The URL can be used to link to this page

Resolution 94-21099 (2) RESOLUTION NO. 94-21099 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY MIAMI BEACH, FLORIDA APPROVING AN ACQUISITION, CONSTRUCTION AND DEVELOPMENT AGREEMENT AMONG THE CITY OF MIAMI BEACH, THE BALLET VALET PARKING COMPANY, LTD.,AND MCCARTHY BROTHERS COMPANY, FOR THE PARKING GARAGE PROJECT LOCATED AT THE SOUTHWEST CORNER OF COLLINS AVENUE AND SEVENTH STREET, AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE AGREEMENT. WHEREAS, the Ballet Valet Parking Company, Ltd. (Ballet Valet) wishes to construct a five-level parking structure, which would also include new retail store fronts (the Project); and WHEREAS, on July 14, 1993,the Mayor and City Commission conceptually approved a Letter of Intent submitted by Ballet Valet, outlining the general terms for development and construction of the Project, and further authorized the Administration to proceed with negotiation of a definitive agreement outlining the specific terms of the Project; and WHEREAS, Ballet Valet subsequently selected McCarthy Brothers Company (McCarthy Brothers), a licensed general contracting firm experienced in the construction of parking structures such as the one contemplated by the Project herein; and WHEREAS, the Administration, Ballet Valet, and McCarthy Brothers have negotiated the attached Acquisition,Construction and Development Agreement(the Agreement), setting forth the respective rights and obligations of the parties with respect to the acquisition of the property, the construction of the garage, the construction of the retail space, and the operation, maintenance and opening of the garage to the public. NOW, THEREFORE BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA AS FOLLOWS: The Mayor and City Commission herein approve the attached Acquisition, Construction and Development Agreement among the City of Miami Beach, The Ballet Valet Parking Company, Ltd., and McCarthy Brothers Company, for the Parking Garage Project ®fig 4-, lo t . Located at the Southwest Corner of Collins Avenue and Seventh Street, and authorize the Mayor and City Clerk to execute the Agreement. PASSED and ADOPTED this 30th day of March , 1994. ATTEST: / / .#// Ali AIM CITY CLERK r OR RJA/cnm RJAdsk2\a:balval.res 3/25/93 • FORM APPROVED LEGAL DEPT. By --se Date , 2-z..s-.S 4 , 002 r r1i JI INDEX OF CLOSING DOCUMENTS CITY OF MIAMI BEACH - BALLET VALET PARKING COMPANY Our File No. 12937-0004 1. Agreement to Purchase and Sell Real Property and Air Space. 2. Acquisition, Construction and Development Agreement. 3. Exhibits to Acquisition, Construction and Development Agreement: A. Air Space (not included) B. Lower Elevation of Air Space (not included) C BV Land D. City Land E. Draw Request (AIA Documents G702 AND G703 - not included) F. General Contractor's Agreement G. Narrative and Schedule of GMP Design/Build Costs of Garage H. GMP Design Development Drawings and Outline Specifications I. Retail Space Construction Costs (not included) J. Schedule of Performance K. Request for Disbursement L. Memorandum of Option (not included) M. Memorandum of Right of First Refusal (not included) N. Easements (not included) O. Ramp Space Designation (not included) 4. Side Letter dated May 31, 1994 among City of Miami Beach, The,Ballet Valet Corp., The Ballet Valet Parking Company, Ltd. and Leo-James, Inc. regarding post closing • items. 5. Letter from McCarthy Brothers Company dated June 6, 1994 regarding Exhibit "G" clarification. 6. Loading Area Agreement. 7. Notice to Vacate and estoppel letter re: Sin City, Inc.. "Velvet". 8. Performance Bond. 9. Labor and Material Payment Bond. 10. Certificate of Insurance regarding liability coverage adding City of Miami Beach to BV policy. I11: Chicago Title Insurance Company Commitment for Title Insurance No. 10 0198 10 003910. 12. Chicago Title Insurance Company Owner's Title Insurance Policy No. 10 0198 04 000423. i 113. Phase I Environmental Assessment Report from Allied Environmental Consultants, Inc. dated March 26, 1994. ; 14. Phase II Subsurface Investigation from Allied Environmental Consultants, Inc. under letter dated April 21, 1994. 12E112937\0004\MDS06.14A 940728 003 15. Letter from Allied Environmental Consultants, Inc. dated May 25, 1994, certifying Phase II Subsurface Investigation to the City of Miami Beach. 16. Letter from Earl Gallop dated May 26, 1994 authorizing purchase based on-the Phase II Subsurface Investigation. 17. Copies of Tax Receipts for 1993 taxes re: Folio Nos. 02 4203 004 0730 (1993 taxes and 1992 delinquent taxes cert. 8213); 02 4203 004 0740 (1993 taxes and 1992 delinquent taxes cert. 8214); 02 4203 004 0750 (1993 taxes); 02 4203 004 0760 (1993 taxes). 18. Closing Statement between. The Ballet Valet Corp. and The Ballet Valet Parking Company, Ltd., Sellers and City of Miami Beach, a Florida Municipal Corporation, Buyer. 19. Use Agreement between The Ballet Valet Parking Company, Ltd. and City of Miami Beach regarding temporary use of parking spaces and temporary occupancy by "Velvet". 20. Affidavit of Anthony Goldman, as President of The Ballet Valet Corp. 21. Affidavit of Anthony Goldman, as President of The Ballet Valet Corp., sole General Partner of The Ballet Valet Parking Company, Ltd. 22. Certificate of The Ballet Valet Corp: 23. No Lien and GAP Affidavit executed by James Resnick on behalf of Leo-James, Inc. 24. Good Standing Certificate for The Ballet Valet Corp. from the Florida Secretary of State. 25. Good Standing certificate for The Ballet Valet Parking Company, Ltd. from the Florida Secretary of State. 26. Certified copy of Corporate Resolution of Leo-James, Inc. 27. Certified copy of Certificate of Limited Partnership of The Ballet Valet Parking Company, Ltd. from the Florida Secretary of State. 28. Side Letter from The Ballet Valet Parking Company, Ltd. in favor of the City of Miami Beach regarding provisions for the third elevator, payment by BV for up to $50,000.00 of the cost of the plant maintenance equipment,provisions regarding insurance deductible and confirmation that The Ballet Valet has paid in full the Design Builders Part 1C Compensation. 29. Side Letter from The Ballet Valet Parking Company, Ltd. to Mayra Diaz-Buttavacoli regarding The Ballet Valet responsibilities for asbestos and use of parking prior to commencement of construction. 30. Satisfaction of Mortgage executed by Moy Lee to The Ballet Valet Parking Company, Ltd. recorded June 8, 1994 in Official Records Book 16396 at Page 786, Public Records of Dade County, Florida. 31. Satisfaction of Mortgage executed by LBS 59, Inc. to The Ballet Valet Parking Company, Ltd. recorded June 8, 1994 in Official Records Book 16396 at Page 787, Public Records of Dade County, Florida. 32. Satisfaction of Mortgage executed by Estela Sanchez to The Ballet Valet Corp. recorded June 8, 1994 in Official Records Book 16396 at Page 788, Public Records of Dade County, Florida. RE\1293 7\0004\MDS06.14A 940728 - 2 - Cot 4 • f l 33. Continuous Marriage Affidavit of Estela Sanchez and Luis Sanchez recorded June 8, 1994 in Official Records Book 16396 at Page 789, Public Records of Dade County, Florida. 34. UCC-3 executed by Continental National Bank of Miami recorded June 8, 1994 in Official Records Book 16396 at Page 791, Public Records of Dade County, Florida. 35. Satisfaction of Mortgage executed by Continental National Bank of Miami recorded June 8, 1994 in Official Records Book 16396 at Page 792, Public Records of Dade County, Florida. 36. Affidavit of Jack Mathews as attorney for the Estate of Joseph P. Shelley, Sr. recorded June 8, 1994 in Official Records Book 16396 at Page 793, Public Records of Dade County, Florida. 37. Satisfaction of Mortgage executed by Joseph P. Shelley, Jr. and Gerald J. Shelley as executors of the Estate of Joseph P. Shelley, Sr. recorded June 8, 1994 in Official Records Book 16396 at Page 795, Public Records of Dade County, Florida. 38. Discharge of Final Order executed by Paul Gioia, Building Official of the City of Miami Beach recorded June 8, 1994 in Official Records Book 16396 at Page 796, Public Records of Dade County, Florida. 39. UCC-3 executed by Ballet Valet Parking Company, Ltd. recorded June 8, 1994 in Official Records Book 16396 at Page 797, Public Records of Dade County, Florida. 40. Release of Restrictive Covenants executed by The Ballet Valet Corporation and Shirit Development Corporation recorded June 8, 1994 in Official Records Book 16396 at Page 798, Public Records of Dade County, Florida. 41. Acknowledgement and Agreement executed by James Resnick as Vice President of Leo- James, Inc. recorded June 8, 1994 in Official Records Book 16396 at Page 801, Public Records of Dade County, Florida. 42. Agreement to Grant Easements executed by the City of Miami Beach and Ballet Valet Parking Company, Ltd. recorded June 8, 1994 in Official Records Book 16396 at Page 807, Public Records of Dade County, Florida. 43. Warranty Deed executed by The Ballet Valet Corp. to City of Miami Beach (Folio Nos. 02 42030040730, 02 42030040740 and 02 42030040750 recorded June 8, 1994 in Official Records Book 16396 at Page 869, Public Records of Dade County, Florida. 44. Warranty Deed executed by The Ballet Valet Parking Company, Ltd. to City of Miami Beach (Folio No. 02 42030040760 recorded June 8, 1994 in Official Records Book 16396 at Page 872, Public Records of Dade County, Florida. 45. Warranty Deed executed by Leo James, Inc. to City of Miami Beach (Folio No. 02 42030040720 recorded June 8, 1994 in Official Records Book 16396 at Page 875, Public Records of Dade County, Florida. . 46. Opinion of-counsel re bond and constitutional issues from Squire, Sanders & Dempsey. RE\12937\0004\MDS06.14A 940728 - 3 - 005 AGREEMENT TO PURCHASE AND SELL REAL PROPERTY AND AIR SPACE THIS AGREEMENT is made and entered into by and between BALLET VALET PARKING COMPANY, LTD. , a Florida limited partnership and The Ballet Valet Corp . , a Florida corporation (collectively, the "Seller" ) , whose address is 640 Ocean Drive, Miami Beach, Florida 33139 , and the CITY OF MIAMI BEACH, a Florida municipal corporation ( "Buyer" ) , whose address is 1700 Convention Center Drive, Miami Beach, Florida 33139 . • W I T N E S S E T H: In consideration of the covenants in this Agreement , Seller and Buyer agree as follows : ARTICLE 1 Purchase and Sale The Property. Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller the real property and air space described and delineated on Exhibit "A" attached hereto and made a part hereof, together with all improvements thereon, easements for physical support and rights appurtenant to such real property as described in the Development Agreement (the "Property" ) . ARTICLE 2 Purchase Price 2 . 1 Amount and Payment . The purchase price for the Property (the "Purchase Price" ) shall be Two Million Eight Hundred Forty Two Thousand Five Hundred Forty Four Dollars ($2 , 842 , 544 . 00) . The Purchase Price shall be reduced by OG6 $100 , 000 . 00 to reflect an amount of net savings in the construction of the Project (as defined in Section 3 hereof) . The Purchase Price shall be increased by Two Hundred Seventy Five Thousand Dollars ($275 , 000 . 00) in the event the Seller conveys the "Resnick Piece. " The reduction in the Purchase Price and conveyance of the Resnick Piece are more particularly described in Section 1 .30 of that certain Acquisition, Construction and Development Agreement among the City of Miami Beach, The Ballet Valet Parking Company, Ltd. , and McCarthy Brothers Company (the "Development Agreement" ) . Unless directed in writing otherwise, at the Closing (as hereinafter defined) , Buyer shall pay the Purchase Price to Seller by wire transfer in immediately available funds as follows : Steel Hector and Davis Trust Account Account #2689603594934 First Union National Bank of Florida Jacksonville, Florida ABA #063000021 Notify Carol Christenson (305) 577-2975 ARTICLE 2 Completion of Sale The purchase and -sale of the Property shall be completed through a closing (the "Closing" ) which shall occur at the offices of Steel Hector & Davis , 200 South Biscayne Boulevard, Miami , Florida 33131, on May 26 , 1994 , unless 007 -2- extended by the parties , provided all Conditions Precedent have been satisfied. The parties ' obligation to close this transaction shall be conditioned as provided in Article 9 hereof . ARTICLE 3 Conditional Use Designation Buyer and Seller have received from the Planning Board, an agency of Buyer, (the "Planning Board" ) a Conditional Use designation of the Property and the real property and certain air space contiguous thereto (the "Conditional Use Designation" ) , permitting joint use for a garage and retail complex in accordance with the terms of that certain Development Agreement (the "Project" ) , and those certain plans and specifications submitted to the Planning Board, and Design Review Board of Buyer . ARTICLE 4 Title to the Property_ 5 . 1 Fee Title. At Closing, Seller shall convey its title to the Property to Buyer by a duly executed and acknowledged warranty deed (the "Deed" ) , subject to those matters of record which do not render title unmarketable (the "Permitted Exceptions" ) which permitted exceptions , are attached hereto and made a part hereof as Exhibit B; provided none of the foregoing prohibits use of the Property as a garage pursuant to the Conditional Use Designation. 5 . 2 Mechanics ' Liens . Seller shall have no unpaid bills for labor performed or materials supplied incident to the 0G8 -3- Property. A no-lien affidavit to this effect will be delivered by Seller to Buyer at Closing. ARTICLE 5 Status of Title Prior to the execution of this Agreement, Seller provided Buyer with evidence of title sufficient for Buyer and Buyer ' s counsel to evaluate the condition of Seller ' s title to the Property. Buyer has provided Seller with Chicago Title Insurance Company Commitment Number 10-0198-10-003910 for the issuance of title insurance (the "Commitment") . Buyer has given - Seller notice of all matters that would render title nmarketable as stated in the Commitment . BALANCE OF PAGE INTENTIONALLY LEFT BLANK O 9 -4- ARTICLE 6 Environmental Condition The terms of Article III of the Development Agreement pertaining to the environmental condition of the Property are hereby incorporated herein by this reference. ARTICLE 7 Representations and Warranties 7 . 1 Seller . The representations and warranties of Seller in this section 7 . 1 are a material inducement for Buyer BALANCE OF SECTION CONTINUES ON NEXT PAGE 010 -5- to enter into this Agreement . Buyer would not purchase the Property from Seller without such representations and warranties of Seller . (a) Seller is a limited partnership, organized and validly existing under the laws of the State of Florida; (b) Seller has full power and authority to enter into and perform this Agreement . (c) Seller has not employed or engaged any broker or finder or incurred any liability for any commission or fee to any broker or finder in connection with this Agreement or the transactions contemplated hereby. (d) EXCEPT AS EXPRESSLY STATED IN THE ENVIRONMENTAL REPORT DELIVERED TO BUYER PURSUANT TO SECTION 3 . 2 OF THE DEVELOPMENT AGREEMENT, (THE "ENVIRONMENTAL REPORT" ) SELLER HEREBY EXPRESSLY DISCLAIMS AND RENOUNCES ANY AND ALL WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED OR STATUTORY OR OTHERWISE, ABOUT THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY CLAIM FOR ANY DIRECT, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES RESULTING THEREFROM, WITH RESPECT TO THE PROPERTY AND ALL PERSONALTY, FIXTURES AND APPURTENANCES OF ANY KIND WITH RESPECT THERETO. SELLER HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THESE LIMITATIONS OF SELLER' S LIABILITY AND WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS . 7.2 Buyer . - The representations and warranties of Buyer in this section 7 . 2 are a material inducement for Seller 011 -6- to enter into this Agreement . Seller would not sell the Property to Buyer without such representations and warranties of Buyer . Buyer represents and warrants to Seller as follows : (a) Buyer has full power and authority to enter into this Agreement and to perform this Agreement and to use the . tax-exempt proceeds from the issuance of the Gulf Breeze Bond Funds ; (b) the execution, delivery and performance of this Agreement. by Buyer has been, or will be prior to Closing, • duly and validly authorized by all necessary governmental action on the part of Buyer. At Closing Buyer shall provide Seller with a resolution of the City Commission of the City of Miami Beach, Florida, authorizing the sale of the Property pursuant to the terms of this Agreement . (c) Buyer has not employed or engaged any broker or finder or incurred any liability for any commission or fee to any broker or finder in connection with this. Agreement or the transactions contemplated hereby. ' (d) Subject to the matters stated in the Enviromental Report Buyer has made its own inspection and investigation of the Property and is purchasing the Property "AS IS, WHERE IS, WITH ALL FAULTS, " and has not relied on any representations by Seller or its agents with respect to the physical condition of the Property. Except for the matters stated in the Environmental Report , BUYER HEREBY EXPRESSLY 012 -7- WAIVES, RELEASES AND RENOUNCES, ANY AND ALL WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED OR STATUTORY OR OTHERWISE, ABOUT THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY CLAIM FOR ANY DIRECT, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES RESULTING THEREFROM, WITH RESPECT TO THE REAL PROPERTY AND ALL PERSONALTY, FIXTURES AND APPURTENANCES OF ANY KIND WITH RESPECT THERETO., BUYER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES TO THE ABOVE STATED LIMITATIONS OF SELLER' S LIABILITIES. ARTICLE 8 Covenants 8 . 1 Seller. Seller covenants and agrees with Buyer as follows : All representations and warranties made by Seller in this Agreement shall be true and correct on and as of the Closing as if made on the Closing. All such representations and warranties made by Seller shall survive the Closing . Seller shall not permit any state of facts to exist or to continue to exist which would cause any of the representations and warranties made by Seller in this Agreement to be false or inaccurate on and as of the Closing.. 8 . 2 Buyer . Buyer covenants and agrees with Seller as follows : (a) All representations and warranties made by Buyer in this Agreement shall be true and correct on and as of 013 -8- Closing as if made on the Closing Date. All such representations and warranties made by Buyer shall survive the Closing . Buyer shall not permit any state of facts to exist or to continue to exist which would cause any of the representations and warranties made by Buyer in this Agreement not to be true and correct on and as of the Closing Date. ARTICLE 9 • • Conditions Precedent 9 .1 Condition Precedent to Closing as to Seller. The obligations of Seller under this Agreement are subject to satisfaction of the following conditions : (a) Execution and. delivery of that certain Development Agreement by and between Seller and Buyer and satisfaction of the conditions precedent to closing of the Property as stated in the Development Agreement . (b) At Closing, Buyer shall not be in default in the performance of• any covenant or agreement to be performed by Buyer under this Agreement . (c) At Closing, all representations and warranties made by Buyer in this Agreement shall be true and ' correct as if made on and as of the Closing . Seller may waive any or al.l such conditions in whole or in part but. any such waiver shall be effective only if made in writing . No such waiver shall constitute a waiver by Seller of any of its rights or remedies if Buyer defaults in the performance of any covenant or agreement to be performed by 014 -9- Buyer under this Agreement or if Buyer breaches any representation .or warranty made by Buyer in this Agreement . If any condition set forth in this section 9 . 2 is not fully satisfied or waived in writing by Seller by the Closing Date, Seller shall be released from all obligations to . Buyer under this Agreement . (d) At Closing, all approvals from the Commission for The City of Miami Beach shall have been obtained in writing . 9 .2 Conditions Precedent to Closing as to Buyer . The obligations of Buyer under this Agreement are subject to • satisfaction of the following conditions : (a) Execution and delivery of that certain Development Agreement by and between Seller and satisfaction of the conditions precedent to closing of the Property as stated in the Development Agreement and all documents thereunder. (b) At Closing, Seller shall not be in default in the performance of any material covenant or agreement to be performed by Seller under this Agreement. (c) At Closing, all representations and warranties made by Seller in this Agreement shall be true and correct as if made on and as of the Closing . Buyer may waive any or all such conditions in whole or in part but any such waiver shall be effective only if made in writing . No such waiver shall constitute a waiver by Buyer of any of its rights or remedies if Seller defaults in the .performance of _any covenant or ,agreement to be performed by • 015 -10- 41, S Seller under this Agreement or, if Seller breaches any representation or warranty made by Seller in this Agreement . If any condition set forth in this section 9 . 3 is not fully satisfied or waived in writing by Buyer by the Closing Date, Buyer shall be released from all obligations to Seller under this Agreement . (d) At Closing, all approvals from the Commission for The City of Miami Beach shall have been obtained in writing . ARTICLE 10 Closing 10 . 1 Possession. Upon receipt of the Purchase Price, Seller shall transfer possession of the Property to Buyer at Closing free and clear of all parties in possession and, subject to the Permitted Exceptions . 10 . 2 Closing Costs . Seller and Buyer shall share ' equally the cost of the documentary stamps and surtax in connection with the recordation of the Deed, and the cost to record the Deed. 10 . 3 Prorations . All current rents, real estate taxes (only if applicable) , assessments, utilities , and maintenance charges of the Property shall be prorated between Seller and Buyer as of the Closing and, to the extent of information then available, such prorations shall be made at the Closing . Such prorations or reprorations shall be adjusted, if necessary, and completed after the Closing as soon as final information becomes available . Seller and Buyer agree to cooperate and to use their 0.16 - -11- best efforts to complete such prorations no later than thirty (30) days after the Closing . Re-prorations of real estate taxes shall be based on the actual November amount of real estate taxes, within thirty (30) days of written request of either party. Income and expenses of the Property for' the period prior to the Closing shall be for the account of Seller and income and expenses of the Property for the period on and after the Closing shall be for the account of Buyer .Seller and Buyer shall use their best efforts prior to Closing to prepare a schedule of the prorations that will be made at the Closing . The right of each party to reprorate taxes and expenses shall appear as a statement on the Closing Statement . ' 10 .4 Escrow for Real Estate Taxes . Pursuant to Florida Statute 196 .295 , Buyer may be exempt from the obligation to pay real estate taxes . If so, the Seller shall place into escrow with the Tax Collector an amount equal to the current taxes prorated. to the date of transfer, based upon the current assessment and millage rates on the land involved. This fund shall be used to pay Ad valorem taxes due; and the remainder of taxes which would otherwise have been due for that current year shall stand cancelled pursuant to Florida Statute 196 . 295 . • BALANCE OF PAGE INTENTIONALLY LEFT BLANK 07 -12- ARTICLE 11 Notices All notices and other communications under this Agreement shall be properly given only if made in writing and either mailed by an overnight courier service, such as "Federal Express, " or delivered by hand to the party at the address set forth as follows : As to Seller : Goldman Properties c/o Park Central Hotel 640 Ocean Drive Miami Beach, Florida 33139 and at : 103 Greene Street New York, New York 10012 With a copy to: Dennis Scholl, P.A. Steel Hector & Davis 200 South Biscayne Boulevard Miami, Florida 33131-2398 As to Buyer : City of Miami Beach P.O. Box 0 Miami Beach, Florida 33119 Attn: Roger Carlton With a copy to : David Berger, Esq. Broad & Cassel 175 Northwest First Avenue Miami , Florida 33.128 Such notices and other communications shall be effective upon receipt . ARTICLE 12 Miscellaneous 12 . 1 Damage or Taking. Buyer hereby represents and warrants to Seller that it will not condemn or cause or participate in the condemnation of 018 -13- the Property or the Project . This representation and warranty shall survive Closing, and is a material inducement for Seller to enter into this Agreement . If the Property is damaged by fire or other casualty before Closing, the Closing shall proceed pursuant to the terms of Contract without restoration costs escrowed at Closing; it being the intention of the parties to demolish the improvements on the Property. 12 .2 General . The Exhibits attached 'to this Agreement - are made a part of this Agreement. This Agreement shall benefit and bind Seller and Buyer and their respective successors and assigns . Time is of the essence of this Agreement, including, without limitation, the date of Closing . This Agreement may not be amended or modified except by a written instrument signed by Seller and Buyer . This Agreement constitutes the entire agreement between Seller and Buyer with respect to the purchase and sale of the Property and supersedes all prior agreements, understandings, offers and negotiations , oral or written, with respect to the Property. 12 .3 Successors and Assigns . Neither party may assign its rights or delegate its obligations hereunder to any person or entity. 12 .4 Date of Agreement . By executing four (4) duplicate originals of this Agreement and delivering them to Seller, Buyer offers to purchase the Property from Seller for the Purchase Price and upon the other terms and conditions of this Agreement . As long as this Agreement has not been amended 019 -14- by Buyer to include a term or condition that is unacceptable to Seller, Seller shall accept such offer and return two executed duplicate originals to Buyer within five (5) days of Buyer ' s execution and delivery of such offer to Seller . The effective date of this Agreement (the "Effective Date" ) shall be the date this Agreement has been executed by the last party required to execute the Agreement and delivered by such party to the Seller or Buyer, as the case may be. 12 . 5 Governing Law, No Recordation. This Agreement shall be governed by and construed in accordance with the laws of the state of Florida . Neither this Agreement nor a short form thereof shall be recorded in the Public Records . 12 . 6. Effect of Partial Invalidity. If any one or more •of the provisions of this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect , such invalidity, illegality, or .unenforceability shall not affect any other provisions hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision . had never been made a part hereof . 12 . 7 Construction. The parties acknowledge that with respect to the transaction contemplated herein (a) each party and its counsel have reviewed and revised this Agreement and • that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits thereto, (b) neither party has received 020 -15- from the other any accounting , tax, legal or other advice, and (c) each party has relied solely on the advice of its own accounting , tax, legal and other advisors . 12 . 8 Survival of Indemnities • All indemnities set forth in this Agreement shall survive the Closing . 12 . 9 Default . If Buyer fails to purchase the Property on the Closing Date in accordance with the terms of this Agreement, Buyer agrees to pay Seller the sum of $250, 000 . 00 which sum the parties agree is a fair measure of Seller ' s damages hereunder and is not a penalty. If Seller defaults under this Agreement for any reason other than failure of Seller, after reasonable efforts as hereinafter provided, to cure Title Defects, Buyer may seek all remedies at law or in equity, against Seller . 14 . Radon Gas . Pursuant to Florida Statutes all sellers and lessors of real property are required to assist in informing and educating the public as to the potential hazards of radon gas by delivering the following notice: 'RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities , may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida . Additional information regarding radon and radon testing may be obtained from your county public health unit . " 021 -16- IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement to Purchase and Sell Real Property as of the dates written below. SELLERS: THE BALLET VALET PARKING COMPANY, LTD. , a Florida limited partnership By: The Ballet Valet Corp. , a Florida corporation, General P rtner 2 A V By: //1 R. ny Goldman, President (Witne s s as to Se r) Date: J/3/ 7 THE BALLET VALET C RP. , a Florida corporat . n By: R o Goldman, President Date: . ATTEST: BUYER: CITY OF MIAMI BEACH, FLORIDA, a municipal corporation 7k.u6,0„1 'ire-d\e`",-- City Clerk poll Le bU-U'�"ti' By: Its : VA °w' (Witnesses as to Buyer) Date : "`^'`e� 6 v999 FORM APPROVED LEA,G By -17- `7 022 Bate EXHIBIT "A" PART ':,F IA)TS 2 THROUGH 5 INCLUSIVE AND PsR.T OF LOT 6 , ALL AS DESCRIBED BELOW TO BE CONVEYED TO THE CITY OF MIAMI BEACH The Westerly 45. 16 feet of Lot 6 , Block 34 , Ocean Beach , Fla . Addition No . 1 , recorded in Plat Book 3 , at Page 11 of the Public records of Dade County , Florida contains 2108 Square Feet . That Part of Lots 2 through 5 inclusive , Block 34 , Ocean Beach , Fla . , Addition Mo. 1 , recorded in Plat Book 3 , at Page 11 of the Public records of Dade County, Florida . Part of Lots 2 through 5 : bounded on the West by the Westerly line of said Lots 2 through 5 , bound on the North by . the Northerly line of Lot, 2 ; bounded on the South of the Southerly line of Lot 5 ; bounded on ' the East by a line describers as follows : Commence • ' P .O. C. ) at the southw.'st corner of said Lot 5 and run J /9 ° , 2' 2"5 " E a . •Jng the Sctheriy lira of Lot 5 , a distance of 45 . t, feet to the Point :f Begir•nif.g of the referenced East-Fly line , `_.hence run N la° 47135" E alcnc a line parail-2l wit.` ar: .3 45 . 16 feet ,Easterly of the Aesterly ii ne of Lots trrJugt, 3 inclusive , a distance of 15G . 00 teet ; thence run N 29 ` 55 ' 12 " E across Lot 2 , a distance of 52 . 92 feet to the 'Northerly line of Lot 5 , said point being 62 . 5C feet Easterly of the northwest corner of Lot. 5 . Area described contains 9465 . 5 Square Feet . 023 EXHIBIT "A' PARCEL "A" Air Rights for the Easterly 13 . 16 feet of Lot 6, Block 34 , Ocean Beach, , Fla . , Addition No. 1 , recorded in Plat Book 3 , at Page ' ' of the Public records of Dade County, Florida . The Lu?.e. " 1err1 'at Boundary •_t t'.e above described ,=,:r Rights is at 3n elevati n of 4C . 00 feet , National Geodetic Vertica_ Datum ' N.G.V.D. ) , 1929 . The upper boundary of the said Air Rights is an" elevation of infinity. Area of the Base. of the Air Rights is 658 =guars Pert. • PARCEL"B" Air Rights for the Easterly 13 . 16 feet of Lots 2 through 5 inclusive, Block 34, Ocean Beech, Fla. , Addition No. 1 , recorded in Plat Book 3, at Page 11 of the Public records of Dade County. Florida. The Lowest Vertical Boundary of the above described Air Rights is at an elevation of 40 . 00 feet, National Geodetic Vertical Datum (N.G.V.D. ) , 1929 . The upper boundary of the said Air Rights is an elevation of .infinity . 14:: of the Hasse of the Air. Rights is 2632 re Amt. PARCEL "C" Air Rights for that part of Lot 6 described as Lot 6, less the Easterly 13 . 16 feet and less the Westerly 45 . 16 feet, Block 34 , Ocean Beach, Fla. , addition No. 1 , recorded in Plat Book 3 , at Page 11 of the Public records of Dade County, Florida . i "line Lowest Vertical Boundary of the above described Air Rights is at an elevation of 23 . 00 feet, National Geodetic Vertical Datum (N.G.V.D. ) , 1929 . The upper boudary of the said Air Rights is an elevation of infinity. Area of the Base of the Air Rights is 4084 Square Feet. 024 EXHIBIT "A" ARCEL "D" . f Air Rights fora part of Lots 2 through 5 inclusive , Block • 34 , Ocean Beach , Fla . , Addition No . 1 , recorded in Plat Book 3 , at Page 11 of the Public records of Dade County, Florida; said part bounded as follows ; Bounded on the East by a line 13 . 16 feet Westerly of the Easterly line of said Lots 2 through 5 inclusive, bounded on the North by the Northerly line of Lot 2 ; bounded on the South by the Southerly Line of Lot 5 ; bounded on the West by a line described as follows; Commence ( P .O.C . ) at the Southwmsterly corner of Lot 5 and run S 79 ° 12 ' 25" E along the Southerly line of Lot 5, a distance of 45 . 16 feet ; to the Point of Beginn.ng ( P .O. B. ) of said line; thence run N 10 °47 ' 35 " E along `a line 45 . 16 feet Easterly of the Westerly line of Lots 5 through 3, a distance of 150 .00 feet to the Northerly line of referenced Lot 3; thence tun N 29°5512" E across Lot 2, a distance of 52 .92 feet to the Northerly line of said Lot 2, said point being 62 . 50 feet from the Northwest corner of Lot 2 . Area of the base of Air Rights is 15 ,902 . 50 Square Feet . The 4000010, 1e rndary of the above ddscribed Air Rights is at. an 4levation of 23 . 00 feet, National Geodetic Vertical Datum (N. G.V.D. ) , 1929 . The upper boudary of the said Air Rights is an elevation of infinity. 025 EXHIBIT "B" Permitted Exceptions 1 . Taxes for the year 1994 not yet due and payable, and any taxes and assessments hereafter levied or assessed. 2 . Plat filed March 14 , 1913 in Plat Book 3 , Page 11 of the Public Records of Dade County, Florida . 3 . Restrictions contained in instrument recorded in Official Records Book 14068 , at Page 2954 , of the Public Records of Dade County, Florida (as to Lot 6 , Block 34) . AL1/2613 0 6 ACQUISITION, CONSTRUCTION AND DEVELOPMENT AGREEMENT FOR THE PARKING GARAGE PROJECT AT SW CORNER OF COLLINS AVENUE AND 7TH STREET AMONG THE CITY OF MIAMI BEACH, • THE BALLET VALET PARKING COMPANY, LTD. AND MCCARTHY BROTHERS COMPANY RE\1293710004UMIDSKIG05.26A 940601 Off' . TABLE OF CONTENTS Section Page ARTICLE I DEFINITIONS 3 ARTICLE II SFT.ACTION AND RESPONSIBILITY OF THE DEVELOPER . . 9 ARTICLE III ENVIRONMENTAL REPORT AND INDEMNIFICATION . . . . 26 ARTICLE IV CONSTRUCTION COSTS AND DISBURSEMENT PROCEDURES 32 ARTICLE V INSURANCE REQUIREMENTS AFTER CONSTRUCTION . . . 43 ARTICLE VI INDEMNIFICATION, LIMITATION OF LIABILITY AND ARBITRATION 47 ARTICLE VII PUBLIC CHARGES 50 ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES 52 ARTICLE IX OPTION TO PURCHASE 57 ARTICLE X RIGHT OF FIRST REFUSAL 60 ARTICLE XI SPECIAL COVENANTS 62 ARTICLE XII MISCELLANEOUS 75 RE112937\0004.MDSKJG05.26A 940601 0ea EDITS A: Air Space B: Lower Elevation of Air Space C: BV Land D: City Land E: Draw Request F: General Contractor's Agreement G: Narrative and Schedule of GMP Design/Build Costs of Garage H: GMP Design Development Drawings and Outline Specifications I: Retail Space Construction Costs J: Schedule of Performance K: Request for Disbursement L: Memorandum of Option M: Memorandum of Right of First Refusal N: Easements 0: Ramp Space Description • • RE\12937\0004\MDSKJG05.26A 940601 11 003 ACQUISITION, CONSTRUCTION AND DEVELOPMENT AGREEMENT THIS ACQUISITION, CONSTRUCTION AND DEVELOPMENT AGREEMENT ("Agreement") is made as of , 1994, among CITY OF MIAMI BEACH, a Florida municipal corporation("City"), THE BALLET VALET PARKING COMPANY,LTD., a Florida limited partnership ("BV"), and MCCARTHY BROTHERS COMPANY, a Missouri corporation ("GC"). W ITNEESETH: WHEREAS, capitalized words and terms used herein shall have the meanings set forth in Article I hereof, unless defined elsewhere herein or unless the context or use indicates another or different meaning or intent; and WHEREAS, the City pursuant to Resolution No. 94-21099 has authorized the purchase of the City Land, the Air Space and the Easements (collectively the "City Property") and the execution of one or more agreements in order to accomplish the acquisition of said property, the construction of the Garage, the operation, maintenance and opening of the Garage to the public; and WHEREAS, the GC is a licensed general contractor and is experienced in the construction of parking structures including those which incorporate other use structures such as the Retail Space; and WHEREAS, the GC, as Design Builder and BV as developer have formed a team in order to provide the Retail Space for BV and the Garage, on a turn-key basis, for the City; and RE\12937\0004\MDSKJG05.26A 940601 1 004 WHEREAS,BV owns the BV Land and the City Land and has agreed to convey the City Land, the Air Space and the Easements to the City, and the City has agreed to acquire same, pursuant to the terms of the Purchase Agreement and this Agreement; and WHEREAS, BV has agreed to grant.certain other rights to the City with respect to the BV Land and the Retail Space; and WHEREAS, a Garage will be constructed within the City Land, the Air Space and Easements and the City shall have a right of first refusal to purchase the BV Land, including the Retail Space; and WHEREAS, BV, the GC and the City are desirous of entering into this Agreement in order to document in writing the respective rights and obligations of the parties hereto with respect to the construction of the Garage and with respect to the construction of the Retail Space to the extent that the construction and operation of the Garage is dependent upon the construction of the Retail Space. The parties hereto recognize the above rights and obligations will be further detailed in the various documents referred to herein. NOW, THEREFORE, in consideration of the covenants herein contained, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City, BV and the GC mutually covenant and agree as follows: ARTICLE I DEFINITIONS 1.1 "Agreement" shall mean this Acquisition, Construction and Development Agreement. RE11293710004\MDSKJG05.26A 940601 2 T 0 C 5 1.2 "Air Space" shall mean all that air space to be acquired in fee simple ownership by the City from BV in accordance with the Purchase Agreement and delineated in Exhibit "A" attached hereto and made a part hereof. 1.3 "Architect" shall mean Desman Parking Associates who is under Contract to GC and their consultants. 1.4 "Authorized Officers" shall mean (a) either the City Manager or an Assistant City Manager of the City of Miami Beach or any designee of the City Manager on behalf of the City, and (b) the President of the General Partner of BV on behalf of BV and the President or any Senior Vice President of the GC on behalf of the GC. 1.5 "BV Land" shall mean the land described on Exhibit "C" attached hereto and by reference made a part hereof. 1.6 "City Financing Proceeds" shall mean the funds to be utilized by the City to acquire the City Land, the Air Space and the Easements and to finance the cost of construction of the Garage and the use and operation thereof which may include the City's funds or.the funds derived from any bond or other debt instrument and may include funds acquired by the City from the Gulf Breeze Bond Pool and any replacement, renewal or refinancing of any thereof, all from time to time now or hereafter in effect. 1.7 "City Land" shall mean the land described on Exhibit "D" attached hereto and by reference made a part hereof to be acquired in fee simple ownership by the City from BV in accordance with the Purchase Agreement. 1.8 "City Property" shall mean the City Land, the Air Space and the Easements. RE112937\00041MDSKIG05.26A 940601 3 ,, 006 1.9 "Completion Date" shall mean the date which is 365 days after the Construction Commencement Date, subject to authorized adjustments as provided herein. 1.10 "Construction Commencement Date" shall mean the date which is no later than 90 days after the date on which the City acquires title to the City Property or when the foundation permit is issued, whichever is later. 