any portion of the Facility
Premises; and
(vi) Rents, receipts or other revenues of any kind from the Retail
Space.
(e) Payment Date. Owner or Grantee, as applicable, shall pay the amount set
forth on the Gross Parking Revenues Statement (as defmed in subsection 8(c) below). As
applicable, in each month, (i) Owner shall pay any required amount simultaneously with the
delivery to Grantee of the Gross Parking Revenues Statement required pursuant to subsection
8(c) hereof for the preceding month or (ii) Grantee shall pay any required amount within ten (10)
days following the receipt by Grantee of the Gross Parking Revenues Statement required
pursuant to subsection 8(c) hereof for the preceding month.
5. GARAGE OPERATIONS.
(a) Gara2e Operator. The "Garage Operator" shall mean (i) a nationally
recognized parking garage operator designated by Owner from the list of such operators set forth
on Exhibit 5(a) attached hereto or (ii) any other parking garage operator designated by Owner
and approved by Grantee.
(b) The Garage Mana~ement A~reement.
(i) Owner shall cause the Garage to be operated and managed
exclusively by the Garage Operator in accordance with the terms and conditions of this
DOB :[04984. DOCS. MIAMI]QARAGE _ EASEMEI'n' _9-19-96.
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Agreement, pursuant to a written garage management agreement (any such agreement, together
with any amendments or modifications thereto, being hereinafter referred to as the "Garage
Management Agreement") providing for services, and containing terms and conditions,
reasonable and customary for the operation of a garage in accordance with the terms of and not
inconsistent with the requirements of this Agreement. Owner and Grantee agree that the Garage
Management Agreement shall further provide that the Garage Operator shall provide for use
solely by Grantee and the Permitted Users up to five hundred sixty (560) Parking Spaces as the
manager engaged by Grantee to manage and operate the Hotel, or any successor or assign
thereof, shall request from time to time by not less than twenty-four (24) hours advance notice
to the Garage Operator, such request to be made in writing or in accordance with procedures
mutually acceptable to the Garage Operator, Owner and Grantee.
(ii) Owner shall (w) perform or cause to be performed Owner's material
obligations under the Garage Management Agreement and (x) enforce the performance by the
Garage Operator of all of its material obligations under the Garage Management Agreement.
(iii) Owner shall promptly give Grantee a copy of any notice of default, event
of default, termination or cancellation sent or received by Owner regarding the Garage
Management Agreement.
(iv) Owner shall (y) deliver to Grantee, at least fifteen (15) days prior to the
execution thereof, copies of any proposed Garage Management Agreement or any amendment
or modification thereto and (z) promptly deliver to Grantee executed copies of the Garage
Management Agreement and any amendment or modification of the Garage Management
Agreement.
(c) Liability. Grantee shall not incur any liability to Garage Operator under
the Garage Management Agreement.
(d) Hours and Security. The Garage shall be open twenty-four (24) hours a
day 365 (or, if applicable, 366) days a year, and Owner shall keep the Garage appropriately
lighted and shall maintain appropriate security.
(e) Standards. The Garage shall be operated in accordance with the
standards of quality and operation described on Exhibit 5(e) attached hereto.
6. USE OF GARAGE.
(a) Grantee Use. Grantee may use the Garage solely for the purpose of
parking Vehicles of the Permitted Users. The Garage may not be used by Grantee for any other
purpose without the prior written consent of Owner.
(b) Owner Use. Owner may use the Garage for the purpose of the parking
of Vehicles of the general public, including, without limitation, the customers, contractors,
agents, servants, employees, guests, invitees and licensees of the hotel to be located on the
DOB: [04984,llOCS,M IAMI]GARAGE"EASEMENl' _~1~96.
- 11 -
properties known as 1545 Collins Avenue and/or 1535 Collins Avenue (collectively, the "Site
I-B Users"). Owner may also use the Garage for any other purpose; provided that (i) any such
other purpose is not incompatible with the operation of a first class convention center hotel, (ii)
such other purpose does not negatively affect in any material respect the Easement and the other
rights granted to Grantee pursuant to this Agreement and (ii) Owner consults with Grantee prior
to using the Garage for any such other purpose.
(c) Charges For Garage. The parking charges for Permitted Users shall be
established by the Garage Operator, subject to the approval of Owner; provided, however, that
(i) charges to Grantee for Hotel valet parking shall not exceed fifty percent (50%) of the self-
park rate; and (ii) charges for parking for the employees of Grantee or the Hotel Manager that
work at the Hotel shall not exceed the lowest of (x) the monthly parking rate, (y) fifty percent
(50%) of the self-park rate or (z) the contract parking rate. The Permitted Users will in no
event be charged more than the lower of (m) the self-park rate charged to the general public or
(n) the rate charged to the Site 1-B Users.
(d) Preference. Grantee agrees to utilize all available parking spaces in the
Garage prior to utilizing other parking facilities not located on the Grantee Land and to
encourage the use of the Garage by the other Permitted Users.
(e) Intentionally Omitted.
(t) Allocation of Parking Soaces. If, at any time during the Term of this
Agreement, Grantee is actually unable to utilize 560 Parking Spaces at all times because the
spaces in such parking area are occupied by vehicles not belonging to Permitted Users, Grantee
shall notify Owner in writing and Owner shall cause the Garage Operator to take all such steps
as are necessary to insure that the Permitted Users are given appropriate priority access to 560
Parking Spaces. If such inability to use its 560 spaces occurs more than three (3) times in any
three (3) week period, then Owner shall effect a remedy of the situation pursuant to one or more
of the remedies described on Exhibit 6(f) attached hereto or any other remedy that results in a
remedy of the situation. The actual remedy or remedies so used shall be selected by Owner
acting reasonably after consulting with Grantee.
7. OWNER'S COVENANTS AND OBLIGATIONS.
(a) Use. Owner may grant other easements or rights in or over the Land
and/or Facility and may use the Land and/or Facility, in each case subject to the Easement, for
any purpose permitted herein in the sole discretion of Owner; provided, however, that (i) any
such easement, right or use shall not be incompatible with the operation of a first class
convention center hotel, (ii) any such easement, right or use shall not negatively affect in any
material respect the Easement and the other rights granted to Grantee pursuant to this
Agreement, (iii) any such easement, right or use shall provide parking rights only with respect
to the Excess Parking Spaces and (iv) Owner shall consult with Grantee prior to granting or
permitting any such other easement, right or use.
OOB:[04914.DOCS,MIAMI]GARAGE_EASEMENT _'}.\'}.96.
- 12 -
(b) Construction. Owner shall, at its expense, cause the construction on the
Land of the Garage substantially in accordance with the Construction Plans and Development
Drawings.
(c) Compatibility to Hotel. Owner, at its expense, shall operate, maintain and
manage (or cause the operation, maintenance and management of) the Facility Premises
(including the Retail Space) in a manner compatible with a first class convention center hotel.
(d) Maintenance. Owner, at its expense, shall take good care of, and keep and
maintain, the Facility Premises in good and safe order and condition and shall make all repairs
therein and thereon necessary to keep the Facility Premises in good and safe order and condition,
however the necessity or desirability therefor may arise. Owner shall, at its expense, keep clean
and free from dirt, mud, standing water, rubbish, obstructions and physical encumbrances all
areas of the Facility Premises.
(e) Eauil'ment. Owner shall maintain all the necessary building and operating
equipment and fixtures located at or used in connection with the operation of the Garage.
(f) Repairs. All repairs made by Owner shall be substantially equal in quality
to the original quality of the items being repaired and shall be made in compliance with the
Requirements.
(g) Retail Space Lease. Owner shall enter into a master lease with Grantee
for the Retail Space on the terms set forth in Exhibit 7(g) hereto.
(h) Substitute Parking. If for any reason whatsoever, including, without
limitation, Unavoidable Delay, default by SMHC under the Garage Development Agreement,
a Total Taking, a Partial Taking or a temporary taking under subsection 13(1), or damage,
destruction or casualty, Owner is unable to or does not provide at least 560 Parking Spaces for
Permitted Users at the Garage in accordance with this Agreement, including priority access, for
any period of time from and after the Hotel Opening Date then, notwithstanding anything to the
contrary in this Agreement or any Project Document, Owner shall provide substitute parking in
accordance with the following requirements:
(i) The number of substitute parking spaces (the "Substitute Spaces")
required to be provided shall be equal to the excess of (x) 560 over (y) the number of available
Parking Spaces in the Garage as to which Permitted Users have priority access in accordance
with this Agreement;
(ii) Not less than 80% of the Substitute Spaces or such greater number
as may be required by the Requirements applicable to the Hotel shall be located, from the main
entrance to the Hotel, within the lesser of (I) 1200 feet or (II) the distance required by the
Requirements in order for the Hotel to be in compliance with the Requirements concerning
parking;
008:[04984. DOCS. M IAMI)GARAGE _ EASEM Em. 9-19-96.
- 13 -
(iii) Owner shall take such actions as Grantee reasonably requests to
ensure that Permitted Users have access to the Substitute Parking in a convenient, safe and
secure manner;
(iv) Grantee shall have priority access to the Substitute Spaces to the
same extent as it is required to have priority access to parking at the Garage under this
Agreement;
(v) Owner shall, within thirty (30) days following demand, reimburse
Grantee for all out-of-pocket costs reasonably incurred as a result of the utilization of Substitute
Parking, which costs may include, without limitation, additional payroll costs of providing
transportation for Permitted Users to and from the location at which Substitute Spaces is
provided and the cost of additional security; provided, however, if the failure or inability to
provide the parking spaces as provided above arises in connection with a default by SMHC
under the Garage Development Agreement, then all such out-of-pocket costs shall be borne
solely by Grantee;
(vi) The Use Fee shall be proportionately reduced in the same
proportion as the number of Substitute Spaces bear to 560 for so long as Substitute Spaces are
required to be provided hereunder; and
(vii) Permitted Users shall pay parking charges for the Substitute Spaces
at a rate that is not greater than the lower of (x) the rate that would have been charged for such
parking spaces if such parking spaces had been provided at the Garage, in accordance with the
provisions of subsection 6(c) of this Agreement, and (y) the rate charged to the general public
at the facility or parking lot in which the Substitute Spaces are located.
Owner acknowledges that (i) the above covenant to provide the Substitute Spaces pursuant
to this Agreement is a material inducement to Grantee to enter into the Lease and the Agreement
and (ii) that in the event of a breach of such covenant, monetary damages will be inadequate to
compensate Grantee for harm resulting from such breach, and Grantee shall have, immediately
upon such failure to provide parking and notwithstanding the provisions of subsection 9(c)
hereof, the right to seek injunctive relief to compel the cure of such breach or damages to
compensate Grantee for the inconvenience of using such alternative parking. Nothing herein
shall limit any claim Owner may have against SMHC under the Garage Development
Agreement.
(i) Requirements. Owner, at its expense, shall comply with all Requirements
with respect to the construction, maintenance and operation of the Facility Premises, including
but not limited to maintaining all permits and licenses necessary for the operation of the Facility
Premises.
(j) Alterations. Owner may make alterations (structural or otherwise) to the
Facility; provided, however, that (i) no such alteration (whether during the course of making
such alteration or thereafter) may negatively affect in any material respect (x) the efficiency,
!JOB: [049801, DOCS. MIAM !]GARAGE _ EASEMENI' . 9-19-96.
- 14 -
function, compatibility or first class quality of the Garage or (y) any of the rights of Grantee
under this Agreement and (ii) Owner provides Grantee thirty (30) days prior notice of any such
alteration, such notice to include a copy of the plans and specifications for such alteration.
(k) Heil!ht. Owner hereby agrees that for so long as a hotel shall be operated
on the Grantee Land, Owner shall not increase the height of the Facility so as to adversely affect
the useful enjoyment of the swimming pool located on the Grantee Land.
8. FINANCIAL REPORTS AND RECORDS
(a) Books and Records. Owner shall at all times during the term of this
Agreement keep and maintain (separate from any of the Owner's other books, records and
accounts), and shall cause the Garage Operator to keep and maintain, accurate and complete
records pertaining to the Garage, reflecting the Gross Parking Revenues, in accordance with
generally accepted accounting principles, consistently applied, with such exceptions as may be
provided for in this Agreement, and provided that Owner (and the Garage Operator) may make
reasonable modifications in such books of account as are consistent with the Garage Operator's
standard practice in accounting for its operations under garage operating agreements generally.
Grantee and its representatives shall have, during normal business hours and upon reasonable
advance notice, access to inspect the books and records of Owner and the Garage Operator
pertaining to the Garage, including, without limitation, books of account properly reflecting the
operations of the Garage, which books and records shall be kept in the City of Miami Beach,
Florida. Grantee shall have the right to cause an audit by any Recognized Accounting Firm (in
accordance with generally accepted 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), at
Grantee's expense (a copy of which shall be delivered to Owner). Such right of inspection and
audit may be exercised at any time within three (3) years after the end of the Fiscal Year to
which such books and records relate, and Owner and the Garage 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.
(b) Audit Results. If, upon any audit by Grantee as described above of the
books or records of Owner or Garage Operator, (i) an error (which shall mean a mistake in
calculation or an accounting error, but shall exclude any error based on assertions that Owner
or the Garage Operator acted imprudently or unwisely in the operation and management of the
Garage) shall be revealed which results in there having been an underpayment to Grantee of the
Facility Usage Payment for any Fiscal Year for which Gross Parking Revenues Statements are
being audited pursuant to subsection 8(a), the amount of any such underpayments of Facility
Usage Payment which may be disclosed by such audit, together with interest accrued thereon
at the Late Charge Rate from the date on which such underpayment should have been paid until
the date of payment of the correct amount, shall be paid to Grantee upon thirty (30) days
demand or (ii) an error shall be revealed which results in there having been an overpayment by
Owner to Grantee of the Facility Usage Payment, Grantee shall remit the amount of such
overpayment (less the cost of such audit, but not more than the amount of such overpayment)
DOIl:(04984. DOCS. MIAMl]QARAGE _ EASEMEI(I' _l}.Il}.96,
- 15 -
to Owner within thirty (30) days after the completion of such audit. If such error results in there
having been an underpayment to Grantee of the Facility Usage Payment for any Fiscal Year
being audited pursuant to subsection 8(a) in an amount equal to or exceeding three (3 %) percent
of the Facility Usage Payment theretofore paid by Owner in respect of such Fiscal Year, then
the cost of such audit shall be paid by Owner to Grantee upon thirty (30) days demand. If
Grantee does not notify Owner of any error in the calculation of Facility Usage Payment within
three (3) years after the end of any Fiscal Year, then Grantee shall be deemed to have
conclusively waived any and all objections with respect to any Facility Usage Payment with
respect to such Fiscal Year.
(c) Gross Parking Revenues Statements. As soon as available, but in no event
later than thirty (30) days after the end of each month, Owner shall deliver to Grantee an
unaudited Gross Parking Revenues statement (a "Gross Parking Revenues Statement") for both
such month and the Fiscal Year to date. Each Gross Parking Revenues Statement shall also set
forth the Use Fee and the Facility Usage Payment and the net amount payable for such month
(on a cumulative Fiscal Year-to-date basis) and any Excess Usage Payment Amount. By the end
of the fifth calendar month following the end of each Fiscal Year, Owner shall furnish to
Grantee a copy of the annual Gross Parking Revenues Statement for the previous Fiscal Year
(which statements shall have been audited by a Recognized Accounting Finn) accurately
reflecting the annual Gross Parking Revenues for the Garage, the Use Fee and the Facility Usage
Payment payable for such previous Fiscal Year, the Use Fee and the Facility Usage Payment
actually paid during such previous Fiscal Year and any Excess Usage Payment Amount as at the
end of such previous Fiscal Year, all prepared and certified by Owner and such Recognized
Accounting Firm in accordance with generally accepted accounting principles consistently
applied. If any such annual Gross Parking Revenues Statement shall indicate that there was an
overpayment or an underpayment of the Use Fee and/or the Facility Usage Payment for such
previous Fiscal Year, then the amount of any such overpayment shall be returned, within thirty
(30) days following delivery of the annual Gross Parking Revenues Statement, to the party
entitled thereto and the amount of any such underpayment shall be paid to the party entitled
thereto.
(d) Survival. The obligations of Owner and Grantee under this Article shall
survive the expiration or termination of this Agreement, but not later than the fourth (4th)
anniversary of the effective date of such expiration or termination.
9. DEFAULT.
(a) Grantee Default. If Grantee fails to timely pay the Use Fee or any other
amounts payable by Grantee hereunder, and Grantee fails to bring such payments current within
thirty (30) days after Notice by Owner to Grantee, Owner shall be entitled to terminate this
Agreement. If Grantee defaults in the performance of any other obligation required of it under
this Agreement, and Grantee fails to cure such default within thirty (30) days after Notice by
Owner to Grantee of such default, or if such a default is of such a nature that it cannot
reasonably be remedied within thirty (30) days after the giving of such default Notice (but is
otherwise susceptible to cure), Grantee shall not (i) within thirty (30) days after the giving of
DOll: [04984, DOCS. MIAMI]OARAGE" EASEMENI' ,,9-19-96.
- 16 -
such default Notice, advise Owner of Grantee's intention to institute all steps (and from time to
time, as reasonably requested by Owner, Grantee shall advise Owner of the steps being taken)
necessary to remedy such default (which such steps shall be reasonably designed to effectuate
a cure of such default in a professional manner), and (ii) thereafter diligently prosecute to
completion all such steps necessary to remedy the same, then Owner shall be entitled to sue for
damages, but shall have no termination rights pursuant thereto.
(b) Termination of Lease. Without limitation to subsection 9(a), but subject
to the provisions of Section 10 below, upon a termination of the Lease pursuant to the terms of
the Lease resulting from an "Event of Default" by Grantee under the Lease, Owner shall have
the right to terminate this Agreement. Notwithstanding the preceding sentence, if at the time
of the occurrence of any such Event of Default there exists a Recognized Mortgage, then (i)
Owner shall not exercise any such right of termination prior to or during the sixty (60) day
period described in the fIrst sentence of Section 11.5(b) of the Lease and, if such Recognized
Mortgagee requests New Tenant's Documents pursuant to such fIrst sentence, during the ninety
(90) day period described in such first sentence and (ii) Owner shall recognize, as the Grantee
hereunder, any party that succeeds to the interest of "Tenant" under the Lease or enters into
New Tenant's Documents with the "Owner" under the Lease in accordance with the provisions
of the Lease.
(c) Owner Default. If Owner fails to timely pay the Facility Usage Payment,
and Owner fails to bring such payments or any adjustments thereto current within thirty (30)
days after Notice by Grantee to Owner, Grantee may offset such failure against the Use Fee and
sue for damages for any remaining sum; provided, however, that any such offset shall not limit
any other right or remedy available to Grantee, except to the extent that such offset cured such
failure. If Owner defaults in the performance of any non-monetary obligation required of it
under this Agreement (other than the covenant to build the Facility containing 560 Parking
Spaces and providing priority access thereto as provided herein and to provide the Easement for
parking), and Owner fails to cure such default within thirty (30) days after Notice by Grantee
to Owner of such default, or if such a default is of such a nature that it cannot reasonably be
remedied thirty (30) days after the giving of such default Notice (but is otherwise susceptible to
cure), and Owner shall not (i) within thirty (30) days after the giving of such default Notice,
advise Grantee of Owner's intention to institute all steps (and from time to time, as reasonably
requested by Grantee, Owner shall advise Grantee of the steps being taken) necessary to remedy
such default (which such steps shall be reasonably designed to effectuate a cure of such default
in a professional manner), and (ii) thereafter diligently prosecute to completion all such steps
necessary to remedy the same, then Grantee is entitled to sue for damages. If, following the
date that is one hundred twenty (120) days following the Hotel Opening Date, the Garage is not
open for business and Owner has failed to achieve Substantial Completion (as defIned in the
Garage Development Agreement) of the Facility containing 560 Parking Spaces and providing
priority use thereof as provided herein and to provide the Easement for parking pursuant to this
Agreement, then, in addition to the provisions of subsection 7(h), Grantee shall be entitled to
(v) seek such injunctive relief or specifIc performance to compel the cure of such default and/or
(w) pursuant to the provisions of subsection 9(d) , complete the construction of the Garage
pursuant to the provisions hereof at Owner's sole cost and expense. Owner acknowledges that
DOB:[04984.DOCS.MIAMI]GARAGE_EASEMENT _9-19-96.
- 17 -
(x) the covenant to build the Facility containing 560 Parking Spaces and providing priority use
thereof as provided herein and to provide the Easement for parking is a material inducement to
Grantee to enter into the Lease and this Agreement and (y) that in the event of a breach of such
covenant, monetary damages will be inadequate to compensate Grantee for harm resulting from
such breach and, in addition to the provisions of subsection 7(h), Grantee shall have the right
to seek injunctive relief or specific performance to compel the cure of such breach.
Notwithstanding the foregoing provisions of this subsection 9(c), no damages awarded to
Grantee shall include amounts that are borne by Grantee under subsection 7(h)(v).
(d) Right To Perform The Other Party's Covenants.
(i) If a default shall occur and be continuing beyond any applicable
grace period, either party may, but shall be under no obligation to, perform the obligation of
the other party giving rise to such default, without waiving or releasing the other party from any
of its obligations contained herein, provided that such party shall exercise such right only in the
event of a bona fide emergency or after five (5) days' notice to the other party. Without limiting
the provisions of subsection 9(c) hereof, Owner grants Grantee an additional easement on the
Facility Premises to permit Grantee to exercise its cure rights or to permit Grantee to maintain
its Easement if for any reason Owner fails to maintain the Easement, whether by default
hereunder or otherwise.
(ii) Any amount paid by Grantee in performing the obligations of
Owner under this Agreement as set forth above, including, without limitation, all costs and
expenses incurred by Grantee in connection therewith, shall be reimbursed to Grantee within
thirty (30) days after Grantee's demand therefor, together with interest thereon calculated at the
Late Charge Rate from the date of notice of any such payment by Grantee to the date on which
payment of such amounts is received by Grantee. If any Successor Owner fails to reimburse
Grantee for such amounts, Grantee shall have a lien against the Facility (a "Grantee's Lien")
upon recording a claim of lien in the Public Records of Dade County, Florida for any such
unpaid amounts and for the interest accrued or accruing thereon. Grantee's Lien shall also
secure attorneys' fees incurred by Grantee incident to the collection of such amounts, whether
or not legal proceedings are initiated, and if initiated, on the trial court and appellate levels. All
Grantee's Liens shall be superior to the lien of any mortgages encumbering the Facility or any
part thereof, whether recorded prior to or after the date of recording the claim of lien, and all
such Grantee's Liens may be foreclosed by suit brought in the name of Grantee in like manner
as a foreclosure of a mortgage on the real property. Grantee may, at its option, sue to recover
a money judgment for unpaid amounts without thereby waiving the Grantees' Lien securing the
same (provided, that upon payment of any such money judgment, such Grantee's Lien shall be
deemed satisfied and shall be promptly discharged of record). Notwithstanding the forgoing
provisions of this subsection 9(d)(ii), from and after the date a Successor Owner becomes the
owner of the Facility, Grantee may not exercise its rights under this subsection 9(d) unless and
until a Notice of Facility Failure to Cure (as defmed below) has been delivered to each Facility
Mortgagee and no such Facility Mortgagee has cured or elected to cure such default of such
Successor Owner pursuant to Section 11 hereof.
008: [04984, DOCS. MIAMI]GARAGE _ EASEMEp.rJ' ,,9-19-96.
- 18 -
10. NOTICE AND RIGHT TO CURE GRANTEE'S DEFAULTS.
(a) Notice. Owner shall give to a Recognized Mortgagee and/or an Affiliate
Mortgagee (as such terms are defmed in the Lease), a copy of each notice of default at the same
time as it gives notice of such default to Grantee, and no such notice of default shall be deemed
effective with respect to any Recognized Mortgagee or Affiliate Mortgagee unless and until a
copy thereof shall have been so given to such Recognized Mortgagee or Affiliate Mortgagee,
as applicable. All such notices to a Recognized Mortgagee or an Affiliate Mortgagee shall be
sent as set forth in the Lease. Owner shall also give a Recognized Mortgagee notice ("Notice
of Failure to Cure") in the event Grantee fails to cure a default within the period, if any,
provided in this Agreement for such cure, promptly following the expiration of such period.
(b) Cure Right. The Recognized Mortgagee shall have a period of thirty (30)
days after receipt of the Notice of Failure to Cure, in the case of any event of default, to cure
the event of default referred to in the Notice of Failure to Cure or cause it to be cured, subject
to section 9(a). Nothing contained herein shall be construed as imposing any obligation upon
any Recognized Mortgagee to so perform or comply on behalf of Grantee. Anything contained
in this Agreement to the contrary notwithstanding, Owner shall have no right to terminate this
Agreement prior to the delivery of a Notice of Failure to Cure or following the delivery of a
Notice of Failure to Cure if, within thirty (30) days after receipt of Owner's Notice of Failure
to Cure, any Recognized Mortgagee shall:
(1) notify Owner of such Recognized Mortgagee's desire to cure the matter
described in such Notice of Failure to Cure; and
(2) payor cause to be paid all Use Fees or any other amounts payable by
Grantee hereunder that are then due and in arrears as specified in the
Default Notice from Owner to such Recognized Mortgagee; and
(3) cure all defaults by Grantee in the observance or performance of any
term, covenant or condition of this Agreement on Grantee's part to be
observed or performed (other than the payment of any Use Fees or other
amounts payable by Grantee under this Agreement), or if such default is
of such a nature that it cannot reasonably be remedied within such thirty
(30) day period (but is otherwise susceptible to cure), such Recognized
Mortgagee shall, (i) within thirty (30) 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 Easement is required to effect
the cure, the diligent prosecution of a foreclosure of a Recognized
OOB:[04984,DOCS.MIAMl]CiARAGE_EASEMENT _9-19-96.
- 19 -
Mortgage shall constitute a part of the steps necessary to remedy such
default.
Notwithstanding the foregoing provisions of this subsection lO(b), (i)
following the delivery of a Notice of Failure to Cure, within five (5) Business Days following
the written request of any Recognized Mortgagee (which request may be contained in the notice
from such Recognized Mortgagee to Owner given pursuant to subsection lO(b)(l)), Owner shall
deliver to such Recognized Mortgagee a statement certifying the aggregate amount then due and
in 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 subsection lO(b) and (ii) without any
way limiting the obligations of Grantee hereunder or the rights of Owner hereunder, such
Recognized Mortgagee or its Recognized Mortgagee Designee or Recognized Mortgagee
Foreclosure Transferee shall not be required to payor cause to be paid any amounts payable by
Grantee under (x) clause (ii) of subsection 8(b) or (y) the last sentence of subsection 8(c).
(c) Acceptance. Owner shall accept performance by a Recognized Mortgagee
of any covenant, condition or agreement on Grantee's part to be performed hereunder with the
same force and effect as though performed by Grantee.
(d) Payments. Notwithstanding any other provision of this Agreement, no
payment made to Owner by any Recognized Mortgagee shall constitute the Recognized
Mortgagee's agreement that such payment was, in fact, due under the terms of this Agreement.
(e) Priority. If there is more than one Recognized Mortgagee, only that
Mortgagee, to the exclusion of all other Recognized Mortgagees, whose Recognized Mortgage
is most senior in lien shall be recognized by Owner as having cure rights under this Section 10,
unless such first priority Recognized Mortgagee has designated in writing to Owner a
Recognized Mortgagee whose Mortgage (as such term is defmed in the Lease) is junior in lien
to exercise such rights.
(t) No Surrender or Modification. Owner agrees not to accept a voluntary
surrender, termination or modification of this Agreement at any time while any Recognized
Mortgage(s) shall remain a lien on Grantee's leasehold estate in the Grantee Land. It is further
understood and agreed that any such Recognized Mortgagee(s) shall not be bound by any
surrender, termination or modification of this Agreement unless such surrender, termination or
modification is made with the prior written consent of such Recognized Mortgagee.
Notwithstanding the foregoing, Owner's waiver or postponement of any obligation of Grantee
or any remedy Owner may have under this Agreement shall not constitute a modification for
purposes hereof.
11. F ACll..ITY MORTGAGES; NOTICE AND RIGHT TO CURE SUCCESSOR
OWNER'S DEFAULTS.
(a) Right to Mortgage. Each Successor Owner shall have the right to secure
indebtedness in an amount not to exceed Facility Permitted Debt without Grantee's approval
DOB :(04984. DOCS,MIAMIJOARAGE _ EASEMENl' _ 9-19-96.