1..11 "Construction Plans And Specifications", when used with reference to the construction of the Project, means the plans and specifications caused to be prepared for the construction of the Project by BV and GC, approved by the City and based upon the GM? Design Development Drawings and the Outline Specifications which include the design development drawings and outline specifications for the Garage Space and the Retail Space approved by the City and incorporated herein by reference, as the same may be revised from time to time during the construction period with the written approval of the City and in accordance with the provisions of this Agreement and when used with reference to any modification, repair, restoration or replacement of the Garage, the Retail Space or the Project, as the same may be revised from time to time in accordance with the provisions of this Agreement. There shall be separate Construction Plans and specifications for the Garage and the Retail Space. 1.12 "Consultant" shall mean a consulting architect or engineer acceptable to the City. 1.13 "Design Team" means the GC together with Desman Parking Associates which collectively constitute the general contractor and the architectural firm retained by BV as the team to design and construct the Garage. RE\12937\0004\MDSKJG05.26A 940601 4 0 07 1.14 "Draw Request" shall mean the written request to the City for disbursement of a portion of the Garage Construction Costs submitted in the form attached hereto and marked Exhibit "E". 1.15 "Easements" shall mean those Easements described on Exhibit "N" attached hereto and made a part hereof. 1.16 "Event(s) of Default" or "Default" means those defaults specified in and defined by Article VI hereof. 1.17 "Exhibits" means the exhibits attached to this Agreement, as same may be revised and modified from time to time with the written consent of the parties, all of which are made a part of this Agreement and are incorporated into this Agreement as though fully set forth in this Agreement. 1.18 "Garage" shall mean the 646 space (including 7 spaces in loading area) 5-story garage to be constructed by the GC and BV for the City pursuant to this Agreement. 1.19 "Garage Construction Costs" shall mean those costs set forth on the Schedule of Construction Costs of the Garage identified on Exhibit "G" attached hereto and any other costs agreed to among the parties. 1.20 "GMP Garage Construction Costs" shall mean the portion of the Garage Construction Costs included within the guaranteed maximum cost to the City of $9,800 per. parking space as set forth on Exhibit "G" attached hereto. 1.21 "Garage Construction Plans and Specifications" shall mean the plans and specifications caused to be prepared for the construction of the Garage by BV and GC, approved by the City and based upon the GMP Design Development Drawings and the Outline RE112937\0004\MDSKJG05.26A 940601 5 0tt Specifications relating to the Garage, as the same may be revised from time to time during the construction period with the written approval of the City and in accordance with the provisions of this Agreement and when used with reference to any modification, repair, restoration or replacement of the Garage, as the same may be revised from time to time in accordance with the provisions of this Agreement. 1.22 "GC" shall mean MCCARTHY BROTHERS COMPANY. 1.23 "General Contractor's Agreement" shall mean the guaranteed maximum price turnkey contract with the GC and BV to construct the Garage, identified on Exhibit "F" attached hereto, not to exceed the guaranteed maximum price ("GMP") and other limitations set forth in Section 2.1 and further reduced by any reduction or savings in the GMP Garage Construction Costs as set forth in this Agreement. 1.24 "GMP Design Development Drawings and Outline Specifications" means the Outline Specifications dated May 20, 1994, supplementing the Outline Specifications dated March 18, 1994, Drawings Al - A2 dated January 6, 1994, A3, A5 - A6, dated March 16, 1994, A4, A7 and A9 dated March 18, 1994, as provided by Desman Associates and Arquitectonica attached as Exhibit "H" and the AIA - A191, Part 1 and Part 2 dated February 4, 1994 submitted by GC attached as Exhibit "F",. 1.25 "Maintenance Agreement" shall mean the detailed agreement of maintenance responsibility to be entered into between the City and BV as contemplated by Section 2.13, and to be recorded in the Public Records of Dade County, Florida within 30 days after closing on the purchase of the City Property. RE112937\0004\MDSRJG05.26A 940601 6 _ _ . 0(9 1.26 "Parking Agreement" means the agreement to be entered into between BV and the City within 30 days after closing on the purchase of the City Property relating to the license of parking spaces in the Garage to BV by the City, as same may be modified or revised from time to time. 1.27 "Premises" shall mean the BV Land, the Retail Space, the Air Space, the Garage and the City Land. 1.28 "Project" or "Improvements" shall mean the Garage and the Retail Space. 1.29 "Project Construction Costs" shall mean the sum of the Garage Construction Costs and the Retail Space Construction Costs. 1.30 "Public Charges" shall mean all real and personal property taxes, all ad valorem real property taxes, all taxes on rentals, all service charges, water rents and other public charges which, if not paid, would be a charge, claim or lien upon or against the BV Land, the Air Space or the Easements, or any part thereof, or upon or against any portion of the Garage constructed on the Air Space or the Easements. 1.31 "Purchase Agreement" shall mean the contract, dated as of even date herewith, between BV, as seller, and the City, as buyer, setting forth the terms of the purchase.by the City from BV of the City Land, the Air Space and the Easements and, if applicable, the Resnick Air space, for a purchase price of $2,842,544.00 (or an additional $275,000 for a total price of $3,117,544.00 in the event of the City's acquisition of the Resnick Air Space as defined in the Purchase Agreement). The purchase price shall be reduced by $100,000.00, the agreed upon amount of savings as a result of the construction of the Garage creating portions of the Retail RE11 29 3 710 0 04 MDSKIG05.26A ' 940601 7 010 Space which would have to be constructed as part of the Retail Space were the Retail Space to be newly constructed without the Garage being built. 1.32 "Resnick Air Space" shall mean the additional Air Space and Easements as defined in the Purchase Agreement with respect to a portion of Lot 1, Block 34 of Ocean Beach First Addition, according to the Plat thereof, recorded in Plat Book 3, Page 11, of the Public Records of Dade County, Florida (the "Resnick Land") and the definition of Air Space and Easements contained in this Agreement shall include the Resnick Air Space and the Easements on the Resnick Land. 1.33 "Resolution" shall mean the Resolution No. 94-21099 of the City dated March 30, 1994, as same may be supplemented and amended, authorizing the City to enter into this Agreement, the Parking Agreement and such other agreements and documents as are incidental thereto and within the scope of the Resolution. 1.34 "Retail Space Construction Costs" shall mean those costs set forth on the Schedule of Construction Costs of the Retail Space identified as Exhibit "I" attached hereto and other costs agreed to among the parties. 1.35 "Schedule of Performance" means the timetable for commencement, completion stages and final completion of the Project set forth in Exhibit "J" attached hereto, subject to authorized adjustments as provided herein. RE\12937\0004\MDSKJGOS.26A 940601 pp 8 �.. 011 ARTICLE II SELECTION AND RESPONSIBILITY OF THE DEVELOPER 2.1 CONSTRUCTION OF THE GARAGE BY BV AND THE GC. The City has determined that its best interests will be served by having BV as developer together with the full services of the Design Team to serve as the construction, engineering, and design team which shall have the responsibility of constructing the Garage for the City, on a turn-key basis, on the terms and conditions set forth in this Agreement. The City hereby authorizes BV and the GC, and BV and the GC hereby agree, to design, construct, build and erect the Garage on the City Property, and to equip the Garage in accordance with the description of work and equipment contained in the Garage Construction Plans and Specifications, a copy of which shall be on file with an Authorized Officer of the City, BV, the GC and with other members of the Design Team. In furtherance thereof, the GC shall award sub-contracts for"the construction of the Garage upon a competitive or negotiated basis as will best facilitate the timely and most economical completion of the Garage and its delivery thereof to the City, complete on a turn-key basis, in accordance with the Garage Construction Plans and Specifications, ready for operation and with all certificates of occupancy and completion having been duly issued by the required governmental authorities. The City may designate standards and requirements for competitive bidding and negotiation and circumstances under which negotiated contracts will be utilized. BV and GC shall deliver copies of all documentation to evidence compliance with such competitive bidding requirements of the City. The total cost to the City for such turn-key completion of the Garage shall not exceed the GMP Garage Construction Costs as set forth in Exhibit "G". 'Notwithstanding anything to the contrary herein, the total cost of the Garage shall not exceed RE11 29 3 710 0 0 4.MDSKJG05.26A 940601 9 012 $9,800.00, net and on a turn-key basis and as a guaranteed maximum price, times the number of parking spaces in the Garage plus applicable sales tax and the cost of the City's auditor, surveys, testing and reports as provided herein and increases resulting from change orders provided for under the General Contractor's Agreement signed by the parties hereto. The scope of the work included in this guaranteed maximum price is contained on Exhibit "G" attached hereto. In order to achieve savings in the above referenced sales tax, the City and GC shall cooperate to provide the direct purchase by the City of materials to be incorporated into the work. The City will timely issue City Purchase Orders for such materials to GC's Subcontractors or Suppliers and GC will assist the City in the preparation,of such Purchase Orders. The City will directly pay, on a timely basis, the Subcontractor or Supplier upon approval of GC as provided herein. Such amounts directly paid by the City will be accounted for against the GMP Construction Cost, but shall not reduce GC's other payments, including fee for basic services, or obligations under the General Contractor's Agreement. To the extent any such purchases would be determined to be subject to sales tax by any governmental body, court or agency, City shall be responsible for such tax. Direct purchases by the City shall not limit or relieve the GC of any warranties or guaranties for which it is liable to the City under this Agreement or the General Contractor's Agreement. 2.2 Submission of Design Development Plans. BV has submitted GMP Design Development Drawings and Outline Specifications for the Garage to the City for its review and approval as used herein. To the extent practicable, GC will obtain competitive quotes for each portion of the work. If any vendor is the sole source for a product or material to be used in the construction of the Garage, the GC must notify the City of such fact in writing and the City RE112937\0004'MDSIUGOS.26A 940601 10 013 must respond to the GC's notice within,5 days of receipt Of such notice or the sole source identified in the notice shall be deemed reasonably acceptable to the City. All such contracts shall be arms length transactions. 2.3 Approval of Design Development Plans by the City. The Design Review Board and any other applicable authority of the City has reviewed and approved the garage Design Development Drawings submitted to it by BV and has determined that same are acceptable to the City prior to execution of this Agreement. 2.4 ' Submission of Final Development Plans (a) Within seven working days after the City has closed on the purchase of the City Property, BV and GC will commence preparation of the Construction Plans and Specifications for the Garage and Retail Space. Not later than 60 days after said closing, BV and GC will submit proposed Garage Construction Plans and Specifications to the City and its Consultant for review and comments. Not later than ninety (90) days after the City closes on the purchase of the City Property, BV and GC shall submit to the City plans in sufficient detail and substance for issuance of a foundation permit for the construction of the Garage and shall apply for and take all necessary steps to obtain-the foundation permit. Within 365 days after issuance of a foundation permit, the GC shall construct and complete the Garage in accordance with the requirements as set forth in Section 2.21 hereof. The GC shall perform the work in accordance with the Schedule of Performance and the General Contractor's Agreement. The Construction Plans and Specifications shall conform to and include all of the information set forth in the GMP Design Development Drawings and Outline Specifications, the written recommendations of the City and its Consultant which recommendations shall be consistent with RE\1293710004\MDSK1G05.26A 940601 11 014 this Agreement, and shall conform to all applicable governmental requirements. If there is any dispute among the parties during the preparation of the Construction Plans and Specifications or upon completion of the Construction Plans and Specifications as to their being satisfactory _ to the City as to their compliance with the Design Development Drawings and Outline Specifications such dispute shall be resolved by the mutual decision of the GC, BV's engineer and the City's Consultant. If the dispute cannot be resolved in this manner it shall be resolved by arbitration as prescribed by Section 6.3 ("Arbitration"). If construction of the Garage is not completed within the time above required, the Garage Construction Costs required to be paid by the City shall be reduced by $750.00 per day for each day of delay up to the first 60 days and $1,500.00 per day for each day of delay thereafter. • (b) All plans, reports and estimates which have been made in connection with the Garage shall become the property of the City, and BV and GC shall deliver, or cause to be delivered, to the City at least 10 sets of all such plans, reports and estimates and, if made, any models of the Garage. (c) It shall be the responsibility of BV, its architect and engineers to design the Project so that the Garage and Retail Space structures properly mesh and that the design of the Retail Space appropriately provides for the support of the Garage and for access to support and all other components necessary to maintain and service the Garage. 2.5 Approval of Final Development Plans. Upon receipt of each portion of the Construction Plans and Specifications, the appropriate City agencies shall review the plans for adherence to this Agreement and for adherence to GMP Design Development Drawings and Outline Specifications previously approved by the City. The City shall use its best efforts to RE112937\0004WDSSJG05.26A. 940601 12- f 015 approve the plans submitted or advise BV and the GC in writing that such plans do not comply herewith as set forth above within 10 days after review of such plans. Any dispute over approval of the plans shall be resolved as set forth above in Section 2.4(a). 2.6 Scope of Review by City. The review of plans by the appropriate City departments shall be solely for the purpose of determining that the proposed improvements represented thereby in broad terms of size, design and quality meet the requirements of this Agreement. Notwithstanding that the City may review such plans in detail, the City shall not be responsible in any way' for any error or omission therein or failure of such plans to comply with any mechanical, engineering design or structural standards, any building regulation or other governmental requirement, even though the City's building and other departments shall be reviewing and approving the plans and issuing permits with respect thereto. 2.7 Contract for Construction. Ten days prior to the City's closing on the acquisition of the City Property, BV and the GC shall submit to the City for its acceptance the General Contractor's Agreement, in executable form, providing for the construction of the Garage complying in all respects to the requirements of this Agreement together with a full payment and performance bond for the design and the work. The General Contractor's Agreement and bond for construction shall be in such form and contain such provisions as are satisfactory to the City. The General Contractor's Agreement shall contain, among other things: a provision for the appointment of an auditor, which auditor shall be selected by the City and will conduct an audit of the cost of construction of the Garage on an ongoing basis; a provision which entitles the City to 50% of all savings in the actual audited GMP Garage Construction Costs reducing same below $9,800 per parking space in the Garage; a provision in form and substance satisfactory REU 1293 710004.MDSSJG05.26A 940601 13 016 to the City which shall declare the City a third-party beneficiary of said General Contractor's Agreement and which shall provide for notice of default by BV or GC under such General Contractor's Agreement to the City and the right of the City, at its option and not as its obligation, to cure such default without penalty to the City subject to Section 8.2.1 hereof. Issuance of the required payment and performance bond and execution by all required parties of the General Contractor's Agreement are conditions precedent to the City's obligation to close on the purchase of the City Property. If the City makes any successful claim under the payment and performance bond resulting in a payment by the surety following a default by the GC under this Agreement or the General Contractor's Agreement, then 100% of all savings in actual Garage Construction Costs shall inure solely to the benefit of the City and shall not be shared with BV. • 2.8 Conditions Precedent to Commencement of Construction. As conditions precedent to BV's or the GC's right to commence any portion of the construction, BV and the GC shall, as applicable, have: (a) secured the approval of the City for the portion of the Garage Construction Plans and Specifications relating to that portion of construction as herein provided; (b) submitted evidence satisfactory to the City that BV has funds necessary to construct the Retail Space; (c) all required parties shall have executed the General Contractor's Agreement; (d) the City shall have received and approved the payment and performance bond for the Garage required under this Agreement; RE112937\0004\MDSgJG05.26A 940601 14 0 "7 (e) conveyed title to the City to the City Property in accordance with the Purchase Agreement; (f) secured all necessary licenses, permits and governmental authorizations in connection with the purposes herein specified; (g) obtained approval of demolition procedures from all applicable governmental authorities including the City's Historic Preservation Board, Design Review Board and the City Commission; and (h) complied with all of the requirements of the Agreement prerequisite to commencement of construction. 2.9 PERMITS AND APPROVALS. Before commencement of any construction or demolition,BV and the GC shall be responsible for obtaining all permits and approvals from any and all governmental authorities necessary for each phase of the work. The Project shall be constructed in compliance with existing laws, ordinances and regulations and as may be amended from time to time, applicable thereto. On or before the Completion Date, BV and the GC shall deliver a completed Garage in accordance with the requirements of the General Contractor's Agreement. The Garage Construction Costs are based upon laws, ordinances and regulations existing as of the date of this Agreement. 2.10 Progress Reports. Survey and As-Builts. Upon commencement of construction and until construction of the Garage shall have been completed, the GC shall,in accordance with the Agreement, make monthly reports (which shall be delivered to the City simultaneously with each draw request), in such detail as may reasonably be requested by City, as to the actual progress of the construction. BV, at its sole cost, shall furnish to the City: (i) five (5) sets of RE\12937\0004\MDSBJG05.26A 940601 15 018 a foundation survey of the Garage prepared by a registered surveyor within fifteen (15) days after completion of said foundation showing that the foundation has been poured within the boundaries of the City Property and (ii) five (5) sets of as-built plans of the Garage prior to the final construction disbursement. 2.11 Payment of Contractors and Suppliers (a) Upon receipt of any required payment, GC shall make, or cause to be made, subject to the appropriate retainage as contemplated by the construction lien law and as required under the Agreement, and the General Contractor's Agreement, prompt payment of all monies due and legally owing to all persons doing any work or furnishing any materials, fuel, machinery or supplies to the GC or any of their contractors or sub-contractors in connection with the construction of the Garage. The GC shall require lien waivers from contractors and sub-contractors in order to comply with the construction lien laws of the State of Florida and as required to obtain and deliver title insurance endorsement(s) insuring over such claims. The City shall withhold from any payments due BV and GC, the retainage as contemplated by the construction lien law and as required under this Agreement and the General Contractor's Agreement. (b) Upon receipt of any required payment, BV shall make, or cause to be made, subject to the appropriate retainage as contemplated by the construction lien law and as required under this Agreement prompt payment of all monies due and legally owing to all persons, including the GC, doing any work or furnishing any materials, fuel, machinery or supplies to BV or any of their contractors or sub-contractors in connection with the Premises and the construction of the Garage. BV shall require lien waivers from contractors and sub-contractors RE11293710004\MflSKJG05.26A 940601 16 019 in order to comply with the construction lien laws of the State of Florida and as required to obtain and deliver title insurance endorsement(s) insuring over such claims. The City shall withhold from any payments due BV, the retainage as contemplated by the construction lien law and as required under this Agreement. 2.12 Construction Liens. If, because of any act or omission of BV or the GC, or any contractor or sub-contractor, any construction lien or other lien for labor, material, fuel, machinery or supplies shall be filed against the Premises, or any building, structure or improvement thereon relating to work for which GC has been paid, BV and the GC shall, within thirty (30) days of filing of such lien, cause the same to be canceled and discharged of record or bonded off. BV and GC shall, within 10 days of receipt of notice of filing, deliver to the City a copy of any lien filed against the Premises. 2.13 Coordination of Maintenance and Repairs. The City and BV expressly recognize that in the fulfillment of their respective obligations to maintain and repair the Garage and the Retail Space, certain functions and responsibilities will overlap by virtue of the contiguity of said structures and the support systems of the Garage running through the Retail Space and attaching to the BV Land. Accordingly, it is agreed that a detailed agreement of maintenance responsibility (the "Maintenance Agreement") shall be entered into between the City and BV on or before the execution of this Agreement, delineating the maintenance responsibility of each party with the intent being that the City shall bear the costs of maintaining the Garage, and BV shall bear the costs of maintaining the Retail Space and the Ramp Space, BV and the City sharing equitably those maintenance costs which cannot be clearly identified as to the Garage, the Ramp Space or the Retail Space. The Maintenance Agreement shall provide for the City to RE\12937\0004\MDSKJG05.26A 940601 17 020 ; make the determination of disputed areas of responsibility, with BV retaining the right to contest such determination and to seek reimbursement from the City for the cost of performing disputed work but only after such repair or maintenance is completed. The existence of a dispute between the City and BV over maintenance or repair responsibility shall not relieve either party of performing the same in accordance with the determination made by the City until and unless changed by Arbitration, court order or agreement of the parties. If BV fails to contest the City's determination of maintenance responsibility by commencing an Arbitration proceeding within 30 days after the City's determination is made and By is advised of the City's determination in writing, then BV shall be deemed to have accepted the City's determination of maintenance responsibility. 2.14 INSURANCE AND INDEMNIFICATION DURING CONSTRUCTION. (A) During the period of construction of the Project and until such time as BV and the GC have issued a final certificate of completion and all requirements have been satisfied under Section 4.8 for the Project and turned over control of the Garage to the City, BV agrees to indemnify and hold harmless the City, its officers, employees and agents, from and against any and all actions, claims, liabilities, losses and expenses, including, but not limited to, reasonable attorneys' fees and court costs at all judicial levels and proceedings, for personal, economic or bodily injury, wrongful death, loss of or damage to property, in law or in equity, to the extent arising or alleged to have arisen from negligent acts or omissions or other-wrongful conduct of BV, its tenants, its employees, or agents in connection with performance by BV pursuant to this Agreement and, to that extent, BV shall pay all such claims and losses and shall RE11293710004\MDSBJGOS.26A - 940601 18 021 . - pay all such costs and attorneys fees and costs at all judicial levels and proceedings expended by the City in the defense of such claims and losses, including appeals. (B) During the period of construction of the Project and until such time as BV and the GC have issued a final certificate of completion and all requirements have been satisfied under Section 4.8 for the Project and turned over control of the Garage to the City, GC agrees to indemnify and hold harmless the City, its officers, employees and agents, from and against any and all actions, claims, liabilities, losses and expenses, including, but not limited to, reasonable attorneys' fees and court costs at all judicial levels and proceedings, for personal, economic or bodily injury, wrongful death, loss of or damage to property, in law or in equity, to the extent arising or alleged to have arisen from negligent acts or.omissions or other wrongful conduct of the GC, its tenants, its employees, or agents in connection with performance by the GC pursuant to this Agreement and, to that extent, the GC shall pay all such claims and losses and shall pay all such costs and attorneys fees and costs at all judicial levels and proceedings expended by the City in the defense of such claims and losses, including appeals. 2.15 INSURANCE DURING CONSTRUCTION. During construction, BV and the GC shall each maintain or cause to be maintained in full force and effect at all times during the period of construction of and equipping of the Project, with the City named as an additional insured (except with respect to the policy described in (D) below which shall only name the parties required by Florida law) and with 30-day notice required to be given to the City, BV and the GC of any reduction, non-renewal, change or cancellation of coverage and otherwise meeting the City's insurance requirements from time to time in effect, including the following: RE112937\0004\MDSSJG05.26A 940601 19 022 (A) Automobile liability insurance and equivalent policy forms covering all owned, non-owned and hired vehicles used in connection with any work arising out of the Project. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of$1,000,000 per occurrence; (B) Comprehensive general liability insurance, including contractual liability, or an equivalent policy form providing liability insurance against claims for personal injury or death or property damage occurring on or about the Project. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $1,000,000 per occurrence for BV and $10,000,000 per occurrence for the GC; (C) Theft coverage insurance covering employer fidelity, inside or outside loss and burglary with a limit of not less than $250,000 per occurrence by the GC; (D) Worker's Compensation and Employer's Liability Insurance as required by Florida law. 2.15.1 GC shall procure and maintain, with the City, BV, the Architect and all subcontractors and suppliers of any tier named as additional insureds, the following: (a) Flood insurance in an amount satisfactory to the City; (b) Insurance on the Project against "All Risks" of physical loss or damage, including the expense of the removal of debris of such property as a result of damage by an insured peril, written on as broad an "All Risk" form as is commercially available. At the option of the City the aforementioned insurance may be provided in a Completed Value Builder's Risk Policy. Any deductibles, not to exceed $100,000 per occurrence, for wind or water RE112937100041MDSSJG05.26A 940601 20 023 damage included in such insurance shall be the responsibility of the City. All other deductibles shall be the responsibility of BV and the GC. 2.15.2 BV and GC shall require its Architect to maintain, for a period of two years following completion of the Project as evidenced by issuance of a permanent unconditional certificate of completion and/or occupancy, errors and omissions insurance on a claims made basis which shall be for limits of not less than $1,000,000. BV and GC shall require the Architect to indemnify GC, BV and the City to the same extent GC and BV are to indemnify the City as provided herein and shall require the Architect to insure such indemnity under the above errors and omissions insurance. Such insurance shall be the limit of GC's and BV's liability for design errors and GC and BV shall assign their respective rights against the Architect's errors and omissions insurance to the City. 2.15.3 Prior to issuance of a foundation permit BV and the GC shall obtain all required insurance, the carriers shall be bound and certificates of insurance and original builders risk policy shall be delivered to the City. Such insurance shall remain in full force and effect until completion of the Project and until the Garage is completed as defined herein. All insurance provided for in this Section 2.15 shall be effected under valid and enforceable policies issued by insurers of recognized responsibility, which are licensed to do business in the State of Florida. All such companies must be rated at least "A" as to management and at least Class "VIII" as to financial strength in the latest edition of Best's Insurance Guide. The insurance required by this Section 2.15 may be part of another policy or policies of BV and the GC in which other properties and locations are also covered so long as the amount of insurance RE\1293710004\MDSRJGOS.26A 940601 21 024 Q available to pay losses at the Project is at least the minimum required by this Section 2.15 and cannot be reduced in any manner by losses occurring at other properties or locations. As a condition precedent to the City being required to close on the purchase of the City Property or executing any documents related thereto, BV and the GC shall submit certificates evidencing the required insurance policies to the City together with all relevant coverage, policy terms and premium information along with satisfactory evidence of payment of the premiums thereof. 2.16 ACTION TO INSURE COMPLETION OF PROJECT. BV and GC covenant and agree that they will take such action and institute such proceedings as shall be necessary to timely and fully complete their obligations under this Agreement, including, but not limited to, the General Contractor's Agreement and any sub-contracts related thereto, diligently in accordance with the terms thereof, including, without limitation, the correcting of any defective work. BV and GC covenant and agree that they shall take such action as may be necessary or advisable to insure the timely and full performance and completion of the Project in accordance with the Schedule of Performance and the Construction Plans and Specifications and the installation of equipment, if any, in accordance with applicable contracts pertaining thereto, and to insure the performance by BV and GC of all their covenants and obligations under this Agreement and the General Contractor's Agreement. 2.17 COVENANT TO COMPLETE: PAYMENT. PERFORMANCE AND COMPLETION BOND. BV and the GC covenant and agree,jointly and severally, that, in the event the actual cost of constructing the Garage as defined by the Garage Construction Plans and Specifications should exceed the GMP Garage Construction Costs, the Garage shall nevertheless RE112937100041MDSKIG05.26A 940601 22 025 be promptly completed by them and BV and the GC hereby agree,jointly and severally, to pay from their own funds the cost of such excess. Prior to commencement of construction, the GC shall deliver to City an acceptable Payment, Performance and Completion Bond issued in form and by such surety as approved by the City, for the full cost of the Garage under the General Contractor's Agreement. The City acknowledges that Chubb Insurance Group and MG are acceptable sureties. 2.18 WARRANTIES EXTEND TO CITY. It is agreed that all vendors' warranties received in connection with all equipment purchased, if any, for the Garage, together with all warranties given by the GC, all sub-contractors, manufacturers or service organizations who perform construction work or install any equipment for the Garage, shall extend to and be written in favor of the City. If requested, BV and the GC shall execute and deliver appropriate instruments required by the City to accomplish the intent of this Section. 2.19 CONSTRUCTION AND DESIGN SCHEDULE. BV and the GC shall commence and complete all design, construction and development within the times specified in the Schedule of Performance attached hereto as Exhibit "J" or within any extension of such times as may be granted by the City in its sole discretion or otherwise as provided for in this Agreement, or in the General Contractor's Agreement. The Schedule of Performance is subject to revision from time to time only if mutually agreed upon in writing among BV, the GC and the City. Within ten (10) days after the City's approval of the Construction Plans and Specifications, BV and the GC shall prepare the Schedule of Performance specifying the dates when the major elements and components of the work to be performed pursuant to the Rfi11293 7\00041/ADSKJGOS.26A 940601 23 026 Construction Plans and Specifications are scheduled for completion, with such dates being consistent with completing the construction on or before the Completion Date. Monthly, during the period of construction, BV and the GC shall submit to the City a report summarizing in detail the progress of construction on the Garage, the status of all necessary governmental approvals required in connection with the construction work, the status and degree of the completion of the construction work, and any anticipated delays under the Schedule of Performance supplied under the preceding paragraph, foreseeable or known to either BV or the GC. Each report shall include a reasonable number of construction photographs taken since the last report submitted by BV and the GC. 2.20 NO ADDITIONAL CONSTRUCTION. NO SUBSTITUTIONS OR ALTERNATES IN CONSTRUCTION. Neither BV nor the GC shall construct or permit the construction of any improvements on the Premises other than the Project unless approved in writing, in advance by the City. BV and GC shall not make any substitutions in construction of the Garage without the City's written consent. 2.21 ESTABLISHMENT OF COMPLETION DATE. Upon Completion of the Garage in accordance with this Agreement and the General Contractor's Agreement as defined by paragraph 4.3 of Part 2 thereof, BV and the GC shall furnish to the City a certificate of completion, duly executed by BV and the GC, stating that: (A) the Garage has been completed in accordance with the General Contractor's Agreement, the Construction Plans and Specifications and all labor, services, materials and supplies used in such construction have been fully paid exclusive of retainage; and RE112937\0004\MDSKJG05.26A 940601 24 027 (B) a certificate of occupancy and/or completion for the Garage has been issued by all applicable governmental authorities so that the City can occupy and use the Garage for its intended purpose; and (C) all equipment including, without limitation, the parking revenue control system, closed circuit television system, elevators, and other facilities in accordance with the Construction Plans and Specifications in connection with the Garage have been constructed, acquired and installed in accordance with the Construction Plans and Specifications and all costs and expenses incurred in connection therewith have been fully paid exclusive of retainage; and (D) the equipment, if any, so installed is in proper operating order and is suitable and sufficient for the efficient operation of the Garage for the purposes for which it is intended. Notwithstanding the foregoing, such certificate of completion shall state that it is given without prejudice to any rights against third parties which exist at the date of such certificate or which may subsequently come into being. Also, and notwithstanding the foregoing, the establishment of such Completion Date shall not be a waiver of any rights of the City hereunder, including, but not limited to, the right to ascertain to its own satisfaction the accuracy of any matters contained in the certificate of completion furnished by BV and the GC. Prior to the Completion Date, the City shall inspect and accept or reject the work and shall provide a written punchlist to BV and GC. The work shall not be deemed completed until the punchlist work necessary for occupancy and operation of the Garage is completed and accepted by the City in writing. The GC shall complete promptly thereafter any remaining punchlist items. RE112937\0004\MDSSJG05.26A 940601 25 028 ARTICLE III ENVIRONMENTAL REPORT AND INDEMNIFICATION 3.1 ENVIRONMENTAL REPORT. As a condition precedent to the City being obligated to close on the purchase of the City Property, BV shall deliver to the City a Phase I environmental audit(the "Environmental Report")addressed to the City, acceptable in form and content to the City and prepared by an environmental engineering and consulting firm acceptable to the City confirming that the BV Land and the City Land are free of "Hazardous Substances" or the scope of any Hazardous Substances within the City Land and the BV Land and any existing improvements thereon and such other reports as are needed for remediation and removal of the Hazardous Substances, if any. The City and BV shall each pay 50% of the cost of the environmental report with the total cost not to exceed $3,000.00. To the extent that the Environmental Report indicates the presence of Hazardous Substances BV shall be obligated, providing the cost does not exceed $50,000.00, to promptly take remediation measures to remove same and provide the City an updated environmental report and DERM closure letter. confirming the City Property to be free of Hazardous Substances. If the cost exceeds $50,000.00, the City may elect, at its option, to pay the excess cost required to remove the Hazardous Substances or shall have the right to terminate this Agreement, the Purchase Agreement and the General Contractor's Agreement and be relieved of any further obligations or liability hereunder or thereunder. The term "Hazardous Substances" means and includes, without limitation, any toxic or hazardous substances or materials, petroleum or other pollutants and substances, whether or not naturally occurring, including, without limitation, asbestos, radon, and methane RE\12937\0004\MDSKJG05.26A 940601 26 O2 gas, generated, treated, stored or disposed of, or otherwise deposited in or located on or under the City Property or BV Land, including without limitation, the surface and subsurface waters of the City Property or BV Land. "Hazardous Substances" shall also include any activity undertaken on the City Property or BV Land which would cause (i) the City Property or BV Land to become a hazardous waste treatment, storage, or disposal facility within the meaning • of, or otherwise bring the City Property or BV Land within the ambit of, the Resource Conservation and Recovery Act of 1976("RCRA"), 42 U.S.C. 6901 et seq., or any similar state law or local ordinance, as amended; (ii) a release or threatened release of hazardous waste from the City Property or BV Land within the meaning, or otherwise bring the City Property or BV Land within the ambit of, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. 