- 20 -
pursuant to a Mortgage that qualifies as a Facility Mortgage. Only one (1) Facility Mortgage
may encumber the Facility Premises or any part thereof at anyone time.
(b) Facility Permitted Debt. "Facility Permitted Debt" means, after a sale
of the Facility Premises or a Foreclosure Transfer by a Facility Mortgagee, (i) the principal
amount equal to not more than 75 % of the consideration received by Owner (which, in the case
of a sale to an Affiliate, shall not exceed the fair market value of the Facility Premises) directly
for such sale of the Facility Premises (including, however, any Mortgage debt assumed or taken
subject to by such transferee) and (ii) any greater principal amount approved by Grantee
pursuant to subsection l1(a). In addition, Permitted 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 Facility Mortgagee with respect to the Facility Premises for the payment of taxes,
assessments, insurance premiums or other costs incurred for the protection of the Facility
Premises or the liens created by the Facility Mortgage, and reasonable expenses incurred by such
Facility Mortgagee, by reason of default by Owner under such Facility Mortgage; provided,
however, that (x) the Net Insurance Proceeds are not inadequate as a result of the failure by
Owner to maintain the insurance required hereunder, (y) any such debt (including any
refinancing thereof by the Owner that incurred such debt) shall increase the amount of
Permitted Debt only for the purposes of effecting such Casualty Restoration or Condemnation
Restoration or paying the advances set forth in the preceding clause (II) and, following the
repayment of such debt by the Owner that incurred such debt, the provisions of clauses (i) and
(ii) shall govern the level of Permitted Debt (except to the extent the provisions of this clause
apply to a subsequent casualty or condemnation or such payment under or in connection with
a Facility Mortgage); and (z) with respect to any purchaser of the Facility Premises from any
Owner that incurred such debt, the provisions of clauses (i) and (ii) shall govern the level of
Permitted Debt (except to the extent the provisions of this sentence apply to a subsequent
casualty or condemnation or payment under a Facility Mortgage).
(c) Facility Mort~a2ee's Rights Not Greater than Owner's. The execution and
delivery of a Facility Mortgage shall not give or be deemed to give a Facility Mortgagee any
greater rights against Grantee than those granted to Owner hereunder, except as otherwise
expressly provided in this Agreement.
(d) Notice. Grantee shall give to the Facility Mortgagee a copy of each notice
of default at the same time as it gives notice of such default to Owner, and no such notice of
default shall be deemed effective with respect to any Facility Mortgagee unless and until a copy
thereof shall have been so given to such Facility Mortgagee. All such notices to a Facility
Mortgagee shall be sent as set forth in the manner provided herein for the sending of Notices.
Grantee shall also give a Facility Mortgagee notice ("Notice of Facility Failure to Cure") in
the event Owner fails to cure a default within the period, if any. provided in this Agreement for
such cure, promptly following the expiration of such period.
DOB:[o.984,DOCS,MIAMI]GARAGE_EASEMENT ,,~l ~9li.
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(e) Cure Right. The Facility Mortgagee shall have a period of thirty (30) days
(in the event of a monetary default) or sixty (60) days (in the event of a non-monetary default)
after receipt of the Notice of Facility Failure to Cure, in the case of any event of default, to cure
the event of default referred to in the Notice of Facility Failure to Cure or cause it to be cured.
Nothing contained herein shall be construed as imposing any obligation upon any Facility
Mortgagee to so perform or comply on behalf of Owner. Anything contained in this Agreement
to the contrary notwithstanding, Grantee shall have no right to terminate this Agreement prior
to the delivery of a Notice of Facility Failure to Cure or following the delivery of a Notice of
Facility Failure to Cure if, within thirty (30) days after receipt of Grantee's Notice of Facility
Failure to Cure, any Facility Mortgagee shall:
(1) notify Grantee of such Facility Mortgagee's desire to cure the matter
described in such Notice of Facility Failure to Cure; and
(2) payor cause to be paid all Facility Usage Payments or any other amounts
payable by Owner hereunder that are then due and in arrears as specified
in the Default Notice from Grantee to such Facility Mortgagee; and
(3) cure all defaults by Owner in the observance or performance of any term,
covenant or condition of this Agreement on the part of Owner to be
observed or performed (other than the payment of any Facility Usage
Payments or other amounts payable by Owner under this Agreement), or
if such default is of such a nature that it cannot reasonably be remedied
within such thirty (30) day period (but is otherwise susceptible to cure),
such Facility Mortgagee shall, (i) within thirty (30) days after the giving
of such Notice of Facility Failure to Cure, advise Grantee of such Facility
Mortgagee's intention to institute all steps (and from time to time, as
reasonably requested by Grantee, such Facility Mortgagee shall advise
Grantee 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 Grantee that, if possession or control of the Facility
Premises is required to effect the cure, the diligent prosecution of a
foreclosure of a Facility Mortgage shall constitute a part of the steps
necessary to remedy such default. Nothing in this Agreement shall
require a Facility Mortgagee or its Designee or Foreclosure Transferee to
cure any default of Owner not reasonably susceptible of being cured by
such Person.
Notwithstanding the foregoing provisions of this subsection l1(e), following the
delivery of a Notice of Facility Failure to Cure, within five (5) Business Days following the
written request of any Facility Mortgagee (which request may be contained in the notice from
such Facility Mortgagee to Grantee given pursuant to subsection l1(e)(1)), Grantee shall deliver
to such Facility Mortgagee a statement certifying the aggregate amount then due and in arrears
DOB:(04984,OQCS,MlAMI]OARAGE_EASEMENr _9-19-96.
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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 subsection l1(e) and (ii) without in any way limiting
Grantee's rights hereunder or the obligations of Owner hereunder, such Facility Mortgagee shall
not be required to payor cause to paid any amounts payable by Owner under (x) clause (i) of
subsection 8(b) or (y) the last sentence of subsection 8(c)).
(0 Acceptance. Grantee shall accept performance by a Facility Mortgagee
of any covenant, condition or agreement on Owner's part to be performed hereunder with the
same force and effect as though performed by Owner.
(g) Payments. Notwithstanding any other provision of this Agreement, no
payment made to Grantee by any Facility Mortgagee shall constitute the Facility Mortgagee's
agreement that such payment was, in fact, due under the terms of this Agreement.
(h) No Surrender or Modification. Grantee agrees not to accept a voluntary
surrender, termination or modification of this Agreement at any time while any Facility
Mortgage shall remain a lien on all or any portion of the Facility Premises. It is further
understood and agreed that any such Facility Mortgagee shall not be bound by any surrender,
termination or modification of this Agreement unless such surrender, termination or modification
is made with the prior written consent of such Facility Mortgagee. Notwithstanding the
foregoing, Grantee's waiver or postponement of any obligation of a Owner or any remedy
Grantee may have under this Agreement shall not constitute a modification for purposes hereof.
(i) Grantee's Self-Help Rights. Notwithstanding the foregoing provisions of
this Section 11, if a Facility Mortgagee, if any, fails (for any reason) to cure any default by
Owner described in paragraph (3) of subsection l1(e) within thirty (30) days following receipt
of the Notice of Facility Failure to Cure regarding such default, then Grantee may, upon notice,
but shall be under no obligation to, perform the obligation of Owner the breach of which gave
rise to such default, without waiving or releasing Owner from its obligations with respect to such
default. Owner hereby grants Grantee access to the Facility Premises in order to perform any
such obligation. Any amount paid by Grantee in performing Owner's obligations as provided
in this subsection ll(i), including all costs and expenses incurred by Grantee in connection
therewith, shall be reimbursed to Grantee within thirty (30) days following Grantee's demand
therefor, together with a late charge on amounts actually paid by Grantee, calculated at the Late
Charge Rate from the date of notice of any such payment by Grantee to the date on which
payment of such amounts is received by Grantee.
(j) Application of Proceeds from Insurance or Condemnation Awards. To the
extent that this Agreement requires that insurance proceeds paid in connection with any damage
or destruction to the Facility Premises, or the proceeds of an award paid in connection with a
taking referred in Section 13 hereof, be applied to restore any portion of the Facility Premises,
no Facility Mortgagee shall have the right to apply the proceeds of insurance or awards toward
the payment of the sum secured by its Facility Mortgage, except for the reasonable costs of
collection thereof.
DOB:[04984.DOCS. MIAM I]GARAGE _ EASEMEI'n" _9-19-96.
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(k) Appearance at Condemnation Proceedings. A Facility 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.
(1) Rights Limited to Facility Mortgagees. The rights granted to a Facility
Mortgagee under the provisions of this Agreement shall not apply in the case of any Mortgagee
that is not a Facility Mortgagee.
(m) Facility Mortgagee's Assignment Ri2hts.
(i) Notwithstanding anything contained in this Agreement to the
contrary, a Foreclosure Transfer (other than to a Disqualified Person) shall not require the
consent of Grantee or constitute a breach of any provision of or a default under this Agreement
or be subject to the provisions of Section 27 hereof. Upon any such Foreclosure Transfer,
Grantee shall recognize the Foreclosure Transferee as Owner hereunder; provided, however that
such new Owner shall deliver to Grantee, or shall cause to be delivered to Grantee, within thirty
(30) days after the execution thereof, a true and correct copy of the instrument(s) effecting such
transfer, including an assumption agreement, if applicable.
(ii) Notwithstanding anything contained in this Agreement to the
contrary, no Facility Mortgagee or other Foreclosure Transferee shall be liable under this
Agreement unless and until such time as it becomes Owner hereunder, and then only for so long
as it remains Owner hereunder.
(iii) Definitions:
(i) "Foreclosure Transfer" means a transfer occurring as a
result of the foreclosure of a Facility Mortgage, or any sale of Owner's interest in the Facility
Premises and this Agreement, or any other transfer or assignment of Owner's interest in the
Facility Premises and this Agreement, by judicial proceedings pertaining to a Facility Mortgage
or by virtue of the exercise of any power contained in a Facility Mortgage, or by deed-in-lieu
or other consensual conveyance, or otherwise:
(x) by or on behalf of Owner to a Facility Mortgagee
(or its Designee or Foreclosure Transferee); or
(y) by or on behalf of Owner or a Facility Mortgagee
(or its Designee or Foreclosure Transferee) to a purchaser of Owner's
interest in the Facility Premises and this Agreement at a foreclosure sale
pursuant to a Facility Mortgage or by a Facility Mortgagee (or its
Designee or its Foreclosure Transferee) after consummating a Foreclosure
Transfer as described in clause (x) above.
008:[04914. DOCS. MIAM I]GARAGE _ EASEMEI'n" _9-19-96.
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(ii) "Foreclosure Transferee" means the purchaser, transferee
or other assignee in a Foreclosure Transfer of Owner's interest in the Facility Premises and this
Agreement.
(Hi) "Designee" means an Affiliate of a Facility Mortgagee that
is the designee or nominee of such Facility Mortgagee.
12. DAMAGE, DESTRUCTION AND RESTORATION
(a) Notice to Grantee. If the Facility is damaged or destroyed in whole or in
any material part by fire or other casualty, Owner shall notify Grantee of same as soon as
reasonably possible after Owner's discovery of same.
(b) Obligation to Restore. If all or any portion of the Facility is damaged or
destroyed by fire or other casualty, ordinary or extraordinary, foreseen or unforeseen, then (x)
if the Agency, the City or any instrumentality of the Agency or the City is the Owner, such
Owner shall, in accordance with the provisions of this Section 12 and the plans and
specifications used for the initial construction of the Facility, restore the Garage to the extent
necessary to provide 560 Parking Spaces (and such additional Parking Spaces as may be required
under any other parking easements, use agreements or equivalent agreements then affecting the
Facility (none of which may provide for rights to Parking Spaces other than the Excess Parking
Spaces) or (y) if any Successor Owner is the Owner, such Successor Owner shall, in accordance
with the provisions of this Section 12 and the plans and specifications used for the initial
construction of the Facility, restore the Garage to the extent necessary to provide 800 Parking
Spaces, in each case so that the Facility (excluding the Retail Space) is substantially equal in
quality to the original quality of the Facility (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. Any
alterations to the Garage made in connection with such restoration shall be subject to the
provisions of subsection 7(j) of this Agreement. Nothing in this subsection 12(b) shall affect
the Easement or priority use of 560 Parking Spaces or other obligations of Owner under this
Agreement.
(c) Commencement of Construction Work. Owner shall commence the
construction work in connection with a Casualty Restoration within ninety (90) days after the
receipt of any Net Insurance Proceeds payable with respect to the Casualty that caused the need
or such Casualty Restoration and shall diligently pursue the completion of such Casualty
Restoration.
(d) Effect of Casualty on This Agreement. During the period of the Casualty
Restoration, Owner shall supply the parking spaces required to be furnished to Grantee by
Owner through off-site parking pursuant to subsection 7(b) hereof.
008: [04914. DOCS. MIAMI]GARAGE _ EASEMEI'n" _9-19-96.
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(e) Restoration Funds with respect to a Successor Owner.
(i) From and after the date that the Facility is owned by a Successor
Owner, all Net Insurance Proceeds shall be deposited with any Facility Mortgagee that is an
Institutional Lender, or, if none, with another Institutional Lender mutually acceptable to such
Successor Owner and Grantee pursuant to a mutually acceptable trust agreement. Provided such
Successor Owner is conducting the Casualty Restoration in accordance with this Agreement, the
Net Insurance Proceeds shall be paid out from time to time as the Casualty Restoration
progresses, upon the written request of such Successor Owner, which request shall be
accompanied by the following:
(A) A certificate signed by such Successor Owner and the architect or
engineer in charge of the Casualty Restoration, dated not more than fifteen (15) days prior to
such request, setting forth:
(1) that the sum then requested either has been paid by such
Successor Owner 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 Insurance
Proceeds;
(2) a brief description of the services and materials;
(3) that, except for the amount described in subsection
12(e)(i)(A)(I) hereof, 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 such
Successor Owner (with the Person holding the Net Insurance Proceeds) to defray the
expenses of the Casualty Restoration;
(5) that the work described has been completed in accordance
with the plans and specifications applicable thereto, in a good and workerlike manner and
in accordance with all Requirements; and
(B) Lien waivers, title insurance company reports or such other
evidence to the effect that there has not been filed with respect to the Facility, 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
008: [04914. DOCS. MIAMI]GARAGE _ EASEMEI'n" _9-19-96.
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(C) Such other documentation regarding the Casualty Restoration as any
Facility Mortgagee or such other Institutional Lender shall reasonably require.
(H) Such Successor Owner shall, prior to the commencement of the Casualty
Restoration, furnish to Grantee 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 provided pursuant to subsection 12(e)(i)(A)(4) hereof shall show that the
cost of completing the Casualty Restoration is in excess of the amount of the Net Insurance
Proceeds then available, such Successor Owner 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 Section 12.
(iH) Upon compliance by such Successor Owner with the foregoing provisions
of this Section 12, the holder of the Net Insurance Proceeds shall pay, to such Successor Owner
or the Persons named in the certificate referred to in subsection 12(e)(i)(A), from the Net
Insurance Proceeds, an amount equal to ninety percent (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 such
Successor Owner and such Successor Owner shall provide to Grantee reasonable evidence that
the Casualty Restoration relating to that portion of the work has been paid for in full.
(iv) If the amount of any Net Insurance Proceeds shall exceed the entire cost
of the Casualty Restoration, such excess, upon completion of the Casualty Restoration, shall be
paid to and retained by such Successor Owner (subject to the provisions of any Facility
Mortgage) .
13. CONDEMNATION.
(a) Substantial Taking. If all or Substantially All of the Garage 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 (a "Total Taking"), this Agreement shall remain in full
force and effect until such time as Owner grants or causes to be granted to Grantee an easement
(pursuant to any agreement identical in all material respects to this Agreement to be recorded
in the Public Records of Dade County, Florida, which easement is free and clear of all liens and
encumbrances not caused by Grantee) in (x) to the extent available, a parking garage or other
covered parking facility or (y) to the extent that a parking garage or other covered parking
facility is not available, surface parking, in each case within, from the main entrance of the
Hotel, the lesser of (I) 1200 feet or (II) the distance required by the Requirements in order for
the Hotel to be in compliance with the Requirements concerning parking, and with the provision
by Owner of appropriate security, and in the i.nterim Owner shall supply the parking spaces
required to be furnished to Grantee by Owner pursuant to subsection 7(b) hereof, and the Use
Fee payable by Grantee hereunder shall be apportioned and paid to the Date of Taking and the
Garage Usage Payment payable by Owner hereunder shall be apportioned and paid to the Date
008:[04914. DOCS.MIAMI]GARAGE _EASEMEI'n" _9-19-96.
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of Taking. Notwithstanding the foregoing, if there is a Total Taking and the Owner following
such Total Taking uses the Facility for the purpose of providing parking for Vehicles, such
Owner shall be bound by and must comply with this Agreement as a Successor Owner.
(b) Definitions.
(i) "Date of Taking" means the earlier of (1) the date on which actual
possession of all or Substantially All of the Garage, or any part 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 on which title to all or Substantially All of the Garage, or any part thereof, as the case
may be, has vested in any lawful authority pursuant to the provisions of applicable law.
(ii) "Substantially All of the Garage" means such portion of the
Garage as, when so taken, would leave, in the good faith determination of the parties hereto,
a balance of the Garage 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 Garage which contains 560 Parking Spaces.
(c) Less Than A Substantial Taking. If less than Substantially All of the
Garage 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 (a "Partial Taking"), this Agreement
shall continue for the remainder of the Term (subject to subsection 13(d) below) without
diminution of any of Grantee's obligations hereunder, but with (x) a fair and equitable abatement
of the Use Fee and (y) a fair and equitable reduction of the "$1,320,000" amount referred to in
subsection 4(b) hereof and the "$1,000,000" and "$550,000" amounts referred to in subsection
4(c) hereof.
(d) Obli2ation to Restore the Garage. If less than Substantially All of the
Garage is taken as provided in subsection 13(c) hereof, then (x) if the Agency, the City or any
instrumentality of the Agency or the City is the Owner, such Owner shall, in accordance with
the provisions of this Section 13 and the plans and specifications used for the initial construction
of the Facility, restore the Garage to the extent necessary to provide 560 Parking Spaces (and
such additional Parking Spaces as may be required under any other parking easements, use
agreements or equivalent agreements then affecting the Facility (none of which may provide for
rights to Parking Spaces other than the Excess Parking Spaces)) or (y) if a Successor Owner is
the Owner, such Owner shall, in accordance with the provisions of this Section 13 and the plans
and specifications used for the initial construction of the Facility, restore the Garage to the extent
necessary to provide 800 Parking Spaces (to the extent feasible under Requirements), in each
case so that the Facility (excluding the Retail Space) is substantially equal in quality to the
original quality of the Facility (a "Condemnation Restoration"), regardless of any whether any
condemnation award shall be sufficient therefor. Nothing in this subsection 13(d) shall affect
the Easement or priority use of 560 Parking Spaces or other obligations of Owner under this
Agreement.
008 :[04984. DOCS. M lAM I]GARAGE _ EASEMEI'n" _9-19-96.
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(e) Commencement of Construction Work. Owner shall commence the
construction work in connection with a Condemnation Restoration within ninety (90) days after
receipt of the condemnation award arising from the damage or destruction that caused the need
for such Condemnation Restoration and shall diligently pursue the completion of such
Condemnation Restoration.
(0 Temoorarv Taking. If the temporary use of the whole or any portion of
the Garage 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, Owner shall give Grantee notice
within five (5) business days thereof. The Term shall not be reduced or affected in any way by
reason of such temporary taking and Owner shall supply the Parking Spaces required to be
furnished to Grantee by Owner pursuant to subsection 7(h) hereof and Grantee shall continue
to pay to Owner the Use Fee as reduced by the Facility Usage Payment with an equitable
reduction or abatement of the Use Fee; provided, however, if such temporary taking is for a
period in excess of one hundred twenty (120) days, then such taking shall be deemed a
permanent taking and the provisions of subsections 13(a) and 13(c) hereof, as applicable, shall
apply.
(g) Intention of Parties. The existence of any present or future law or statute
notwithstanding, Owner (i) shall not consent to any condemnation or taking of all or any portion
of the Facility Premises and (H) hereby waives, to the extent permitted by Requirements, all
rights to quit or surrender the Garage or any part thereof by reason of any condemnation or
taking of less than Substantially All of the Garage.
(h) Restoration Funds.
(i) From and after the date that the Facility is owned by a Successor
Owner, the Net Condemnation Award shall be deposited with any Facility Mortgagee that is an
Institutional Lender, or, if none, with an Institutional Lender mutually acceptable to such
Successor Owner and Grantee pursuant to a mutually acceptable trust agreement. Provided such
Successor Owner is conducting the Condemnation Restoration in accordance with this
Agreement, the Net Condemnation Award shall be paid out from time to time as the
Condemnation Restoration progresses, upon the written request of such Successor Owner, which
request shall be accompanied by the following:
(A) A certificate signed by such Successor Owner and the architect or
engineer in charge of the Condemnation Restoration, dated not more than fifteen (15) days prior
to such request, setting forth:
(1) that the sum then requested either has been paid by such
Successor Owner 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 A ward;
008: [049lU. DOCS. MIAMI]GARAGE _ EASEMEI'n" _9-19-96.
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(2) a brief description of the services and materials;
(3) that, except for the amount described in subsection
13(h)(i)(A)(I) hereof, 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 signing such
certificate, of the work required to complete the Condemnation Restoration does
not exceed the amount of the remaining Net Condemnation Award, plus any
amount deposited by such Successor Owner (with the Person holding the Net
Condemnation A ward) to defray the expenses of the Condemnation Restoration;
(5) that the work described has been completed in accordance
with the plans and specifications applicable thereto, in a good and workerlike
manner and in accordance with all Requirements; and
(B) Lien waivers, title company reports or such other evidence to the
effect that there has not been filed with respect to the Facility, 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
(C) Such other documentation regarding the Condemnation Restoration
as any Facility Mortgage or such other Institutional Lender shall reasonably require.
(H) Such Successor Owner shall, prior to the commencement of the
Condemnation Restoration, furnish to Grantee 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 subsequent estimate provided pursuant to subsection 13(h)(i)(A)(4)
shall show that the cost of completing the Condemnation Restoration is in excess of the amount
of the Net Condemnation Award then available, such Successor Owner 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 A ward for all purposes of this Section
13.
(iii) Upon compliance by such Successor Owner with the foregoing pro-
visions of this Section 13, the holder of the Net Condemnation Award shall pay to such
Successor Owner or the Persons named in the certificate referred to in subsection 13(h)(i)(A),
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 A ward 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 such Successor Owner and such Successor Owner shall, promptly following the
008:[04914. DOCS.M IAMI]GARAGE_ EASEMEI'n" _9-19-96.
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release of the retainage, provide to Grantee reasonable evidence that the Condemnation
Restoration relating to that portion of the work has been paid for in full.
(iv) If the amount of any Net Condemnation Award shall exceed the
entire cost of the Condemnation Restoration, such excess, upon completion of the Condemnation
Restoration, shall be paid to and retained by such Successor Owner.
14. INSURANCE REQUIREMENTS.
(a) Liability Insurance. At all times during the Term, Owner, at its sole cost
and expense, shall carry or cause to be carried by Garage Operator (or any other Person)
insurance against liability with respect to the Garage and the operations related thereto, whether
conducted on or off the Garage of not less than ten million dollars ($10,000,000) per occurrence
(subject to adjustment for inflation), combined single limit, with a deductible determined by
Owner of not more than $10,000 per occurrence, subject to adjustment for inflation and
designating Owner as a named insured. The insurance required under this subsection 14(a) shall
include the following: (i) Garagekeeper's legal liability coverage in an amount not less than five
million dollars ($5,000,000.00) (subject to adjustment for inflation) per occurrence, with a
deductible determined by Owner, but not more than one hundred thousand dollars ($100,000.00)
per loss, subject to adjustment for inflation; and (ii) automobile liability insurance covering any
automobile owned, not owned or hired in an amount not less than ten million dollars
($10,000,000.00) (subject to adjustment for inflation) per occurrence, with a deductible
determined by Owner of not more than one hundred thousand dollars ($100,000.00) per loss,
subject to adjustment for inflation. Such insurance shall meet all of the standards, limits,
minimums and requirements described in Section 7.7 of the Lease, except for the provisions
regarding Recognized Mortgagees and except that all determinations shall be made by Owner
(except for the determination made pursuant to Section 7.7(m) of the Lease, which shall be made
by Owner subject to the approval of Grantee and the City).
(b) PropertY Insurance. At all times during the Term, Owner at its sole cost
and expense, shall carry or cause to be carried "All Risk" (or its equivalent) property damage
insurance protecting Owner against loss to the Facility Premises with replacement cost valuation
and a stipulated value endorsement in an amount not less than the Full Replacement Value (as
determined in this Section 14) and meeting all of the other standards, limits, minimums and
requirements described in Section 7.8 of the Lease, except that (i) the provisions regarding
Recognized Mortgagees shall be deemed to run in favor of and refer to Facility Mortgagees
rather than Recognized Mortgagees, (ii) all determinations shall be made by Owner (except for
the determination made pursuant to Section 7.8(d) of the Lease, which shall be made by Owner
subject to the approval of Grantee and the City) and (Hi) the reference in Section 7.8(n) of the
Lease to "hotels of similar size and location" shall be deemed to be a reference to garages of
similar size and location to the Facility.
(c) Other Insurance. At all times during the Term, Owner shall procure and
carry insurance with respect to the Facility Premises meeting all of the standards, limits,
minimums, and requirements described in Section 7.9 of the Lease, except that (i) the provisions
008:[04984.DOCS.M IAMI]GARAGE _ EASEMEI'n" _9-19-96.
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regarding Recognized Mortgagees shall be deemed to run in favor of and refer to Facility
Mortgagees rather than Recognized Mortgagees, (ii) the amount of Business Interruption
Insurance shall be based on Gross Parking Revenues, (iii) all Business Interruption proceeds
shall be paid only to Owner and (iii) all determinations shall be made by Owner (except for the
determination made pursuant to Section 7.9(a)(v) of the Lease, which shall be made by Owner
subject to the approval of Grantee and the City) and (iv) the reference in Section 7. 9(viii) of the
Lease to "hotels of similar size and location" shall be deemed to be a reference to garages of
similar size and location to the Facility.
(d) Construction Insurance. Prior to the commencement of any construction
work, Owner shall, with respect to the Facility Premises, 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 of the Lease, except that (i) the provisions regarding
Recognized Mortgagees shall be deemed to run in favor of and refer to Facility Mortgagees
rather than Recognized Mortgagees and (ii) all determinations shall be made by Owner (except
for the determinations regarding deductibles, which shall be made by Owner subject to the
approval of Grantee and the City).
(e) General Provisions Applicable to All Policies.
(i) Insurance Companies. All of the insurance policies required by this
Section 14 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:X" or
better or another comparable rating acceptable to Owner and the City, considering market
conditions.
(ii) Reauired Forms. All forms and coverages referred to in or
required by this Section 14 shall be those used by the Insurance Services Organization (ISO) or
equivalent forms satisfactory to Owner and the City.
(Hi) Reauired Certificates. Certificates of insurance evidencing the
issuance of all insurance required by this Section 14, describing the coverage and providing for
thirty (30) days prior notice to Grantee and the City by the insurance company of cancellation
or non-renewal, shall be delivered to Grantee and the City, and in the case of any policies
replacing or renewing any policies expiring during the Term, not later than thirty (30) 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. During the performance of
any construction work, Owner shall deliver to Grantee and the City an entire duplicate original
or a copy (certified by Owner to be true, complete and correct) of each policy. At all other
times, Owner shall deliver to Grantee and th~ City an entire duplicate original or a copy
(certified by Owner to be true, complete and correct) of each policy within a reasonable period
of time after request therefor by Grantee or the City. Owner shall notify Grantee and the City
of any material changes in the coverage provided under any policy promptly after requesting an
008:(04984. DOCS. MIAM (]GARAGE _ EASEMEI'n" _9-19-96.
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insurance company to make such change or receiving any notice from an insurance company
advising Owner of any such change; provided, however, that no such change may reduce or
otherwise modify the insurance coverage required under this Agreement.