9601-9657, the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), or any similar state law or local ordinance or any other environmental law; (iii) the discharge of pollutants or effluent into any water source or system, or the discharge into the air of any emissions, which would require a permit under the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., or the Clean Air Act, 42 U.S.C. 7401 et seq., the Toxic Substances Control Act, or any similar state law or local ordinance; or (iv) any substances or conditions in, on, or under the City Land or BV Land which may support a claim or cause of action under RCRA, CERCLA, SARA, or any other federal, state, or local environmental statutes, regulations, ordinances, orders, decrees, or other environmental regulatory requirements relating to health, safety, or the environment (collectively, the "Statutes"), including the presence of any underground storage tanks or underground deposits located on the City Property or BV Land. BV and the GC each RE\12937\0004\MDSKJG05.26A 940601 27 030 individually assume all obligations of compliance with all environmental requirements and Statutes related to health, safety, or the environment imposed by federal, state, and local authorities that affect the City Property or BV Land and that were caused by their respective actions or the actions of their respective employees, agents or contractors during construction or any business or other activity conducted thereon or therewith by them through the completion of the Project. 3.2 Presence of Hazardous Substances. (A) BV warrants and represents to the City that except as reflected in the initial Environmental Report delivered to the City prepared by Allied Environmental Consultants, Inc. dated April 21, 1994 (the "Allied Environmental Report"), BV has no actual knowledge of (i) the presence of any unlawful Hazardous Substances on the City Property or BV Land, or(ii) any spills, releases, discharges, or disposal of Hazardous Substances that have occurred or are presently occurring on or onto the City Property or BV Land or any adjacent properties, or (iii) any spills or disposal of Hazardous Substances that have occurred or are presently occurring off the City Property or BV Land as a result of any construction or operation and use of the City Property or BV Land. (B) In connection with the construction on or operation and use of the City Property or BV Land, BV represents as to itself, its contractors, subcontractors, and any other of its agents, that, as of the date hereof, except as may be reflected in the Allied Environmental Report, and without having conducted any other investigation, it has no actual knowledge of any failure to comply with all applicable local, state, and federal environmental laws, regulations, RE\12937\0004\MDSKJG05.26A 940601 28 031 ordinances, and administrative and judicial orders relating to the generation, recycling, reuse, sale, storage, handling, transport, and disposal of any Hazardous Substances. 3.3 Future Presence of Hazardous Substances. BV and the GC each agrees to immediately notify the City in writing if either becomes aware of(a) any Hazardous Substances or other environmental problem or liability with respect to the City Property or BV Land, or any adjacent property, or (b) any lien, action, or notice of the nature described in Sections 3.1 and 3.2 above. At their own cost, to the extent liability arises pursuant to the last sentence of Section 3.1 above, BV and the GC shall jointly and severally take all actions which are necessary or desirable to clean up any Hazardous Substances affecting the City Property or BV Land, including removal, containment, or any other remedial action required by applicable governmental or regulatory authorities. 3.4 Indemnification. To the extent liability respectively arises under Section 3.1, BV and the GC hereby each agree, individually, unconditionally, absolutely, and irrevocably, to indemnify,defend, and hold harmless the City,its successors, assigns,and the officials,officers, employees, and agents of the City, against and in respect of: (A) any loss, liability, cost, injury, expense, or damage of any and every kind whatsoever (including without limitation, court costs and reasonable attorneys' fees and expenses) which at any time or from time to time may be suffered or incurred in connection with any inquiry, charge, claim, cause of action, demand, or lien made or arising directly or indirectly or in connection with, with respect to, or as a direct or indirect result of the presence on or under, or the escape, seepage, leakage, spillage, discharge, injection, disposal, emission, or release from, the City Property or BV Land into or upon any land, the atmosphere, or any RE\12937\0004 MDSKJG05.26A 940601 29 032 watercourse, body of water, or wetland, of any Hazardous Substances including, without limitation,any losses, liabilities, damages, injuries, costs, expenses, or claims asserted or arising under the statutes, whether now known or unknown, including without limitation: (1) any costs, fees, or expenses incurred in connection with the removal, encapsulation, or other treatment of Hazardous Substances from or on the City Property or BV Land; (2) any attorneys' fees, engineer's fees, and/or charges of any contractor or expert retained or consulted in connection with any inquiry,claim, or demand,including without limitation any costs incurred in connection with compliance with such inquiry,claim, or demand; (B) any loss, liability, cost, expense, or damage (including without limitation, attorneys' fees) suffered or incurred as a result of or arising out of or in connection with any failure of the City Property or BV Land to comply with all applicable environmental protection laws, ordinances, rules, and regulations relating to health, safety, or the environment, and any litigation, proceeding, or governmental investigation relating to such compliance or non-compliance; and (C) any loss, liability, cost, expense, or damage directly or indirectly arising from any claim, action, demand, cause of action, or damage relating to or in connection with any personal injury concerning or relating to the presence of asbestos or other Hazardous Substances on the City Property or BV Land. 3.5 Survival. (A) The provisions of, and undertakings and indemnification set out in, this Article III shall survive completion of the Project, satisfaction by BV and GC of all of their RE112937\0004\MDS%JG05.26A 940601 30 033 respective other obligations under this Agreement, but shall not include any liability arising from actions of the City, its officials, officers, agents or employees occurring after completion of the . Garage and its acceptance by the City. (B) This indemnity shall be continuing, irrevocable, and binding on BV and the GC, jointly and severally, and their respective successors and assigns. The obligations of BV and the GC hereunder may not be assigned. 3.6 Indemnification Procedure. (A) BV and the GC, as applicable, shall notify the City in writing promptly upon receipt of any inquiry, notice, claim, charge, cause of action, or demand pertaining to the matters indemnified hereunder, including without limitation any notice of inspection, abatement, or noncompliance, stating the nature and basis of such inquiry or notification. BV and the GC shall promptly deliver to the City any and all documentation or records as the City may request in connection with such notice or inquiry and shall keep the City advised of any subsequent developments. (B) The City shall give written notice to BV and the GC of any claim against the City which might give rise to a claim by the City against BV, the GC or both under this Article III stating the nature and basis of the claim. (C) If any action shall be brought against the City, then after the City notifies BV and/or the GC thereof as provided in subsection 3.6(B), then BV and the GC, as applicable, shall be entitled to participate therein, and to assume the defense thereof at the expense of BV and the GC, as applicable, with counsel reasonably satisfactory to the City and to settle and compromise any such claim or action; provided, however, that the City may elect to be RE11293710004\MDSKJG05.26A 940601 31 034 represented by separate counsel, at the City's expense, and if the City so elects, such settlement or compromise shall be effected only with the consent of the City (as evidenced by the approval of the City Commission or of the City Attorney and the City Manager, jointly) which consent shall not be unreasonably withheld. (D) BV and the GC, as applicable, shall make any payment required to be made under this Article III promptly, and shall make such payment by cashier's check drawn on a bank located in Dade County, Florida in the amount thereof. If such payment is not made forthwith, the City, at its sole election and in its sole discretion, may proceed, at the City's option, to suit against or Arbitration with BV and the GC, as applicable. ARTICLE IV CONSTRUCTION COSTS AND DISBURSEMENT PROCEDURES 4.1 DISBURSEMENTS. The City agrees that it will, from time to time, and so long as there shall exist no Default, but not more frequently than once a month, disburse portions of the Garage Construction Costs to the GC payable pursuant to the General Contractor's Agreement. Any other Garage Construction Costs shall be disbursed to BV or such other parties as are entitled to receipt thereof. The conditions set forth in this Article IV must be satisfied before the City has any obligations to make the first disbursement, and the conditions set forth in this Article IV must be and remain satisfied before the City has any obligations to make each subsequent disbursement. 4.2 DRAW REQUESTS. At least ten (10) days prior to each disbursement by the City, BV and the GC, jointly, must submit to the City a Draw Request signed by the Design Team, which shall include: REU 293710004%1DSSJG05.26A 940601 32 035 (A) Request for Disbursement: Five duplicate originals of a completed request for disbursement in the form attached hereto as Exhibit "K" (or in such format as is otherwise acceptable to the City) ("Draw Request") setting forth the amount of the Garage Construction Costs requested, together with such certifications and additional information as the City may reasonably require, signed by Anthony Goldman for BV and by either Greg Montgomery or Mickey Morrison for the GC certified to the City in a writing signed by them for the purpose of submitting Draw Requests and certifying to the validity of the Draw Request and compliance with this Agreement. (B) Application for Payment: If the Draw Request includes an application for payment for amounts to be paid to the GC, originals of AlA Document G702 and AlA Document G703 (or equivalents approved by the City), together with a certification that stored materials are in place both on-site and off-site and secured in a format acceptable to the City. The application for payment shall contain a breakdown by trade or other categories acceptable to the City, completed to the satisfaction of the City and executed by the GC and the Consultant. The application for payment as it relates to the GC shall be reduced by a 10% retainage on the work of all subcontractors of the GC until 50% of the work is completed, at which time no further retainage will be deducted and the balance shall remain unfunded until Completion of the work as defined herein. Upon Completion of the work in accordance with Section 4.8, the retainage shall be paid, subject to continued retainage of 150% of each subcontractor's punchlist amount as reasonably determined by the Consultant, which will be held until final disbursement as defined in Section 4.8.. RE\1293 7\0004\MDSKJG05.26A 940601 33 .036 (C) Invoices: If the Draw Request includes a request for amounts for non-construction items, invoices for such items. (D) Lien Waivers: Notarized construction lien waiver forms executed by the GC and by each appropriate subcontractor, supplier and materialman, which indicate that each of them has been paid in full for all work and materials performed or furnished through the date of the Draw Request as to the GC and through the date of the prior Draw Request as to the subcontractors. (E) Design Team Affidavit: A notarized affidavit executed by BV and the Design Team shall be submitted which certifies that all funds disbursed to date by the City have been paid to the appropriate parties and certifies to the continued compliance of all provisions of this Agreement and the Exhibits hereto. (F) Consultant's Report: A written report from the Consultant certifying the satisfactory completion of work through the date of the Draw Request complying with the Plans and Specifications and confirming that the undisbursed portion of the Garage Construction Costs and the undisbursed portion of the Retail Space Construction Costs are adequate to complete and fully pay for the construction of the Garage and Retail Space, respectively, in accordance with the Plans and Specifications. (G) Architect's Report: A written report from the Architect certifying the satisfactory completion of work through the date of the Draw Request complying with the Plans and Specifications and confirming that the undisbursed portion of the Garage Construction Costs and the undisbursed portion of the Retail Space Construction Costs are adequate to complete and RE112937\0004\MDSKJG05.26A 940601 34 03 • fully pay for the construction of the Garage and Retail Space, respectively, in accordance with the Plans and Specifications. (H) Auditor's Report: A written report from the Auditor certifying the accuracy of the amount requested under the Draw Request and making appropriate adjustments to reduce the unpaid balance which the City is obligated to pay for the Garage Construction Costs in the event the Auditor determines any savings have been achieved. Any delay by the Auditor in preparing this report upon submittal of information by GC and BV shall not delay the processing of the Draw Request. 4.3 Disbursement Amounts. Following receipt of a Draw Request and receipt and review of the report of the Consultant and all other items required for a disbursement to be made under this Agreement, the City shall determine the amount of the disbursement it will make in accordance with the Garage Construction Costs, provided no Default exists. 4.4 Requirements. If the City at any time determines, in its reasonable discretion, that the undisbursed portion of the Garage Construction Costs are not sufficient to fully complete the Garage in accordance with the applicable Construction Plans and Specifications, then the City • shall have the option of requiring the GC to deposit with the City, within 10 days after written notice from the City, additional funds in amounts sufficient to cover the resulting deficit before the City is obligated to disburse any additional money. Funds deposited by the GC shall be advanced as construction progresses in accordance with this Agreement before any additional disbursements are made from the City's funds. 4.5 Option to Disburse Funds to Contractors. If a Default exists, or upon notice to the City of non-payment of any obligations related to construction of the Garage by BV'or GC RE 11293710004\MDSKJG05.26A 940601 35 038 and failure of BV or GC to provide a reasonable explanation for non-payment, at its option, the City may make disbursements directly to any party performing the obligations of BV and the GC hereunder or any unpaid subcontractor, laborer or material supplier providing labor, services or materials in connection with the construction of the Garage and whose claim is set forth in writing and certified to the City. The execution of this Agreement by BV and the GC shall, and hereby does, constitute an irrevocable direction and authorization to the City to so disburse the funds. No further direction or authorization from either BV or the GC shall be necessary to warrant such direct disbursements and all such disbursements shall be deemed disbursed to, or on behalf of BV and the GC as fully as if made to BV or the GC, regardless of the disposition thereof by any subcontractor, laborer or material supplier so paid. 4.6 Conditions to Initial Disbursement: The City shall not be obligated to make the first disbursement until all of the following conditions have been satisfied by proper evidence, execution and/or delivery to the City of the following items, all in form and substance reasonably satisfactory to the City and the City Attorney: (A) Notice of Commencement. The GC shall prepare a Notice of Commencement which shall be properly completed,executed, recorded and posted in accordance with the Florida Construction Lien Law. (B) Insurance. Certificates of Insurance in accordance with the requirements of Article II hereof shall have been delivered to the City. (C) Plans and Specifications. Ten sets of the applicable Construction Plans and Specifications which must have been approved in writing as provided in Section 2.4(a) hereof REU293710004 MDSKJG05.26A 940601 36 • 039 by the City, BV, the GC and the Consultant either by initialling same or by other written approval identifying all pages and dates, including revision dates. (D) Permits. A copy, certified by BV and the GC, of all applicable permits including, without limitation,the building permit and any other permits required for construction of the Garage. (E) Construction Documents. Four copies of the General Contractor's Agreement and of all construction contracts and subcontracts in excess of$10,000 and a list of all other construction contracts and subcontracts including dollar amounts issued as of that date. (F) Consents of GC. Architect. Engineer, and Equipment Lessors. Consents from the GC, the Architect who prepared the Construction Plans and Specifications, equipment lessors and all other sub-contractors, to assignments to the City by BV and the GC of their interests in the contract with each of them, respectively, together with assignments thereof to the City executed by said parties enforceable upon notice from the City of a default by BV or the GC under this Agreement or under the General Contractor's Agreement. In addition, the Architect shall agree that the City may use and copy the Construction Plans and Specifications at no cost to the City. In furtherance of the assignment granted herein, BV and the GC shall cause all contract parties including, without limitation, equipment lessors, to acknowledge this assignment to the City and agree to continue such lease or contract on the same terms as presently exist if the City shall succeed to the interest of the GC thereunder and if so requested by the City. RE112937\0004\MDSKUG05.26A 940601 37 040 • c ! • (G) Bond. A payment, performance and completion bond in the amount of the General Contractor's Agreement naming the City as an obligee and issued in such form and by a surety acceptable to the City in its discretion. (H) Transfer of City Property. The City shall have closed on the purchase of . the City Property. (I) Title Endorsement. The City, at its expense, shall have received an endorsement to the title policy insuring the City with respect to the City Property. (J) No Defaults. Except as provided under the terms of Section 8.2.1, no Default shall exist under this Agreement, the General Contractor's Agreement, the Purchase Agreement or any related documents. (K) Other Documents. Such other documents as are required by this Agreement or reasonably required by the City. 4.7 Periodic Disbursements. City shall not be obligated to make any disbursements after the first disbursement until all of the following conditions have been satisfied and remain satisfied as of the date of each such disbursement: (A) All of the conditions set forth in Article IV hereof, including, without limitation, submission of a Draw Request. (B) A request for payment signed by BV and the GC and setting forth a detailed breakdown of the disbursement requested, including, without limitation, the requisition of the GC, together with copies of invoices and other documentation to substantiate any requests by BV and the GC for payment of Garage-related "soft costs" approved by the City and which are a part of the Garage Construction Costs. RE112937\0004.MDSKIG05.26A 940601 38 041 (C) BV, the GC, the Design Team and the Consultant shall certify that construction of the Garage for which such Draw Request has been made has been performed substantially in accordance with the applicable Construction Plans and Specifications, the Garage Construction Costs, and all terms and conditions of this Agreement and the General Contractor's Agreement. (D) The title policy insurer shall have issued to the City at City's expense an owner's title insurance policy and an endorsement to the title policy updating the effective date of the title policy, listing any additional subordinate matters and certifying that no lien or other interest shall have attached to the Project, except taxes for the current year, not yet due and payable and other matters acceptable to the City. (E) If any of the foundations have been completed, a satisfactory foundation survey shall have been submitted to the City consistent with the requirements of Section 4.7 hereunder. (F) The City shall have received all required approvals to the Draw Request including approvals and certificates from the Consultant, BV and from BV's architect and engineer. (G) The City and the title insurer shall have received copies of all notarized partial release lien waiver forms executed by each appropriate subcontractor, supplier and/or materialman for disbursement made under the preceding Draw Request or any portions of the current Draw Request shown to have been paid. RE\12937\00041MDSKJG05.26A 940601 39 042 (H) An Affidavit from BV and the GC, certifying that the funds disbursed to date to either of them by the City have been paid by them, respectively, to the appropriate parties. (I) A soils report as to the compaction and other soils test on the BV Land and the City Land by a soil testing firm satisfactory to the City, at such times and in such locations as recommended by such firm. BV and the GC shall promptly submit to the City copies of all such reports, together with any other physical tests made on the City Land and BV Land, the Project, or the materials to be incorporated into the Project. Additional testing requested by the City shall be at the City's expense. (J) BV and the GC shall have satisfied (i) all conditions precedent to the first disbursement as set forth in Article IV above, and (ii) all conditions precedent set forth elsewhere in this Agreement. (K) No litigation, Arbitration or other proceeding shall have been commenced against the GC, which,in the City Attorney's or City Manager's reasonable judgment, materially impairs or is likely to materially impair the GC's ability to complete the Garage. (L) As and when requested by City, at City's expense, a recertification of the Survey reflecting all changes in the physical conditions of the City Property, the BV Land and the Project subsequent to the date of the last certification of the Survey. Each such recertification shall show all construction and development work in place. (M) There shall not have been any destruction or casualty to the Project that is not anticipated to be covered by insurance. To the extent that there is any destruction or RE112937\0004\MDSSJG05.26A 940601 40 043 casualty whether or not covered by insurance, BV and the GC shall notify the City of same in writing. (N) No Default shall exist by BV or the GC under this Agreement or under the General Contractor's Agreement and no event shall have occurred which, but for the giving of notice or passage of time, would constitute such a default under this Agreement or the General Contractor's Agreement, subject to the provisions of Section 8.2.1 of this Agreement. 4.8 Requirements for Final Disbursement. The City shall not be obligated to make the final construction disbursement until all of the following additional conditions have been satisfied: (A) The Garage has been Completed in accordance with the requirements of the General Contractor's Agreement and in accordance with the Construction Plans and Specifications, and certificates as to such completion have been issued in form reasonably satisfactory to the City by the Consultant and the GC, including, without limitation, Architect's Certificate of Completion together with AIA G704 Certificate of Substantial Completion, Contractor's Certificate of Completion together with the AIA G704 Certificate of Substantial Completion and, if applicable, an Engineer's Certificate of Completion. The Completion Date shall be subject to extensions as provided in Paragraph 4.5 of Part 2 of the General Contractor's Agreement. (B) City has received five(5)copies of an "as-built" survey, which shall be paid for by the City, prepared by a registered surveyor showing that the Garage is in place within the boundaries of the City Property, including striping of parking areas and a statement as to the number of parking spaces available. RE\12937\0004\MDSSRJGOS.26A 940601 • 41 044 (C) City has received five (5) sets of detailed as-built plans and specifications of the Garage, which shall be paid for by the GC approved and certified as such in writing by BV, the GC, and the Consultant. Each set must include plans and specifications for architectural, structural, mechanical, plumbing, electrical and site development (including without limitation, storm drainage, utility lines and landscaping) work. (D) City has received a contractor's final affidavit from the GC and final lien waivers and releases from the GC and all subcontractors, suppliers, laborers, and materialmen certifying that they and all parties in privity with them have been paid in full except for the retainage and, except therefor, waiving their lien rights against the Garage. (E) City has received an inspection report performed by the Consultant in substance satisfactory to the City which certifies, among other things, that the Garage is completed in accordance with the Construction Plans and Specifications and in compliance with this Agreement and Consultant's written approval of the final Draw Request. (F) A certificate of occupancy and/or completion for the Garage has been issued by all applicable governmental authorities. (G) Provided that the GC furnishes the items required under this Section 4.8, the City's auditor, within 10 days after Completion, has reviewed and certified the actual cost of the Garage allocated to the GMP Garage Construction Costs and as may be amended from time to time, if permitted, by this Agreement and the General Contractor's Agreement and, if below $9,800 per parking space, then all adjustments shall have been made such that the final payment will result in the City having received the benefit of 50% of the cost savings. If a cost savings resulting from such audit or otherwise is agreed upon by the parties, the retainage may RE112937\0004UMDSSJG05.26A 940601 42 c. 045 be applied to reimburse the City and, if the retainage is insufficient, BV and GC shall pay any excess to the City within 10 days of written request by the City. If there is an undisbursed balance under the General Contractor's Agreement representing cost savings, the City shall pay 50% of the remaining cost savings to the GC. ARTICLE V INSURANCE REQUIREMENTS AFTER CONSTRUCTION 5.1 PROPERTY COVERAGE AFTER CONSTRUCTION PERIOD. Upon completion of construction, BV and any subsequent owner of the BV Land and the Retail Space shall, at its expense, keep the Retail Space insured against loss or damage as a result of fire, windstorm, flood and those other hazards ordinarily insured against from time to time during the term hereof in the City of Miami Beach, Florida in policies providing for "All Risk Coverage" for physical damage or loss, through insurers of recognized responsibility authorized to do business in Florida. Such insurance shall be in an amount sufficient to prevent the owner from being a co-insurer and shall be based on not less than ninety percent (90%) of the replacement value of said buildings, property and equipment. To the extent that insurance proceeds are available, the owner shall be obligated to repair any damage or destruction to the Retail Space at the earliest possible moment. Each insurance policy shall name the City as an additional insured, as its interest may appear, and for loss to be payable to the City and the owner. 5.2 COMPREHENSIVE GENERAL PUBLIC LIABILITY COVERAGE AFTER CONSTRUCTION PERIOD. After the construction of the Retail Space has been completed, BV shall secure and maintain, or cause to be secured and maintained, in full force and effect RE\1293 710004\MDSKIG05.26A 940601 43 046 comprehensive general public liability insurance as will protect the owner of.the Retail Space and the City, their agents and employees, from any and all claims for damages for personal injury or death, or for damage to any property of the City or the public which may arise out of BV's ownership and operation of the Retail Space. The amounts of such insurance shall not be less than a combined single limit of$1,000,000.00, personal injury, injury to persons or death or for property damage. Each policy shall name the City as an additional insured and each policy shall contain cross-liability endorsements. 5.3 WORKER'S COMPENSATION COVERAGE. BV shall secure and maintain, in full force and effect, such Worker's Compensation coverage as is required under the laws of the State of Florida. 5.4 LIMITED RELEASE OF LIABILITY AND WAIVER OF SUBROGATION. The City and BV release each other, and their respective authorized representatives, from any claims for damage to any person or to the Premises that are caused by or result from risks insured against under any insurance policies carried by the City or BV with respect to the Garage and the Retail Space, respectively, and in force at the time of any such damage. The City and BV shall, cause each insurance policy obtained by either to provide that the insurance company waives all right of recovery by way of subrogation against any insured party in connection with any damage covered by any policy. If the release of the City or BV as set forth in the first sentence of this subsection shall contravene any law with respect to exculpatory agreements, the liability of the party in question shall be deemed not released but shall be secondary to the other's insurers. RR11293710004'MDSKJG05.26A 940601 44 O47 o 5.5 NON-CANCELLATION CLAUSE. All insurance policies or agreements shall provide that they cannot be canceled or terminated until at least thirty (30)days prior notice has been given to the City or to BV, as applicable, to the effect that such insurance policies or agreements are to be canceled or terminated at a particular time. 5.6 CERTIFICATES OF INSURANCE. BV and the City shall provide each other with such certificates of insurance or other acceptable proof of compliance with the insurance provisions of this Article V. 5.7 RIGHT OF CITY TO OBTAIN INSURANCE. In the event that either the City or BV, at any time refuses, neglects or fails to secure and maintain in full force and effect any or all of the insurance required pursuant to this Agreement, the City and BV, as applicable, at their option, may procure or renew such insurance and all amounts of money paid therefor shall be payable forthwith by the party that was obligated to purchase such insurance with interest thereon at the legal rate per annum from the date the same were paid to the date of payment thereof by the obligated party. The City or BV, as applicable, shall notify the other party in writing of the date, purposes and amounts of any such payments made by it. .5.8 MUTUALITY OF INSURANCE OBLIGATION. Except to the extent that the City is permitted to be a self-insurer, all insurance obligations of the City hereunder as they relate to its procurement of insurance on the Garage shall equally apply to BV in its procurement of insurance for the Retail Space, including, without limitation, the naming of the City as an additional insured. 5.9 REASONABLE DEDUCTIBLE. All types of insurance required by this Article V may contain a reasonable deductible provision provided the party to be named as RE 12937\0004vADSKJGO5.26A 940601 45 • 048 r additional insured is given ten (10) days advance notice of said deductible provision and approves the same in writing. 5.10 INSURANCE CARRIERS: MANDATORY COVERAGE. The City and BV shall cause property, comprehensive general liability and comprehensive automobile liability coverage to be procured and with respect to the property coverage to carry the same on the basis of full insurable value based upon replacement cost from time to time as projected by such insurance carrier or carriers. Maintenance of insurance by BV is obligatory, and BV shall not be permitted to be a self-insurer, except with regard to reasonable deductible amount applicable to the Retail Space. The City shall be permitted to be a self-insurer. • 5.11 FIRE OR OTHER CASUALTY AFTER CONSTRUCTION. (A) Any Loss or Damage. If there is any loss or damage by fire or other casualty to the Retail Space, BV covenants and agrees to diligently commence and promptly complete the reconstruction or repair of such loss or damage, to the extent necessary to protect and preserve the Easements and permit the reconstruction and repair of any damage or destruction to the Garage. (B) Insurance Proceeds. Whenever the Retail Space, or any part thereof, shall have been damaged or destroyed, BV shall promptly make proof of loss and shall proceed to collect, or cause to be collected, all valid claims which may have arisen against insurers or others based upon such damage or destruction. The proceeds of any such claim and any other monies provided for construction, restoration, or repair of the Retail Space shall be utilized for payment of reconstruction of the Retail Space to the extent required in Section 5.11(A) above. In the event that the Retail Space is destroyed or damaged, in whole or in part, BV shall RE\12937\0004WDSKJG05.26A 940601 46 • 049 promptly give the City written notice of such damage or destruction, stating the date on which such damage or destruction occurred. ARTICLE VI INDEMNIFICATION. LIMITATION OF LIABILITY AND ARBITRATION 6.1 INDEMNIFICATION. (A) Subsequent to the Completion Date, BV agrees to indemnify and hold harmless the City and its officers, employees and agents, from and against any and all actions, claims, liabilities, losses, and expenses, including, but not limited to, reasonable attorneys' fees and costs at all judicial levels and proceedings, for personal, economic or bodily injury, wrongful death, loss of or damage to property, in law or in equity, to the extent arising or alleged to have arisen from the negligent acts or omissions or other wrongful conduct of BV, its tenants, its employees, or agents in connection with performance by BV pursuant to this Agreement and, to that extent, BV shall pay all such claims and losses and shall pay all such costs and judgments which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and attorneys fees and costs at all judicial levels and proceedings expended by the City in the defense of such claims and losses, including appeals. (B) Subsequent to the Completion Date, the GC agrees to indemnify and hold harmless the City and its officers, employees and agents, from and against any and all actions, claims, liabilities, losses, and expenses, including, but not limited to, reasonable attorneys' fees and costs at all judicial levels and proceedings, for personal, economic or bodily injury, wrongful death, loss of or damage to property, in law or in equity, to the extent arising or alleged to have arisen from the negligent acts or omissions or other wrongful conduct of the GC, RE112937\00041MDSSJG05.26A 940601 47 050 its employees, or agents in connection with performance by the GC pursuant to this Agreement and, to that extent, the GC shall pay all such claims and losses and shall pay all such costs and judgments which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and reasonable attorneys fees and costs at all judicial levels and proceedings expended by the City in the defense of such claims and losses, including appeals. The parties each agree to give the other party written notice within three (3) days of any claim coming to its knowledge that in any way directly or indirect affects the other party. 6.2 LIMITATION OF CITY'S LIABILITY The City agrees to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of One Hundred Thousand Dollars ($100,000). BV and the GC hereby express their willingness to enter into this Agreement with their combined recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $100,000. Allowable damages ("Allowable Damages") shall be limited to actual, out of pocket cash damages and shall exclude all other damages, including, but not limited to punitive, consequential and future damages. Accordingly, and notwithstanding any other term or condition of this Agreement, BV and the GC hereby agree that the City shall not be liable to, or on behalf of them for any damages except Allowable Damages and in an amount not to exceed $100,000, in the aggregate, for any action or claim arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement except that the City does not waive liability for its RE\1293 710004\MDSKJGOS.26A 940601 48 051 obligations to make payments for the construction of the Garage under the terms and conditions contained in the General Contractor's Agreement and in this Agreement. Further notwithstanding anything to the contrary contained in this Section 6.2, the City does not waive its, liability for actual damages, excluding from this waiver, however, any liability for punitive or consequential damages, which BV may incur in the event that the City willfully and in bad faith terminates the Parking Agreement in order to obtain higher revenues from users of parking spaces in the Garage other than BV. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City's liability as set forth in §768.28, Fla.Stat. 6.3 ARBITRATION At the option of the City, any controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, shall be settled by Arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the Arbitration award shall be final and binding upon the parties hereto and subject to no appeal, and shall deal with the question of the costs of Arbitration and all matters related thereto. In that regard, the parties shall mutually select one arbitrator, but to the extent the parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Judgment upon the award rendered may be entered into any court having jurisdiction, or application may be made to such court for an order of enforcement. Any controversy or claim other than a controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, including any controversy or claim relating to the right to specific performance shall be settled by litigation and not Arbitration. RE 112937100041MDSKJG05.26A 940601 49 052 ARTICLE VII PUBLIC CHARGES 7.1 Covenant for Payment of Public Charges. BV covenants and agrees to pay and discharge, before any fine, penalty, interest or cost may be added, all taxes, service charges, water rents, and other public charges (hereinafter called "Public Charges") which, if not paid, would be a charge, claim or lien upon or against the BV Land, or any part thereof. BV shall not take any action which would result in any charge, claim or lien upon or against the City Property including any portion of the Garage. Notwithstanding the provisions of the preceding sentence, BV shall have the right to pay Public Charges in installments if permitted by law, and to contest the amount or validity, in whole or in part, of any Public Charges by appropriate proceedings, provided, however, that BV shall prosecute such proceedings with reasonable diligence, and either pay all disputed Public Charges or escrow an appropriate sum as reasonably required by the City or the taxing authority for the full payment of such Public Charges being contested after completion of such proceedings. In the event that the City pays any of the Public Charges after 10 days written notice to BV and BV's failure to pay same, as provided in this Section 7.1, the City shall have a lien on the BV Land and the improvements thereon and may evidence such lien by a notarized statement executed by any authorized City official which the City, at its option, may record in the Public Records of Dade County, Florida, confirming the date of payment by the City of the Public Charges, a description of the type of Public Charges paid by the City, and the amount of the Public Charges. If, within 30 days after filing of the notarized statement and written notice to BV of its filing, BV does not reimburse the City for payment of the Public Charges together with interest thereon at the highest lawful rate from date RE112937\000411rIDSffiG05.26A 940601 50 053 of payment thereof by the City, the City shall have the right to declare a Default by BV under this Agreement and a violation of the covenant of BV to pay Public Charges contained herein and in the Easements, in addition to all other remedies for a Default by BV, to foreclose the lien and sell the BV Land, as improved, to recover the amount paid to satisfy the Public Charges, plus interest at the highest lawful rate and reasonable attorneys' fees, costs and expenses incurred in enforcing its rights hereunder. The City, its assignee or designee may be purchaser of the BV Land at said sale and may bid the amount of its lien and any judgment it holds in lieu of cash. The City's lien rights hereunder shall be a covenant running with the land and contained in the instrument to be recorded against the BV Land containing the Easements. 7.2 Evidence of Payment of Public Charges. BV shall, upon request by the City, furnish or cause to be furnished, to the City, prior to delinquency, official receipts of the appropriate taxing authorities or other proof satisfactory to the City, evidencing the payment of any Public Charges which were due and payable on the BV Land and shall furnish same at any time within ten (10) days after the date of any request by the City. 7.3 The City and BV shall cooperate to effect a separate ad valorem tax assessment and tax folio number for each of the BV Land, City Land and Air Space to enable the City Land and Air Space to be exempt from ad valorem taxes. RE112937\0004\11DSSKJG05.26A 940601 51 • 054 ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES 8.1 EVENTS OF DEFAULT BY BV OR GC. The following shall be "Event(s) of Default" under this Agreement and the terms "Event of Default" or "Default" shall mean, whenever they are used in this Agreement, any one or more of the following events: (A) Failure on the part of BV or the GC, respectively, to pay any of their contractors or suppliers on the Project on the date that payment is due in accordance with the contracts or agreements with said parties or in accordance with the terms of this Agreement or the General Contractor's Agreement. (B) Failure on the part of BV or the GC, respectively, to pay or cause to be paid the insurance premiums, charges or taxes with respect to the Project which they are respectively required to pay for a period of ten (10) days after written notice specifying such failure and requesting that it be remedied shall have been given to either of them by the City. For purposes of this Section taxes shall be deemed "due" upon any first date the same shall be payable without penalty or interest. (C) Failure on the part of BV or GC to make any payment required to be made by them, respectively, to City or any third party as applicable to them individually pursuant to this Agreement or the General Contractor's Agreement. (D), Failure on the part of BV or the GC as applicable to observe and perform any other covenant, condition or agreement which they have herein agreed to observe or perform, for a period of ten (10) days after written notice specifying such failure and requesting that it be remedied shall have been given by the City to BV or the GC, or both, as applicable. RE112937\0004\MDSSJG05.26A 940601 52 055 However, such a default shall be deemed to be cured, if promptly and in good faith upon receipt of such notice BV and the GC, or either of them, as applicable, proceed diligently to correct such default and corrects it as soon as reasonably possible but not later than forty five (45) days thereafter. If such failure by BV or the GC, as applicable, to observe and perform any such covenant, condition or agreement (other than a failure described in (A), (B) or (C) above) shall result from a Force Majeure (as defined below), then they shall not be deemed to be in default during the continuance of such inability during such Force Majeure. The term "Force Majeure" shall mean an Act of God, an act of a public enemy, a strike or lockout or other industrial disturbance, insurrection, riot, epidemic, drought, civil or military restraints, or a failure of utilities, or other event beyond BV's or the GC's control which results in a delay of performance and as to which written notice of the Force Majeure was delivered to the City within 2 working days after its occurrence. (The settlement of strikes, lockouts and other industrial disturbances shall not be deemed to be entirely within the discretion of BV or the GC, and BV and the GC shall be deemed to be in default within the meaning of this paragraph if they shall refuse to make settlement of strikes, lockouts and other industrial disturbances by acceding to the demands of the opposing party or parties when such course is unreasonable in the reasonable judgment of the City.) (E) Either BV or the GC shall file a petition in bankruptcy or for an arrangement pursuant to any present or future federal bankruptcy act or under any similar federal or state law, and shall be adjudicated a bankrupt or insolvent or shall make an assignment for the benefit of its creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of either BV or the GC as a RE\1293 710004\MD SKJG 05.26A 940601 53 Q56 bankrupt under any present or future federal bankruptcy act or any similar or state law shall be filed in any court and such petition or answer shall not be discharged or denied within sixty (60) days after the filing thereof, or a receiver, trustee or liquidator of either BV or the GC or of all or any portion of the Project shall be appointed in any proceeding brought against BV or the GC and shall not be discharged within sixty (60) days after such appointment or if the estate or interest of BV in the Retail Space or the BV Land or any part thereof shall be levied upon or attached in any proceedings and such process shall not be vacated or discharged within sixty (60) days after such levy or attachment, or either BV or the GC shall liquidate. (F) The occurrence of a Default by BV under the Purchase Agreement or the occurrence by BV or the GC, respectively, of a Default under any other document or agreement executed by either of them in connection with the Project. 8.2 REMEDIES ON DEFAULT BY BV OR GC. Whenever any Event of Default referred to in Section 8.1 hereof shall have occurred and be continuing, the City may, subject to the provisions of Section 8.2.1 below, take any one or more of the following remedial steps: (A) From time to time take whatever action at law or in equity which may appear necessary or desirable to recover damages, enforce performance and observance of any obligation, agreement or covenant of either BV or the GC, or both, as applicable, under this Agreement, the Purchase Agreement or any other documents related thereto. (B) Complete the construction of the Garage by any reasonable means available, including, but not limited to, completing construction of the Garage by dealing directly with and making payments directly to any of the contractors or material suppliers of BV and the GC, contracting with other contractors and material suppliers selected by the City in its sole RE11293 7\0004'MDSKIG05.26A 940601 54 05/ discretion or such other measures as the City determines are necessary for it to complete the Garage. All costs and expenses incurred by the City in the event of a Default shall be included in the measure of damages sustained by the City in such event. (C) Termination of Parking Agreement, if the Garage is not constructed. (D) Set off current and future obligations of the City under the Purchase Agreement, this Agreement, the General Contractor's Agreement or any other document or agreement in connection with the Project. 8.2.1 So long as City and the GC agree that BV is in default and that neither the City nor the GC has sent a notice of default to the other that has not been cured, City and the GC shall proceed to perform under this Agreement and the General Contractor's Agreement notwithstanding an alleged default by BV or any event which but for the giving of notice or passage of time would constitute a default by BV, including the failure to execute or deliver any Draw Requests or other documents, then the City and GC shall proceed under this Agreement and General Contractor's Agreement without BV. 8.3 EVENTS OF DEFAULT BY CITY. The City shall be in default under this Agreement if it shall fail to pay any sums required of it hereunder or to perform any other covenant, condition or agreement which it may have agreed to perform, after expiration of any permitted grace or curative period and receipt of any required notice to which it may be entitled, but in no event without receipt of at least ten (10) days prior written notice specifying the default. If the default is other than a monetary default it shall be deemed cured if the City promptly and in good faith commences to correct such default upon receipt of such notice. In no event shall the City's liability exceed the limitations set forth in Section 6.2 hereof. RE112937\00041MDSKJG05.26A 940601 55 058 8.4 NO REMEDY EXCLUSIVE. No remedy conferred upon or reserved to any party hereto, or existing at law or in equity, shall be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement, the Purchase Agreement, the General Contractor's Agreement, the Parking Agreement or any other documents related thereto or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any Default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time as often as may be deemed expedient. In order to entitle any party to exercise any remedy reserved to it in this Agreement, or existing in law or in equity, it shall not be necessary to give notice, other than such notice as may be herein expressly required. 8.5 NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the event any covenant contained in this Agreement should be breached by any party hereto and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver shall be deemed to have been granted hereunder unless in writing and signed by the party granting the waiver. 8.6 REIMBURSEMENT OF EXPENSES UPON DEFAULT. In the event any party is in Default under any of the provisions of this Agreement and fails to cure such Default after any required notice and within a permitted cure period, the defaulting party shall, on demand therefor, reimburse the other party or parties for the reasonable fees and expenses of its attorneys actually incurred (whether or not suit shall have been brought)and such other expenses as may reasonably be incurred in the enforcement of performance or observance of any RE\1293T000aMDSIUG05.26A 940601• 56 059 obligation or agreement herein contained or in 'the collection of any sums due hereunder, together with interest thereon from the date such expense was incurred to the date of reimbursement at the highest lawful rate of interest. In the event of the City's Default, recovery hereunder shall be included in the Allowable Damages and limited by the provisions of Section 6.2. ARTICLE IX OPTION TO PURCHASE 9.1 OPTION TO PURCHASE. Provided BV is not in default under any of the terms, covenants or conditions of this Agreement, for a period of 30 days commencing on the date which is the later of 30 years after the date the City opens the Garage for service, or the date upon which City Financing Proceeds, including any bond financing utilized by the City to finance the purchase of the City Property and the construction of the Garage, have been repaid or retired, BV is hereby granted an option to purchase the Garage including the City Land, the Air Space and the Easements (the "Option"). The Option must be exercised pursuant to the terms of this Article IX. In no event shall the Option extend beyond the 30 day period set forth in this paragraph, anything to the contrary herein notwithstanding. BV shall deliver written notice of its interest in exercising the Option during said 30 day period (the "Option Notice") and closing shall occur within 180 days after the date of the Option Notice. The sales price shall be the fair market value of the City Property, based upon appraisals performed by appraisers acceptable to and selected by the City, and reasonably acceptable to BV plus any accumulated deficit arising from operating expenses and debt service exceeding gross revenues ("Accumulated Deficit") incurred by the City during its ownership of RE112937\0004'MDSKIG05.26A 940601 57 0 6 0 the City Property to the date on which BV closes on the purchase pursuant to this Article IX. City will advise BV annually in writing of the accumulated deficit for the preceding year. The method of evaluation utilized by the appraisers shall be to determine the value based upon highest and best use of the City Property according to the standards existing at the time the appraisals are made. Initially, there shall be two appraisals. If the values of the two appraisals are within 20% of each other, then the value, exclusive of the portion of the sales price related to the City's Accumulated Deficit, shall be the average values of the two appraisals. If the difference exceeds 20%, a third appraisal shall be obtained and the value, exclusive of the Accumulated Deficit, shall be the average of the three appraisals. In all events the sales price shall be the value determined by the appraisals as aforesaid plus the Accumulated Deficit. The purchase shall be on an all-cash basis and the property shall be free and clear of any liens, mortgages or encumbrances other than those created by BV. For a period of 40 days from receipt by the City of BV's Option Notice("Inspection Period"), BV, its agents, employees and contractors shall be permitted to perform a complete inspection of the City Property . Unless BV gives the City written notice of its decision not to purchase prior to 5:00 p.m. on the date of expiration of the Inspection Period, BV shall be obligated to timely close on the purchase, time being of the essence. The City shall be fully indemnified and insured for property damage and personal injury to third parties and for damage to the City Property and the Garage to the extent caused by the inspections in such manner as it reasonably requires prior to any inspections being performed. Conveyance shall be "AS IS" without warranty or representation whatsoever. BV shall pay for the aforementioned appraisals and the City shall not be required to order any appraisals until payment therefor is delivered to the City by BV. BV's failure to pay for the RE 112937100041MDSKIG05.26A 940601 58 06_. appraisals in advance in sufficient time to permit closing within the time required hereunder shall entitle the City to terminate this Option. The place of closing shall be in Dade County, Florida and designated by the City. At the time of closing, BV shall deliver to the City by wire transfer in cleared Federal funds the amount of the purchase price. If BV shall fail to timely exercise its option or shall fail to close, provided the City is ready, willing and able to close, BV shall no longer have any rights with respect to this Option. Upon termination of the Option, the City is authorized to record a notice terminating the Option and the Memorandum of Option. The purchase of the City Property shall comply with existing law as of the date of this Agreement as to sale of municipal real property unless a future law is retroactive and applicable to the date of this Agreement, in which case such future law shall apply. If BV elects, by giving timely written notice to the City before expiration of the Inspection Period, not to purchase, this Option shall terminate. If the Option is exercised, By, at is sole expense, shall be responsible for performing its own title examination and obtaining and paying for title insurance with respect to the property to be acquired. The City shall convey title subject to easements, conditions, restrictions and limitations of record. The City, at the closing of title, shall furnish a Special Warranty Deed, a Mechanics Lien Affidavit, Bill of Sale, FIRPTA Affidavit, GAP Affidavit, such other instruments as are reasonably required by BV and such corrective instruments that may be required in connection with perfecting title. The City shall not be required to institute or defend any litigation in order to clear title. Closing costs, recording charges, documentary stamps, RE112937\0004\MDSK1G05.26A 940601 59 Cb 6 surtax and other applicable charges and taxes shall be paid by BV. BV shall honor all parking agreements existing on date of closing for a period of three years after closing. In all events, this Option shall terminate and cease to exist upon the sale by BV of the Retail Space or the BV Land or the transfer of any interest in BV, the Retail Space, or the BV Land, whether voluntary or involuntary, resulting in Anthony Goldman or his heirs ("Anthony Goldman") not owning a majority interest in BV, the BV Land and the Retail Space. Provided that this Option has not terminated for the reasons set forth in the preceding paragraph and that the Parking Agreement has not been terminated, it may be exercised by BV in accordance with procedures and terms set forth above between the 25th and 30th years of the Parking Agreement in the event that the Garage is destroyed by fire or other casualty and the City elects not to reconstruct the Garage or if the City elects to terminate permanently the operation of the Garage during such period. In such event BV must deliver the Option Notice in writing to the City within 30 days after the City gives BV written notice of its election not to reconstruct the Garage or to terminate permanently the operation of the Garage. 9.2 Memorandum of Option. The City and BV agree that a memorandum of the existence of BV's Option to purchase under this Agreement shall be executed by the parties in the form attached hereto as Exhibit "L" and shall be recorded in the Public Records of Dade County, Florida, upon execution of this Agreement. ARTICLE X RIGHT OF FIRST REFUSAL 10.1 RIGHT OF FIRST REFUSAL. The City is hereby granted the right of first refusal to purchase the BV Land and the Retail Space, provided such right is exercised pursuant RE\1293710004VDSKJG05.26A 940601 60 • 063 to the terms of this section and the City gives BV written notice of its election to exercise the right of first refusal within 30 days after receipt of written notice of BV's intention to convey the BV Land or the Retail Space or any interest therein to a third party together with a copy of all proposed contracts, agreements and documents relating to the proposed sale. Copies of any such contracts and agreements must be delivered to City within 3 days of their receipt by By. If the City elects to exercise its right of first refusal, closing shall occur under the terms of the proposed contract provided, however, that provisions reasonably required by the City which do not result in any material delay or any materially adverse economic change or cost to BV may be added to the contract to be signed by the City and BV and the City shall not be obligated to close for at least 120 days after exercise of the right of first refusal. To the extent the City's closing occurs after the last required date of closing in the proposed contract, BV shall be entitled to receive the value of its cost of funds for the extended period. If the City does not exercise its right of first refusal at any one time, the City shall continue to have the right of first refusal under this Article X as to any future transactions involving the BV Land or the Retail Space and the prospective buyer shall be advised of this right in any contract of sale. The date and place of closing of title shall be designated by the City in its notice of election to exercise its right of first refusal, provided, however, that such date shall be not more than one hundred eighty (180) days and not less than thirty (30) days after the date of the notice from BV to the City. The place of closing shall be in Dade County, Florida. If the City does not exercise its right of first refusal, the third party contract must be signed in the form and on the same terms presented to the City, and the closing thereunder must occur without modification; otherwise, the right of first refusal shall be reinstated. If the third party shall fail to timely execute the RE112937\0004WDSIUGOS.26A 940601 61 064 contract or shall fail to close for the purchase price and under the terms and conditions contained in the contract presented to the City, then the right of first refusal to the City shall be reinstated. The closing of title shall take place in accordance with the proposed contract subject to any documents or conditions required by law.as a result of the City being the party acquiring title. In addition, at the option of City, simultaneously with the closing or at any time requested by the City thereafter, BV will execute and deliver documentation terminating the Parking Agreement. 10.2 Memorandum of Right of First Refusal. The City and BV agree that a Memorandum of the existence of the right of first refusal under this Agreement shall be executed by the parties in the form attached hereto as Exhibit "M" and shall be recorded in the Public Records of Dade County, Florida, upon execution of this Agreement. ARTICLE XI SPECIAL COVENANTS 11.1 RIGHT OF ACCESS TO PROJECT. BV and the GC agree that the City and its duly authorized agents shall have the right at all reasonable times to enter upon the Project as may be necessary to carry out or determine compliance with this Agreement, but such entry will be subject to the giving of reasonable notice, to the execution of reasonable release of liability agreements and compliance with reasonable safety requirements of BV and GC. 11.2 MAINTENANCE OF EXISTENCE. Both BV and the GC agree that during the term of this Agreement they will each maintain their existence as a limited partnership or corporation, as applicable, will not dissolve or otherwise dispose of all or substantially all of their respective assets and will not consolidate with or merge into other corporations or RE\12937\0004\MDSSSJGOS.26A 940601• 62 065 partnerships, or permit one or more other corporations or partnerships to consolidate with or merge into theirs, unless such change shall be approved in writing by the City Attorney or the City Manager. 11.3 NO SALE OR LEASE OF RETAIL SPACE. Until completion of the Project and acceptance by the City of the Garage, BV covenants that it will not sell, lease, convey, encumber, lien, pledge or otherwise dispose of any of the BV Land or the Retail Space or any interest therein or any beneficial interest in BV, except for leases to tenants for uses permitted hereunder who will occupy portions of the Retail Space in the ordinary course of business. 11.4 BV hereby grants to the City the right, in the reasonable exercise of its discretion, to prohibit any sale or lease of the Retail Space, or any portion thereof, to anyone' with a criminal record, having outstanding unsatisfied judgments or liens held by the City or any of its agencies or departments or whose intent it is to use the Retail Space or any portion thereof for unlawful uses or uses detrimental to the area serviced by the Garage. Uses detrimental to the area serviced by the Garage are deemed to be: (1) Gun range or gun shop or other establishment selling firearms and/or ammunition; (2) adult X-rated book store (or tapes, CD ROM and the like); (3) peep show store; (4) head shop store; or (5) any store where the inventory includes sexual devices, sexually obscene or licentious magazines, videos, tapes or objects depicting genitalia and other similar items consisting of more than 30% of such store's inventory. All leases for the Retail Space must contain provisions notifying tenants of the terms of this Agreement and making said leases subject to and subordinate to the relevant terms hereof, and acknowledgement by tenant that the City has no obligation to provide alternative spaces if the Garage must be partially or fully closed for repairs, renovations or rebuilding and that City RE 1293710004\MDS1UG05.26A 940601 63 • 066 r has the right to interrupt the business operations of the tenant to the extent reasonably necessary to gain access to the Easements and for maintenance, repairs, renovation and rebuilding of the Garage. BV acknowledges that the City has an interest in insuring that no portion of the Retail Space be leased to tenants whose occupancy would have a negative impact on the Garage and the area served by the Garage. 11.5 LEASE OF RAMP SPACE. The City agrees to lease to BV the land and improvements under the ramp of the Garage, as more particularly described on Exhibit "0" attached hereto and made a part hereof ("Ramp Space"), under the following terms and conditions: (A) Initial rental will be $5.00 per square foot, per year, plus all applicable taxes, including sales taxes and ad valorem taxes, net to the City, payable monthly in advance, subject to annual increases based upon the CPI computed against the initial$5.00 per square foot rental rate, but not to exceed 3% in any one year. (B) BV is to maintain the Ramp Space at its sole cost and expense. (C) Any area utilized for parking in the Ramp Space shall be solely for loading and unloading purposes and all other parking is prohibited. (D) The electrical room in the Ramp Space shall be available to the City with rights of access, at no cost to the City, to house the City's telephone, CCTV, electrical and other equipment relating to the Garage, jointly with the telephone, electrical and other equipment of the Retail Space. RE112937\0004VMDSSJGOS.26A 940601 64 (E) The term of the lease of Ramp Space shall run concurrently with the term - of the Parking Agreement, but the Ramp Space lease shall be assigned by BV to any subsequent owner of the Retail Space. 11.6 BV TO FURNISH CERTAIN FINANCIAL AND DISCLOSURE INFORMATION. BV and the GC covenant and each agree to furnish to City prior to execution of this Agreement, certified copies of financial statements, or, in the case of BV, financial statements may be signed by Anthony Goldman and notarized under oath, together with any supporting schedules or documentation which City may reasonably require in order to establish to the City's satisfaction that both BV and the GC are financially able to discharge their obligations under this Agreement and that BV has adequate funds to pay in full, on a timely basis, the Retail Space Construction Costs. The City may require updated financial statements to be furnished to it at any time thereafter from BV and the GC, or either of them so long as either BV or the GC has any remaining obligations under this Agreement or the General Contractor's Agreement. Further, BV and GC shall furnish a disclosure affidavit in form required by the City setting forth the names, addresses and percentage ownership of all persons having any interest in BV or the GC in such form as required by the City to satisfy the requirements of Section 286.23, Florida Statutes. 11.7 COVENANT REGARDING AUTHORIZED REPRESENTATIVES. The City, BV and the GC covenant to furnish to each other written certificates containing the names of the persons at the time designated to act on behalf of the City, BV or the GC pursuant to Section 4.2(A) hereof. RE\12937\0004V►WSK1G05.26A 940601 65 068 11.8 REPRESENTATIONS AND WARRANTIES OF BV AND THE GC. BV and the GC each individually represents and warrants to City as to each of them as follows (all of which shall survive the expiration or other termination of this Agreement): - (A) that there are no actions, suits or proceedings pending to the knowledge of BV or the GC, as applicable, threatened against oraffecting BV or the GC, as applicable, at law or in equity or before any federal, state, municipal or governmental department, commission, board, bureau or agency or instrumentality which would impair BV or the GC's, as applicable, ability to perform its obligations under this Agreement; (B) that this Agreement has been duly authorized, executed and delivered by BV and the GC and constitutes the legal and valid binding obligation of BV and the GC, as applicable; (C) that the consummation of the transactions hereby contemplated in the performance of this Agreement will not result in a breach or violation of or constitute a default under any lease, bank loan or credit agreement to which either BV or the GC, as applicable, is a party; and (D) to the best of their knowledge, but without having made any investigation, neither BV or the GC, nor any other property owned or leased by BV or the GC, as applicable (1) is subject to any private or governmental lien or judicial or administrative notice, order or action relating to Hazardous Substances or environmental problems, impairments or liabilities with respect to the City Property or the BV Land which could affect either BV's or the GC's, as applicable, ability to perform under this Agreement, or RE 12937\0004 MDSSJG05.26A 940601 66 069 (2) is in, or with any applicable notice and/or lapse of time, and/or failure to take certain curative or remedial actions, will be in, either direct or indirect violation of any Environmental Laws. 11.9 PARKING AGREEMENT. BV and the City shall enter into a Parking Agreement in the form required by the City, no later than the date the City acquires title to the City Property, and as a condition precedent to the City's obligation to close on said purchase and containing the following terms and conditions: (A) The location of the parking spaces which are the subject of the Parking Agreement, and the rules and regulations pertaining to such spaces, shall be as determined by the City. Initially, the rate per parking space licensed to BV shall be$75.00 per month ("Base License Rate"), fixed for two (2) years, payable monthly in advance, plus applicable taxes. Thereafter the Base License Rate shall be subject to annual adjustment based upon the consumer Price Index for Wage Earners and Clerical Workers, Miami, Florida (1982 - 1984 = 100) published by the Bureau of Labor Statistics of the United States Department of Labor ("CPI"). The "Base Number" shall be the index for that month and year which is two (2) months prior to the commencement date of the Parking Agreement (the "Base Month"). The "Current Number" shall mean the latest index published for the Base Month of each calendar year during the term of the Parking Agreement by the Bureau of Labor Statistics or other governmental agency then publishing the CPI (or if the CPI is no longer published, a similar index for Miami, Florida most closely comparable to the CPI)after making such adjustments as may be prescribed by the agency or entity publishing the same, or as otherwise may be required, to compensate for changes subsequent to the Base Number in the base, items included or method of compilation RE112937\00041MDSKJG05.26A 940601 67 070 thereof. If the Current Number exceeds the Base Number, then the Base License Rate shall be multiplied by a fraction, the numerator of which is the Current Number and the denominator of which is the Base Number and the product shall thereupon be deemed to be the Base License Rate for the forthcoming year. In no event shall the Base License Rate be less than $75.00 per parking space per month during the entire term of the Parking Agreement. In the event that the Current Number shall be unavailable at the time of commencement of an adjustment year, BV shall pay to City on the basis of the existing Base License Rate until such time as the required adjustment is determined, at which time an accounting will be made retroactive to the commencement of the adjustment year. Anything herein to the contrary notwithstanding, it is agreed that the Base License Rate shall not increase more than 3% in any one year. It is further agreed that when the Base License Rate is re-adjusted every 5 years to the greater of the then existing Bulk Rate or $75.00 per month, the Base Month shall be the month and year which is two (2) months prior to the commencement of the five year re-adjustment period. The Base License Rate shall be re-adjusted on each fifth anniversary of the Parking Agreement to equal the greater of $75.00 per month or the then existing Bulk Rate, as defined below, and shall thereafter be subject to the annual CPI adjustment as above provided on an annual basis. BV shall obtain and pay for not less than 150 spaces, and, at its option, up to a maximum of 25% of the total spaces in the Garage each year. BY shall notify the City in writing annually, not less than 30 days prior to each anniversary of the Parking Agreement as to the number of parking spaces, subject to the aforesaid minimum and maximum criteria, it will contract for in the forthcoming year. The parking spaces licensed to BV shall not be specifically designated or assigned and shall be accessed on the same conditions as other licensees of parking spaces RE\12937\0004\MDSBJG05.26A 940601 68 • ci in the Garage, except as to the rate charged and term of the license. The City shall have no obligation to leave empty at all times the total number of spaces licensed to BV, but shall be permitted to oversell spaces based upon computer utilization guidelines. The initial term of the Parking Agreement shall be for 30 years. BV shall have the option to renew the Parking Agreement for two successive 30 year terms on the same terms, subject to adjustment in the Base License Rate, and subject to annual adjustments based upon the CPI, both as above provided, at the lowest Commercial Bulk Rate, if any, which the City offers to other non- governmental parties in the area bounded on the east by the alley east of Collins Avenue, the west by the alley west of Washington Avenue, the south by either side of 5th Street and the north by either side of 14th Street ("Bulk Rate"). The City shall have the right to terminate the Parking Agreement upon the expiration of its initial thirty year term if the City determines that the Garage will no longer be operated, or at any time commencing with the 25th anniversary of the Parking Agreement if it elects not to rebuild the Garage following its damage or destruction by casualty or otherwise, in the City's sole discretion. In such event, provided it is not otherwise precluded from doing so under the provisions of Article IX of this Agreement, BV may exercise the Option in accordance with the terms and conditions of said Article IX. Prior to the 25th anniversary of the Parking Agreement, the City shall rebuild or repair the Garage within a reasonable time after a casualty causing its damage or destruction. The City shall have complete discretion in any rebuilding,renovation or redesign of the Garage including elimination or addition of spaces. The parking spaces may only be utilized for tenants, guests and customers of properties owned by Anthony Goldman or his heirs ("Goldman") or entities in which Goldman is the majority (i.e. 50% or more in beneficial and voting interest) owner and which RE\12937\0004\MDSKJG05.26A 940601 69 072 is controlled by Goldman ("Goldman Properties"). The right to use of the parking spaces which are the subject of the Parking Agreement shall not be transferable upon sale of any of the Goldman Properties or any interest therein which reduces Goldman's ownership interest to less than 50%. (B) BV has represented to the City that in order for BV to reach agreement with the owner of the Resnick Land ("Resnick") to acquire the Resnick Air Space and the Easements on the Resnick Land, Resnick has required BV to permit it to use six (6) of the parking spaces to be licensed to BV under the Parking Agreement upon payment by Resnick to BV of the same amount per parking space which BV is required to pay to the City from time to time. The City hereby consents to such agreement on the conditions that Resnick's rights shall be subordinate and inferior to the City's rights under the Parking Agreement, shall terminate upon termination of the Parking Agreement and that Resnick acknowledges in writing to the City these conditions of the City's consent. (C) In the event that 100% of the Retail Space is not leased and occupied by no later than six (6) months after the Completion of the Garage then BV shall license from the City additional parking spaces in the Garage at double the monthly amount then being paid by BV to the City for the spaces licensed to BV. The number of additional spaces shall be 25 if 100% of the Retail Space is vacant or a proportionately lower number based upon the ratio that the percentage of vacant space bears to 25 (e.g. a 20% vacancy in the Retail Space requires the licensing of 5 spaces). Once the Retail Space is fully leased and occupied the obligations of BV to license additional parking spaces shall terminate and shall not be reimposed even though a portion of the Retail Space is subsequently vacated. RE112937\0004\MDSSJG05.26A 940601 70 093 (D) In the event that it is ever determined by any taxing authority or other governmental agency that the Garage is subject to ad valorem property taxes by virtue of the existence of the Parking Agreement, BV shall pay said tax in full promptly when due, in addition to all other payments required of it pursuant to this Parking Agreement. (E) In the event that BV fails to timely pay the obligations under the Parking Agreement, the City may temporarily terminate all rights of BV under the Parking Agreement forthwith until all required payments are brought current. Failure of BV to bring such payments current within 90 days shall entitle the City to temporarily terminate the Parking Agreement without BV having any right to reinstate same and, in such event, the Option granted to BV pursuant to Article IX hereof to purchase the City Property shall immediately terminate. The City shall further have the right to permanently terminate the Parking Agreement and the Option to Purchase granted under Article IX in the event that the Parking Agreement temporarily terminates five times during the term thereof. The City shall give BV written notice of its Default in payment in order to commence the running of the 90 day period for permanent termination of the Parking Agreement and the Option to Purchase. 11.10 MANAGEMENT AND OPERATION OF PROJECT. The City and BV expressly recognize that in the fulfillment of their respective obligations to maintain and repair the Garage and the Retail Space, certain functions and responsibilities will overlap by virtue of the contiguity of said structures and the support systems of the Garage running through the Retail Space and attaching to the BV Land. Accordingly, it is agreed that a detailed agreement of maintenance responsibility shall be entered into between the City and BV on or before September 30, 1994, which agreement shall provide for the City to make the determination of disputed RE11293710004WDS%JG05.26A 940601 71 074 areas of responsibility, with BV retaining the right to contest such determination and to seek reimbursement from the City for the cost of performing disputed work but only after such repair or maintenance is completed. The existence of a dispute between the City and BV over maintenance or repair responsibility shall not relieve either party of performing the same in accordance with the determination made by the City until and unless changed by court order or agreement of the parties. This maintenance agreement shall include provisions for cleaning, annual inspections, painting, maintenance of landscape areas, maintenance of walls and other building portions common to the Garage and Retail Space and such other matters reasonable or customary in similar facilities. BV acknowledges that the Garage is owned by the City and if, for aesthetic, economic or other reasons deemed by the City to be in its best interests the City has the sole right to change the design, structure or appearance of the Garage at anytime after it is constructed. 