(iv) Required Insurance Policv Clauses. Each policy of insurance
required to be carried pursuant to the provisions of this Section 14 and each certificate issued
by or on behalf of the insurer shall contain (i) a provision stating substantially that no act or
omission of Owner (or any other Person) or any use or occupation of the Facility Premises for
purposes more hazardous than are permitted by the policy shall invalidate the policy as to
Grantee or affect or limit the obligation of the insurance company to pay to Grantee the amount
of any loss sustained and that no act or omission of Grantee 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; (ii) a written waiver of the right of subrogation against all of the named insureds
and additional insureds, including Grantee and any Facility Mortgagee named in such policy,
with respect to losses payable under such policy; (Hi) with respect to each policy of liability
insurance, a clause designating Grantee, its Affiliates, the City, any Recognized Mortgagee and
any Facility Mortgagee as additional insureds, (iv) with respect to each policy of property
insurance or Builder's Risk Insurance, a clause designating Grantee, the City, any Recognized
Mortgagee and any Facility Mortgagee as loss payees, as their interests may appear, for losses
in excess of $250,000, adjusted for inflation; and (v) 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 Grantee, the City, the holder of any Facility Mortgage and the
holder of any Recognized Mortgage named under a standard New York form of mortgagee
endorsement or its equivalent, specifically covering, without limitation, cancellation or
non-renewal for non-payment of premium.
(v) Separate Insurance. Owner shall not carry separate liability or
property insurance concurrent in form or contributing in the event of loss with that required by
this Agreement to be furnished by Owner, unless Grantee, its Affiliates, the City, any
Recognized Mortgagee and any Facility Mortgagee are included therein as additional insureds
with respect to liability or unless Grantee, the City, any Facility Mortgagee and any Recognized
Mortgagee are included therein as loss payees with respect to property, as their interests may
appear, with loss payable as in this Agreement provided.
(vi) Duration of Policies. Owner shall procure or cause to be procured
policies for all insurance required by any provision of this Agreement for periods of not less
than one (1) year and shall procure renewals thereof from time to time at least thirty (30) days
before the expiration thereof, except that Builders' Risk Insurance shall only be renewed for
the term of any construction period.
(vii) Annual Aggregates. 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.
008:[04914.DOCS. M IAMI]GARAGE _ EASEMEI'n" _ 9-19-96.
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(viii) Determination of Replacement Value.
(I) Definition. The current replacement value of the Facility
("Replacement Value") shall be the full cost of replacing the Facility 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. Upon
substantial completion of the Facility, Replacement Value of the Facility shall be deemed to be
an amount equal to the actual costs incurred or expended in connection with the construction of
the Facility as certified by an architect upon completion of the Facility, including foundations,
adjusted for each year after completion of the Facility in accordance with the percentage change
in the Building Index. If the insurance required by subsection 14(b) 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 Facility.
(II) Building Index. As used herein, the "Building Index" shall
mean the Marshall and Swift Cost Index or such other published index of construction costs
designated by Owner.
(ix) Additional Interests. All liability policies shall contain a provision
substantially to the effect that the insurance provided under the policy is extended to apply to
Grantee, its Affiliates, the City, any Facility Mortgagee and any Recognized Mortgagee. Any
holder of a Facility Mortgage which, pursuant to such Facility 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.
(x) Waiver by Grantee and Recognized Mortga2ees. Notwithstanding
any other provision of this Agreement, (I) upon request of Owner or any Facility Mortgagee,
Grantee and any Recognized Mortgagee shall execute all documents and take all actions
reasonably requested by Owner or any Facility Mortgagee to waive the rights of Grantee and
such Recognized Mortgagee to receive the proceeds under any insurance policy provided for
hereunder, provided that such proceeds are applied in accordance with this Agreement, and (II)
neither Grantee nor any Recognized Mortgagee shall have the right to adjust any insurance
provided for hereunder.
(0 No Re~resentation as to Adequacy of Covera2e. The requirements set
forth herein with respect to the nature and amount of insurance coverage to be maintained or
caused to be maintained by Owner hereunder shall not constitute a representation or warranty
by Owner or Grantee that such insurance is in any respect adequate.
(g) Blanket or Umbrella Policies. The insurance required to be carried by
Owner pursuant to the provisions of this Agreement may, at the election of Owner, be effected
by blanket, wrap-up and/or umbrella policies covering the Garage and other properties, provided
such policies otherwise comply with the provisions of this Agreement and allocate to the Garage
008: [04984. DOCS. MIAMI]GARAGE _ EASEMEI'n" _9-19-96.
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the specified coverage, including, without limitation, the specified coverage for all insureds
required to be named as insureds or additional insureds hereunder, without possibility of
reduction or coinsurance by reason of, or because of damage to, any other properties named
therein. If the insurance required by this Agreement shall be effected by any such blanket or
umbrella policies, Owner shall furnish to Grantee and the City certificates of insurance and,
upon the request of Grantee or the City, copies (certified by Owner to be true, complete and
correct) of such policies together with schedules annexed thereto setting forth the amount of
insurance applicable to the Garage.
(h) Subleases. All Retail Space leases shall require the tenant to carry liability
insurance naming Owner as named insureds and the City, Grantee, its Affiliates, any Facility
Mortgagee and any Recognized Mortgagee as additional insureds with limits reasonably prudent
under the circumstances.
(i) Grantee Fee Mort2agees. If Grantee or any of its permitted successors or
permitted assigns acquires title to the fee interest in the Grantee Land, then the holder of any
mortgage encumbering such fee interest shall have the rights provided to a Recognized
Mortgagee under this Section 14.
15. NO PARTNERSHIP.
Nothing contained in this Agreement shall be deemed or construed to create a partnership
or joint venture of or between Owner and Grantee.
16. NOTICES.
(a) In Writin~. Whenever it is provided herein that notice, demand, request,
consent, approval or other communication shall or may be given to, or served upon, any of the
parties by the other (or any Recognized Mortgagee or Facility Mortgagee), or whenever any 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 Garage, each such notice,
demand, request, consent, approval or other communication (referred to in this Section 16 as
a "Notice") shall be in writing 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 or (Hi) a recognized national courier service, addressed as follows:
If to Grantee prior to the Hotel Opening Date:
MB Redevelopment, Inc.
407 Lincoln Road
Suite 6-K
Miami Beach, Florida 33139
Attention: Eric Nesse
008: [04914. DOCS. MIAMI]GARAGE _ EASEMEI'n" _9-19-96.
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If to Grantee on or after the Hotel Opening Date:
MB Redevelopment, Inc.
c/o Loews Miami Beach Hotel
1601 Collins Avenue
Miami Beach, Florida 33139
Attention: General Manager
with a copy to:
Loews Hotels Holding Corporation
667 Madison Avenue
New York, New York 10021
Attention: Corporate Secretary
with a copy to:
Hughes Hubbard & Reed
201 South Biscayne Boulevard
Suite 2500
Miami, Florida 33131
Attention: William A. Weber, Esq.
If to Owner:
Miami Beach Redevelopment Agency
Executive Director
1700 Convention Center Drive
Miami Beach, Florida 33139
with a copy to:
Miami Beach Redevelopment Agency
General Counsel
1700 Convention Center Drive
Miami Beach, Florida 33139
If to the City:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
008:[04914. DOCS. M IAMI]GARAGE _ EASEMEI'n" _9-19-96.
- 36 -
with a copy to:
City of Miami Beach
City Attorney
1700 Convention Center Drive
Miami Beach, Florida 33139
Any Notice may be given, in the manner provided in this Section 16, (x) on behalf of either
party by its attorneys designated by such party by Notice hereunder, and (y) at the request of
Owner, on its behalf by any Facility Mortgagee designated in such request, and (z) at the request
of Grantee, 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 16(b).
(d) Effect of Granting or Failure to Grant Ap.provals or Consents. All
consents and approvals which may be given under this 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 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.
(e) Standard. All consents and approvals which may be given by a party
under this Agreement shall not 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. 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.
17. LIABILITY.
(a) Limitation on Liabilitv of Owner and the City. Except as such liability
may be eliminated or reduced by any constitutional, statutory, common law or other protections
afforded to public bodies or governments, including, but not limited to, sovereign immunity
statutes, the liability of the City and the Agency, or any instrumentality of the City or the
Agency (including, without limitation, with respect to gross negligence and willful misconduct)
for damages or otherwise, arising out of or in cqnnection with any breach of this Agreement or
any injury (whether physical (including death), economic or otherwise) incurred in connection
with this Agreement or the Facility Premises, shall be limited to the amount of $10,000,000,
adjusted for inflation. As used in the preceding sentence, the terms "breach" and "injury" shall
008:[04914. DOCS. MIAM I]GARAGE _ EASEMEI'n" _9-19-96.
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include all breaches and injuries arising out of the facts and circumstances resulting in such
breach or injury. Nothing contained herein shall be deemed to be a waiver or limitation of any
equitable remedies available to Grantee. The provisions of this subsection 17(a) shall not be
applicable to any Successor Owner.
(b) Owner Exculpation. 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, if any), none of the Owner Indemnified Parties (except as provided in
subsection 17(a) hereof with respect to the Agency and the City and any Successor Owner) shall
have any liability (personal or otherwise) hereunder. Nothing contained herein shall be deemed
a waiver or limitation of any equitable remedies available to Grantee.
(c) No Waiver of Limitation on Liabilitv. Nothing contained in this Section
17 or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed
upon the Agency's and the City's liability as set forth in Section 768.28, Fla.Stat., or of any
other constitutional, statutory, common law or other protections afforded to public bodies or
governments; provided, however, that this Section 17 shall not be applicable to the indemnity
of Owner pursuant to subsection 18(c) hereof.
(d) Limitation on Grantee Liability. The liability of Grantee (including,
without limitation, with respect to gross negligence and willful misconduct) for damages or
otherwise, arising out of or in connection with any breach of this Agreement or any injury
(whether physical (including death), economic or otherwise) incurred in connection with this
Agreement or the Facility Premises, shall be limited to the amount of $10,000,000, adjusted for
inflation. As used in the preceding sentence, the terms "breach" or "injury" shall include all
breaches and injuries arising out of the facts and circumstances resulting in such breach or
injury. Nothing contained herein shall be deemed to be a waiver or limitation of any equitable
remedies available to Owner.
(e) Grantee Exculpation. Except for conversion, fraud, willful misconduct,
none of the Grantee Indemnified Parties (except as provided in subsection 17(d) hereof with
respect to Grantee) shall have any liability (personal or otherwise) hereunder. Nothing contained
herein shall be deemed to a waiver or limitation of any equitable remedies available to Owner.
18. HAZARDOUS MATERIALS
(a) Use of Hazardous Materials. Owner shall not cause or permit any
Hazardous Material (as defmed in the Lease) to be brought on, kept or used in or about the
Facility Premises except as necessary or useful to the operation of the Facility Premises and in
compliance with all Environmental Laws (as defmed in the Lease).
(b) Compliance. Owner, at its sole cost and expense (except as may otherwise
be provided in this Agreement), shall comply and cause the Garage Operator and any lessee of
Retail Space to comply with all Environmental Laws with respect to the use and operation of the
Facility Premises.
008: [04914. DOCS. M IAMI]GARAGE _EASEMEI'n" _9-19-96.
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(c) Indemnification. Owner hereby indemnifies and holds harmless the
Grantee Indemnified Parties from and against any and all Environmental Damages (as defined
in the Lease) resulting from Environmental Conditions (as defmed in the Lease) existing at the
Facility prior to, during or after the Term. This obligation shall include the burden and expense
of defending all claims, suits and administrative proceedings (with counsel reasonably
satisfactory to Grantee), even if such claims, suits or proceedings are groundless, false or
fraudulent, and conducting all negotiations of any description, and paying and discharging, when
and as the same become due, any and all judgments, penalties or other sums due against any of
the Grantee Indemnified Parties.
(d) Survival. The provisions of this Section 18 shall survive the termination
of this Agreement.
19. INDEMNIFICATION AND DEFENSE OF CLAIM
(a) Indemnification.
(i) Owner shall indemnify and hold the Grantee Indemnified Parties
harmless from all loss, cost, liability, claim, damage and expense (including, without limitation,
reasonable attorneys' fees and disbursements), penalties and fmes, incurred in connection with
claims by a Person against a Grantee Indemnified Party arising from any acts, omissions or
negligence of Owner made in its proprietary capacity (with respect to an Owner that is the
Agency, the City or any instrumentality of the Agency or the City) or any Person claiming
through or under Owner (in its proprietary capacity only (with respect to an Owner that is the
Agency, the City or any instrumentality of the Agency or the City)), or of the contractors,
agents, servants, employees, guests, invitees or licensees of Owner (in its proprietary capacity
only (with respect to an Owner that is the Agency, the City or any instrumentality of the Agency
or the City)) or any Person claiming through or under such Person, in each case to the extent
in, about or concerning the Facility Premises either during, or after the termination or 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 Grantee Indemnified Parties.
(ii) Grantee shall indemnify and hold the Owner Indemnified Parties
harmless from all loss, cost, liability, claim, damage and expense (including, without limitation,
reasonable attorneys' fees and disbursements), penalties and fmes, incurred in connection with
claims by a Person against an Owner Indemnified Party arising from any acts, omissions or
negligence of Grantee in each case to the extent in, about or concerning the Facility Premises
either during, or after the termination or expiration of, the term of this Agreement, 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) Contractual Liability.
(i) The obligations of Grantee under this Section 19 or Section 17
hereof shall not be affected in any way by the absence or presence of insurance coverage (or any
008: [04914. DOCS. M lAM (]GARAGE _ EASEMEI'n" _9-19-96.
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limitation thereon, including any statutory limitations with respect to Worker's Compensation
insurance) or by the failure or refusal of any insurance carrier to perform an obligation on its
part under insurance policies affecting the Facility; provided, however, that if Owner actually
receives any proceeds of Grantee's insurance with respect to an obligation of Grantee under this
Section 19, the amount thereof shall be credited against, and applied to reduce, any amounts
paid and/or payable hereunder by Grantee with respect to such obligation.
(ii) The obligations of Owner under this Section 19 or Section 17
hereof shall not be affected in any way by the presence or absence 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 Facility; provided, however, that if Grantee actually
receives any proceeds of Owner's insurance with respect to an obligation of Owner under this
Section 19, 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.
(c) Defense of Claim. Etc.
(i) 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 subsection
19(a)(ii) or Section 17 hereof, then, upon demand by Owner or such other Owner Indemnified
Party, Grantee 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, Grantee's insurance
carrier (if such claim, action or proceeding 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.