11.11 REPRESENTATIONS AND WARRANTIES OF THE CITY. The City represents and warrants to BV and the GC: (a) that this Agreement has been duly authorized, executed and delivered by the City and constitutes a legal and binding obligation of the City; (b) that, based upon information received by the City from its bond counsel, the proceeds of the Gulf Breeze Bond Pool may be utilized by the City for the purchase of the City Property and for the construction of the Garage; and (c) the City is not aware of any actions, suits or proceedings, pending or threatened, at law or in equity before any Federal, state, municipal or governmental department, commission, board, bureau or agency or instrumentality which would impair the ability of the City to perform its obligations under this Agreement. RE\12937\0004\MDSKJGOS.26A 940601 72 11.12 ANTI-DISCRIMINATION DURING CONSTRUCTION AND EOUAL EMPLOYMENT OPPORTUNITY. (A) Non-Discrimination. BV and the GC each agrees it will not discriminate upon the basis of race, color, creed, national origin, religion, age, sex or sexual preference in the construction of the Garage and Retail Space, and that each contract or agreement with respect thereto shall specifically contain this provision. (B) Equal Opportunity Provision. (1) In the construction of the Garage and Retail Space neither BV, the GC nor any contractor, agent or employee of BV or the GC shall discriminate against any employee or applicant for employment because of race, color, creed, national origin, religion, age, sex or sexual preference and they shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, age, sex, or national origin. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation, and selection for training, including apprenticeship. BV and the GC each agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the City setting forth the provisions of this Equal Opportunity Clause, and to cause any contractor, sub-contractor or agent to do likewise. (2) BV, the GC and any contractor, sub-contractor or agent shall, in all solicitations or advertisements for employees placed by them or on their behalf, state that all qualified applicants will receive consideration or employment without regard to race, color, RE112937\0004\MASSKJG05.26A 940601 73 07€ creed, national origin, religion, age, sex or sexual preference. They shall send to each labor union, if any, or representative of workers with which they, or any of them, have a collective bargaining agreement or other contract or understanding, a notice, to be provided by the City, advising the labor union or workers representative of their commitments under this Equal Opportunity Clause, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (C) Certification of Nonsegregated Facilities. BV and the GC each certifies that it does not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. Each certifies further that it will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it will not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. BV and the GC each agrees that a breach of this certification is violation of this Article XI of this Agreement. As used in this certification, the terms "segregated facilities" means any waiting roms, work areas, rest rooms and wash rooms, restaurants, and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, or national origin, because of habit, local custom or otherwise. BV and the GC each further agrees, as applicable, that it will obtain identical certifications from proposed contractors, sub-contractors and managers prior to the award of any contracts and that it will retain such certifications in its files. RE112937\0004\MDSKJG05.26A 940601 74 11.13 OTHER DOCUMENTS. BV, the GC and the other members of the Design Team shall deliver or cause to be delivered such other documents which the City reasonably requests in connection with the subject matter of this Agreement. 11.14 RELATED PARTY VIOLATIONS AND PAST DUE CHARGES INVOLVING CITY BUSINESS. BV hereby grants to the City a right of set off and deduction against any amounts owed or to be paid by the City to BV under this Agreement, the Purchase Agreement or any related documents for any amounts, including, but not limited to, taxes, liens and assessments, due and payable by any entity or entities in which Anthony Goldman is an owner, regardless of the amount of his ownership, to the City or any of its agencies or departments. Said set off shall occur at closing on the purchase by the City of the City Land and Air Space. ARTICLE XII MISCELLANEOUS 12.1 SURVIVAL. Unless otherwise specifically stated to the contrary in this Agreement, the provisions of this Agreement and the applicable payment, performance and completion obligations of the parties set forth in this Agreement shall survive the execution of this Agreement and any closing contemplated herein and shall survive termination of this Agreement, as applicable. 12.2 ATTORNEYS FEES. Subject to the limits of liability set forth in this Agreement, if any party obtains a judgment against any other party by reason of any litigation arising out of this Agreement, reasonable attorneys' fees and costs may be recovered and may be included in such judgment. RE1129371000404DSSJG05.26A - 940601 75 O8 12.3 Approval by Mayor and City Commission. This Agreement shall be binding upon the City only after it has been approved at a public meeting by the Mayor and City Commission of the City of Miami Beach and signed by the Mayor or Vice Mayor for the City or another duly authorized person. 12.4 NOTICES. All notices, certificates or other communications hereunder shall be written and shall be deemed given when mailed by first class mail, postage prepaid, except where certified mail has been expressly required, addressed as follows:. (A) If to BV, to: Mr. Anthony Goldman Goldman Properties do Park Central Hotel 640 Ocean Drive Miami Beach, Florida 33139 and at: 103 Greene Street New York, New York 10012 (B) If to City, to: City of Miami Beach 1700 Convention Center Drive 4th Floor Miami Beach, Florida 33139 Attn: Mr. Roger Carlton, City Manager and to: City of Miami Beach 1700 Convention Center Drive 4th Floor Miami Beach, Florida 33139 Attn: Laurence Feingold, Esq. City Attorney (C) If to the GC, to: James A. Staskiel, Esq. Vice President & General Counsel McCarthy 1341 North Rock Hill Road St. Louis, Missouri 63124 RE\12937\0004\MDSKJG05.26A 940601 76 The City, BV and the GC may, by written notice given hereunder, designate any further or different addresses, which subsequent notice of change of address shall be effective only when received by each other party hereto. 12.5 AGREEMENT BINDING UPON PARTIES AND SUCCESSORS. This Agreement shall inure to the benefit of and shall be binding upon the City, BV and the GC and their respective successors and assigns, subject, however, to the limitations contained herein. 12.6 PROHIBITION OF LIENS. Neither BV nor the GC shall create or suffer to be created by any other person any lien or charge, whether for taxes, assessments, materials, supplies, labor or otherwise, upon the BV Land, the City Property or the Retail Space or any part thereof or upon the rents, contributions or charges or receipts or revenues therefrom for work for which GC has been paid as provided herein. BV and the GC, jointly and severally, further agree to pay or cause to be discharged or make adequate provision to satisfy and discharge, within thirty (30) days after the same shall become due, any such lien or charge and also all lawful claims or demands for labor, materials, supplies or other charges which, if unpaid, might be or become a lien upon the Garage or the Project or any part thereof or the revenues or income therefrom for which GC has been paid as provided herein. 12.7 MODIFICATION OR AMENDMENT. No modification or amendment of this Agreement or of any agreement supplemental hereto may be made except by written agreement only, executed by all of the parties hereto. 12.8 REASONABLENESS OF APPROVALS. Pursuant to this Agreement, the City, BV and the GC are required to give approvals to various matters affecting the rights of each RE\12937\0004\MDSSJG05.26A 940601 77 • 080 other. In considering whether to give such approval the City, BV and the GC shall each be reasonable in making such determination. 12.9 COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 12.10 APPLICABLE LAW. This Agreement shall be construed and enforced according to the laws of Florida. Any litigation arising herefrom shall be filed in Dade County, Florida. 12.11 SEVERABILITY OF PROVISIONS. If any one'or more of the covenants, agreements or provisions herein contained shall be held contrary to any express provisions of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions hereof. 12.12 PROVISIONS OF LAW DEEMED INCLUDED. Each and every provision of State and Federal law required to be included in municipal agreements shall be deemed to be included herein, and this Agreement shall be read, construed and enforced as though the same were included herein. If, through mistake, inadvertence or otherwise, any such provision or clause is not included herein or is incorrectly included herein, then, upon application of either party hereto, this Agreement shall forthwith be amended to include the same or to correct the inclusions of the same. RE112937\0004\IWSKJG05.26A 940601 78 081. 12.13 INVALID PROVISIONS. If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the requirements of applicable laws. 12.14 APPLICABLE LAW AND CONSTRUCTION. The laws of the State of Florida shall govern the validity, performance and enforcement of this Agreement. This Agreement shall become effective only after it has been approved as contemplated by Section 12.3 and thereafter only upon execution and delivery thereof by the City, BV and the GC. The headings of the several sections contained herein are for convenience only and do not define, limit or construe the contents of such sections. This Agreement has been negotiated by the City, BV and the GC and the Agreement, together with all of the terms and provisions hereof, shall not be deemed to have been prepared by any one of the parties hereto. 12.15 GENDER AND NUMBER. Words of any gender used in this Agreement shall be held to include any other gender, and words in the singular shall be held to include the plural (and vice-versa), when the sense requires. 12.16 AWARD OF CONTRACT. BV warrants that it has not employed or retained any company or persons to solicit this Agreement and that BV has not paid or agreed to pay any company or persons any fee, commission, percentage, brokerage fee, gifts or any other considerations contingent upon or resulting from the transactions which are the subject of this Agreement. 79 The next page will be 79A RE\12937\0004\MDSKJG05.26A 940601 082 12.17 CONFLICTS WITH LETTER OF INTENT. This Agreement supersedes any prior written agreement in conflict herewith and supersedes, replaces and incorporates, as applicable, any provisions of any memorandum or letter of understanding previously approved by the parties. BV also warrants that to the best of its knowledge and belief no commissioner, mayor or other officer or employee of the City is interested directly or indirectly in the profits or benefits of this Agreement or the job, work, or services for the City in connection with the Agreement or the Project. BV and the GC are aware of the conflict of interest laws of The City of Miami Beach, Dade County, and the State of Florida and each agrees that it shall fully comply in all respects with the terms of said laws. 12.18 INCONSISTENCY WITH OTHER DOCUMENTS. In the event of any inconsistency between the terms and provisions of this Agreement and those of the General Contractor's Agreement or any other document executed pursuant hereto, the terms and provisions of this Agreement shall prevail. 79A RE11293710004UDSKJG05.26A 940601 083 "B" Lower Elevation of Air Space RE\12937\0004WDSRJGO5.26A 940601 084 EXIT "C" BV Lana RE\12937\0004\MDSKJG05.26A 940601 085 EXHIBIT "D" City Land • RE112937\0004\MDSKJG05.26A 940601 08G LAII1DIT ML A Draw Request RE112937\0004\MDSSJG05.26A 940601 8'7 EXHIBIT MF" General Contractor's Agreement RE\12937\0004WDSK7G05.26A 940601 pp® 'L 8 8 EXHIBIT "G" Narrative and Schedule of GMP Desi2n/Build Costs of Garage RE112937\0004\MDSKIG05.26A 940601 089 Exhibit "H" GMP Design Development Drawings and Outline Specifications RE\12937\0004\MDSICJG05.26A 940601 90 Exhibit "I" Retail Space Construction Costs ,. RE\12937\0004\MDSKJG05.26A 940601 091. Exhibit "J" Schedule of Performance RE112937100041MDSKJG05.26A 940601 092 Exhibit "K" Request for Disbursement RE\12937\0004\MDSSJGO5.26A 940601 093 Exhibit "L" Memorandum of Option F1E112937\0004\MDSKIG05.26A 940601 094 • Exhibit "M" Memorandum of Right of l first Refusal RE\1293/\0004`MDSIIJGO5.26A 940601 095 Exhibit "N" Easements (A) the right of the City, its successors, assigns, patrons, tenants, invitees and all other persons designated by or having business with the City to access and use alone or in conjunction with BV, and all others of all public sidewalks, streets, avenues, curbs and roadways fronting on and abutting the Premises; (B) the right of the City to have ingress, egress and passageway in, over, through and across the Premises which shall be necessary or desirable for entrance, exit and passageway within, to or from the Garage for the use in common of the City and BV, their respective successors, assigns, patrons, tenants, invitees and all other persons having business with any of them; (C) the right of support and right of use in respect of, and to maintain and access within the BV Land and the Retail Space, all as reasonably determined by the City, all essential structural support elements, all pump systems for flood water control, all fire stand pipes, public fire exits and fire control systems, all gas, electric, telephone, water, sewer, waste water, storm water drainage and other utility lines, pipes, conduits and systems, all elevator apparatus and elevator banks, all gas, electric, mechanical, elevator machinery, water, electrical and other utility rooms, including meters and meter rooms, all heating, ventilating and air-conditioning systems, all machinery and equipment, all electrical, plumbing and mechanical systems and any pertaining to and needed now and in the future to support, use and operate the Garage; RE112937\0004\MASSICJG05.26A 940601 096 11110 Fxhibit "0" Ramp Space Description RE 11293710004\MDSK]G05.26A 940601 097 A (D) the right to access, use,inspect, maintain,repair, renew, replace and relocate such columns, supports, foundations, drains, utility lines, elevator shafts and pits and other improvements and facilities in the Premises; and (E) the right to reasonably close, disturb and interrupt the business, use and operations within the Premises or any part thereof, including any business and use being conducted by BV or any successor, assign, tenant or licensee of BV, during any period of maintenance, work or use by the City of any of the Premises pursuant to the Easements. The F2cements shall be continuing and shall be a covenant running with the BV Land and shall apply to the original construction of the Garage and to any replacements and relocation of the Garage and of any of the improvements within the Easements and within the BV Land. RE112937\000a\MDSKJGO5.26A 940601 • 098 EXHIBIT "A" Air Space All air space bounded as follows: (A) lower boundary-the horizontal plane at elevation , as shown in Exhibit "B" attached hereto and made a part hereof or the lowest portion of the roof of the Retail Space or the lowest portion of the Garage including any ramps serving the Garage when actually built, whichever of any of them is lower; and (B) upper boundary - all air space above the lower boundary is part of the Air Space. (C) perimetrical boundaries - the perimetrical boundaries as shall conform to the exterior boundaries of the BV Land less the City Land projected vertically to intersect the upper and lower boundaries, within which space the Garage shall be constructed as delineated below: • RE11293710004\MDS1UG05.26A 940601 099 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by its duly authorized officers all as of the date first above written, but actually executed and delivered this L , 1994. CITY: ATTEST: CITY OF MIAMI BEACH, a Florida municipal rporation c . By: City Clerk - BV: . THE BALLET VALET P COM- PANY, LTD., a Flori a limit artnership By: d° Oi/ G51 0.L. , President �e ttIlet Vale Core., a flari .President Corp tuMn 50ta cirntral rartine • GC: ATTEST: MCCARTHY BROTHERS COMPANY, a Missouri corporation • By: •fir►�• N • Aden , -. 'l . Res. RE\12937\0004\MDSKIG05.26A 940526 80 F.0 By LAND Lots 2, 3, 4, 5 and 6, Block 34, Ocean Beach, Fla. , Addition No. 1, recorded in Plat Book 3 , at Page 11 of the Public Records of Dade County, Florida, less the City Property, as that term is defined in the Acquisition, Construction and Development Agreement. • RE\12937\0004\MDSKJG07.26C 940727 • • • City Land Page 1 of 4 • (As to Lot 1, plus Air Rights pertaining thereto) PARCEL 1: The Westerly 62 .50 feet of Lot 1, Block 34, Ocean Beach, Fla. , • Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public Records of Dade County, Florida. PARCEL 2: Air rights contiguous and appurtenant to the easterly 13 . 16 feet of the aforesaid Lot 1. The vertical lower boundary of the Air Rights shall be at an elevation of 40.00 feet National Geodetic Vertical Datum (N.G.V.D. ) , 1929. The vertical upper boundary shall be at an elevation of infinity. PARCEL 3: The Air Rights for the following described parcel of land: Lot 1, less the Westerly 62 .50 feet and less the• Easterly 13 . 16 feet, Block 34, Ocean Beach, Florida, Addition No. 1, recorded in Plat Book 3 , at Page 11 of the Public. Records of Dade County, Florida. The Lowest Vertical boundary of the above described Air Rights shall be at an elevation of 23 feet, National Geodetic Vertical Datum (N.G.V.D. ) , 1929. The upper boundary of said Air Rights is . an elevation of infinity. Base of Air Rights contains 3217 square feet. • • • • RE\1293 7\0004\MDSKJG07.26D 940727 . r _ 1 City Land Page 2 of 4 (As to Lots 2 through 5, plus Air Rights pertaining thereto continued on Page 3 of 4) PARCEL I: That Part of Lots 2 through 5 inclusive, Block 34, Ocean Beach, Fla. , Addition No. 1, recorded in Plat Book 3 , at Page 11 of the Public Records of Dade County, Florida. Part of Lots 2 through 5: Bounded on the West by the Westerly line of said Lots 2 through 5, bound on the North by the Northerly line of Lot 2; bounded on the South of' the Southerly line of Lot 5; bounded on the East by a line described as follows: Commence (P.O.C. ) at the southwest corner of said Lot 5 and run S 79° 12 '25" E along the Southerly line of Lot 5, a distance of 45.16 feet to the Point of Beginning of the referenced Easterly line, thence run N 10° . 47 ' 35" E along a line parallel with and 45. 16 feet Easterly of the Westerly line of Lots 5 through 3 inclusive, a distance of 150. 00 feet; thence run N 29° 55 ' 12" E across Lot 2, a distance of 52.92 feet to the Northerly line of Lot 5, said point being 62 .50 feet Easterly of the northwest corner of Lot 5. Area described contains 9465.5 Square Feet. PARCEL II: Air Rights for a part of Lots 2 through 5 inclusive, Block 34, Ocean Beach, Fla. , Addition No. 1, recorded in Plat Book 3 , at Page 11 of the Public Records of Dade County, Florida; said part bounded as follows: Bounded on the East by a line 13 . 16 feet Westerly of the Easterly line of said Lots 2 through 5 inclusive, bounded on the North by the Northerly line of Lot 2; bounded on the South by the Southerly line of Lot 5; bounded on the West by a line described as follows: Commence (P.O.C. ) at the Southwesterly corner of Lot 5 and run S 79°12 '25" E along the Southerly line of Lot 5, a distance of 45. 16 feet; to the Point of Beginning (P.O.B. ) of said line; thence run N 10°47 ' 35" E along a line 45. 16 feet Easterly of the Westerly line of Lots 5 through 3 , a distance of 150. 00 feet to the Northerly line of referenced Lot 3 ; thence run N •29°55 ' 12" E across Lot 2, a distance of 52 . 92 feet to the Northerly line of said Lot 2, said point being 62 .50 feet from the Northwest corner of Lot 2. Area of the base of Air Rights is 15,902.50 Square Feet. The Lowest Vertical Boundary of the above described Air Rights is at an elevation of 23 .00 feet, National Geodetic Vertical Datum RE\12937\0004\MDSKJG07.26D 940727 - 2 - 1 . • City Land Page 3 of 4 (Continued from Page 2, as to Lots 2 through 5, plus Air Rights pertaining thereto) (N.G.V.D. ) , 1929. The upper boundary of the said Air Rights is an elevation of infinity. PARCEL III: Air Rights for the Easterly 13 . 16 feet of Lots 2 through 5 inclusive, Block 34, Ocean Beach, Fla. , Addition No. 1, recorded in Plat Book 3 , at Page 11 of the Public records of Dade County, Florida. The Lowest Vertical Boundary of the above described Air Rights is at an elevation of 4,0.00 feet, National Geodetic Vertical Datum (N.G.V.D. ) , 1929. The upper boundary of the said Air Rights is an elevation of infinity. Area of the Base of the Air Rights is 2632 Square Feet. RE\12937\00041114DSKJG07.26D . 940727 - 3 - City Land Page 4 of 4 (As to Lot 6, plus Air Rights pertaining thereto) PARCEL I: The Westerly 45. 16 feet of Lot 6, Block 34, Ocean Beach, Fla. Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public Records of Dade County, Florida contains 2108 Square Feet. PARCEL II: Air Rights for the Easterly 13 .16 feet of Lot 6, Block 34, Ocean Beach, Fla. , Addition No. 1, recorded in Plat Book 3 , at •Page 11 of the Public records of Dade County, Florida. The Lowest Vertical Boundary of the above described Air Rights is at an elevation of 40.00 feet, National Geodetic Vertical Datum (N.G.V.D. ) , 1929. The upper boundary of the said Air Rights is an elevation of infinity. Area of the Base of the Air Rights is 658 Square Feet. PARCEL III: Air Rights for that part of Lot 6 described as Lot 6, less the Easterly 13 . 16 feet and less the Westerly 45. 16 feet, Block 34 , Ocean Beach, Fla. , Addition No. 1, recorded in Plat Book 3 , at Page 11 of the Public records of Dade County, Florida. The Lowest Vertical Boundary of the above described Air Rights is at an elevation of 23 . 00 feet, National Geodetic Vertical Datum (N.G.V.D. ) , 1929. The upper boundary of the said Air Rights is an elevation of infinity. Area of the Base of the Air Rights is 4084 Square Feet. RE\12937\0004\MDSKJG07.26D 940727 - 4 - • ' 101648.0DB ' - 1; • 2/4/94 THE AMERICAN INSTITUTE OF ARCHITECTS Exhibit "F" to Acquisition Construction o 4 and Development Contract - Design '� Builder's Agreement for Garage • A/A Document A191 Standard Form of Agreements Between Owner and Design/Builder 1985 EDITION THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS ENCOURAGED. TABLE OF ARTICLES PART 1 AGREEMENT-PRELIMINARY DESIGN AND BUDGETING 1. GENERAL PROVISIONS 6. ARBITRATION 2. DESIGN/BUILDER 7. MISCELLANEOUS PROVISIONS 3. OWNER 8. TERMINATION OF THE AGREEMENT 4. TIME 9. BASIS OF COMPENSATION 5. PAYMENTS 10. OTHER PROVISIONS PART 2 AGREEMENT-FINAL DESIGN AND CONSTRUCTION • 1. GENERAL PROVISIONS 8. CHANGES IN THE WORK 2. DESIGN/BUILDER 9. CORRECTION OF WORK 3. OWNER 10. ARBITRATION 4. TIME 11. MISCELLANEOUS PROVISIONS 5. PAYMENTS 12. TERMINATION OF THE AGREEMENT 6. PROTECTION OF.PERSONS AND PROPERTY 13. BASIS OF COMPENSATION 7. INSURANCE AND BONDS 14. OTHER PROVISIONS AIA DOCUMENT A191 • OWNER-DI SIGN/I11J11.DER AGREEMENT • FIRST EDITION A191-1985 • AIA' • •c,191IT • THE AMERICAN INST11 U II OI ARCHITECTS,1735 NEW YORK AVENUE. COVER PAGE N.W.,WASHING 2r TON,D.C.' - WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. • 101648.0DB • • 2/4/94 THE AMERICAN INSTITUTE OF ARCHITECTS • MII4 • •:.fir^;f,N • 11 AIA Document A191 • Standard Form of Agreement Between. Owner and Design/Builder 1985 EDITION • THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS ENCOURAGED. This Document comprises two separate Agreements: Part 1 Agreement—Preliminary Design and Budgeting and Part 2 Agreement—Final Design and Construction. Hereinafter, the Part 1 Agreement is referred to as Part 1 and the Part 2 Agreement is referred to as Part 2. Before executing Part 1, the parties should reach substantial agreement on Part 2. PART 1 AGREEMENT—PRELIMINARY DESIGN AND BUDGETING AGREEMENT made as of the 1 `Sk— day of ,1okm.e in the year of Nineteen Hundred and gill • BETWEEN the Owner: Ballet Valet Parking Company (Name and address) 640 Ocean Drive Miami Beach, Florida and the Design/Builder: McCarthy Brothers Company (Name and address) 1341 ,North Rock Hill Road St. Louis, Missouri 63124 For the following Project: (Include Project name, location and detailed description of scope.) Parking garage located at SW corner of Collins Avenue and 7th Street, Miami Beach, Florida of which the City of Miami Beach "City" will be the Owner of said property and garage as set forth in the Construction and Development Agreement dated 7u,.. ., CIM "CD Agreement". The architectural services escribed in Article 2 will be provided by the following person or entity who is lawfully licensed to practice architecture: (Name and address) Desman Parking Associates 307 Fifth Avenue N. York New York100 6 The Owner and the Design/Builder agree as set forth below. Copyright © 1985 by The American Institute of Architects, 1735 New York Avenue, N.W., Washington, D.C. 20006. Reproduction of the material herein or substantial quotation of its provisions without written permission of the AIA violates the copyright laws of the United States and will be subject to legal prosecution. AIA DOCUMENT A191,Part 1 • OWNER-DESIGN/BUILDER AGREEMENT • FIRST EDITION A191-1985 • AIA'' • ,c/14115 • THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVENUE, PART 1-PAGE 1 N.W.,WASHIN(;1oN,D.C.20006 • WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. , Terms and Conditions—Part 1 Agreement ARTICLE 1 Builder to perform a portion of the Work, including their agents and employees. See 2(a) GENERAL PROVISIONS 2.2 BASIC SERVICES 1.1 BASIC DEFINITIONS 2.2.1 The Design/Builder's Basic Services are as described 1.1.1 The Project is the total design and construction for below and in Article 10. which the Design/Builder is responsible under Part 1, in- 2.2.2 The Design/Builder shall review the Owner's pro- cluding all professional design services and all labor,mate- gram to ascertain requirements of the Project and shall rials and equipment used or incorporated in such design review such requirements with the Owner. and construction. See 2(a) 2.2.3 The Design/Builder shall provide,after consultation 1.1.2 The Work comprises the completed construction with the Owner, a preliminary evaluation of the program designed under the Project and includes labor necessary to • and Project budget, each in terms of the other. produce such construction, and materials and equipment 2.2.4 The Design/Builder shall review with the Owner incorporated or to be incorporated in such construction. al- ternative approaches to design and construction of the 1.2 EXECUTION,CORRELATION AND INTENT Project. 1.2.1 This Part 1 shall be signed in not less than duplicate 2.2.5 The Design/Builder shall submit to the Owner a Pro- by the Owner and Design/Builder. posal including the completed Preliminary Design Docu- 1.2.2 Nothing contained in the Design/Builder Contract ments, a statement of the proposed contract sum, a pro- Documents shall create a professional obligation or con- posed schedule for completion of the Work under Part 2 tractual relationship between the Owner and any third and all other information necessary to complete Part 2. party. See 2(a) Preliminary Design Documents shall consist of preliminary -1.3 OWNERSHIP AND USE OF DOCUMENTS design drawings, outline specifications and other docu- ments to fix and describe the size,quality and character of 1.3.1 The drawings, specifications and other documents the entire Project, its architectural, structural, mechanical furnished by the Design/Builder are instruments of service and electrical systems, and the materials and such other and shall not become the property of the Owner whether elements of the Project as may be appropriate. If the Pro- or not the Project for which they are made is commenced. posal is accepted by the Owner,they shall then execute Part Drawings, specifications and other documents furnished 2.Modifications to the Proposal before execution of Part 2 by the Design/Builder shall not be used by the Owner on shall be recorded in writing as an addendum and be identi- other projects, for additions to this Project or, unless the fied in the Contract Documents of Part 2. Design/Builder is in default under Part 1,for completion of this Project by others,except by written agreement relating 2.3 ADDITIONAL SERVICES to use, liability and compensation. All other services requested by the Owner and mutually 1.3.2 Submission or distribution of documents to meet agreed to in writing by the Owner and Design/Builder in official regulatory requirements or for other purposes in Part 1, including, among others, changes in Project scope connection with the Project is not to be construed as pub- and program,shall constitute Additional Services and shall lication in derogation of the Design/Builder's or the Archi- be paid for by the Owner as provided in Part 1. tect's common law copyrights or other reserved rights.The Owner shall own neither the documents nor the copyrights. ARTICLE 3 OWNER ARTICLE 2 ' 3.1 The Owner shall provide information regarding re- DESIGN/BUILDERquirements for the Project,including but not limited to the 2.1 SERVICES AND RESPONSIBILITIES Owner's design objectives, constraints and criteria. 2.1.1 Design services shall be performed by qualified ar- 3.2 If the Owner provides a budget for the Project,it shall explicitly include as separate line items contingencies for chitects, engineers and other professionals selected and paid by the Design/Builder.The professional obligations of changes in the design and construction, and other costs such persons shall be undertaken and performed in the which are the responsibility of the Owner.No budget shall interest of the Design/Builder. Construction services shall constitute a fixed limit of construction cost unless such See be performed by qualified construction contractors and limit has been agreed to in writing by the Design/Builder. 2(a) suppliers, selected and paid by the Design/Builder and 3.3 The Owner shall designate a representative authorized acting in the interest of the Design/Builder. Nothing con- to act on the Owner's behalf with respect to the Project.The tained in Part 1 shall create any professional obligation or Owner or such authorized representative shall examine the contractual relationship between such persons and the documents submitted by the Design/Builder and shall Owner. See 2(a) promptly render decisions pertaining thereto to avoid de- 2.1.2 The Design/Builder shall be responsible to the lay in the orderly progress of design and construction. Owner for acts and omissions of the Design/Builder's em- 3.4 The Owner shall cooperate with the Design/Builder in ployees and parties in privity of contract with the Design/ identifying required permits,licenses and inspections,and A191-1985 AIA DOCUMENT A191,Part 1 • OWNER-DESIGN/BUILDER AGRELMENT • FIRST EDITION • AIA' • ,c 1985 • THE AMERICAN INSTITUTE OF ARCHITECTS.1735 NEW YORK AVENUE, PART 1-PAGE 2 N.W.,WASHINGTON,D.C.2IXM16 WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. McCARTHY MODIFICATIONS TO AIA A191-1985, PART 1 1.1.1 Insert in the third line,after the word "including" the following: "the furnishing of" 1.2.2 Insert in the fourth line after the word "party" the following: "except as expressly provided herein or in the CD Agreement as to the City." 2.1.1 Insert in the third line after the word "Design/Builder" the following: "pursuant to a written Contract with Design/Builder" 2.1.2 Insert in the second line after the word "Owner" the following: "as provided in Part 1 and Part 2" 3.2 Insert in the sixth line after the word "Design/Builder" the following: "as provided in the Part II Agreement relating to the GMP." 101648.0DB 2(a) 4B04 shall take appropriate action with reasonable promptness. See 3(a) ARTICLE 6 3.5 Prior to commencement of Basic Services,the Owner ARBITRATION shall furnish a legal description and a certified land survey .. of the site,giving,as applicable,grades and lines of streets, 6.1 Claims, disputes and other matters in question be- alleys, pavements and adjoining property; rights-of-way, tween the parties to Part 1 arising out of or relating to Part 1 restrictions, easements,encroachments,zoning,deed re- shall be decided by arbitration in accordance with the Con- strictions, elevations and contours of the site; locations, struction Industry Arbitration Rules of the American Ar- dimensions and complete data pertaining to existing build- bitration Association then in effect unless the parties agree ings, other improvements and trees; and full information otherwise. No arbitration arising out of or relating to Part 1 concerning available services and utility lines, both public shall include, by consolidation or joinder or in any other and private,above and below grade, including inverts and manner,an additional person not a party to Part 1 except by depths. written consent containing specific reference to Part 1 and 3.6 The Owner shall furnish services of geotechnical engi- signed by the Owner,Design/Builder and any other person neers and other consultants when such services are sought to be joined. Consent to arbitration involving an deemed necessary by the Design/Builder. Geotechnical additional person or persons shall not constitute consent to arbitration of a dispute not described therein or with a engineers or other consultants shall be selected by mutual agreement. Such services shall include, as required, person not named therein.This provision shall be specifi- See applicable test borings, test pits, soil bearing values, per- cally enforceable in any court of competent jurisdiction. 3(a) colation tests,air and water pollution tests,and other nec- 6.2 Notice of demand for arbitration shall be filed in writ- essary operations for determining subsoil, air and water ing with the other party to Part 1 and with the American conditions, with reports and appropriate professional Arbitration Association.The demand shall be made within a recommendations. reasonable time after the claim,dispute or other matter in question has arisen. In no event shall the demand for ar- 3.7 The services, information, surveys and reports re- quired by Paragraphs 3.5 and 3.6 shall be furnished at the bitration be made after the date when the applicable statute Owner's expense,and the Design/Builder shall be entitled of limitations would bar institution of a legal or equitable to rely upon their accuracy and completeness. proceeding based on such claim,dispute or other matter in question. 3.8 If the Owner observes or otherwise becomes aware of 6.3 The award rendered by arbitrators shall be final, and promptany fault or defect in the ofW to the the Owner shallr iee judgment may be entered upon it in accordance with ap- written notice thereof to Design/Builder. 3(a) plicable law in any court having jurisdiction. 3.9 The Owner shall furnish required information and 6.4 Unless otherwise agreed in writing,the Design/Build- prom • ptne s to shall render decisions ly progressth ft reasonable er shall carry on the services and maintain progress during Design/Build- promptness avoid delay in the orderly of the any arbitration proceedings,and the Owner shall continue Design/Builder's services. to make payments to the Design/Builder in accordance with 3.10 The Owner shall communicate with contractors only Part 1. through the Design/Builder. 6.5 This Article 6 shall survive completion or termination of Part 1. ARTICLE 4 ' TIME ARTICLE 7 4.1 The Design/Builder shall provide the Basic and Addi MISCELLANEOUS PROVISIONS tional Services as expeditiously as is consistent with reason- able skill and care and shall complete the services in the 7.1 This Part 1 shall be governed by the law of the place time provided in Article 10. where the principal office of the Design/Builder is located. 7.2 The table of contents and the headings of articles and ARTICLE 5 paragraphs are for convenience only and shall not modify PAYMENTS rights and obligations created by Part 1. 7.3 In case a provision of Part 1 is held to be invalid,illegal 5.1 The initial payment provided in Article 9 shall be made or unenforceable,the validity,legality and enforceability of upon execution of this Part 1 and credited to the Owner's the remaining provisions shall not be affected. account as provided in Subparagraph 9.1.2.• 7.4 SUCCESSORS AND ASSIGNS 5.2 Subsequent payments for Part 1 Basic Services,Addi- 7.4.1 This Part 1 shall be binding on successors, assigns tional Services and Reimbursable Expenses shall be made and legal representatives of and persons in privity of con- monthly on the basis set forth in Article 9. See 3(a) tract with the Owner or Design/Builder. Neither party shall assign, sublet or transfer an interest in Part 1 without writ 5.3 Within ten days of the Owner's receipt of a properly submitted Application for Payment, the Owner shall make ten consent of the other. payment to the Design/Builder. See 3(a) 7.4.2 This Paragraph 7.4 shall survive completion or termi- nation of Part 1. 5.4 Payments due the Design/Builder under Part 1 which 7.5 EXTENT OF AGREEMENT are not paid when due shall bear interest from the date due at the rate specified in Paragraph 9.5,or in the absence of a 7.5.1 Part 1 represents the entire agreement for Prelimi- specified rate, at the legal rate prevailing where the prin- nary Design and Budgeting and supersedes all prior nego- cipal office'of the Design/Builder is located. tiations, representations or agreements. Part 1 may be MA DOCUMENT A191,Part 1 • OWNER-DESIGN/BUILDER AGREEMENT • FIRST EDITION A191-1985 • AIA'^ • 'c1985 • THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORKAVENUE, PART -PAGE 3 N.W.,WASHIN(;TON,D.C.2asi WARNING:Unlicensed photocopying violates U.S.copyright laws and is subjectto legal prosecution. McCARTHY MODIFICATIONS TO AIA A191-1985, PART 1 3.4 Insert at the end of this subparagraph the following: The Owner shall secure and pay for necessary approvals,foundation and building permits,easements, assessments and charges required for the construction, use or occupancy of permanent structures or for permanent changes in existing facilities. The Design/Builder will assist the Owner in these efforts. The Owner shall furnish such legal services as may be necessary for providing the items set forth in this Article 3 and such auditing services as the Owner may require. 3.8 Insert in the second line after the word "in" the following: "the Design services or" 5.2 Insert in the third line after the Words "Article 9" the following: "as provided for in subsequent agreements between Design/Builder and Owner." 5.3 Insert in the third line after the word "Design/Builder" the following: "as provided for in subsequent agreements between Design/Builder and Owner." 6.1 Insert in the eighth line after "Part 1" the following: "except the City as provided in the CD Agreement." • 101648.0DB. 3(a) 4B04 • • • amended only by written instrument signed by both Owner to perform in accordance with its terms through no fault of and Design/Builder. the party initiating the termination. 7.6 In case of termination of the Architect, the Design/ 8.2 Part 1 may be terminated by the Owner upon at least Builder shall provide the services of another lawfully,Ij- seven days' written notice to the Design/Builder in the censed person or entity against whom the Owner makes no event that the Project is permanently abandoned. reasonable objection. 8.3 In the event of termination not the fault of the Design/ Builder, the Design/Builder shall be compensated for ser- • vices performed to termination date, together with Reim- ARTICLE 8 bursable Expenses then due and Termination Expenses. TERMINATION OF THE AGREEMENT Termination Expenses are expenses directly attributable to termination, including a reasonable amount for overhead 8.1 Part 1 may be terminated by either party upon seven and profit, for which the Design/Builder is not otherwise days'written notice should the other party fail substantially compensated under Part 1. • A191-1985 AEA DOCUMENTA191,Part 1 • OWNER-DESIGN/BUILDER AGREEMENT • FIRST EDITION • AIA' • .c.19115 • THE AMERICAN INSTITUTE 01 ARCHITECTS,1735 NEW YORK AVENUE, PART 1-PAGE 4 N.W.,WASHINGTON,I)C.NXNµ, WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. ARTICLE 9 BASIS OF COMPENSATION The Owner shall compensate the Design/Builder in accordance with Article 5,Payments,and the other provisions of Part 1 as described below. 9.1 COMPENSATION FOR BASIC SERVICES 9.1.1 FOR BASIC SERVICES, compensation shall be as follows: As provided for in subsequent agreements between Design Builder and Owner. 9.1.2 AN INITIAL PAYMENT of dollars ($ )shall be made upon execution of Part 1 and credited to the Owner's account as follows: 9.1.3 SUBSEQUENT PAYMENTS shall be as follows: 9.2 COMPENSATION FOR ADDITIONAL SERVICES 9.2.1 FOR ADDITIONAL SERVICES, compensation shall be as follows: 9.3 REIMBURSABLE EXPENSES 9.3.1 Reimbursable Expenses are in addition to Compensation for Basic and Additional Services and include actual expenditures made by the Design/Builder and the Design/Builder's employees and contractors in the interest of the' Project for the expenses listed as follows: See 5(a) 9.3.2 FOR REIMBURSABLE EXPENSES, compensation shall be a multiple of One ( 1.0 ) times the amounts expended. 9.4 DIRECT PERSONNEL EXPENSE is defined as the direct salaries of personnel engaged on the Project,and the portion of the cost of their mandatory and customary contributions and benefits related thereto,such as employment taxes and other statutory employee benefits,insurance,sick leave,holidays,vacations,pensions and similar contributions and benefits. 9.5 INTEREST PAYMENTS 9.5.1 The rate of interest for past due payments shall be as follows: (Usury laws and requirements under the Federal Truth in Lending Act,similar state and local consumer credit laws and other regulations at the Owner's and DesigniBuilder's principal places of business,at the location of the Project and elsewhere may affect the validity of this provision.Specific legal advice should be obtained with respect to deletion,modification or other requirements,such as written disclosures or waivers.) 2% above the then current prime commercial rate established by Chemical Bank (New York) . 9.6 IF THE SCOPE of the Project is changed materially, the amount of compensation shall be equitably adjusted. 9.7 The compensation set forth herein shall be equitably adjusted if through no fault of the Design/Builder the services have not been completed within ( ) months of the date of Part 1. • AIA DOCUMENT A191,Part 1 • OWNER-DESIGN/ISUILDER AGREEMENT • FIRST EDITION A191-1985 • AIA" • •c1911' • THE AMERICAN INSTITUTE OF ARCHITECTS.1735 NEW YORKAVENUE, PART 1-PAGE 5 NW,WASHINGTON.D.C.2I5 WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. McCARTHY MODIFICATIONS TO AIA A191-1985, PART 1 9.3.1 Delete in the third line the words "for the expenses listed as follows:" and insert the following: "including, but not limited to, shipping and mailing, printing and travel." 101648.0DB 5(a) 4B04 ARTICLE 10 • OTHER PROVISIONS 10.1 The Basic Services to be performed shall be commenced on and,subject to authorized, adjustments and to delays not caused by the Design/Builder,shall be completed in - ( )calendar days. 10.2 The Basic Services beyond those described in Article 2 are: • • This Part 1 entered into as of the day and year first written above. • • OWNER' � fayriA0DESIGN/BUILDER ((M' V OQT Cov(, So(e) BY BY A141/M1.1 CAUTION: You should sign an origginal AIA document which has this caution printed in red. ,: An original assures that changes will not be obscured as may occur when documents are reproduced. • • • • A191-1985 AIA DOCUMENT A191,Part 1 • OWNER-DESIGN/BUILDER AGREEMENT • FIRST EDITION • AIA` • c1985 • THE AMERICAN INSTITUTE OF ARCHITECTS.1735 NEW YORK AVENUE, PART 1-PAGE 6 N.W..WASHINGTON.D.C.20006 WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. • ARTICLE 10 OTHER PROVISIONS 10.1 The Basic Services to be performed shall be commenced on and, subject to authorized. adjustments and to delays not caused by the Design/Builder,shall be completed in ( )calendar days. 10.2 The Basic Services beyond those described in Article 2 are: • This Part 1 entered into as of the day and year first written above. OWNER DESIGN/BUILDER litski. St411).1;4 • BY BY 4 L• J. o rr, CAUTION: You should sign. an original AIA document which has this caution printed in red. F An original assures that changes will not be obscured as may occur when documents are reproduced. • • • • • • A191-1985 AIA DOCUMENT A191,Part 1 • OWNER-DESIGN/BUILDER AGREEMENT • FIRST EDITION • -AIA• • •c1985 • THE AMERICAN INSTITUTE Of ARCHITECTS,1735 NEW YORK AVENUE, PART 1-PAGE 6 • N.W.WASHINGTON.D.C.21510f, WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. 101648.0DB 2/4/94• THE AMERICAN INSTITUTE OF ARCHITECTS 4194, al kg 1 1 AIA Document A191 Standard Form of Agreement Between Owner and Design/Builder 1985 EDITION • THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS ENCOURAGED. ' This Document comprises two separate Agreements: Part 1 Agreement—Preliminary Design and Budgeting and Part 2 Agreement—Final Design and Construction. Hereinafter, the Part 1 Agreement is referred to as Part 1 and the Part 2 Agreement is referred to as Part 2. PART 2 AGREEMENT—FINAL DESIGN AND CONSTRUCTION AGREEMENT made as of the [Am- day of ulht, in the year of Nineteen_ Hundredand BETWEEN the Owner: Ballet Valet Parking Company (Name and address) 640 Ocean Drive Miami Beach, Florida • and the Design/Builder: McCarthy Brothers Company (Name and address) 1341 North Rock Hill Road St. Louis, Missouri 63124 - For the following Project: (Include Project name, location and detailed description of scope.) Parking garage located at SW corner of Collins Avenue and 7th Street, Miami Beach, Florida of which theCity of Miami Beach "City" will be the Owner of said property and garage asset forth in the Construction and Development Agreement dated "CD Agreement" The architectural services described in Article 2 will be provided by the following person or entity who is lawfully licensed to practice architecture: (Name and address) Desman Parking Associates 307 Fifth Avenue New York, New York 10016 The Owner and the Design/Builder agree as set forth below. Copyright c 1985 by The American Institute of Architects, 1735 New York Avenue, N.W., Washington, D.C. 20006. Reproduction of the material herein or substantial quotation of its provisions without written permission of the AIA violates the copyright laws of the United States and will he subject to legal prosecution. AIA DOCUMENT A191,Part 2 • OWNER-DESIGN/ttUIEDER AGREEMENT • FIRST EDITION A191-1985 • AIA' • c 191t5 • THE AMERICAN INSTITUTE OF ARCHIEECTS,1735 NEW YORK AVENUE. PART 2-PAGE 1 N W.WA',HING1ON.D.(.20006 WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. • • Terms and Conditions—Part 2 Agreement ARTICLE 1 ARTICLE 2 GENERAL PROVISIONS DESIGN/BUILDER 1.1 BASIC DEFINITIONS 2.1 SERVICES AND RESPONSIBILITIES 1.1.1 The Contract Documents consist of the Design/ 2.1.1 Design services shall be performed by qualified ar- Builder's Proposal identified in Article 14, this Part 2, the chitects, engineers and other professionals selected and Construction Documents approved by the Owner in actor- paid by the Design/Builder.The professional obligations of dance with Subparagraph 2.2.2 below and Modifications such persons shall be undertaken and performed in the issued after execution of Part 2.A Modification is a Change interest of the Design/Builder. Construction services shall Order or a written amendment to Part 2 signed by both be performed by qualified construction contractors and parties.These form the Contract,and are as fully a part of suppliers, selected and paid by the Design/Builder and the Contract as if attached to this Part 2 or repeated herein. acting in the interest of the Design/Builder. Nothing con- tained in Part 2 shall create any professional obligation or 1.1.2 The Project is the total design and construction for contractual relationship between such persons and the which the Design/Builder is responsible under Part 2, in- Owner. See 2(a) cluding all professional design services and all labor,mate- 2.2 BASIC SERVICES rials and equipment used or incorporated in such design and construction. See 2(a) 2.2.1 The Design/Builder's Basic Services are described below and in Article 14. 1.1.3 The Work comprises the completed construction 2.2.2 Based on the Design/Builder's Proposal,the Design/ designed under the Project and includes labor necessary to Builder shall submit Construction Documents for review produce such construction, and materials and equipment and approval by the Owner.Construction Documents shall incorporated or to be incorporated in such construction. include technical drawings,schedules,diagrams and speci- fications, setting forth in detail the requirements for con- 1.2 EXECUTION, CORRELATION AND INTENT struction of the Work, and shall: See 2(a) 1.2.1 This Part 2 shall be signed in not less than duplicate .1 develop the intent of the Design/Builder's Pro- by the Owner and Design/Builder. posal in greater detail; .2 provide information customarily necessary for the 1.2.2 It is the intent of the Owner and Design/Builder that use of those in the building trades; and the Contract Documents include all items necessary for .3 include documents customarily required for reg- proper execution and completion of the Work. The Con- ulatory agency approvals. tract Documents are complementary,and what is required by any one shall be as binding as if required by all.Work not 2.2.3 The Design/Builder shall assist the Owner in filing covered in the Contract Documents will not be required documents required to obtain necessary approvals of gov- unless it is consistent with and is reasonably inferable from ernmental authorities having jurisdiction over the Project. the Contract Documents as being necessary to produce the 2.2.4 Unless otherwise provided in the Contract Docu- intended results. Words and abbreviations which have ments, the Design/Builder shall provide or cause to be well-known technical or trade meanings are used in the provided and shall pay for design services,labor,materials, Contract Documents in accordance with such recognized equipment,tools,construction equipment and machinery, meanings. water, heat,utilities,transportation and other facilities and services necessary for proper execution and completion of 1.3 OWNERSHIP AND USE OF DOCUMENTS the Work, whether temporary or permanent and whether 1.3.1 The drawings, specifications and other documents or not incorporated or to be incorporated in the Work. furnished by the Design/Builder are instruments of service 2.2.5 The Design/Builder shall be responsible for and and shall not become the property of the Owner whether shall coordinate all construction means, methods, tech- or not the Project for which they are made is commenced. niques, sequences and procedures. Drawings, specifications and other documents furnished by the Design/Builder shall not be used by the Owner on 2.2.6 The Design/Builder shall keep the Owner informed other projects, for additions to this Project or, unless the of the progress and quality of the Work. Design/Builder is in default under Part 2,for completion of this Project by others,except by written agreement relating 2.2.7 If requested in writing by the Owner, the Design/ to use, liability and compensation. Builder, with reasonable promptness and in accordance with time limits agreed upon, shall interpret the require- 1.3.2 Submission or distribution of documents to meet ments of the Contract Documents and initially shall decide, official regulatory requirements or for other purposes in subject to demand for arbitration, claims, disputes and connection with the Project is not to be construed as pub- other matters in question relating to performance there- lication in derogation of the Design/Builder's or the Archi- under by both Owner and Design/Builder.Such interpreta- tect's common law copyrights or other reserved rights.The tions and decisions shall be in writing, shall not be pre- _ Owner shall own neither the documents nor the sumed to be correct and shall be given such weight as the copyrights. arbitrator(s) or the court shall determine. A191-1985 AlA DOCUMENT A191,Part 2 • OWNER-DESIGN/BUILDER AGREEMENT • FIRST EDITION • AIA. • .c.19B5 • THE AMERICAN INSTITUTE Of ARCHITECTS,1735 NEW YORKAVENUE, PART 2-PAGE 2 N.W.,WASHINGTON.D.C.200I//, WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. McCARTHY MODIFICATIONS TO AIA A191-1985, PART 2 1.1.2 Insert in the third line after the word "including" the following: "the furnishing of" 2.1.1 Insert in the third line after the word "Design/Builder" the following: "pursuant to a written Contract with Design/Builder" 2.2.2 Insert in the second line after the word "Documents" the following: "on a phased fast track basis" 101648.0DB 2(a) 4B04 2.2.8 The Design/Builder shall correct Work which does 2.2.17 The Design/Builder shall maintain in good order at not conform to the Construction Documents. See 3(a) the site one record copy of the drawings, specifications, 2.2.9 The Design/Builder warrants to the Owner that ma- product data,samples,shop drawings,Change Orders and terials and equipment incorporated in the Work will be new other Modifications, marked currently to record changes unless otherwise specified, and that the Work will be of made during construction.These shall be delivered to the good quality, free from faults and defects, and in confor- Owner upon completion of the design and construction mance with the Contract Documents. Work not conform- and prior to final payment. ing to these requirements shall be corrected in accordance • with Article 9. ARTICLE 3 2.2.10 The Design/Builder shall pay all sales, consumer, OWNER use and similar taxes which were in effect at the time the Design/Builder's Proposal was first submitted to the Owner, 3.1 The Owner shall designate a representative autho- and shall secure and pay for building and other permits and rized to act on the Owner's behalf with respect to the governmental fees, licenses and inspections necessary for Project.The Owner or such authorized representative shall the proper execution and completion of the Work which examine documents submitted by the Design/Builder and are either customarily secured after execution of Part 2 or shall promptly render decisions pertaining thereto to avoid are legally required at the time the Design/Builder's Pro- . delay in the orderly progress of the Work. posal was first submitted to the Owner. see 3(a) 3.2 The Owner may appoint an on-site project represen- 2.2.11 The Design/Builder shall give notices and comply tative to observe the Work and to have such other responsi- with laws,ordinances,rules, regulations and lawful orders bilities as the Owner and Design/Builder agree in writing of public authorities relating to the Project. See 3(a) prior to execution of Part 2. 2.2.12 The Design/Builder shall pay royalties and license 3.3 The Owner shall cooperate with the Design/Builder in fees. The Design/Builder shall defend suits or claims for securing building and other permits, licenses and inspec- infringement of patent rights and shall save the Owner tions,and shall pay the fees for such permits, licenses and harmless from loss on account thereof, except that the inspections if the cost of such fees is not identified as being Owner shall be responsible for such loss when a particular included in the Design/Builder's Proposal. See 3(a) design, process or product of a particular manufacturer is 3.4 The Owner shall furnish services by land surveyors, required by the Owner. However,if the Design/Builder has geotechnical engineers and other consultants for subsoil, reason to believe the use of a required design,process or air and water conditions, in addition to those provided product is an infringement of a patent,the Design/Builder under Part 1 when such services are deemed necessary by shall be responsible for such loss unless such information the Design/Builder to carry out properly the design services is promptly given to the Owner. under this Part 2. 2.2.13 The Design/Builder shall be responsible to the 3.5 The Owner shall furnish structural, mechanical, Owner for acts and omissions of the Design/Builder's em- chemical, geotechnical and other laboratory or on-site ployees and parties in privity of contract with the Design/ • tests, inspections and reports as required by law or the Builder to perform a portion of the Work, including their Contract Documents. agents and employees. See 3 a) 3.6 The services, information, surveys and reports re- 2.2.14 The Design/Builder shall keep the premises free quired by Paragraphs 3.4 and 3.5 shall be furnished at the from accumulation of waste materials or rubbish caused by Owner's expense,and the Design/Builder shall be entitled the Design/Builder's operations. At the completion of the to rely upon their accuracy and completeness. Work,the Design/Builder shall remove from and about the 3.7 If the Owner observes or otherwise becomes aware of Project the Design/Builder's tools, construction equip- a fault or defect in the Work or nonconformity with the ment, machinery, surplus materials, waste materials and Design or Construction Documents, the Owner shall give rubbish. prompt written notice thereof to the Design/Builder. ee 3(a) 2.2.15 The Design/Builder shall prepare Change Orders 3.8 The Owner shall furnish required information and for the Owner's approval and execution in accordance with services and shall promptly render decisions pertaining Part 2 and shall have authority to make minor changes in the thereto to avoid delay in the orderly progress of the design design and construction consistent with the intent of Part 2 and construction. not involving an adjustment in the contract sum or an extension of the contract time. The Design/Builder shall 3.9 The Owner shall,at the request of the Design/Builder promptly inform the Owner,in writing,of minor changes in and upon execution of Part 2, provide a certified or nota- the design and construction. rized statement of funds available for the Project and their 2.2.16 The Design/Builder shall notify the Owner when source. the Work or an agreed upon portion thereof is substantially 3.10 The Owner shall communicate with contractors only completed by issuing a Certificate of Substantial Comple- through the Design/Builder. tion which shall establish the Date of Substantial Comple- See -3(a) tion,shall state the responsibility of each party for security, ARTICLE 4 maintenance, heat, utilities, damage to the Work and in- TIME surance, shall include a list of items to be completed or corrected and shall fix the time within which the De- 4.1 The Design/Builder shall provide services as expedi- sign/Builder shall complete items listed therein. Disputes tiously as is consistent with reasonable skill and care and between the Owner and Design/Builder regarding the Cer- the orderly progress of design and construction. . tificate of Substantial Completion shall be resolved by 4.2 Time limits stated in the Contract Documents are of arbitration. the essence of Part 2.The Work to be performed under Part AIA DOCUMENT A191,Part 2 • OWNER-DI SIGN/BUILDER ACREEMI.NT • FIRST EDITION A191-1985 • AIA' • c,198' • Till AMERIC:AN INSTITUTI OE ARCHITECTS,1735 NEW YORK AVENUE, N.W.,WASHINGTON.D.C.200I6 PART 2-PAGE 3 WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. McCARTHY MODIFICATIONS TO AIA A191-1985, PART 2 2.2.8 Insert in the second line after the word "Documents" the following: "as provided in Article 9 hereof." 2.2.10 Delete the remainder of this subparagraph after the word "Owner" in the third line. Insert after the word "Owner" in the third line "except such taxes relating to materials, equipment, supplies and related matters subject to the sales tax savings procedure set forth in the CD Agreement". 2.2.11 Insert at the end of this subparagraph the following: "The Design/Builder shall not be responsible for changes in such laws, ordinances, rules,regulations and orders not legally required at the time the Design/Builder's Proposal was first submitted to the Owner." 2.2.13 Insert in the second line after the word "Owner" the following: "as provided in Part 1 and Part 2" 3.3 Delete all language in this subparagraph after the word "inspections" in the fourth line and insert the following: "The Owner shall furnish such legal services as may be necessary for providing the items set forth in this Article 3 and such auditing services as the Owner may require. 3.7 Insert in the second line after the word "in" the following: "the Design Services or" 3.9 Insert in the first line after the word "Owner" the following: "and the City" Insert at the end of this subparagraph the following: "The Design/Builder may stop work upon five (5) days' notice if such evidence has not been forwarded within a reasonable time." • Insert the following subparagraphs: 3.11 The Owner shall pay for monthly energy charges after installation of the permanent electrical service upon substantial completion. 3.12 The Owner shall directly retain an independent Contractor for removing asbestos and/or hazardous wastes and shall indemnify,hold harmless and provide a defense for Design/Builder from all claims, expenses, and negligence(Owner's,its Agent's,Design/Builder's or others)including attorneys'fees, relating to the asbestos and/or hazardous waste conditions and removal. 101648.0DB 3(a)-1 4B04 2 shall commence upon execution of a notice to proceed equipment covered by previous Applications for Payment unless otherwise agreed and,subject to authorized Modifi- are free and clear of liens, claims, security interests or cations, Substantial Completion shall be achieved as indi- encumbrances, hereinafter referred to as "liens"; and (3) cated in Article 14. no Work, materials or equipment covered by an Applica • - 4.3 The Date of Substantial Completion of the Work or an lion for Payment will have been acquired by the Design/ t agreed upon portion thereof is the date when construction Builder,or any other person performing work e the site or or an agreed upon portion thereof is sufficiently complete furnishing materials or equipment for the Project, subject so the Owner can occu and utilize the Work or a reed -to an agreement under which an interest therein or an upon portion thereof for its intended use. g encumbrance thereon is retained by the seller or otherwise See imposed by the Design/Builder or such other person. 4(a) 4.4 The schedule provided in the Design/Builder's Pro 5.1.8 If the Contract provides for retainage, then at the posal shall include a construction schedule consistent with date of Substantial Completion or occupancy of the Work Paragraph 4.2 above. or any agreed upon portion thereof by the Owner,which- 4.5 If the Design/Builder is delayed in the progress of the ever occurs first,the Design/Builder may apply for and the Project by acts or neglect of the Owner, Owner's employ Owner,if the Design/Builder has satisfied the requirements ees,separate contractors employed by the Owner,changes of Paragraph 5.2.1 and any other requirements of the Con- ordered in the Work not caused by the fault of the Design/ tract relating to retainage,shall pay the Design/Builder the Builder, labor disputes, fire, unusual delay in transporta- amount retained, if any, for the Work or for the portion tion,adverse weather conditions not reasonably anticipata- completed or occupied,less the reasonable value of incor- • ble, unavoidable casualties, or other causes beyond the rect or incomplete Work. Final payment of such withheld Design/Builder's control, or by delay authorized by the sum shall be made upon correction or completion of such Owner's pending arbitration or another cause which the Work. See 4(a) Owner and Design/Builder agree is justifiable,the contract time shall be reasonably extended by Change Order.See 5.2 FINAL PAYMENT 4(a) 5.2.1 Neither final payment nor amounts retained, if any, ARTICLE 5 shall become due until the Design/Builder submits to the Owner (1) an affidavit that payrolls, bills for materials and PAYMENTS equipment, and other indebtedness connected with the 5.1 PROGRESS PAYMENTS Project for which the Owner or Owner's property might be liable have been paid or otherwise satisfied, (2)consent of 5.1.1 The Design/Builder shall deliver to the Owner surety, if any, to final payment, (3) a certificate that insur- itemized Applications for Payment in such detail as indicat- ance required by the Contract Documents is in force fol- ed in Article 14. See 4(a) lowing completion of the Work,and (4) if required by the 5.1.2 Within ten days of the Owner's receipt of a properly Owner, other data establishing payment or satisfaction of submitted and correct Application for Payment,the Qyvrter obligations,such as receipts, releases and waivers of liens shall make payment to the Design/Builder. See 4(a) - arising out of Part 2,to the extent and in such form as may 5.1.3 The Application for Payment shall constitute a repre be designated by the Owner. If a contractor refuses to furnish a release or waiver required by the Owner, the sentation by the Design/Builder to the Owner that, to the best of the Design/Builder's knowledge, information and Design/Builder may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such belief,the design and construction have progressed to the • point indicated; the quality of the Work covered by the lien remains unsatisfied after payments are made, the De- lication is in accordance with the Contract Documents; sign/Builder shall reimburse the Owner for moneys the application latter may be compelled to pay in discharging such lien and the Design/Builder eis4entitled to payment in the) including all costs and reasonable attorneys' fees. See 4(a) amount requested. 5.1.4 The Design/Builder shall pay each contractor, upon 5.2.2 Final payment constituting the entire unpaid bal receipt of payment from the Owner,out of the amount paid ance due shall be paid by the Owner to the Design/Builder to the Design/Builder on account of such contractor's work, upon the Owner's receipt of the Design/Builder's final Ap the amount to which said contractor is entitled in actor- plication for Payment when the Work h'as been completed See dance with the terms of the Design/Builder's contract with and the Contract fully performed except for those respon- sibilities of the Design/Builder which survive final payment. 4(a) agreement with each contractor,require each contractor to 5.2.3 The making of final payment shall constitute a make payments to subcontractors in similar manner.See 4(aaiver of all claims by the Owner except those arising from: - 5.1.5 The Owner shall have no obligation to pay or to be .1 unsettled liens; responsible in any way for payment to a contractor of the See 2 faulty or defective Work appearing after Substan- Design/Builder except as may otherwise be required by law. 4(a) tial Completion; 5.1.6 No progress payment or partial or entire use or .3 failure of the Work to comply with requirements occupancy of the Project by the Owner shall constitute an of the Contract Documents; or acceptance of Work not in accordance with the Contract .4 terms of special warranties required by the Con- Documents. See 4(a) tract Documents. . 5.1.7 The Design/Builder warrants that: (1) title to Work, 5.2.4 Acceptance of final payment shall constitute a materials and equipment covered by an Application for waiver of all claims by the Design/Builder except those Payment will pass to the Owner either by incorporation in previously made in writing and identified by the Design/ construction or upon receipt of payment by the Design/ Builder as unsettled at the time of final Application for • Builder, whichever occurs first; (2) Work, materials and Payment. ` A191-1985 AIA DOCUMENT A191,Parl 2 • OWNER-DI SIGN/BUILDER AGREEMEN1 • FIRST EDITION • AIA" • C 1985 • THE AMERICAN INSTITUTE OF ARCHITECTS.1735 NEW YORK AVENUE, PART 2-PAGE 4 N.W.,WASHINGTON, I)(.,2004)b WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. McCARTHY MODIFICATIONS TO AIA A191-1985, PART 2 4.5 Insert in the second line after the word "the" the following: "City or their consultants or representatives," Delete in the third line the word "Owner" and insert the word "City". 5.1.1 Insert in the first line after the word "Owner" the following: • "and the City for approval" • 5.1.2 Insert in the first line after the word "Owner's" the following: "and City's" Delete in the second line the word "Owner" and insert the word "City". Insert in the third line after the word "Design/Builder" the following: "subject,however, to Owner's continuing obligation to Design/Builder to make payment in the event City fails to make payments required per the CD Agreement. All payments herein shall be subject to the retention and payment procedures set forth in the CD Agreement." 5.1.3 Delete in the second line the words "to the Owner". 5.1.4 Delete in the second line the words "from the Owner". 5.1.5 Insert in the first line after the word "Owner" the following: "or the City" 5.1.6 Delete in the second line the word "Owner" and insert the word "City". 5.1.7 Delete in the third and fourth lines the following: "either by incorporation in construction or" 5.1.8 Insert in the third line after the word "Owner" the words "and the City". Delete in the fifth line the word "Owner and insert the following: "City subject to 5.1.2 as to the Owner" 5.2.1 Insert in the third line after the word "Owner" the words "and the City". Insert in the fifth line after the word "Owner" the word "City". Delete in the fifth line the word "Owner's" and insert the word "the" 101648.0DB 4(a)-1 4B04 MCCARTHY MODIFICATIONS TO AIA A191-1985, PART 2 Insert in the sixth line after the word "satisfied" the following: "and such other information required of the Design/Builder for final payment under the CD Agreement" Insert in the tenth line after the word "Owner" the words "or City". Insert in the thirteenth line after the word "Owner" the words "or City". Insert in the fourteenth line after the word "Owner" the words "or City". Insert in the sixteenth line after the word "Owner" both times it appears the words "and the City". Insert in the eighteenth line after the word "Owner" the words "and the City". 5.2.2 Delete in the second line the word "Owner" and insert the following: "City subject to 5.1.2 as to the Owner". Insert in the third line after the word "Owner's" the words "and City's". 5.2.3 Insert in the second line after the word "Owner" the words "and City". • 101648.0DB 4(a)-2 4B04 5.3 INTEREST PAYMENTS rectly related to employment of such person by 5.3.1 Payments due the Design/Builder under Part 2which the Design/Builder or (2) by another person; Y .5 claims for damages,other than to the Work at the are not paid when due shall bear interest from the date due site,because of injury to or destruction of tangible at the rate specified in Article 13, or in the absence of a property, including loss of use; and specified rate, at the legal rate prevailing where the prin- .6 claims for damages for bodily injury or death of a cipal improvements are to be located. person or property damage arising out of owner- ARTICLE 6 ship, maintenance or use of a motor vehicle. 7.1.2 The insurance required by the above Subparagraph , PROTECTION OF PERSONS AND PROPERTY 7.1.1 shall be written for not less than limits of liability 6.1 The Design/Builder shall be responsible for initiating, specified in the Contract Documents or required by law, maintaining and providing supervision of safety precau whichever are greater. See 5(a) tions and programs in connection with the Work. 7.1.3 The Design/Builder's liability insurance shall include 6.2 The Design/Builder shall take reasonable precautions contractual liability insurance applicable to the Desi n/ for safety of, and shall provide reasonable protection to Builder's obligations under Paragraph 11.7. See 5(a prevent damage, injury or loss to: (1) employees on the 7.1.4 Certificates of Insurance, and copies of policies if . Work and other persons who may be affected thereby; (2) requested, acceptable to the Owner shall be delivered to the Work and materials and equipment to be incorporated the Owner prior to commencement of design and con- therein; and (3) other property at or adjacent to the site. struction. These Certificates as well as insurance policies 6.3 The Design/Builder shall give notices and comply with required by this Paragraph shall contain a provision that coverage will not be cancelled or allowed to expire until at applicable laws, ordinances, rules, regulations and orders of public authorities bearing on the safety of persons and least thirty days'prior written notice has been given to the property and their protection from damage, injury or loss. Owner. If any of the foregoing insurance coverages are required to remain in force after final payment, an addi- 6.4 The Design/Builder shall be liable for damage or loss tional certificate evidencing continuation of such coverage (other than damage or loss to property insured under the shall be submitted along with the application for final property insurance provided or required by the Contract payment, Documents to be provided by the Owner) to property at the site caused in whole or in part by the Design/Builder,a 7.2 OWNER'S LIABILITY INSURANCE contractor of the Design/Builder or anyone directly or indi- 7.2.1 The Owner shall be responsible for purchasing and rectly employed by either of them,or by anyone for whose maintaining, in a company or companies authorized to do acts they may be liable,except damage or loss attributable business in the state in which the principal improvements to the acts or omissions of the Owner,the Owner's separate are to be located,Owner's liability insurance to protect the contractors or anyone directly or indirectly employed by Owner against claims which may arise from operations them or by anyone for whose acts they may be liable and under this Project. not attributable to the fault or negligence of the Design/- 7,3 PROPERTY INSURANCE Builder. See 5(a) 7.3.1 Unless otherwise provided under this Part 2, the ARTICLE 7 Owner shall purchase and maintain,in a company or corn- INSURANCE AND BONDS panies authorized to do business in the state in which the principal improvements are to be located, property insur- 7.1 DESIGN/BUILDER'S LIABILITY INSURANCE ance upon the Work at the site to the full insurable value thereof. Property insurance shall include interests of the 7.1.1 The Design/Builder shall purchase and maintain in a Owner, the Design/Builder, and their respective con- company or companies authorized to do business in the tractors and subcontractors in the Work. It shall insure state in which the Work is located such insurance as will against perils of fire and extended coverage and shall in- protect the Design/Builder from claims set forth below elude all risk insurance for physical loss or damage includ- which may arise out of or result from operations under the ing,without duplication of coverage,theft,vandalism and Contract by the Design/Builder or by a contractor of the malicious mischief. If the Owner does not intend to pur- Design/Builder, or by anyone directly or indirectly em- chase such insurance for the full insurable value of the ployed by any of them, or by anyone for whose acts they entire Work,the Owner shall inform the Design/Builder in may be liable: writing prior to commencement of the Work.The Design/ .1 claims under workers' or workmen's compensa- Builder may then effect insurance,for the Work at the site tion,disability benefit and other similar employee which will protect the interests of the Design/Builder and • benefit laws which are applicable to the Work to the Design/Builder's contractors and subcontractors, and be performed; by appropriate Change Order the cost thereof shall be .2 claims for damages because of bodily injury, oc- charged to the Owner. If the Design/Builder is damaged by cupational sickness or disease, or death of the failure of the Owner to purchase or maintain such insur- Design/Builder's employees under any applicable ance without notice to the Design/Builder,then the Owner employer's liability law; shall bear all reasonable costs properly attributable there- .3 claims for damages because of bodily injury,sick- to. If not covered under the all risk insurance or not other- ness or disease,or death of persons other than the wise provided in the Contract Documents, the Design/ Design/Builder's employees; Builder shall effect and maintain similar property insurance .4 claims for damages covered by usual personal in- on portions of the Work stored off-site or in transit when jury liability coverage which are sustained(1)by a such portions of the Work are to be included in an Applica- person as a result of an offense directly or indi- tion for Payment. See 5(a) AIA DOCUMENT A191,Part 2 e OWNER-DESIGN/BUILDER AGREEMENT • FIRST EDITION A191-1985 • AIA' • c.1985 • THE AMERICAN INSTITUTE OF ARCHITECTS,1775 NEW YORK AVENUE, N.W.,WASHINGTON,D.C.20006 PART 2-PAGE 5 WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. McCARTHY MODIFICATIONS TO AIA A191-1985, PART 2 • 6.4 Delete in the fourth line the word "Owner" and insert the words "Design/Builder". Insert in the fifth line after the word "site" the following: "to the extent negligently" 7.1.2 In the third line delete the words "Contract Documents" and insert the words "CD Agreement". Add the following: 7.1.3.1 Design/Builder shall require its Architect to provide errors and omissions insurance which shall be on a claims made basis and shall be for limits of not less than $1,000,000. Design/Builder shall further require its Architect to indemnify Design/Builder, Owner and City to the same extent as Design/Builder is required herein and under the CD Agreement. Design/Builder shall require its Architect to insure such indemnity under the above errors and omissions insurance and shall require said errors and omissions insurance to be maintained for a period of not less than two years following completion of the Project. Amounts received from such coverage shall be the limit of Design/Builder's liability to the Owner relating to any design breach or negligence by Design/Builder or its Architect. • 7.3.1 In the second line delete the word "Owner" and insert the word•"Design/Builder". In the fifth line after the word "site" insert the following: "and existing buildings and their contents" In the sixth line after the word "thereof" insert the following: "subject to the deductibles therein which shall be City's responsibility as to wind or water damage. All other deductibles shall be the responsibility of Design/Builder." In the seventh line insert after the word "Owner," the word "City". Delete the fourth, fifth and sixth sentences. 101648.0DB 5(a) 4B04 7.3.2 Unless otherwise provided under this Part 2, the arbitration as provided in Article 10. If distribution of insur- Owner shall purchase and maintain such boiler and ma- ance proceeds by arbitration eee%Lt aire,d,the arbitrators will chinery insurance as may be required by the Contract Doc- direct such distribution. 