(ii) If any claim, action or proceeding is made or brought against any
Grantee Indemnified Party by reason of any event to which reference is made in subsection
19(a)(i), or Section 17 hereof, then, upon demand by such Grantee Indemnified Party, Owner
shall either resist, defend or satisfy such claim, action or proceeding in such Grantee
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 Grantee
shall reasonably approve. The foregoing notwithstanding, such Grantee Indemnified Party may
at its own expense engage its own attorneys to defend such Grantee Indemnified Party, or to
assist such Grantee Indemnified Party in such Grantee Indemnified Party's defense of such
claim, action or proceeding, as the case may be.
(d) Notification and Payment.
(i) Each Owner Indemnified Party shall promptly notify Grantee of the
imposition of, incurrence by or assertion against such Owner Indemnified Party of any cost or
expense as to which Grantee has agreed to indemnify such Owner Indemnified Party pursuant
008: [04914.DOCS. M IAMI]GARAGE _ EASEMEI'n" _9-19-96.
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to the provisions of this Section 19. Grantee agrees to pay such Owner Indemnified Party all
amounts due under this Section 19 within sixty (60) days after receipt of the notice from such
Owner Indemnified Party.
(ii) Each Grantee Indemnified Party shall promptly notify Owner of the
imposition of, incurrence by or assertion against such Grantee Indemnified Party of any cost or
expense as to which Owner has agreed to indemnify such Grantee Indemnified Party pursuant
to the provisions of this Section 19. Owner agrees to pay Grantee Indemnified Party all
amounts due under this Section 19 within sixty (60) days after receipt of the notice from such
Grantee Indemnified Party.
(e) Governs Agreement. The provisions of this Section 19 shall govern every
other provision of this Agreement. The absence of explicit reference to this Section 19 in any
particular provision of this Agreement shall not be construed to diminish the application of this
Section 19 to such provision.
(t) Survival. The provisions of this Section 19 shall survive the expiration
of the Term.
20. INVALIDITY 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.
21. EASEMENT AND COVENANTS RUN WITH LAND
The easements, covenants, obligations and restrictions granted under the terms of this
Agreement are appurtenant to the Land and the Grantee Land, and such easements, covenants,
obligations and restrictions shall run with the ownership of such parcels of land, and shall be
binding upon and inure to the benefit to the parties hereto and their respective successors,
assigns, employees, agents and personal representatives. The granting of the Easement herein
is intended to create a property right in Grantee which cannot be eliminated or impaired under
federal or state law nor be deemed property of the estate in a bankruptcy of the Agency or the
City or any Successor Owner. The covenants, restrictions and obligations set forth in this
Agreement are integrally related to the grant and maintenance of the Easement hereunder and
the Lease.
22. NO THIRD PARTY BENEFICIARY
No Permitted User of any parking space in the Garage shall be deemed to be in privity
with the Owner under this Agreement or to be a third party beneficiary to any rights which the
008: [04914. DOCS. MIAM I]GARAGE _ EASEMEI'n" _9-19-96.
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Owner may have granted to Grantee hereunder as a result of such user receiving parking rights
in the Garage from Grantee as permitted hereunder. Without in any way limiting the foregoing
provisions of this Section 22, nothing in this Agreement 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 Facility Mortgagee or its Designee
and a Recognized Mortgagee or its Recognized Mortgagee Designee shall be third party
beneficiaries hereunder to the extent same are granted rights hereunder.
23. NO DISCRIMINATION
Owner and Grantee agree that they will not discriminate upon the basis of race, creed,
color, national origin or sex in the use and designation of the Parking Spaces in the Garage to
be provided to Grantee hereunder.
24. APPLICABLE LAW
This Agreement and the rights and obligations of the parties hereunder shall be governed
by the law of the State of Florida and the courts of Metropolitan Dade County, Florida shall be
the proper venue for any dispute arising hereunder.
25. ENTIRE AGREEMENT; NO WAIVER
This Agreement shall constitute the entire agreement between the parties as to the subject
matter hereof and no variance or modification thereof shall be valid and enforceable, except by
supplemental agreement in writing signed by both parties hereto. Notwithstanding anything to
the contrary set forth in this Agreement, the terms of this Agreement shall supersede the terms
of that certain Letter of Intent with respect to the development and operation of the
Improvements dated May 3, 1995, executed by the Agency, the City, SMHC and Loews Hotels
Holding Corporation, and any replacements, substitutions, restatements or amendments thereof.
No covenant, agreement, tenn or condition of this Agreement shall be changed, modified,
altered, waived or terminated except by a written instrument of change, modification, alteration,
waiver or termination executed by Grantee and the Owner. 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. This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which together shall represent one instrument.
26. RECORDATION
Grantee shall have the right to record this Agreement in the land records pertaining to
the Garage and shall pay and discharge all costs, fees and taxes in connection therewith.
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27. RIGHT OF FIRST OFFER
(a) If, during the Term of this Agreement, the Agency or any other Owner
or the beneficial holders of all of the Equity Interests in any Successor Owner (the Agency, such
other Owner or, collectively, such holders of all of such Equity Interests being referred to herein
as an "Offeror Owner"), shall desire to sell, conveyor otherwise transfer, directly or indirectly,
all of such Offeror Owner's estate in and to the Facility Premises or all of such Equity Interests
(as the case may be) (a "Right of First Offer Transaction"), such Offeror Owner shall fIrst
deliver to Grantee a Notice (an "Offer Notice") thereof setting forth the material terms of such
Right of First Offer Transaction. For a period of forty-five (45) days after Grantee's receipt of
the Offer Notice, Grantee 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 material terms set
forth in the Offer Notice. As used in this Section 27, the material terms of a Right of First
Offer Transaction shall be the terms set forth on Exhibit 27(a) attached hereto.
(b) If Grantee does not elect to consummate a Right of First Offer Transaction
pursuant to this Section 27, the Offeror Owner shall have the right to consummate the proposed
transaction with any other Person (except a Disqualified Person) upon such terms and conditions
as shall be no less favorable to the Offeror 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 and (ii) the receipt by Owner of a notice from Grantee stating that
Grantee does not elect to consummate such Right of First Offer Transaction. If the Offeror
Owner shall fail to consummate the Right of First Offer Transaction set forth in such Offer
Notice within such one hundred eighty (180) period (subject to extensions not to exceed, in the
aggregate, sixty (60) days), the provisions of this Section 27 shall be applicable to any future
Right of First Offer Transaction. Notwithstanding anything to the contrary contained herein,
any Offeror Owner may in good faith negotiate the terms and conditions of a Right of First
Offer Transaction that Grantee has elected not to consummate with any other Person (except a
Disqualified Person); provided, however, that if the material terms of such Right of First Offer
Transaction are modified, then such transaction shall be deemed a new Right of First Offer
Transaction and the provisions of this Section 27 (including, without limitation, subsection
27(a)), shall be applicable with respect to such Right of First Offer Transaction; provided,
further, however, that such Offeror Owner may modify the material terms of any such Rights
of First Offer Transaction, and provide notice thereof to Grantee as provided herein, only once.
The Offeror Owner shall give twenty (20) days notice to Grantee of the terms of any Right of
First Offer Transaction as so modified prior to consummating the same, so that Grantee may
determine whether such modifications are sufficiently material that Grantee wishes to
consummate such Right of First Offer Transaction. If Grantee does not elect to consummate a
Right of First Offer Transaction pursuant to this Section 27, the Offeror Owner shall provide
Grantee 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) The Offeror Owner and Grantee shall diligently undertake to consummate
any Right of First Offer Transaction involving Grantee under this Section 27 as soon as
008: [04914. DOCS. MIAMI]GARAGE _EASEMEI'n" _9-19-96.
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practicable after Grantee's election as hereinabove described. If Grantee 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) An Offeror Owner shall only be entitled to sell all of the Facility Premises
or all of the beneficial Equity Interests in Owner, as the case may be. In addition, an Offeror
Owner may not sell such interest in the Facility Premises or such Equity Interests together with
any other interests or other assets. Any sale of only a portion of the Facility Premises or less
than all of such beneficial Equity Interests, as the case may be, and any sale of the Facility
Premises or such beneficial Equity Interests together with any other interests or other assets,
shall be null and void and of no effect. Notwithstanding any other provision of this Section 27,
an Offeror Owner may not sell, conveyor otherwise transfer, directly or indirectly, all of its
estate in and to the Facility Premises or such Equity Interests to a Disqualified Person.
(e) If Grantee does not exercise its right of fIrst offer and the Offeror Owner
consummates its Right of First Offer Transaction, the purchaser shall be deemed to have
acquired the Facility Premises or such Equity Interests subject to the provisions of this
Agreement and have assumed the obligations of Owner hereunder accruing from and after the
effective date of such consummation, and the Offeror Owner shall deliver to Grantee, or shall
cause to be delivered to Grantee, 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 the Offeror Owner's obligations
under this Agreement accruing from and after the date of such transfer.
(0 If an Offeror Owner does not comply with the terms of this Section 27,
any Right of First Offer Transaction entered into by such Offeror Owner shall have no validity
and shall be null and void and without effect.
(g) Notwithstanding the foregoing provisions of this Section 27, 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 modifications of Right of First Offer Transaction
as provided in subsection 27(b).
28. ADDmONAL PHASE OF FACILITY
The Agency will ensure that the development of "Phase B" on the area on the north side
of 16th Street will be compatible with and enhance the Hotel and its vicinity.
29. DEFINED TERMS
All terms in this Agreement defmed by the Lease survive the termination of the Lease.
008:[04984. DOCS. M IAMI]GARAGE _ EASEMEI'n" _9-19-96.
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30. REFERENCES
(a) Captions. The captions of this Agreement are for the purpose of
convenience of reference only, and in no way define, limit or describe the scope or intent of this
Agreement or in any way affect this Agreement.
(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) Reference to Partv. The use herein of the neuter pronoun in any reference
to any party hereto shall be deemed to include any individual party hereto and the use herein of
the words "successors and assigns" or "successors or assigns" of any party hereto shall be
deemed to include the heirs, legal representatives and assigns of any individual party hereto.
(d) Agency's and 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 Agency or City in the discharge of
its police or governmental power.
(e) 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 or Section within which such term is located.
31. 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 anyone 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.
32. PERFORMANCE AT EACH PARTY'S SOLE COST AND EXPENSE
Unless otherwise expressly provided in this Agreement, when any 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.
008:[04984. DOCS. M lAM I]GARAGE _ EASEMEI'n" _9-19-96.
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33. CORPORATE OBLIGATIONS
It is expressly understood that this Agreement and obligations issued hereunder are solely
corporate obligations, and, except as otherwise provided in Section 17, that no personal liability
will attach to, or is or shall be incurred by, the incorporators, stockholders, partners, members,
holders of other ownership interests, officers, directors, elected or appointed officials (including,
without limitation, the Chairman and Members of the Agency, the Mayor and Commissioners
of the City and the members of any other governing body of the owner of the Facility) or
employees, as such, of the Agency or any other Owner of the Facility Premises or Grantee, or
of any successor corporation, partnership, limited liability company or other entity, or any of
them, under or by reason of the obligations, covenants or agreements contained in this
Agreement or implied therefrom; and, except as otherwise provided in Section 17, 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, member,
partner, holder of other ownership interest, officer, director, elected or appointed official
(including, without limitation, the Chairman and any Member of the Agency, the Mayor and
Commissioners of the City and the members of any other governing body of owner of the
Facility) 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.
34. NONLIABILITY OF OFFICIALS AND EMPLOYEES
Except as otherwise provided in Section 17, no member, stockholder, partner, holder of
other ownership interst, officer, director, official or employee of the Agency or the City shall
be personally liable to Grantee, or any successor in interest, in the event of any default or breach
by the Agency or for any amount or obligation which may become due to Grantee or successor
under the terms of this Agreement; and, except as otherwise provided in Section 17, 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, 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.
35. CONFLICT OF INTEREST
Grantee represents and warrants that, to the best of its actual knowledge, no member,
official or employee of the Agency or the City has any direct or indirect fmancial interest in this
Agreement, nor has participated in any decision relating to this Agreement that is prohibited by
law. Grantee represents and warrants that, to the best of its knowledge, no officer, agent,
employee or representative of the City or the Agency has received any payment or other
consideration for the making of this Agreement, directly or indirectly from Grantee. Grantee
represents and warrants that it has not been paid or given, and will not payor 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
008: [04914. DOCS. MIAMI]GARAGE _ EASEMEI'n" _9-19-96.
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attorneys. Grantee acknowledges that Owner is relying upon the foregoing representations and
warranties in entering into this Agreement and would not enter into this Agreement absent the
same.
36. TIME PERIODS
Any time periods in this Agreement 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.
37. INFLATION ADJUSTMENT
Unless otherwise expressly provided hereunder, any dollar amount described in this
Agreement 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 GDP Implicit Price Deflator Index for the calendar year immediately
preceding the date of such adjustment, and the denominator of which shall be the GDP Implicit
Price Deflator Index for the calendar year during which the Hotel Opening 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 GDP Implicit Price Deflator Index ceases to be
published, and there is no successor thereto, such other reasonably similar index as Owner and
Grantee mutually designate shall be substituted for the GDP Implicit Price Deflator Index.
38. LATE CHARGES
If either party hereto shall fail to make any payment required hereunder within thirty (30)
days after the same shall be due, the late payment shall bear interest from the date due until the
date paid at a rate equal to the Late Charge Rate. All interest payable under this Section 38
shall be due and payable within fifteen (15) days following demand therefor.
008: [04914. DOCS. MIAMI]GARAGE _EASEMEI'n" _9-19-96.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names by their duly authorized representatives and delivered as their act and deed,
intending to be legally bound by its terms and provisions.
By:
~0 , ,*~h)
~CAz-€~t/
/
Name:
Title: M ,
)
))ss: ~
COUNTY OF DATE ) ~ /
'fI.1e. fOlfgoing in;'~nt was aC\P10Wl",!g~o~ mq this d-~ oay of~tember.
1996, by';J.f!tLC':;, 4~ ' as ~.Vl Qj IUbPe.fand ~ tV. ~as
~,..Secretary, of MB REDEVELOPMENT, INC., a Florida corporation, n behalf of such
corporation. They are personally known to me or produced valid Florida's driver's licenses as
identification.