66 uments or by law and which shall•specifically cover such 7.3.9 It the Owner finds it necessary to occupy or use a insured objects during installation and until final accep- portion or portions of the Work before Substantial Corn- tance by the Owner.This insurance shall cover interests of pletion, such occupancy or use shall not commence prior the Owner, the Design/Builder, and the Design/Builder's to a time agreed to by the Owner and Design/Builder and to contractors and subcontractors in the Work.See 6(a) which the insurance company or companies providing 7.3.3 A loss insured under Owner's property insurance is property insurance have consented by endorsement to the to be adjusted with the Owner and made payable to the policy or policies.The property insurance shall not lapse or Owner as trustee for the insureds, as their interests may be cancelled on account of such partial occupancy or use. appear, subject to requirements of any applicable mort- Consent of the Design/Builder and of the insurance corn- gagee clause and of Subparagraph 7.3.8. The Design/ pany or companies to such occupancy or use shall not be Builder shall pay contractors their shares of insurance pro- unreasonably withheld. See 6(a) ceeds received by the Design/Builder, and by appropriate 7.4 LOSS OF USE INSURANCE agreement,written where legally required for Validity,shall 7.4.1 The Owner, at the Owner's option, may purchase • require contractors to make payments to their subcontrac and maintain such insurance as will insure the Owner tors in similar manner. See b(a) against loss of use of the Owner's property due to fire or 7.3.4 Before an exposure to loss may occur, the Owner other hazards, however caused. The Owner waives all shall file with the Design/Builder a copy of each policy rights of action against the Design/Builder, and its con- required by this Paragraph 7.3. Each policy shall contain tractors and their agents and employees,for loss of use of only those endorsements specifically related to this Proj- the Owner's property, including consequential losses due ect.Each policy shall contain a provision that the policy will to fire or other hazards, however caused, to tl eeextenta) not be cancelled or allowed to expire until at least thirty covered by insurance under this Paragraph 7.4. l days' prior written notice has been given the Design/Builder. See b a) 7.5 PERFORMANCE BOND AND PAYMENT BOND •7.5.1 The Owner shall have the right to require the De- 7.3.5 If the Design/Builder requests in writing that insur- sign/Builder to furnish bonds covering the faithful perfor- ance for risks other than those described herein or for mance of the Contract and the payment of all obligations other special hazards be included in the property insurance arising thereunder if and as required in the Contract Docu- policy,the Owner shall,if possible,obtain such insurance, ments or in Article 14. See 6(a) and the cost thereof shall be charged to the Design/Builder • by appropriate Change Order. 7.3.6 The Owner and Design/Builder waive all rights ARTICLE 8 against each other and the contractors, subcontractors, CHANGES IN THE WORK agents and employees, each of the other, for damages caused by fire or other perils to the extent covered by 8.1 CHANGE ORDERS property insurance obtained pursuant to this Paragraph 7.3 or other property insurance applicable to the Work,except 8.1.1 A Change Order is a written order signed by the such rights as they may have to proceeds of such insurance Owner and Design/Builder, and issued after execution of held by the Owner as trustee. The Owner or Design/ Part 2, authorizing a change in the Work or adjustment in Builder,as appropriate,shall require from contractors and the contract sum or contract time. The contract sum and ee 6(a) subcontractors by appropriate agreements,written where contract time may be changed only by Change Order. legally required for validity,similar waivers each in favor of See 8.1.2 The Owner, without invalidating Part 2, may order other parties enumerated in this Paragraph 7.3.The policies °(a)consisting changes in the Work within the general scope of Part 2 shall be endorsed to include such waivers of subrogation. of additions, deletions or other revisions, and 7.3.7 If required in writing by a party in interest, the the contract sum and contract time shall be adjusted ac- Owner as trustee shall provide, upon occurrence of an cordingly.Such changes in the Work shall be authorized by insured loss, a bond for proper performance of the Change Order, and shall be performed ur ler applicable Owner's duties. The cost of required bonds shall be conditions of the Contract Documents. ll 11 charged against proceeds received as trustee. The Owner 8.1.3 If the Owner requests the Design/Builder to submit shall deposit proceeds so received in a separate account a.proposal for a change in the Work and then elects not to and shall distribute them in accordance with such agree- proceed with the change, a Change Order shall be issued ment as the parties in interest may reach,or in accordance to reimburse the Design/Builder for any costs incurred for with an arbitration award in which case the procedure shall Design Services or proposed revisions to the Contract be as provided in Article 10. If after such loss no other Documents. See 6(a) special agreement is made, replacement of damaged Work 8.1.4 Cost or credit to the Owner resulting from a change shall be covered by appropriate Change Order.See 6(a) in the Work shall be determined in one or more of the 7.3.8 The Owner, as trustee, shall have power to adjust following ways: See 6(a) and settle a loss with insurers unless one of the parties in .1 by mutual acceptance of a lump sum properly interest shall object,in writing,within ten days after occur- itemized and supported by sufficient substantiat- rence of loss,to the Owner's exercise of this power. If such ing data to permit evaluation; . objection be made,the Owner as trustee shall make settle- .2 by unit prices stated in the Contract Documents or ment with the insurers in accordance with the decision of subsequently agreed upon; A191-1985 AIA DOCUMENT A191,Part 2 • 01h'NLR-DESIGN/BUILDER AGRI LMENT • FIRST EDITION • MA. • c 1985 • THE AMERICAN INS fIrUTEOF ARCHITECTS.1745 NEW YORKAVENUE, PART 2-PAGE 6 N.W.,WASHINGION,D.C.2(N0111, WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. , McCARTHY MODIFICATIONS TO AIA A191-1985, PART 2 • 7.3.2 Delete in its entirety. 7.3.3 Delete in the first line the word "Owner's". Insert in the second line after the word "Owner" the words "and City". Delete in the third line the word "Owner" and insert the word "Design/Builder". 7.3.4 Delete in the first line the word "Owner" and insert the word "Design/Builder". Delete in the second line the word "Design/Builder" and insert the words "Owner and City". Insert in the eighth line after the word "Builder" the words "City and Owner". 7.3.6 Insert in the first line after the word "Owner" the word "City". Delete in the eighth line the word "Owner" and insert the word "Design/Builder". 7.3.7 Delete in the second line the word "Owner"•and insert the word "Design/Builder". Delete in the fourth line the word "Owner's" and insert the word "Design/Builder's". Delete in the fifth line the word "Owner" and insert the word "Design/Builder". 7.3.8 Delete in the first line the word "Owner" and insert the word "Design/Builder". Delete in the fourth line the word "Owner's" and insert the word "Design/Builder's". Delete in the fifth line the word "Owner" and insert the word "Design/Builder". 7.3.9 Delete in the first line the words "the Owner fords". Insert in the first line after the word "it" the word "is". Insert in the fourth line after the word "Owner" the word "City". 7.4.1 Delete in the first line the words "Owner, at Owner's option, may" and insert the words "Design/Builder shall". Delete in the second line the word "Owner" and insert the word "City". Delete in the third line the word "Owner's" and insert the word "City's". Delete in the fourth line the word "Owner" and insert the word "City". Delete in the seventh line the word "Owner's" and insert the word "City's". 7.5.1 Delete in the first line the words "Owner shall have the right to require the". Delete in the second line the word "to" and insert the word "shall". 101648.0DB 6(a)-1 4B04 McCARTHY MODIFICATIONS TO AIA A191-1985, PART 2 7.5.1 Insert in the second line after the word "bonds" the following: "with the Owner and City as Obligees". 8.1.1 Insert in the.second line after the word "Owner" the word "City". 8.1.2 In the first line delete the word "Owner" and insert the following: "City, as provided in the CD Agreement" 8.1.3 In the first line delete the word "Owner" and insert the following: "City, as provided in the CD Agreement" 8.1.4 Delete in the first line the words "to the Owner". 101648.0DB 6(a)_2 4B04 .3 by cost to be determined in a manner agreed upon mission of the Design/Builder's Proposal under Part 1. by the parties and a mutually acceptable fixed or percentage fee; or .4 by the method provided below. ARTICLE 9 8.1.5 If none of the methods set forth in Clauses 8.1.4.1, CORRECTION OF WORK 8.1.4.2 or 8.1.4.3 is agreed upon, the DesigniBuilder, pro 9.1 The Design/Builder shall promptly correct Work re- vided a written order signed by the Owner is received,shall promptly proceed with the Work involved.The cost of such jetted by the Owner or known by the Design/Builder to be Work shall then be determined on the basis of reasonable defective or failing to conform to the Construction Docu- ments,whether observed before or after Substantial Corn- expenditures and savings of those performing the Work attributable to the change, including the expenditures for pletion and whether or not fabricated, installed or tom pleted,and shall correct Work under this Part 2 found to be design services and revisions to the Contract Documents. In case of an increase in the contract sum, the cost shall defective or nonconforming within a period of one year include a reasonable allowance for overhead and profit. In' from the date of Substantial Completion of the Work or case of the methods set forth in Clauses 8.1.4.3 and 8.1.4.4, designated portion thereof, or within such longer period provided by any applicable special warranty in the Contract the Design/Builder shall keep and present an itemized ac- counting together with appropriate supporting data for Documents. inclusion in a Change Order. Unless otherwise provided in 9.2 Nothing contained in this Article 9 shall be construed the Contract Documents, cost shall be limited to the fol- to establish a period of limitation with respect to other lowing: cost of materials, including sales tax and cost of obligations of the Design/Builder under this Part 2. Para- delivery;cost of labor,including social security,old age and graph 9.1 relates only to the specific obligation of the De- unemployment insurance,and fringe benefits required by sign/Builder to correct the Work,and has no relationship to agreement or custom; workers' or workmen's compensa- the time within which the obligation to comply with the tion insurance;bond premiums; rental value of equipment Contract Documents may be sought to be enforced,nor to and machinery; additional costs of supervision and field the time within which proceedings may be commenced to office personnel directly attributable to the change; and establish the Design/Builder's liability with respect to the _ fees paid to architects,engineers and other professionals. Design/Builder's.obligations other than correction of the Pending final determination of cost to the Owner, pay- Work. ments on account shall be made on the Application for 9.3 If the Design/Builder fails to correct defective Work as Payment.The amount of credit to be allowed by the Design/ required or persistently fails to carry out Work in accor- Builder to the Owner for deletion or change which results dance with the Contract Documents;the Owner,by written . in a net decrease in the contract sum will be actual net cost. order signed personally or by an agent specifically so em- When both additions and credits covering related Work or powered by the Owner in writing, may order the Design/ substitutions are involved in a change, the allowance for Builder to stop the Work, or any portion thereof, until the overhead and profit shall be figured on the basis of the net cause for such order has been eliminated; however, the increase, if any, with respect to that change. See 7(a) - Owner's right to stop the Work shall not give rise to a duty 8.1.6 If unit prices are stated in the Contract Documents on the part of the Owner to exercise the right for benefit of or subsequently agreed upon, and if quantities originally the Design/Builder or other persons or entities. contemplated are so changed in a proposed Change Order 9.4 If the Design/Builder defaults or neglects to carry out that application of agreed unit prices to quantities pro- the Work in accordance with the Contract Documents and posed will cause substantial inequity to the Owner or De- fails within seven days after receipt of written notice from sign/Builder, applicable unit prices shall be equitably the Owner to commence and continue correction of such adjusted. See /(a) default or neglect with diligence and promptness, the 8.2 CONCEALED CONDITIONS Owner may give a second written notice to the Design/ Builder and, seven days following receipt by the Design/ 8.2.1 If concealed or unknown conditions of an unusual Builder of that second written notice and without prejudice nature that affect the performance of the Work and vary to other remedies the Owner may have, correct such defi- from those indicated by the Contract Documents are en- ciencies. In such case an appropriate Change Order shall countered below ground or in an existing structure other be issued deducting from payments then or thereafter due than the Work, which conditions are not ordinarily found the Design/Builder costs of correcting such deficiencies. If to exist or which differ materially from those generally the payments then or thereafter due the Design/Builder are recognized as inherent in work of the character provided not sufficient to cover the amount of the deduction, the for in this Part2,notice by the observing party shall be given Design/Builder shall pay the difference to the Owner.Such promptly to.the other party and, if possible, before condi- action by the Owner shall be subject to arbitration. tions are disturbed and in no event later than twenty-one days after first observance of the conditions. The contract • . sum shall be equitably adjusted for such concealed or un- ARTICLE 10 known conditions by Change Order upon claim by either ARBITRATION party made within twenty-one days after /he claimant be- comes aware of the conditions. 5 l 10.1 Claims;disputes and other matters in question be- tween the parties to this Part 2 arising out of or relating to . 8.3 REGULATORY CHANGES Part 2 shall be decided by arbitration in accordance with 8.3.1 The Design/Builder shall be compensated for the Construction Industry Arbitration Rules of the Ameri- . changes in the Work necessitated by the enactment or revi- can Arbitration Association then in effect unless the par- sion of codes, laws or regulations subsequent to the sub- ties agree otherwise.No arbitration arising out of or relat- AIA DOCUMENT A191,Part 2 • OWNLR-DESIGN/I1UI1.0ER AGRLEMENT • FIRST EDITION A191-1985 • AIA' • c 1%; • THE AMERICAN INSTITUTE OF ARCHITECTS,1711 NEW YORK AVENUE, N W.,WAY IINGTON,I).(..2111111) PART 2-PAGE 7 WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. McCARTHY MODIFICATIONS TO AIA A191-1985, PART 2 8.1.5 Insert in the third line after the word "Owner" the words "and City". 8.1.6 Delete in the fifth and sixth lines the words "to the Owner or Design/Builder". 8.2.1 Insert in the twelfth line after the word "sum" the following: "and Contract Time" 101648.0DB 7(a) 4B04 ing to this Part 2 shall include,by consolidation or joinder of their work. The Design/Builder shall incorporate and or in any other manner,an additional person not a party to coordinate the Design/Builder's Work with work of the Part 2 except by written consent containing specific refer- Owner's separate contractors as required by the Contract ence to Part 2 and signed by the Owner, Design/Builder Documents. and any other person sought to be joined. Consent to 11.5.3 Costs caused by defective or ill-timed work shall be arbitration involving an additional person or persons borne by the party responsible. shall not constitute consent to arbitration of a dispute not described or with a person not named therein.This provi- 11.6 CLAIMS FOR DAMAGES sion shall be specifically enttorc able in any court of corn 11.6.1 Should either partyto Part2 suffer injury or damage petent jurisdiction. See t�(a) l Y g to person or property because of an act or omission of the 10.2 Notice of demand for arbitration shall be filed in other party, the other party's employees or agents, or an- writing with the other party to this Part 2 and with the other for whose acts the other party is legally liable, claim American Arbitration Association. The demand shall be shall be made in writing to the other party within a reason- made within a reasonable time after the claim,dispute or able time after such injury or damage is or should have other matter in question has arisen. In no event shall the been first observed. demand for arbitration be made after the date when the applicable statute of limitations would bar institution of a 11.7 INDEMNIFICATION legal or equitable proceeding based on such claim, dis- pute or other matter in question. 11.7.1 To the fullest extent permitted by law, the Design/ Builder shall indemnify and hold harmless the Owner and 10.3 The award rendered by arbitrators shall be final, the Owner's consultants and separate contractors, any of and judgment may be entered upon it in accordance with their subcontractors, sub-subcontractors, agents and em- applicable law in any court having jurisdiction. ployees from-and against claims, damages, losses and ex- 10.4 Unless otherwise agreed in writing, the Design/ penses,including but not limited to attorneys'fees,arising Builder shall carry on the Work and maintain its progress out of or resulting from performance of the Work. These during any arbitration proceedings, and the Owner shall indemnification obligations shall be limited to claims,dam- continue to make payments to the Design/Builder in ac- ages, losses or expenses(1) that are attributable to bodily cordance with the Contract Documents. See 8(a) injury,sickness,disease or death,or to injury to or destruc- ' 10.5 This Article 10 shall survive completion or termina- tion of tangible property(other than the Work itself)includ- tion of Part 2. ing loss of use resulting therefrom, and (2) to the extent such claims, damages, losses or expenses are caused in ARTICLE 11 whole or in part by negligent acts or omissions of-the Design/Builder, the Design/Builder's contractors, anyone MISCELLANEOUS PROVISIONS directly or indirectly employed by either or anyone for whose acts either may be liable, regardless of whether or 11.1 This Part 2 shall be governed by the law of the place where the Workt is located. not they are caused in part by a party indemnified here- under. Such obligation shall not be construed to negate, 11.2 The table of contents and the headings of articles and abridge or otherwise reduce other rights or obligations of paragraphs are for convenience only and shall not modify indemnity which would otherwise exist as to a party or rights and obligations created by this Part 2. person described in this Paragraph 11.7. . 11.3 In case a provision of Part 2 is held to be invalid, 11.7.2 In claims against the Owner or its consultants and illegal or unenforceable, the validity, legality and enforce- its contractors, any of their subcontractors, sub-sub- ability of the remaining provisions shall not be affected. contractors, agents or employees by an employee of the 11.4 SUBCONTRACTS - Design/Builder, its contractors, anyone directly or indi- . rectly employed by them or anyone for whose acts they 11.4.1 The Design/Builder, as soon as practicable after may be liable, the indemnification obligation under this execution of Part 2,shall furnish to the Owner in writing the Paragraph 11.7 shall not be limited by a limitation on names of the persons or entities the Design/Builder will amount or type of damages,compensation or benefits pay- engage as contractors for the Project. able by or for the Design/Builder, or a Design/Builder's 11.4.2 Nothing contained in the Design/Builder Contract contractor, under workers' or workmen's compensation Documents shall create a professional obligation or con- acts,disability benefit acts or other employee benefit acts. tractual relationship between. the Owner and any third party. 11.8 SUCCESSORS AND ASSIGNS 11.5 WORK BY OWNER OR OWNER'S CONTRACTORS 11.8.1 This Part 2 shall be binding on successors,assigns, and legal representatives of and persons in privity of con- 11.5.1 The Owner reserves the right to perform work re- tract with the Owner or Design/Builder. Neither party shall lated to, but not part of, the Project and to award separate assign, sublet or transfer an interest in Part 2 without the contracts in connection with other work at the site. If the written consent of the other. See 8(a) Design/Builder claims that delay or additional cost is in- volved because of such action by the Owner, the Design/ 11.8.2 This Paragraph 11.8 shall survive completion or ter- Builder shall make such claims as provided in Sub- mination of Part 2. paragraph 11.6. 11.9 In case of termination of the Architect, the Design/ 11.5.2 The Design/Builder shall afford the Owner's sepa- Builder shall provide the services of another lawfully li- -• rate contractors reasonable opportunity for introduction tensed person or entity against whom the Owner makes no and storage of their materials and equipment for execution reasonable objection. A191-1985 AlA DOCUMENT A191,Part 2 • OWNER-DESIGN/BUILDER AGREEMENT • FIRST EDITION • AA', • ,c,1985 • THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVENUE, PART 2-PAGE 8 N.W.,WASHINC;TON,D.C.20IO6 WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. McCARTHY MODIFICATIONS TO AIA A191-1985, PART 2 10.1 Insert in the third line on Page 8 after the words "Part 2" the following: "except the City as provided in the CD Agreement" Insert in the fourth line on Page 8 after the word "Owner" the word "City". 10.4 Delete in the third and fourth lines the words "the Owner shall continue to make". Insert in the fourth line after the words "Design Builder" the words "shall continue to be made". 11.4.1 Add the following sentences: Owner and City recognize that Design Builder has obtained quotes and bids from qualified Subcontractors and Suppliers to be able to determine the Guaranteed Maximum Price. The Guaranteed Maximum Price is based upon such information and that Design Builder will not be required to utilize any public bidding or advertisements or to comply with any minority participation requirements of the City. 11.7.1 Insert in the second line after the word "the" the word "City". 11.7.2 Insert in the first line after the word "the" the word "City". 11.8.1 The Owner and Design Builder expressly agree the City is a third party beneficiary of this Agreement. 101648.0DB 8(a) 4B04 11.10 EXTENT OF AGREEMENT written notice and, after an additional seven days, the 11.10.1 Part 2 represents the entire agreement between Owner may without prejudice to any other remedy make the Owner and Design/Builder and supersedes Part 1 and good such deficiencies and may deduct the cost thereof from the payment due the Design/Builder or,at the Owner's prior negotiations, representations or agreements. Part 2 maybe amended only bywritten instrument signed by both option, may terminate the employment of the Design/ Owner and Design/Builder. Builder and take possession of the site and of all materials, equipment, tools and construction equipment and ma- chinery thereon owned by the Design/Builder and finish ARTICLE 12 the Work by whatever method the Owner may deem expe- TERMINATION OF THE AGREEMENT dient. If the unpaid balance of the contract sum exceeds the expense of finishing the Work,the excess shall be paid 12.1 TERMINATION BY THE OWNER to the Design/Builder, but if the expense exceeds the un- 12.1.1 This Part 2 may be terminated by the Owner upon paid balance,the Design/Builder shall pay the difference to fourteen days'written notice to the Design/Builder in the the Owner. See 9 a) event that the Project is abandoned. If such termination occurs, the Owner shall pay the Design/Builder for Work 12.2 TERMINATION BY THE DESIGN/BUILDER completed and for proven loss sustained upon materials, 12.2.1 If the Owner fails to make payment when due,the equipment, tools, and construction equipment and ma- Design/Builder may give written notice of the Design/Build- chinery, includingt(easonable profit and applicable er's intention to terminate Part 2. If the Design/Builder fails damages. See 9la) to receive payment within seven days after receipt of such 12.1.2 If the Design/Builder defaults or persistently fails or notice by the Owner,the Design/Builder may give a second neglects to carry out the Work in accordance with the written notice and,seven days after receipt of such second Contract Documents or fails to perform the provisions of written notice by the Owner, may terminate Part 2 and Part 2, the Owner may give written notice that the Owner recover from the Owner payment for Work executed and intends to terminate Part 2. If the Design/Builder fails to for proven losses sustained upon materials, equipment, correct the defaults, failure or neglect within seven days tools,and construction equipment and machinery, incl after being given notice,the Owner may then give a second ing reasonable profit and applicable damages. ee a) • • • • MA DOCUMENT A191,Part 2 • OWNER-DESIGN/BUILDER AGREEMENT • FIRST EDITION A191-1985 • AIA' • c,1985 • THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVENUE, PART 2-PAGE 9 N.W.,WASHIN(,TON,D.C.20006 WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. McCARTHY MODIFICATIONS TO AIA A191-1985, PART 2 12.1.1 Insert in the first line after the word "upon" the following.: "written approval of the City and" Delete in the fourth line the word "Owner" and insert "City (subject to Owner's obligations under 5.1.2)". 12.1.2 Insert in the fourth line after the word "Owner" the first time it appears the following: "after written approval of the City". Insert in the seventh line after the word "Owner" the following: "after written approval of the City". Insert in the twelfth line after the word "option" the following: "after written approval of the City". • 12.2.1 Insert in the first line before the word "Owner" the words "City or". Insert in the third line after the word "to" the words "default the Owner and" Insert in the fifth line after the word "Owner" the words "and City". Insert in the seventh line after the word "Owner" the words "and City". Insert in the eighth line after the word "the" the words "City or". Add the following: The City shall have the option to cure such default without penalty to the City and, in addition, the City and Design Builder shall also be subject to 8.2.1 of the CD Agreement. 101648.0DB 9(a) 4B04 ARTICLE 13 • BASIS OF COMPENSATION The Owner shall compensate the Design/Builder in accordance with Article 5,Payments,and the other provisions of this Part 2 as described below. See 10(a) • 13.1 COMPENSATION 13.1.1 FOR BASIC SERVICES,as described in Paragraphs 2.2.2 through 2.2.17,and for any other services included in Article 14 as part of Basic Services, Basic Compensation shall be as follows: A Fee of 7% of the Guaranteed Maximum Price which shall be included in the GMP • • 13.2 REIMBURSABLE EXPENSES • 13.2.1 Reimbursable Expenses are in addition to the compensation for Basic and Additional Services and include actual expenditures made by the Design/Builder in the interest of the Project for the expenses listed as follows: See Exhibit 1 13.2.2 FOR REIMBURSABLE EXPENSES, compensation shall be a multiple of One ( 1.0 ) times the amounts expended. 13.3 INTEREST PAYMENTS 13.3.1 The rate of interest for past due payments shall be as follows: /Usury laws and requirements under'the Federal Truth in Lending Act,similar state and local consumer credit laws and other regulations at the Owner's and Design/Builder's principal places of business,at the location of the Project and elsewhere may affect the validity of this provision.Specific legal advice should be.obtained with respect to deletion,modification or other requirements,such as written disclosures or waivers.) 2% above the then current prime commercial rate established by Chemical Bank (New York) See 10(a) • A191-1985 AIA DOCUMENT A191,Part 2 • OWNER-DESIGN/BUILDI.R AGRLE,MENT • FIRST EDITION • AIA' • c,1985 • THE AMERICAN INSTITUTE OF ARCHITECTS.1735 NEW YORK AVENUE, PART 2-PAGE 10 N.W.,WASHINGTON,D.C.2006 • WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. McCARTHY MODIFICATIONS TO ALA A191-1985, PART 2 Article 13 - Delete in the first line the words "Owner shall compensate". Insert in the first line after the words "Design Builder" the words "shall be compensated". Add the following: 13.4 GUARANTEED MAXIbLUM PRICE 13.4.1 McCarthy guarantees that the maximum price for the Reimbursable Expenses as set forth in Exhibit 1,and the Basic Compensation as set forth in 13.1.1,will not exceed$9,800.00/parking space which sum shall be called the Guaranteed Maximum Price except as adjusted as provided herein. Per the CD Agreement 646 spaces x $9,800 which equals SIX MILLION, THREE HUNDRED THIRTY THOUSAND,EIGHT HUNDRED DOLLARS($6,330,800.00)is contemplated to be the Guaranteed Maximum Price subject to adjustment based upon the final number of spaces. 13.4.2 Per the CD Agreement, the Guaranteed Maximum Price is based upon laws; codes, and regulations in existence at the date of its establishment and upon Exhibit 2, List of GMP Documents, attached hereto. 13.4.3 The Guaranteed Maximum Price will be modified for delays and for Changes in the Work, as provided herein and proportionately for increases in the applicable construction cost index in effect as of the date of this Agreement. 13.4.4 Subject to 13.4.6 below, to the extent the total of the Reimbursable Expenses and Basic Compensation is less than the Guaranteed Maximum Price as adjusted as provided herein, Design/Builder will receive 50% of said savings, with the City receiving the balance. 13.4.5 Scope: The Guaranteed Maximum Price includes the following components as set forth in Exhibit G to the CD Agreement: .1 The Basic Compensation, in accordance with 13.1.1 of this Agreement. .2 The estimated and/or actual cost of General Condition Items to be provided by Design/Builder as defined in Exhibit 1 of this Agreement. .3 The estimated and/or actual cost of the Work to be performed by Subcontracts and Design/Builder under this Agreement, including, but not limited to, the cost of any required permits and fees (not provided by Owner pursuant to this Agreement), taxes, and Subcontractor Performance and Payment Bonds. .4 A contracting contingency for unanticipated local market, labor and material conditions; bidder and subcontractor defaults; errors of Design/Builder; interfacing omissions between and from the various work categories, and any other liability of Design/Builder to the Owner under this Agreement or Part 1 (if any). .5 The cost of Design/Builder's Performance and Payment Bond for 100% of the Guaranteed Maximum Price and sales tax thereon. The Guaranteed Maximum Price does not include the following components as set forth in Exhibit G to the CD Agreement: 101648.0DB 10(a)-1 4B04 McCARTHY MODIFICATIONS TO MA A191-1985, PART 2 .1 Design/Builder's Part 1 Compensation. .2 The cost of all off-site construction testing and on-site construction inspection and testing of, including, but not limited to soils, foundations, paving, concrete, FF and FL floor finish tolerance verification, structural steel framing, fireproofing and infra red imaging. (To be provided by the City per the CD Agreement.) .3 Electrical utility company charges, except for those electrical installation provisions specifically shown on the Contract Documents. .4 The cost of moveable equipment and furnishings. .5 The cost of any Building Permits. (To be waived by the City per the CD Agreement.) .6 The cost of asbestos and/or other hazardous waste removal. .7 Costs for unforeseen subsurface conditions. .8 Costs associated solely with the Retail Space. .9 Any other items not specifically defined in this Agreement and the Exhibits thereto. 13.4.6 This Agreement is expressly subject to the shared savings provisions set forth in Section 4.8(G) of the CD Agreement except that the Owner and Design Builder hereby agree that the Design Builder shall receive all savings paid to Owner and Design Builder. The City's auditor will be responsible to confirm the Costs of the Work, including those shared in a proportionate equitable manner with the Contract for the Retail Space. . 101648.0DB 10(a)-1 4B04 , ARTICLE 14 OTHER PROVISIONS 14.1 The Basic Services to be performed shall be commenced on or before 7/1/94 and, subject to authorized adjustments and to d3ej ys not caused by Sthe ee Design/Builder, Builder, Substantial Completion shall be achieved in ( ) calendar days. • 14.2 The Basic Services beyond those described in Article 2 are: The GMP Design Development Plans and Outline Specifications as defined in 1.24 of the CD Agreement and listed on Exhibit 2 hereto. In addition, the CD Agreement is incorporated herein as a Contract Document and the parties hereto expressly agree to be bound by their obligations in said CD Agreement. 14.3 The Design/Builder shall submit an Application for Payment on the 1st of each month. See 11(a) 14.4 The Design/Builder's Proposal includes: (List below:this Part 2,Supplementary and other Conditions,the drawings,the specifications,and Modifications,showing page or sheet numbers in all cases and dates where applicable to define the scope of Work.) This Part 2 entered into as of the day and year first written above. OWNER; e76,k6 �al� P� DESIGN/BUILDER QC -r-A&42,141. . oYtCI0.. 1 I m'u '-F/t Vox 1� vine, c 11�1 Uc ic,- 3 P., (7016 sockrai ,vm BY BY , ic:n Gold ),‘ fig' CAUTION: You should sign an original AIA document which has this caution printed in red. An original assures that changes will not be obscured as may occur when documents are reproduced. • • AIA DOCUMENT A191,Part 2 • OWNER-DESIGN/BUILDER AGREEMENT • FIRST EDITION A191-1985 • AIA' • c,1985 • THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVENUE, PART 2-PAGE 11 N.W.WASHINGTON,D.C.20006 WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. ARTICLE 14 OTHER PROVISIONS 14.1 The Basic Services to be performed shall be commenced on or before 7/1/94 and, subject to authorized adjustments and to d3,eJ ys not caused by Sthe ee D sign Builder, Substantial Completion shall be achieved in- ( 3tltl ) calendar days. (a) 14.2 The Basic Services beyond those described in Article 2 are: The GMP Design Development Plans and Outline Specifications -as defined in 1.24 of the CD Agreement and listed on Exhibit 2 hereto. In addition, the CD Agreement is incorporated herein as a Contract Document and the parties hereto expressly agree to be bound by their_ obligations in said CD Agreement. • 14.3 The Design/Builder shall submit an Application for Payment on the 1st of each month. See 11(a) 14.4 The Design/Builder's Proposal includes: (List below:this Part 2,Supplementary and other Conditions,the drawings,the specifications,and Modifications,showing page or sheet numbers in all cases and dates where applicable to define the scope of Work.) • • This Part 2 entered into as of the day and year first written above. OWNER DESpritit . BY BY K.KA )- 3E, gmCAUTION: You should sign an original AIA document which has this caution printed in red. . An original assures that changes will not be obscured as may occur when documents are reproduced. • A1A DOCUMENT A191,Part 2 • OWNLR-DESIc:N/BUILDER AGREEMENT • FIRST EDITION A191-1985 • AIA- • c,1985 • THE AMERICANINSTITUTEOF ARCHITECTS,1735 NEW YORKAVENUE, PART 2-PAGE 11 N.W.,WASHINGTON,D.C.20006 WARNING:Unlicensed photocopying violates U.S.copyright laws and is subject to legal prosecution. McCARTHY MODIFICATIONS TO AIA-A191-1985, PART 2 14.1 Add the following: If construction of the Garage is not substantially completed within the time required above, the Design Builder shall be responsible for $750.00 per day liquidated damages for each day of delay up to the first sixty (60) days and $1,500.00 per day for each day of delay thereafter. 14.3 Insert after the word "Payment" the following: "as provided in the CD Agreement" 101648.0DB 11(a) 4B04 McCARTHY MODIFICATIONS TO AIA A191-1985, PART 2 2/4/94 BALLET VALET PARKING COMPANY MIAMI BEACH, FLORIDA EXHIBIT 1 REIMBURSABLE EXPENDITURES The term Reimbursable Expenses shall mean actual expenditures necessarily incurred in the design and construction of the Work and shall include the items set forth below in this Article. "Actual Expenditures"shall be defined as either the actual price charged the Design/Builder or Design/Builder's rate which is determined by average ownership expenses, local market rates or average anticipated expenses and are as follows: 1. All architectural,engineering and consulting fees and expenses incurred in designing and constructing the Work. Expenses include the cost of printing. 2. Wages paid for labor in the direct employ of Design/Builder in the performance of its Work under . applicable collective bargaining agreements, or under a salary or wage schedule, and including such welfare, bonus, or other benefits, if any, as may be payable with respect thereto. • 3. Compensation of Design/Builder's employees stationed at the field office and compensation of other employees when performing functions directly related to Project administration. Billing rates in accordance with Exhibit 3 - Project Management Rate Schedule, attached hereto. 4. All employee benefits including accrued sick pay and vacation,insurance, employee retirement plan, disability benefits, and taxes for such items as unemployment compensation and social security, insofar as such cost is based on wages, salaries, performance bonuses, or other remuneration paid to employees of Design/Builder and included under paragraphs 2 and 3 above. 5. Reasonable transportation, traveling, moving, subsistence, and hotel expenses of Design/Builder or of its officers or employees incurred in discharge of duties connected with the Work, including attending Total Quality Management Seminars and other training seminars. 6. Relocation of the Design/Builder's job site supervision personnel and their families in accordance with the Relocation Policy. 7. All materials, supplies and equipment incorporated in the Work, including costs of transportation and storage thereof. 8. Payments made by Design/Builder to Subcontractors for their Work performed pursuant to contract under this Agreement. 9. All materials, supplies, equipment, temporary facilities and hand tools, including transportation and maintenance, not owned by the workmen, which are employed or consumed in the performance of the Work, and cost less salvage value on such items used but not consumed which remain the property of Design/Builder. _. 10. Rental charges of all necessary machinery, equipment(exclusive of hand tools), form materials, and trailers used at the site of the Work,whether rented from Design/Builder or others, at rates consistent 101648.0DB Exhibit 1-1 4B04 McCARTHY MODIFICATIONS TO AIA A191-1985, PART 2 with those prevailing in the area. Rental rates of Design/Builder owned equipment in accordance with Exhibit 4- Equipment Rental Schedule, attached hereto. For those rental rates not included in this Schedule, the rental rates listed in the Associated Equipment Distributor's Publication of Nationally Averaged Rates for the appropriate year shall be used as the average ownership expense. 11. Equipment transportation, delivery, installation, fuel, lubrication, repair, replacement, dismantling and removal. 12. The premiums for all insurance and deductibles which Design/Builder is required to procure by this Agreement or is deemed necessary by Design/Builder as approved by the Owner. 13. Sales, use, gross receipts or similar taxes related to the Work imposed by any governmental , authority, and for which Design/Builder is liable subject to 2.2.10 and the CD Agreement. 14. Permit fees, licenses, tests, royalties, damages for infringement of patents and costs of defending suits therefor, and deposits lost for causes other than Design/Builder's negligence. If royalties or losses and damages, including costs of defense, are incurred which arise from a particular design, process, or the product of a particular manufacturer or manufacturers specified by the Owner or Architect,such royalties,losses and damages shill be paid by the Owner and not considered as within the Guaranteed Maximum Price unless Design/Builder has prior knowledge that there will be an infringement of patent rights. • 15. Losses, expenses or damages to the extent not compensated by insurance or otherwise (including settlement made with the written approval of the Owner). 16. Corrective or warranty work not performed by the Subcontractors subject, however, to the Guaranteed Maximum Price. - 17. Minor expenses such as telegrams, long distance telephone calls, telephone service and charges at the site, facsimile, expressage, radio/communications systems and equipment and similar petty cash items in connection with the Work. 18. Field office furnishings, typewriter, calculator, supplies, and similar type items. 