STATE OF FLORIDA
0:)-)0coDi-0: {r,
Notary Public~ ~tate pf !:lorid AdQ; ch.{
Print Name: ~ 1.240c ~ I ~{.AI .J
My commission expires:
008: [04984. DOCS.M IAM1]GARAGE_ EASEMEI'n" _9-19-96.
- 48 -
Name:
Robert Parcher
N
ATTEST:
By:~~d- -r0A~
h'
arrwRM APPROVED
REDEVELOPMENT AGENCY
GENERAL COUNSEL
By /J~
Date ~ 'Jh
The foregoing instrument was acknowledged before me this (lay of September,
1996, by Seymour Gelber, as Chairman, and Robert Parcher, as Secretary, of the MIAMI
BEACH REDEVELOPMENT AGENCY, a public body corporate and politic, on behalf of such
public body. They are personally known to me or produced valid Florida's driver's licenses as
identification.
Title:
Secretary
Title:
STATE OF FLORIDA
)
)ss:
)
COUNTY OF DATE
ee:??M kddu/
Notary PubliS- ~tatct of Flori
Print Name: \~ 112,o/bC ~
v
My commission expires:
008:[04914. DOCS. MIAMI]GARAGE _ EASEM EI'n" _9-19-96.
- 49 -
Exhibit A
Legal Description of Grantee Land
008:[04914. DOCS. MIAMI]GARAGE_EASEMEI'n" _9-19-96.
- 50 -
BOTEL LEGAL DESCRIPTION
PARCEL I:
LOTS " 2. 17 AND 18, BLOCK 55, FISHER'S FIRST SUBDIVISION OF At. TON BEACH,
ACCORD~G TO PLAT THEREOF,RECORDED IN PLAT BOOK 2. AT PAGE 77. OF THE
PUBLIC RECORDS OF DADE COUNTY. FLORIDA. LESS THAT PART OF LOTS 2 AND
17 LYING NORTH OF A LINE. WHICH SAID LINE IS LOCATED AND DESCRIBED AS
FOLLOWS:
BEGIN AT THE NORTHWEST CORNER OF' LOT 16, BLOCK 55. F'ISHER'S F"IRST
SUBDIVISION OF AlTON BEACH. THENCE RUN SOUTHWESTERLY ALONG THE
WESTERL Y LINE OF' SAID LOTS 16 AND 17 F'OR A DISTANCE OF' 72 F'EET TO A
POINT, SAID POINT BEING THE POINT OF' BEGINNING OF' THE LINE BEING
DESCRIBED: THENCE EASTERLY PARALLEL TO THE NORTHERLY LINE Or: LOT 16
AND LOT .3, BLOCK 55 OF' FISHER'S FIRST SUBDIVISION OF' ALTON BEACM F"OR A
DIST ANCE OF 400 F"EET TO A POINT IN THE EASTERLY LINE OF' LOT 2, OF SAID
BLOCK 55. F'ISHER'S FIRST SUBDIVISION OF' ALTON BEACH.
AS TO LOTS 2 AND 17, SAID PROPERTY MAY ALSO BE DESCRIBED AS LOTS 2 AND
17, LESS THE NORTM 21.3 FEET THEREOF', IN BLOCK 55. Al. TON BEACH F'tSHER'S
FIRST SUBDIVISION, ACCORDING TO THE PLAT THEREOF', RECORDED IN PLAT
BOOK 2, AT PAGE 77, OF' THE PUBLIC RECORDS OF' DADE COUNTY, F'LORIDA.
PARCEL II:
PARCEL OF' lAND lYING BETWEEN BLOCK 55. or: F'ISHER'S F'IRST SUBDIVISION OF'
AJ.. TON 8EACH, ACCORDING TO PLAT THEREOF', RECORDED IN PLAT BOOK 2. AT
PAGE 77, OF' THE PUBLIC RECORDS Or: DADE COUNTY, FLORIDA. AND THE HIGH
WATER MARK OF" THE ATLANTIC OCEAN, WHICH SAID PARCEL OF' LAND IS
P~T1CULARL Y DESCRIBED AS F"OLLOWS:
8EGI~ AT THE SOUTHEAST CORNER OF' SAID LOT " BLOCK 55. F"ISHER'S F'IRST
SUBDIVISION OF At. TON BEACH, THENCE RUN NORTHERLY AlONG THE
EASTERl Y LINE OF" LOT 1 AND LOT 2 OF' SAID BLOCK 55. F'ISHER'S F'IRST
SUBDIVISION OF At. TON BEACM A DISTANCE OF' 102.2 F"EET MORE OR LESS TO A
POINT IN THE EASTERLY LINE OF' SAID LOT 2, WHICH SAID POINT IS 72 F"EET
SOUTH OF THE NORTHEAST CORNER OF' LOT J OF' SAID BLOCK 55 OF' FISHER'S
F'IRST SUBDIVISION OF" AlTON BEACH; THENCE RUN IN AN EASTERL Y DIRECTION
ALONG A LINE PARALLEL TO THE EASTERLY EXTENSION OF" THE NORTH LINE OF'
SAJD LOT .3. TO THE HIGH WATER MARK OF' THE ATLANTIC OCEAN: THENCE RUN
IN .:. SOUTHERL Y OlRECTlON AlONG THE HIGH WATER MARK OF' THE ATLANTIC
OCE AN A. DIS T ANCE OF' 102.2 F'EET MORE OR LESS TO A POINT ON SAID HIGH
WATER MARK OF THE ATLANTIC OCEAN WHICH IS THE INTERSECTION WITH THE
E ASTERl Y EXTENSION OF THE SOUTHERLY LINE OF' SAID LOT 1: THENCE IN A
WESTERL Y DIRECTION ALONG THE EASTERLY EXTENSION OF' SAID SOUTH LINE
OF' LOT , TO THE POINT OF' BEGINNING.
1 of 1+ '3
HOTEL LEGAL DESCRIPTION
PARCEL III:
LOTS 3 AND 16 AND THE NORTH 21.3 FEET (AS MEASURED AlONG LOT LINES> OF
LOTS 2 AND 17, BLOCK 55, FISHER'S FIRST SUBDIVISION OF AlTON BEACH,
ACCORDING TO THE PLAT THEREOF AS FILED FOR RECORD IN PLAT BOOK 2,
PAGE 77. OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA. TOGETHER
WITH: THAT CERT AlN PAACEL OF LAND L VING EAST OF N-4D ADJACENT TO THE
LAND DESCRIBED ,6BOVEi SAID LAND BOUNDED ON THE SOUTH BY THE SOUTH
LINE OF THE ,6BOVE DESCRIBED PARCEL EXTENDED EASTERLY BOUNDED ON
THE NORTH BY THE NORTH LINE OF THE ABOVE DESCR/BED PARCEL EXTENDED
EASTERL Y BOUNDED ON THE EAST BY THE MEAN HIGH WATER LINE OF THE
ATLANTIC OCEAN AND BOUNDED ON THE WEST BY THE EAST LINE OF SAID LOTS
2 AND .3 IoFOREMENTlONED.
PARCEL IV:
LOTS 9, la, 11, 12 AND NORTH 1/2 OF LOT 8 AND THE NORTH '/2 OF LOT 13, BLOCK
56 OF FISHER'S FIRST SUBDIVISION OF ALTON BEACH FLORIDA. A SUBDIVISION IN
FRACTIONAl SECTION .34, TOWNSHIP 5.3 SOUTH. RANGE 42 EAST, ACCORDING TO
THE PLAT THEREOF, RECORDED IN PLAT BOOK 2. AT PAGE 77, OF THE PUBLIC
RECORDS OF DADE COUNTY, FLORIDA.
PARCEL V:
BEGINNING AT THE NORTHEAST CORNER OF LOT 9, IN BLOCK 56 OF FISHER'S
FIRST SUBDIVISION OF ALTON BEACH. AS THE S~E IS SHOWN MARKED AND
DESIGNATED ON A PLAT OF SAID SueDIVISION, RECORDED IN PLAT BOOK 2, AT
. PAGE 77, IN THE OFFICE OF THE CLERK OF THE CIRCUIT COURT IN AND FOR DADE
COUNTY, FLORIDA; THENCE RUN IN AN EASTERLY DIRECTION ALONG THE
NORTH LINE OF LOT 9 OF BLOCK 56, PRODUCED TO THE HIGH WATER LINE Of
THE ATLANTIC OCEAN. THENCE RUN IN A SOUTHERLY DIRECTION MEANDERING
SAID HIGH WATER LINE A DISTANCE OF 76.05 FEET PLUS OR MINUS TO A POINT,
SAJD POINT BEING AT THE INTERSECTION OF THE LAST MENTIONED COURSE
WITH THE CENTER LINE OF LOT 8 OF BLOCK 56 PRODUCED TO THE HIGH WATER
LINE OF' THE ATLANTIC OCEAN: THENCE RUN IN A WESTERLY DIRECTION ALONG
S~D CENTER LINE OF' LOT 8. BLOCK 56 PRODUCED TO THE HIGH WATER LINE OF'
THE ATLANTIC OCEAN. THENCE RUN IN A WESTERLY DIRECTION ALONG SAID
CENTER LINE OF' LOT 8, BLOCK 56 PRODUCED TO THE EAST LINE OF BLOCK 56, AT
ITS INTERSECTION WITH THE CENTER LINE OF' LOT 8, IN BLOCK 56. THENCE RUN
IN A NORTHERLY DIRECTION ALONG SAID EAST LINE OF' BLOCK 56, A DISTANCE
OF 76.05 FEET PLUS OR MINUS TO A POINT OF BE,GINNING.
2 of JI '3
.......... ...-- --~.....- uc,...J\..ol\J..I:.1. .L.UL'
PARCEL VI:
BEGINNING AT THE SOUTHEAST CORNER OF LOT 10, IN BLOCK 56 AS SHOWN B'!'
THE PLAT ENTITLED "FISHER'S FIRST SUBDIVISION Of" ~ TON BEACH", SAID PL AT
BEING RECORDED IN PLAT BOOI< 2, AT PAGE 77, OF' THE PUBLIC RECORDS or
D.ADE COUNTY, FLORIDA; RUN IN A NORTHERL Y DIRECTION ALONG THE EAST
LINE or SAID LOT 10, A DIST ANCE or 50.7 FEET TO THE NORTHEAST CORNER or
LOT 10; THENCE RUN IN AN EASTERL'( DIRECTION ALONG THE NORTH LINE OF
SAID LOT 10, PRODUCED EASTERL'( TO THE HIGH WATER LINE OF THE ATLANil:
OCEAN; THENCE RUN IN A SOUTHERL'( DIRECTION, MEANDERING SAID HIGH
WATER LINE A DISTANCE OF '50.7 FEET, PLUS OR MINUS, TO A POINT; THENCE
RUN IN A WESTERLY DIRECTION ALONG THE SOUTH LINE OF LOT 10, IN BLOCK
56. PRODUCED EASTERLY, TO THE POINT OF BEGINNING.
PARCEL VII:
THE SOUTH 112 OF LOTS 8 AND 1.3 AND ALL OF LOTS 7 AND 14, LESS THE SOUTH
12.65 FEET OF' SAID LOTS 7 AND 14, TOGETHER WITH THAT PIECE OF' PARCEL OF
LAND LYING BETWEEN THE NORTH AND SOUTH BOUNDARIES OF' SAID
PROPERTY EXTENDING EASTWARD TO THE ATLANTIC OCEAN, ~l L 'fING AND
BEING IN BLOCK 56, OF FISHER'S FIRST SUBDIVISION Of" ALTON BEACH,
ACCORD/NC TO THE PLAT THEREOF', AS RECORDED IN PLAT 800K 2, AT PAGE 77,
OF' THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA.
PARCEL VIII:
THAT PORTION OF AVENUE C <AlK/A 16TH STREET> AS SHOWN IN F'lSHER'S FIRST
SUBDIVISION OF' ALTON BEACH, RECORDED AT PLAT BOOK 2. AT PACE 77, OF' THE
PUBLIC RECORDS OF' D~E COUNTY. FLORIDA. AND ITS EASTERLY EXTENSION
BOUNDED ON THE WEST BY THE EASTERLY RIGH:r-OF'-WAY LINE OF COLLINS
AVENUE AND BOUNDED ON THE EAST BY THE EROSION CONTROL LINE, AlL OF'
WHICH IS MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE, AT THE NORTHWEST CORNER OF LOT 11, BLOCK 56, FISHER'S FIRST
SUBDIVISION OF' AI.. TON BEACH, PLAT BOOK 2, AT PAGE 77, OF THE cUBlIC
RECORDS OF D~E COUNTY. FLORIDA, S~D POINT BEING THE POINT OF
BEGINNING; THENCE NORTH 88 DEGREES 00 MINUTES 49 SECONDS EAST ALONG
THE NORTH LINE OF' SAID BLOCK 56 AND ITS EASTE:RL Y EXTENSION FOR A
DIST ANCE OF' 576.20 FEET TO THE POINT OF' INTERSECTION WITH THE EROSION
CONTROL LINE: OF THE ATLANTIC OCEAN; THENCE NORTH 8 DEGREES 54
MINUTES 53 SECONDS EAST, AlONG THE EROSION CONTROL LINE F'OR A
OIST ANCE OF 71.28 FEET TO THE POINT OF INTERSECTION WITH THE EASTERL Y
EXTENSION OF' THE SOUTH LINE OF' BLOCK 55 OF' THE ABOVE MENTIONED
FISHER'S FIRST SUBDIVISION OF' ALTON BEACH; THENCE SOUTH 88 DEGREES 00
MINUTES 49 SECONDS WEST, ALONG THE SOUTH LINE Of SAID BLOCK 55 AND ITS
EASTERL Y EXTENSION FOR A DISTANCE OF 577.88 FEET TO THE POINT OF
INTERSECTION WITH THE EASTERLY RIGHT-OF-WAY OF COLLINS AVENUE;
THENCE SOUTH 07 DEGREES 35 MINUTES 04 SECONDS WEST,AlONG THE
EASTERL Y RIGHT-OF'-WAY LINE OF' COLLINS AVENUE FOR A DISTANCE OF 70.98
FEET TO THE POINT or BEGINNING.
3 of ;.3
008:[04914.DOCS.M IAMI]GARAGE _ EASEMEI'n" _9-19-96.
Exhibit B
Legal Description of Land
- 51 -
LEGAL DESCRIPTION:
Lds 8.9.10.//.12 and 13,Block 51,Flsters FIrst SubdIvIsIon of Alton BeaCh.accordlng to tre
Plat ttereof. as recorded !n Plat Book 2.. Page T? of tre Pub/Ie Records of Dade County. Fior!da,
togt!JfhBr wfth 011 of 16th Street (AvefUJ 'C-),Iess and except ths fallONlng descrIbed parcel:
BEGINNING at tm Swttwesf corfl8r of Block 54 af sold Flsters FIrst SubdivIsIon of Alton
8eoctf Plat: thtJnc8 North M(y 53- East along tm South IIfl8 af sold Block 54.0 dIstance of
443.D8 fest.to tm Swtteost corfl8r of saId Block 54: th8nce South ar 35104' West,a dIstance of
96.26 ftJt!i.to a polrt of cusp wffh a tangent curve corr:xJVe to thtJ SwthNest: ttencf'J along th8 arc of
saId curve to tm Itit.ht:NlntJ a radIus (f 25lXJ ftJt!i and a CtJItral angle (f 9CfOO' (}(l.an arc dIstance
of 3927 f..to a polrt af tangenGy:thtJnce North 8Z 2J#15Z-West.a dIstance (f 2475 f8tJf:th8nce
Swth 88"00' 5,J- West along a I!ntJ 81XJ ftJt!i North of and paralltJI wlttJ,as mtJOsursd at rlgft angles
to tm North IIntJ of Block 51 of sold pla/.a dIstance of 38218 ftJt!i to a pol'" on th8 Easterly RIgft
-af~ay /lfl8 of Wastingtan Nenue:ttence North or 59' If West along sold Easterly RIgft-of-
Wc.y llne.a dIstance of 62.IXJ ffJt1f to th8 Swttwest corner of saId Block 54 and ths Point of begInnIng.
SaId lands lyIng and beIng In tte CIty of MIamI 88ach and contaInIng 65.910 square feet (/5131
kresJ more or less.
Exhibit 2
Floor Plans
008:(04914. DOCS.MIAM I]GARAGE_EASEMEI'n" _9-19-96.
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Exhibit 5(a)
List of Garage Operators
1. USA Parking
P.O. Box 7193
Ft. Lauderdale, Florida 33338
(305) 524-6500
2. Quick Park
Hank Sopher
425 East 61st Street
New York, New York 10021
(212) 303-4200
3. Apcoa, Inc.
Corporate Headquarters
McDonald Investments Center
800 Superior Avenue
Cleveland, Ohio 44114-2601
(216) 522-0700
4. Central Parking System
Monroe Carell
2401-21st Avenue South
Suite 200
Nashville, Tennessee 37212
(615) 297-4255
5. Centre City Parking
Michael A. Meyers
2980 McFarlane Road, Suite 203
Coconut Grove, Florida 33133
(305) 461-5200
6. Republic Parking System
Chris J. Howley
Republic Centre
Suite 2000
Chattanooga, Tennessee 37450
(615) 756-2771
008: [04914. DOCS. MIAMI]GARAGE _EASEMEI'n" _9-19-96.
- 53 -
Exhibit 5(e)
Standards Of Quality and Operation for Garage
1. Garage Operator. Garage Operator shall acknowledge receipt of a copy of this
Agreement and shall agree that in its management and operation of the Garage pursuant to the
Garage Management Agreement, it will comply with the provisions of this Agreement,
including, without limitation, those provisions granting to Grantee preferential rights to use 560
Parking Spaces.
2. Consultation with Grantee. On a weekly basis, the General Manager of the
Garage will meet with the Hotel General Manager or his designee for the purpose of
coordinating the operation of the Garage in order that Permitted Users are provided with service
consistent with the level of quality provided by the Hotel so that the Garage will appear to
operate as an amenity of the Hotel.
3. Charges. Garage Operator will establish such mechanisms and procedures, which
may include (i) linking the Garage payment system to the Hotel's computer, as Grantee may
reasonably request, and Grantee shall reimburse Garage Operator for its reasonable out-of-pocket
costs incurred in connection therewith, and (ii) providing for a Permitted User validation system.
Grantee will remit to Garage Operator on a monthly basis all such charges actually collected (net
of credit card commissions and chargebacks).
4. Name. Garage Operator will not use the name of the Hotel or any other
trademark, trade name or service mark relating to the Hotel, except as and to the extent
authorized in writing by Grantee.
5. Insurance. Grantee and its Affiliates, the City, any Recognized Mortgagee and
any Facility Mortgagee shall be named as additional insureds on all liability insurance maintained
by the Garage Operator and shall be entitled to certificates of insurance reflecting such
insurance.
6. Emolovees. All Garage employees shall at all times conduct themselves in a
courteous manner. In the event Grantee reasonably objects to the performance or conduct of any
Garage employee, based on complaints by a Hotel guest or other sufficient evidence, Garage
Operator will review the matter and, if warranted, take appropriate action.
7. Disclaimer. At Grantee's request, Garage Operator shall (i) provide written
disclaimers to Garage patrons and/or (ii) post written notices in the Garage, in each case
mutually acceptable to Garage Operator and Grantee, informing Garage patrons that the Garage
is not owned or operated by the owner or operator of the Hotel.
008 :[04914. DOCS. M IAMI]GARAGE _EASEMEI'n" _9-19-96.
- 54 -
Exhibit 6(1)
Remedies
1. Mark 560 spaces in the Facility for Grantee's exclusive use, which 560 exclusive
spaces shall be designated by the Owner and Grantee working together in good
faith.
2. Make arrangements with a licensed and bonded third party towing company to
remove unauthorized vehicles from the marked spaces.
3. Terminate the Garage Operator.
4. Impose fmes on or charge penalties to the Garage Operator.
008: [04914. DOCS.MIAMI]GARAGE _ EASEMEI'n" _ 9-19-96.
- 55 -
Exhibit 7(g)
Terms of Master Lease of Retail Space
1.
Parties.
The Owner, its successors and assigns ("Landlord").
MB Redevelopment, Inc., as Tenant, its successors and assigns, as
owner of the Hotel ("Master Tenant").
2. Premises. All of the Retail Space.
3. Term. For so long as Master Tenant is the owner of the Hotel and operates the
Hotel as a fIrst class convention center hotel.
4. Premises Use. Any and all lawful business use compatible with a fIrst class
convention center hotel.
5. Rent. Master Tenant shall pay to Landlord 95 % of the gross rents, receipts and
other revenues received by Master Tenant with respect to the Retail Space (including, without
limitation, base rent and percentage rent, amounts paid in connection with the surrender or
termination of any Sublease (as defIned below) and any proceeds of business interruption or rent
loss insurance) and any payments in connection with common area maintenance, real estate
taxes, insurance and utilities, and all other amounts received by Master Tenant from the
subtenants of Master Tenant (i.e., the actual space users of the Retail Space) ("Subtenants"),
pursuant to Subleases ("Gross Retail Revenues").
6. Collection of Gross Retail Revenues. Master Tenant shall exercise commercially
reasonable efforts to collect all Gross Retail Revenues and shall take all actions customarily
required of managing agents or master tenants of first class retail space in Dade County, Florida
to collect Gross Retail Revenues; provided, however, that Master Tenant shall not institute any
litigation to collect any Gross Retail Revenues without the prior consent of Landlord; and,
provided further, Landlord, at its election, may institute, prosecute or settle any such litigation
with counsel (including, without limitation, Landlord's in-house counsel) designated by
Landlord.
7. Subleases. Except as otherwise approved by Landlord, each sublease entered into
between Master Tenant and an actual user of the Retail Space (a "Sublease") shall obligate the
Subtenant thereunder to reimburse Master Tenant (as sublessor) for the Subtenant's proportionate
share of common area maintenance, real estate taxes, insurance, and utilities (either on a "net"
basis or over a "base year" or "expense stop" basis). Landlord shall have the right to approve
(in its reasonable judgment) the terms and conditions of any proposed Sublease sought to be
entered into between Master Tenant and a Subtenant.
008: [04914. DOCS. M IAMI]GARAGE _ EASEMEI'n" _9-19-96.
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8. Imorovements/Commissions. Any and all reasonable costs for subtenant
improvements, leasing commissions, liability insurance procured by Master Tenant and all other
reasonable customary out-of-pocket costs incurred in connection with the Subleases, including,
without limitation, reasonable attorneys fees incurred in connection with the negotiation of
Subleases or disputes concerning Subleases, not otherwise reimbursed to Master Tenant shall be
paid for directly by Landlord; provided, however, that such costs shall not include overhead,
wages, salaries and other compensation and fringe benefits and, provided, further, however that
Landlord, at its election, may conduct such negotiations or prosecute such disputes with counsel
(including, without limitation, Landlord's in-house counsel). Master Tenant shall have no
responsibility for any such costs or expenses.
9. CAM. etc. Except to the extent otherwise provided in the Subleases, Landlord
shall be responsible for any and all common area maintenance, real estate taxes, insurance,
utilities, and any and all other costs of owning, operating, managing, maintaining, repairing, and
replacing the Retail Space. It is the intent that the Master Lease between Landlord and Master
Tenant for the Retail Space be "net" to Master Tenant.
10. Indemnitv. Master Tenant shall be liable solely for its conversion, gross
negligence and willful misconduct. Landlord shall indemnify and hold Master Tenant harmless
from all other loss, cost, liability, claim, damage and expense (including, without limitation,
reasonable attorneys' fees and disbursements), penalties and fmes, incurred in connection with
the Subleases, including, without limitation, any claims by a Person against Master Tenant or
its Afftliates arising from (a) the use or occupancy or manner of use or occupancy of the Retail
Space by Landlord or any Subtenant or any Person claiming through or under Landlord or any
Subtenant or (b) any acts, omissions or negligence of Landlord (made in its proprietary capacity,
if Landlord is the Agency, the City or any instrumentality of the Agency or the City) or any
Subtenant or any Person claiming through or under such Landlord (in its proprietary capacity
only, if Landlord is the Agency, the City or any instrumentality of the Agency or the City) or
such Subtenant, or of the contractors, agents, servants, employees, guests, invitees or licensees
of Landlord (in its proprietary capacity only, if Landlord is the Agency, the City or any
instrumentality of the Agency or the City) or such Subtenant, or any Person claiming through
or under such Person, in each case to the extent in, about or concerning the Retail Space either
during, or after the termination or expiration of, the term of the Master Lease, except to the
extent any of the foregoing is caused by the gross negligence or willful misconduct of Master
Tenant. The provisions of Section 17 of this Agreement shall be applicable to the Master Lease.
11. City Joinder. The City of Miami Beach will join in any Master Lease between
the Agency and Grantee for the Retail Space so that, if the Agency shall cease to exist, the City
will agree, from and after the date the Agency ceases to exist, to be bound by the terms,
covenants and conditions of the Agency under the Master Lease.
12. Audit. Landlord shall have the r:ight to inspect, photocopy and audit the books
and records of Master Tenant with respect to the Retail Space.
008: (04914. DOCS. MIAMI]GARAGE _ EASEMEI'n" _9-19-96.
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13. Definitive A2reement. The foregoing proVISIOns of this Exhibit 7(g) only
summarize certain of the terms and provisions of the Master Lease. The actual rights and
obligations of Landlord and Master Tenant shall be only as set forth in the Master Lease, and
the Master Lease shall contain such terms and provisions as are not inconsistent with the
foregoing provisions of this Exhibit 7(g).
00II:[04914. DOCS. MIAMI]GARAGE _ EASEMEI'n" _9-19-96.
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Exhibit 27(a)
Terms of Rieht of First Offer Transaction
1. Purchase Price.
The Purchase Price shall be as set forth by the Offeror 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 the Offeror Owner. The Purchase Price
may not include seller-fInancing unless the Offeror 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 the Offeror Owner,
but in any event not more than forty-five (45) days following the date such Offeror
Owner executes a purchase agreement with the purchaser.
3. Deed: Title.
At the closing of the purchase, (x) if the Offeror Owner is the Owner, the Offeror Owner
shall convey to the purchaser (i) all of Owner's right, title and interest to the Facility
Premises by one or more special warranty deeds, (ii) all of the Offeror Owner's right,
title and interest in and to any leases (including, without limitation, any Master Lease)
for the Retail Space, by one or more assignments of lease, and (Hi) all of the Offeror
Owner's right, title and interest in and to this Agreement by one or more assignment and
assumption agreements, or (y) if the Offeror Owner is the holders of the Equity Interests
in an Owner, all of such holders' right, title and interest in and to such Equity Interests
by one or more assignments of such Equity Interests. The forms of such deeds and
assignments shall be mutually acceptable to the Offeror Owner and Grantee but shall not
in any event provide for any representations by Offeror Owner other than a
representation that Offeror 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 or, as the case may be, an assignment of ownership
interests. The Facility Premises and any such leases shall be conveyed to Grantee subject
to all liens, encumbrances and other matters then affecting the title thereto and any state
of facts a survey may reveal (except for any Facility Mortgage or other monetary liens).
The Offeror Owner shall also execute all other documents customarily used in real estate
transactions in Metropolitan Dade County, Florida; provided, however, that if the
Offeror Owner is a Governmental Authority, such documents shall not include those
documents from which Governmental Authorities are exempt pursuant to applicable
Requirements.
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4. Rent: Prorations.
At the closing of the purchase of the Facility Premises or such Equity Interests, all Use
Fees, Facility Usage Payments, real estate taxes and assessments, utilities, Garage
Operator Fees, Gross Parking Revenues, rents under any master lease for the Retail
Space or space leases for the Retail Space (if there is no master lease), any leasing
. commissions for space leases of the Retail Space and other items customarily included
in sales of garages in Dade County, Florida 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 Grantee; provided, however, that the Offeror Owner shall pay all
documentary stamp taxes and surtax, if any, payable in connection with the purchase.
008: [049114.DOCS. M IAMI]GARAGE _ EASEMEI'n" _9-19-96.
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Exhibit 27(d)
Description of Territory of Disqualified Persons
1. All of Metropolitan Dade County, Florida.
2. That portion of Broward County, Florida, bordered by:
a. The Metropolitan Dade County/Broward County Line to the south;
b. McNab Road to the north;
c. The Atlantic Ocean to the east; and
d. U.S. Interstate 95 to the west.
008:[049114. DOCS.MIAMI]GARAGE _EASEMEI'n" _ 9-19-96.
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