19. The Safety, Total Quality Management and Substance Abuse Programs. 20. Removal of all debris. 21. Cost incurred due to an emergency affecting the safety of persons and property. 22. Data processing services and computerized scheduling programs required in the performance of the services outlined herein. Computer scheduling rates in accordance with Exhibit 5 - Computer Program Rate Schedule, attached hereto. 23. In-house(at the rates listed in Exhibit 3, Project Management Rate Schedule) and outside legal and consultant charges(whether on site or not) reasonably and properly incurred by Design/Builder for the Project including, but not limited to,job site labor disputes, Subcontractor disputes, liens, and defaults. 24. Subcontractor claims and defaults, subject however to the Guaranteed Maximum Price. 101648.0DB Exhibit 1-2 4B04 McCARTHY MODIFICATIONS TO AIA A191-1985, PART 2 All other costs directly incurred in the performance of the Work and not included in The Basic Compensation as set forth in Paragraph 13.1.1. d c by w 26. Design/Builder's Performance and Payment ts Bon e,i if req media ireely after pu a Oe nof er, for which Design/Builder shall be reimbursed, without 4B04 Exhibit 1-3 10164g.ODB f �\ McCARTHY MODIFICATIONS TO AIA A1917--1985, PART 2 2/4/94 101648.0DB BALLET VALET PARKING COMPANY MIAMI BEACH, FLORIDA EXHIBIT 2 LIST OF GMP DOCUMENTS Design Development Drawings prepared by dated Sheets 1 - Outline Specifications dated Our estimate is based on Outline Specifications dated May 19, 1994, Supplementary Outline Specifications dated May 19, 1994, Drawings Al and A2 dated January 6, 1994, A3, A5 and A6 dated March 16, 1994, and A4, A7, A8 and A9 dated March 18, 1994 all as provided by Desman Associates and Arquitectonica. It is also based on McCarthy issued MA 191 dated February 4, 1994 and "Narrative and Schedule of GMP Design/Build Costs of Garage" (Exhibit G to Acquisition, Construction and Development Agreement) dated May 25, 1994. Pricing has been predicated on construction beginning July 1, 1994 and being completed twelve months thereafter. • 101648.0DB 4B04 May 25, 1994 Exhibit G to Acquisition, Construction and Development Agreement Narrative & Schedule of GMP Design/Build Costs of Garage The following is McCarthy's Design Development GMP ("Guaranteed Maximum Price") for the construction of the Parking Structure at Seventh Street and Collins Avenue. This GMP is based on Outline Specifications dated March 18, 1994 and Revised Specifications dated May 20, 1994, Supplementary Outline Specifications dated March 18, 1994, drawings Al and A2 dated January 6, 1994, A3, A5 and A6 dated March 16, 1994, and A4, A7, A8 and A9 dated March 18, 1994 all as provided by Dcsman Associates and Arquitectonica. It is also based on McCarthy issued AIA 191 dated February 4, 1994. A, Included in the CMP as detailed in Attachment A hereto and as set forth above are: 1. Direct Construction Costs 2, General Conditions and Contingency 3. 7% Construction Fee 4. 6% Design Fee 5. Performance and Payment Bond 6, The Following Allowances are in the current Design and GMP; McCarthy represents the following are adequate per the above referenced documents: Signage (Interior & Exterior) $20,000.00 Temporary Dewatering $5,000.00 All Utility Relocation $10,000.00 Sanitary Sewer $10,000.00 Landscape & Irrigation $115,000.00 (Includes Tree Grates) B. Excluded from the estimate are: 1, All City Permits and Fees, including Building Permit & User Pees. Non- City permits and fees by Ballet Valet. 2. Sales Tax. 3. Builders All Risk Policy Deductible for Wind and Water Damage. Not to. exceed $100,000 per occurrence as provided in McCarthy policy to City. 5 4. Handling of Hazardous Materials per CD Agreement. 5. South side Owner Approval for Scaffolding on Existing Roof during construction, by Ballet Valet. 6. Sprinkling or Ventilation of Parking Area. Per existing code and interpretations of the City, this item not required. 7. Fire Pump. Per existing code and adequate water pressure availability, Ballet Valet Parking Structure Exhibit G May 25, 1994 Page 2 this item hot required. S. Auditor or Consultant Expenses or other expenses required for processing of payments except for those of Desman and Arquitectonica provided below. 9. All Testing and Inspection that the City orders other than Desman and Arquitectonica construction phase services. Geotechnical testing/ inspections by Ballet Valet. Concrete cylinder tests and one pile test by McCarthy. These are the normal tests required for the construction of the Garage. 10, Painting of the underside and sides of stems of all double tees and beams along with columns within the parking area. 11. Unforeseen subsurface obstructions. 12. Plant Maintenance Staging Equipment up to $50,000 by Ballet Valet, balance by City. 13. Any costs associated with elevators, other than as shown on the GMP documents. City will pay for 3rd elevator in Southeast Corner and will receive savings for openings in precast concrete (if applicable) via Change Order. No parking spaces will be lost. 14. Any other item not specifically defined in the CD Agreement, Design Builder Agreement for Garage and the Exhibits thereto that are agreed to by City, Ballet Valet and McCarthy. C. In preparing our GMP estimate we have made the following assumptions; the following items will be covered in the final specifications and do not effect the GMP, based on current design: 1. Retail area work is N.I.C. including all new storefront, facade restoration, roofing, structural tie-in to the Parking Structure, sidewalk extension, slab on grade, finishes and utilities. Water set-vice and sanitary sewer service with appropriate provisions for connections will be stubbed into the center of the future back coriidor of Retail. This area will be graded to proper subgrade in preparation for future granular base and slab. We have included the wall which runs along column line 3 and moves diagonally west at column line C. All partitions to the west of this wall have also been included. 2. We have included costs to temporarily support and protect the existing 7th • Ballet Valet Parking Structure Exhibit G May 25, 1994 Page 3 • Street and Collins Avenue facade as indicated on the drawings. However, we exclude any and all liability for the condition of the facade during and after construction. Any costs associated with additional support or protection, after original support and protection is in place, will be by Ballet Valet. All costs associated with rebuilding the existing facade, in the event it falls down, will be by Ballet Valet. 3. Sitework consists of an asphalt overlay of the Alley, along with any necessary sidewalk, curb and street patching along Seventh Street to current condition. A new sidewalk/curb along Collins Avenue will be provided. 4. Precast columns will be extended to the top of the exterior screen, with a connecting 12" x 24" beam for lateral support of the screen. Detail and location of this support will be in accordance with Desman Sketches 1 and 2 dated February 28, 1994. 5. Foundations have been based upon using the 80 ton pile data dated February 25, 1994. Piles will extend 28' below existing grade. 6. All partitions will be CMU except for the wall enclosing the Office Toilet. Other walls in the office will be furred with drywall, 7. We have included waterproofing and enkadrain liner in all planters. S. The slab on grade will be 6" thick with 6" of granular base. 9. We will have to put scaffolding on the roof of the existing building at the south end of the garage. Costs are included to protect the roofing material only. We have assumed that the existing building can support the weight of the scaffolding. Costs have Lc/ been included for shoring the building or obtaining permission from the Owner to scaffold on his roof. If we are unable to put scaffolding on the existing roof, the cost of the installation of the exterior screen will increase. Costs for this increase have n been included and will be the responsibility of Ballet Valet. 10. The exterior screen will be 3 standard green colors with the fiberglass system provided by Chem Tech (as shown) and will be a 2'-6" square Ballet Valet Parking Structure Exhibit G May 25, 1994 Page 4 • pattern throughout. 11. All precast concrete products are made with plant standard, structural grade grey concrete. 12. For pedestrian safety, deliveries and jobsite security, we assumed Collins and 7th Street sidewalks and parking adjacent to site to be closed during construction. 13. We have assumed that all connections to existing utilities will be made in the alley directly behind the proposed parking structure. 14. The City and Ballet Valet agree that the GMP is based upon all existing site conditions being in conformance with accepted engineering and construction standards, 15. All information provided is subject to the Design Builder Agreement AIA document A191 provided under separate cover. 16. Resnick air space is acquired and included as part of the project. In the event of modifications of the above assumptions or exclusions, the GMP shall be modified accordingly. GCStiRi, ri 6ut..L A Tc.3 a:312-263-o466 JLJNV °94 13:32 No .006 P.06 —..-.• . Attachment A GMP GARAGE CONSTRUCTION COST SCHEDULE Seventh Street and Collins Avenue Miami Beach, Florida May 19. 1994 Excavation $58,031.00 Demolition $77,035,00 : Site Improvements $23.636.00 Landscape &Irrigation $115,000.00 Dewatoring Allowance $5.000.00 Termite Control $6,054.00 Auger Cast Piles $144.164.00 ' Cast In Place Concrete $276.478.00 Precast Concrete $2.763.671.00 Masc�rry $28,108.00 Miss. Metals $14.823.00 Rough Carpentry $14,332.00 Caulking &Waterproofing S 180,918.00 ' Roofing $2,619.00 Expansion Joints $46,963,00 Hollow Metal& Finish Hardware $13,636.00 Glass&Glazing $11.170.00 Rolling Grilles $14.526.00 Painting 621,564.00 Drywall &Stucco $15.083.00 'Ceramic Tile $1,796.00 Acoustical Coifing $740.00 . Resilient Flooring $555.00 Signege Allowance $20.000.00 Specialties $9,761.00 Exterior Screen $441,731.00 Elevators $174,966.00 Plumbing Si 91,760.00 • H.VAC $26,302.00 • Fire Protection $21,517.00 Electrical _._-_$250,997.00 DIRECT COST $4,971,835.00 General Conditions $540,126.00 , 6%Design Fee S332,458.00 Performance&Payment Bond $43,225.00 7%Construction Fee $443.156.00 $6,330.800.00 646 CARS $9,80QICAR 4E1,L,,,— NyLtr P.6 DIQN a sITewORIS ,i.EQTl N 2A EXC YATtM F[LL1N 'RAbq PART 1 GENERAL 2A1.01 DESCRIPTION OF WORK A. PrOvido all labor, material, and equipment no Osaory for the w rk specified In this section including but not limited to the following; 1. Clearing, grubbing and removing of unneeded matori3 s, existir g structures, debris, bituminous and concrete paving and spoil, stump disposal methods,and shrub removal and disposal. 2. Excavation, backfiiling and embankment work ¢a required, 2A.1.02 QUALITY ASSURANCE A. pad natendardg: Perform excavetion work In compliance with applicable requirements of governing authorities having jurisdiction. mal_242azutta 2A2.01 SOIL MATERIALS A. llackfilf and Fill Meterial;a: Use excavated material free of rock or gravel larger than 6 inches, debr,S, waste, frozon materials, organic materials. and other deleterious matter. B. flub-Base A I arial; Ftee-draining porous fill under slabs on grade conforming to ASTM C33; coarse aggregate per Gradation No. 67. PAR _u rj 2A3,Q1 GENERAL a A. Clearing, 0rubb;ng and cxGevation consists or the removal and disposal of all materials encountered when establishing the required limits and grade elevetionc. Disposal of all excavated materials shall be the responsibility of the Contractor. • 2A3.02 PLACEMENT AND COMPACTION OF FILL MATERIALS EXCAVATING, FILLING AND GRADING 2A-1 =1 05:BaE5, 'TEEL.HECTC & DAVIS r,7 A. Place and compact designated fill and backfiff materials in the manner and to the limits required by the Gectechnical Engineer. Control sail construction for compliance with the percentage Of density spec f ed,n during 2A3.03 GRADING A. Grade areas within limits of grading including adjacent transition areas. Smooth surface to the slopes and elevations shown, 2A3.04 PAVEMENT SUBBASE COURSE_ _ hp.,n A. `'b 1'� „ Plaghngr Piaceitsubbose courSe material on approved subgrade In layers of wniforrr thickness, conforming to Indicated cross•sect;on and thickness, EXCAVATING, FILLING AND GRADING 2A-2 DIVISION 3 CONCRETE SECTION 3A CONCRETE FORMWORK PART 1 - GENERAL 3A1.01 DESCRIPTION OF WORK A. Work includes formwork and shoring for cast-in-place concrete,and installation into formwork of items such as anchor bolts, setting plates, bearing plates, anchorages, inserts, and other items to be embedded in concrete. 3A1.02 QUALITY ASSURANCE A. Reference Standards: 1. American Concrete Institute (ACI): 347: Recommended Practice for Concrete Formwork. 2. American National Standards Institute(ANSI):A199.1:Construction and Industrial Plywood. B. Allowable Tolerances:Construct formwork to provide completed cast-in-place concrete surfaces complying with the tolerances specified in ACI 347. PART 2 - PRODUCTS 3A2.01 MATERIALS • A. Forms for Exposed Finish Concrete: 1. Construct formwork for exposed concrete surfaces with plywood,metal, metal-framed plywood-faced or other panel type materials acceptable to Architect, to provide continuous, straight, smooth as-cast surfaces. 2. Where plywood is used as the finish forming surface, provide High Density Concrete Form Overlay, Class 1 , complying with ANSI A199.1, B.B. B. Form Ties:Use adjustable-length removable or snap-off metal form ties, designed to prevent form deflection, and to prevent spalling concrete surfaces upon removal. • CONCRETE FORMWORK 3A-1 F.S AA' C' r 'V tt n se commercial formulation form-coating compounds that will not bond with, stain, nor adversely affect concrete surfacos,q, ,j; Ar,c4, SC , T3janc&mm 3A3.01 FORM CONSTRUCTION 4.--0.. ,~iO4 A. tonsloaet forms to be,the Exact sizes, shapes, Tines and dimensions shown, and as required to obtain 34curate alignment,location,grades,levels and plumb work In finish structures. Provide far openings, offsets, sinkages, keyways, recesses, moldings, rustifications, reglets, chamf rah blocking screeds, bulkheads, anchorages and inserts, and other featureirequired. CONCRETE FORMWORK 3A-2 • DIVISION 3 CONCRETE SECTION 3C CONCRETE. GENERAL PART 1 - GENERAL 3C1.01 DESCRIPTION OF WORK A. The work includes providing cast-in-place concrete consisting of portland cement,fine and coarse aggregate,water,and selected admixtures; combined, mixed, transported, placed, finished and cured as herein specified. 3C1.02 QUALITY ASSURANCE A. Reference Standards: 1. ACI 301 "Specifications for Structural Concrete for Buildings". 2. ACI 318 "Building Code Requirements for Reinforced Concrete". 3. ACI 304 "Recommended Practice for Measuring, Mixing, Transporting and Placing Concrete". 4. ACI 311 "Recommended Practice for Concrete Inspection". B. Concrete Testing: 1. All concrete shall be tested in accordance with ACI 318 and ASTM C-21. 2. Concrete mix designs for all types and strengths of concrete shall be prepared by an independent laboratory and submitted to the Architect for approval. PART 2 - PRODUCTS 3C2.01 CONCRETE MATERIALS A. Portland Cement: ASTM C150, Type I or II. B. Aggregates: Conform to ASTM C33. C. Water: Clean, fresh, drinkable. D. Air-Entraining Admixtures: ASTM C260. E. Water-Reducing Admixture: ASTM C494, Type A. CONCRETE, GENERAL 3C-1 I'y;1' 31 •qq , 3epM STeeL.i, CTOR & NvIS P,9 F, V Set-Control oI Admixtures: ASTM C494, as f r. 1. TYPe 8, Retarding !fl�►s: ' 2. rYpa C, Accelerting •' S. 'Noe D, Water-reducin ARd retarding 4. Type I, Water•reducing and G. Calcium Bdm;x Chloride: De not foray containing calcium chloride.e rcium chloride concrete. . Co not c With concrete*ewer, Liquid-Membrane-Forming Curing Compound: ASTM C3 I' `C�oncret® Soaler: prod Cg•Type i, Com • e silent Asti! em-Treat BSM 4Q.0�-YSor pax . min. 40%I� 9 SE81ar, % Solids, ilk/ Mattunatriati 3C3.01 CONCRETE WINO' A. 1 Concrete may!]6 must c to my with tied et batct, Comply with regt:irgrhspnlai or it may be transit-mixed. 3C3.OZ requirements of A3T ACl 3a4, Heady-mixed Batch plants CONCRETE PLACEMENT M C94. concrete shall A. ol ACI :Place Cpr►crolO i+1 Coat B• 1pliance with the aCticpg and recommendations reduced jLeLfri : Protect all concrete temperatures,„s=t' which could ioc ae work from W In compliance emc�frost. freezing or C. with the re 3 actions,P,� is of ACl 306, or law � Impair the qvt Q4n Wi►or, het weather conditions ompllanea w d stren$� e f portCretexist that would seriously FINISHES Protect Cdnerete In A. 'surfaces < < • Provide A coatin t.ere to be Ox s-Cast sm0Oth form frnieh rnater+al applied directly to Wew, for form ed B, subject ApAIY n ,rtho eOncretet are to be covered onCr@8 blurt to vehicular °n st; with Q a��n�4 ..A�finish to concrete deck slabs-'� , ;. C ,ce r end ramps CONCRETE. GEwe■.. 05:39_ 7TCEL. HECTOR & DAVIS P•10 3C3.02 CONCRETE PLACEMENT (cont'd.) 11Pe C. s Apply non-slip aggregate finish to concrete stair treads and platforms.43 ArrA,I..pft 2 y ,s,.,,✓e yr-r r. 3C3.04 CONCRETE REPAIRS A, niitikatim.warkl Concreto work which does not conform requirements,including strength,tolerances, shall the specified the Contractor'.e�c�nso, and finishes,shail.bo corrected at The Contractor shall also be responsible for the cost of corrections to any work effected by or resulting from correct/One to concrete work, the CONCRETE. GENERAL 3C•3 DIVISION 3 CONCRETE SECTION 3E PRECAST PRESTRESSED CONCRETE PART 1 - GENERAL 3E1.01 DESCRIPTION OF WORK A. The work includes furnishing and installing precast, prestressed untopped double tees, girders, spandrels, columns, wall panels, planters, and all other members shown on the drawings. 3E1.02 QUALITY ASSURANCE • A. Manufacturer qualifications:The precast concrete manufacturing plant shall be certified by the Prestressed Concrete Institute,Plant Certification Program,prior to the start of production. B. Erector qualifications: Regularly engaged for a least 5 (five) years in the erection, of precast structural concrete similar to the requirements of this project. C. Welder qualifications: In accordance with AWS D1.1. Welders to be qualified within the last year. D. Requirements of regulatory agencies: All local codes plus the following specifications, standards and codes are a part of these specifications: 1. ACI 318 - Building Code Requirements for Reinforced Concrete. 2. AWS D1.1 - Structural Welding Code - Steel. 3. AWS D1.4 - Structural Welding Code - Reinforcing Steel. PART 2 - PRODUCTS 3E2.01 MATERIALS A. Portland Cement: 1. ASTM C150 - Type I or III. B. Admixtures: 1. Air-entraining admixtures: ASTM C260. 2. Water reducing, retarding, accelerating, high range water reducing admixtures: ASTM C494. C. Aggregates: 1. ASTM C33-85. D. Water: • 1. Potable or free from foreign materials in amounts harmful to concrete and embedded steel. E. Reinforcing Steel: 1. Bars: Deformed billet-steel: ASTM A615. Deformed rail-steel: ASTM A616. Deformed axle-steel: ASTM A617. Deformed low-alloy steel: ASTM A706. 2. Wire: • Cold-drawn steel: ASTM A82. 3. Wire fabric: Welded steel: ASTM A185. Welded deformed steel: ASTM A497. F. Strand: 1. Uncoated, 7-wire, stress-relieved strand: ASTM A416, Grade 270K. G. Anchors and Inserts: 1. Materials: a. Structural Steel: ASTM A36. b. Stainless Steel: ASTM A666. H. 2. Finish: a. Shop primer: Manufacturer's standards. b. Hot-dipped galvanized: ASTM A153. c. Zinc-rich coating: MIL-P-2135, self curing, one component, sacrificial. I. Grout: 1. Cement grout: Portland cement, sand, and water sufficient for placement and hydration. 2. Non-shrink grout:Premixed, packaged ferrous and non-ferrous aggregate shrink-resistant grout. J. Bearing Pads; 1. Random-Fiber reinforced elastomeric pad under beams unless noted. Neoprene pad as noted on drawings. K. Welded studs: 1. AWS D1.1. PRECAST PRESTRESSED CONCRETE 3E-2 • �-'i _�I�ZLihL'�Ilit & DAVIS y P.11 DART 9 . VECUTIoN 3E3.O1 PRODUCT DELIVERY ANO HANDUNG A. Delivery and Handling: 1. Precast concrete members shalt be lifted and supported during manutactUring,stockpiling,transporting and erection operations only at the lifting or supportin point,or both, as shown on the shop drawings, end with approved lifting devices. hie 2• Trem ortation site, s to handling, and erection shalt be performed with acceptable equipment and methodsyand by qualified personnel. d. Installation: pCiyA,Nc"�M ,�:Nt •�Nq 'N& 1. Installation of precut, prestressed concrete shall be performed by the manufacturer ore competent erector. Members shalt be lifted by means of ttible lifting devices at points provided by the manufacturer. Temporary $11ornng and bracing, if necossary, shall Comply with manufacturer a recommendations. C. Alignment: kite 1. Members shell be properly alined and le approved shop dr$wlrt = 9 vcled as required by the S #4oR vt i '� day7%1( Corjmvc cute �. - PRECAST PRESTRESSED CONCACTg 3E•3 P. 12 DIV1S1 N C.ORCINTI beCTION 3ktCONNHEY t SEALER$ PART t-.11ENERA1 3111.01 DESCRIPTION Kr A. Provide concrete penetrating sealer system on all horlaonta1Aconcrete deck surfaces Including slabs on grade as herein specified. 3H1.02 QUALITY CONTROL A. Warranty; . 1. The system manufectureLAMJrnish the Owner a written singi6-tourae per formcnce of that the Concrete Penetrating Sealer System will be free of defects related workmanship or material deficiency for a five (5) year period from the date of substantial completion of the work provided under this section of the specification. pARI 2 • PgOQyQTs 31-12.01 SEALER MATERIAL A. Provide a clear liquid "slime" type sealing compound which will penetrate the concrete to provide a surface which is resistant to salts, d®icar chemicals, moisture, gasoline, oil and acids. Sealer material shall not altar the appearance of surface texture of concrete surfaces. Sealer shall be applied et the rate of 125 •SF/Gal. D. Sealant material shall be one of the products offered by the manufecturer's listed below. f1. Dynamlt Nobel of America, inc. - Chem-Trete-SSM 40. . 2. Harry S. Peterson Company- iso-Flex 618 P.9ai; EX€OUTJQH 3H3.01 PREPARATION • A. Examine surfaces to receive sealer to assure that conditions erg acceptable for application of materials. Concrete shall be cured a minimum of 28 days p^ e_- o4pr;'c.4*' G r $rA_C' /na Sri rA c. CONCABTE SCALERS 3H-I w r J 1 '94 OS fit';- 1TEEL,-E TOR & DaVIS 3H3.41 PREPARATION Remove dirt, dust and materialsI,Ik ; nd f B' that will interfere with the propeland effective application of the water repellent coating. C. All caulking, patching and joint sealants should be Installed prior to soplication of this product. 3H3.02 APPLICATION A, Product should be applied es packaged • do not dilute or alter the material. � Preferred method of application is with low pressure 115 PSI) airless spray equipment or with a heavily saturated brush or roller. Spray equipment should be equipped with solvent resistant gaskets and hoses. C, When applying by brush or roller, care will be taken to Insure that sufficient materiel is being appfed to thoroughly saturate the treatmont surfaces maintaining the appropriate square foot Coverage rate determined through previous testing or es specified by the product manufacturer. 3H3.03 WATER TEST • A. After the water repellent has dried, flood the treated surfaces With water as directed by the Architect. Apply additional coating to areas which show evidence of water absorption.on.As tIa Cr:O Ey i1 AA, CONCRETE SEALERS 3H-2 -- •-•-• tr i a t JCL,HEX OR & DAVIS P. 14 0111V puillataussou SECTION 4A UNIT peso RY 4A1.01 DESCRIPTION OF WORK A. The extent of each type of unit masonry work is shown on the drawings and includes but Is not limited to concrete masonry units, 4141.02 QUALITY ASSURANCE A. Codas: Comply with the applicable requirements of governing authorities and codes for the types of masonry construction shown, B. Job MoCk-up: Prior to installation of masonry work, erect sample wall penal mock-up using materials, bond and joint tooling shown or specified for final work. Build mock-up et the site of full thickness and approximately 4 feet x 4 feat, Indicating the proposed range of color, texture end workmanship to be 9ctedj%thecom1edwo(k .Up S A1fovtD BY ;b iherwh4 /Ivan f.�,aY!►N. 4A1.03 JOB CONDITIONS A. Ilisggrtn(Prgtee on;: 1, Protect masonry materials during storage and construction from wetting by rain, snow or ground Water end from soilage or intermixture with earth or other materials. 2. Protect masonry from freezing when the tompersture of the surrounding air is 40 degrees F,and falling.Comply with governing codes and NCMA TEK 16 "Cold Weather Concrete Masonry Construction', PAR) 2 - PROQUOR 4A2.01 MATERIALS A. I Concrete Masonry Units: Hollow load-bearing, ASTM CSO, Type 1, grade N. Aggregate shall conform with ASTM C-33. B. r' Portland Cement: Conform to ASTM Cl 50, Type I. C. .r Hydrated Lime: Conform to ASTM C2O1, Type S. D. ABgregates: Conform to ASTM C 144. UNIT MASONRY 4A-1 E. Water: Clean, free of deleterious materials which would impair strength or bond. • F. Mortar Mix: Type S, conforming with ASTM C270. G. Grout for Masonry Fill: Portland cement, sand, gravel and water, proportioned as required to provide a 28-day minimum compressive strength of 3000 psi. H. Joint Reinforcement: Provide galvanized reinforcement for masonry walls or parapets equal to Durowal "Standard" types unless otherwise noted. I. Control Gaskets: Closed cell neoprene conforming to ASTM C-509 equal to "Everlastic Neoprene" Type NN as manufactured by William Products, Inc. PART 3 - EXECUTION 4A3.01 INSTALLATION, GENERAL A. Thickness: Build single-wythe walls to the actual thickness of the masonry units, using units of nominal thickness shown or specified. B. Cut masonry units using motor-driven saws to provide clean, sharp, unchipped edges. 4A3.02 LAYING MASONRY WALLS A. Do not use mortar or grout which has begun to set or if more than 2-1/2 hours has elapsed since initial mixing. B. Lay-up walls plumb and true to comply with specified tolerances, with courses level, accurately spaced and coordinated with other work. Lay concrete masonry units in running bond with vertical joint in each course centered on units in courses above and below. C. Provide expansion, and isolation joints in masonry where shown. Build-in related items as the masonry work progresses. 4A3.03 CLEANING A. Wipe off excess mortar as the work progresses. Dry brush at the end of each days work. UNIT MASONRY 4A-2 P.1$ owl SIQJV 6 ,METALS Ape., -� T • � ; - N . Ma , PA.RT I. y NE A 5A1.01 DESCRIPTION OF WORK A. Miscellaneous metals include custom fabricated Metal items includin not limited to the following: railings, pipe guards, bollards,cable guards, shelf angles, lintels, elevator divider beams, and pit ladders. 5A1.02 QUALITY ASSURANCE A. Field! Msurernenjs: Take field measurements prior to preparation of shop drawings end fabrication, where possible. 8, fl'a•°&&.. : Preassemble Items in shop to greatest extent passible to minimize field splicing and assembly. C. C A-C A) M eccal Auo'o✓S /Yen44S ,�1'%cifs$D IN ridh aielfe l A PST 2 i P Afp' /k rPrVierD 01 4144%11 ;�D Mr/I CY Al ZA•M I C l c 6A2.01 MATERIALS AND COMPONENTS *I A. Steel Plates, ,Shapes end Bare: ASTM A38. 1 B. Steel Plates to be Bent or Cold Formed; ASTM A2e3, Grade C. I C. Steel Pipe: ASTM A53; type as selected; Grade A. D. Concrete inserts; Threaded galvenIzed malleable iron ASTM A47 or caste�st el AVM A27,Us castings, either E. Ncnshrink Nonferrous Grout: Pot-Rok Anchoring Cement, Lchn & Fink Industrial Products, or equal, F. Metal Primer Paint; alkyd varnish, linseed oil eint Il. A FS TT-p•86G, Type LAELITMEggrioli SA3.01 PREPARATION A. Furnish setting drawings, diagrams, templates, instructions, and MISCELLANEOUS METAL liA-1 directions for installation of anchorages such as concrete inserts, anchor bolts and miscellaneous items having integral anchors which are to be embedded in concrete or masonry construction. 5A3.02 INSTALLATION A. Set work accurately in location, alignment and elevation, plumb, level, true and free of rack, measured from established lines and levels. Provide temporary bracing or anchors in formwork for items which are to be built into concrete, masonry or similar construction. MISCELLANEOUS METAL 5A-2 r+Hl' 31 '94 0;:41F .- L• ,h C.TOR & DAVIS P.16 gdyl,SIQN 7_UCRMAL minaliSTURE�'AQT' CTi41�( SECT1O 1 CAULKING. SEALIKANDISIPANON JQINTE pBr 1 -pEIygRAL 7A1.01 DESCRIPTION OF WORK A. Provide two component polyurethane modified sealant at vortical end horizontal joints not subject to traffic conditions. B, Provide two component polyurethane Sealant at joints subject to traffic conditions, C. Provide elastic expansion joints at concrete decks al shown on the drawings, 7A14ury A URA CE ` A A, ,, f a v L0fg p f oo " x ' :�c ne®s eri is from ly n actues w win, if c required, send a qualified technical representative to project site, for the purpose of advising the installer of proper procedures and precautions for the use of the materials. 7A1.06 JOB CONDroNS A. Weather Conditions: Do not proceed with Installation of sealants under adverse weather condition, or when temperatures are below or above manufacturer's recommended limitations for installation. PART 2 • eRQQUCTS 7A2.01 CAULKING/SEALANT • A. 7vSr_o Corgeonen�„ct ;xt tuacmg seal„ant; FS Tf-S-OO227E-70, Class A, type 2, proprietary two component primeriess sealant. B. Two-Comport it Pcilvyxethnn Se t=np Polyurethane-based, 2-part elastomeric sealant, complying with PS TT-S•O0227g•7O, Class A, type 1 leclf-leveling). C. Jojnt 1jrapr/Seaigt:provide the type joint primer/sealer recommended by the sealant manufacturet. G. pond 6100or Tame; Pblyethrlene tape or other plastic tape es CAULkiNG, SEALING, & EXPANSION JOINTS 7A-1 _ . T •rL- vn a. DPV I: P.17 I* recommended by the sealant manufacturer. E. ;gallant j3aLer Rod: Compressible rod stock polyethylene foam, polyethylene jacketed polyurethane foam, butyl rubber foam, neoprene foam or other flexible, permanent, durable non•absorptive material as recommended for compatibility with sealant by the sealant manufacturer. F. elastic expansion joint system shall be preformed es manufactured by the Watson Bowman Acme Company. LA Maria 7A3.01 CAULKING/SEALANT APPLICATION A. „airnt sac/ace Ptenam r : Clean joint surfaces Immediately before installation of sealant or caulking compound. Remove dirt, Insecure moisture oisture and other substances which would Interfere with bond of sealant or caulking compound. B. Jnstallatiogp Employ only proven Installation techniques, which will ensure that sealants will be deposited In uniform, Continuous ribbons without gaps or air pockets, with complete "wetting' of the joint bond surfaces equally on opposite sides. Except as otherwise Indicated, fill sealant rabbet to a slightly concave surface, slightly below adjoining surfaces. 7A3.02 EXPANSION JOINT INSTALLATION A. Supply expansion joint elements In full length of joint and turn up a minimum of 6 Inches into woo at wait or Columns at each end of the joint. Heat-seal the expansion joint element at all directional changes. B. Clean the contact flaps of the expansion joint membrane and set in base coat. Position the expansion joint membrane over the opening In the deck, cantered end straight: _ C, Pour elastomerio concrete mixture with aggregates into the btOckout . recess, compact and consolidate mixture well to fill all voids around membrane. Finish to a dense, smooth level surfaceAs Afp'/;ov;'71 y y 77fe AA`venit'T, CAULKING, SEALING, 6 EXPANSION JOINTS 7A•2 D. Cure the installation in a manner recommended by the manufacturer of the system. CAULKING, SEALING, & EXPANSION JOINTS 7A-3 DIVISION 7 THERMAL AND MOISTURE PROTECTION • SECTION 7B WATERPROOFING AND DAMPPROOFING PART 1 - GENERAL 7B1.01 DESCRIPTION OF WORK A. Provide fluid applied waterproofing at exterior walls below grade. 7B1.02 JOB CONDITIONS A. Weather Conditions: Proceed with waterproofing work only when weather conditions comply with manufacturer's recommendations, and will permit the materials to be applied in accordance with the recommendations of the manufacturer. PART 2 - PRODUCTS 782.01 MATERIALS A. Urethane Fluid Applied Waterproofing (cold applied), 2-Part. B. Protection Course: Semi-Rigid Composition Board: 1/8 inch thick, asphaltic laminated, premolded type of protection course. PART 3 - EXECUTION 763.01 PREPARATION OF SUBSTRATE A. Clean the substrate of projections and substances detrimental to the work; comply with recommendations of the prime materials manufacturer. 7B3.02 INSTALLATION A. Apply a uniform coating of fluid applied waterproofing to the substrate and adjoining surfaces. Apply coating by either hand or machine spray methods, except comply with manufacturer's specific recommendations for particular areas of application. Provide 60 mil average thickness, 50 mil minimum. B. Install protection course on membrane using adhesive application as recommended by the membrane manufacturer. WATERPROOFING AND DAMPPROOFING 7B-1 SECTION 7C TRAFFIC BEARING WATERPROOF MEMBRANE Part 1 - General 7C1.01 DESCRIPTION OF WORK A. Provide traffic bearing waterproof membrane on parking deck surfaces over all retail areas, storage room, truck dock and parking office areas. PART 2 - PRODUCT 7C2.01 MATERIALS A. Traffic bearing waterproof membrane systems shall be either of the following: 1. MacNaughton-Brooks (EMBF) - Kelmar T.E. System 2. Harry S. Peterson Co. - 'so-Flex 7500 B. Wearing course shall be as follows: 1. Medium duty - parking stalls 2. Heavy duty - driving aisles - 40 mils. PART 3 - EXECUTION 7C3.01 Preparation of Substrate A. All surfaces to receive traffic bearing waterproof membrane shall be steel shotbiasted. • WATERPROOFING AND DAMPPROOFING 7B-2 SEC'rION 7C TRAFFIC BEARrNN WATERPROOF MEMBRANE Part 1 - General 7C1.O1 DESCRIPT1ON OF WORK A. Provide traffic bearing waterproof membrane on parking deck surfaces over all retail areas, storage room, truck dock and parking office areas. PART 2 - PRODUCT 7C2.01 W.TERIlI.S A. Traffic bearing waterproof membrane systems shall be: I. MacNaughton-Brooks (EMBP) -Kelmar T.E. System 2. Harry S. Peterson Co. - Iso-Flex 7500 3. or approved equal B. Wearing course shall be as follows: 4.1�1. duty - parking stalls 2. Heavy duty -driving aisles • 40 mils. PART 3 - EUCU'l'ION 7C3.O1 Preparation of Substrate A. All surfaces to receive traffic bearing waterproof membrane shall be steel shotblasted. • WATERPROOFING AND DAMPROOFING 7C-1 • DIVISION 7 THERMAL&MOISTURE PROTECTION SECTION 7D ROOFING PART 1 - GENERAL 7D1.01 DESCRIPTION OF WORK A. Provide single ply roofing, composite flashing, cant strips, and cements as required to provide a watertight installation. 7D 1.02 QUALITYASSURANCE A. System and components shall comply with local building code. • PART 2 -PRODUCTS 7D2.01 MATERIALS A. Rigid roof insulation shall be perlite and fibers molded with fillers and water- resistant binders into rigid, non-combustible boards with integral skin on top surface. B. Roof membrane shall be single-ply sheet membrane as manufactured by Carlisle, Firestone, Gates, General Tire, Sanafit Weatherguard or approved equal. C. Metal Flashing (and Counter Flashing): AISI Type 302/304 stainless steel or strip, complying with ASTM A167-77; dead soft; No. 2D conventional dull finish, 0.015 inch thick (28 gage). PART 3 - EXECUTION 7D3.01 GENERAL INSTALLATIONREQUIREMENTS A. Roofing insulation and roofing membrane shall be applied in accordance with the accepted roofing manufacturer's specifications and as approved by the Architect. • ROOFING 7D-1 l 1 CIS AND MOjS"r1' F PRQ'I jEc'TiON acznoizaaA N QN JOINTS • IPAR'f ! . xE Ar 7F1.01 DESCRIPTION A. Provide daadc expansion joints at concrete deck around the stair/elevator tower at each floor as shown on the drawings. klos-ek*, 7F1.02 QUAL/TYASSURAN E %tit yean A. The C tract J `t.ke sum . °r shall guarantee the expansion joint system for a period of two (2) years. He shall repair or replace work which leers water, deteriorates excessively or otherwise fails to perform as required due to failures of materials or workmanship. The guarantee shall include an agreement to remove and repair other work which has been superimposed On the elastic expansion joint work, to the extent required to repair or replace the elastic expansion joint work. RT 2 • PRODUC'T,�, 7F2.01 MATERIALS A. Elastomeric joint seals shall be performed of the following material: I. Two part urethane sealant, Lab Shore A durometer 30 Avg, meeting the requirements of P.S.TT.S-00227-E Cuss A,Type 1, a. Expansion gland shall be sized for proper joint movement; from plus 2' " to minus I". B. Manuficturer3 offering products to comply with the requirements of elasti expansion joints include: c 1. Harry S. Peterson Company 2. Pecore Corporation 3. Tremco 4. or approved equal ELASTIC EXPANSION JOINTS 7F•1 pAAT 3 -ExEC TI T( rk7P3.O1 CONDrriON OF SUBSTRATE A. Examine the substrate and the Condition* under which the elastic expansion joint units will be installed, 00 not proceed with the work until unsatisfactory conditions have been cor{ectedrtw" Ar;Fida 7 y ;K$' I/:4;v'-'_;,i 7F3.02 INSTALLATION A. Comply with manufacturer's instructions for handling and Installation of the elastic expansion joint materials,except wher8 more stringent requirements are shown or specified. B. Perform all cutting,and fitting required for the installation of the items. Set the work accurately in Location, alignment end elevation, plumb, level, true, measured from established lines end levels. C. Seal ell butt joints, mitered Jams and points where joints terminate with manufacturers recommended sealant, ELASTIC EXPANSION JOINTS 7F-2 (IH I of d� :-��'�i ►; HECTOR & DAv I S R 21 t t DIVISION B,.00f RSJ&ILtNDOW1 1: SON 4 AL WORK / - i'$ ��, 44 . 'a�� PAMr I • GEN ��. .( , • 8A1.01 bESCRIPTIQN OF WORK y ` F�, ,��•'•' A. This Section includes hollow metal doors, pressed steel frames for doors and louvers installed therein. $A1.02 OUAUTY ASSURANCE A. Provide hollow metal work rnenufacturod by a single firm epocialiaing in the production of this type of work. B. Fire Rated Assemblies: Wherever a fire-resistance classification is shown or scheduled for hollow metal work, provide fire-rated hallow metal doors and frames investigated and tested as a fire door assembly, complcte with type of fire door hardware to be used. Identify each fire door and frame with recognised testing laboratory labels,indicating applicable fire rating of both door and frame. V £ i4T�2+,� aQ CT8 8A2.01 MATERIALS 7�, r, 6AL'11r'I. A. J goid:R4Iled Stgai�gtt: Commercial quality carbon steel/complying with ASTM A366 and ASTM A$68. 14 gage for frames, 16 page for door*. B. Supeorta and Anchor%: Febrlcoto of not leas than 16 gage sheet metal. 8A2.02 FABRICATION, GENERAL A. Fabricate h0liow metal units to be rigid, neat In appearance and free from defects, warp or buckle. Accurately form metal to required sizes and profiles. Frames to be full-welded unite, B. Prepare hollow metal units to receive mortises and concealed finish hardware. Including cut-outs, reinforcing, drilling end tapping in accordance with final Finish Hardware Schedule and templates provided by hardware supplier. C. Shoo Painting: GAM/pf''Zi: 1. Non siselsurfaces of Insilicalwrzueb oil,grease, dirt and other foreign materials bitere the application of the shop coat of paint. 2. Apply a smooth Coat of oven consistency to provide a uniform dry film thickness of not less than 2.0 mils. HOLLOW METAL WORK $A-1 • OUTLINE SPECIFICATIONS Proposed Parking Structure Seventh Street and Collins Avenue Miami Beach, Florida March 18, 1994 Revised May 20, 1994 OUTLINE SPECIFICATIONS TABLE OF CONTENTS DIVISION 1 - GENERAL REQUIREMENTS PAGES Section 1A General Requirements 1A 1 DIVISION 2 - SITEWORK Section 2A Excavation, Filling and Grading 2A-1 = 2A-2 2D Demolition (By McCarthy) DIVISION 3 - CONCRETE Section 3A Concrete Formwork 3A-1 = 3A-2 3C Concrete, General 3C-1 = 3C-3 3E Precast Prestressed Concrete 3E-1 = 3E-3 3H Concrete Sealers 3H-1 = 3H-2 DIVISION 4 - MASONRY Section 4A Unit Masonry 4A-1 = 4A-2 DIVISION 5 - METALS Section 5A Miscellaneous Metal 5A-1 = 5A-2 DIVISION 7 - THERMAL AND MOISTURE PROTECTION Section 7A Caulking, Sealing and Expansion Joints 7A-1 = 7A-3 7B Waterproofing and Dampproofing 7B-1 = 7B-2 7C Traffic Bearing Waterproof Membrane 7C-1 7D Roofing 7D-1 7F Elastic Expansion Joints 7F-1 = 7F-2 DIVISION 8- DOORS.WINDOWS_ GLASS Section 8A Hollow Metal Work 8A-1 = 8A-2 8B Aluminum Assemblies 8B-1 8C Glass and Glazing 8C-1 DIVISION 9 - FINISHES Section 9A Painting 9A-1 = 9A-2 9C Ceramic Tile 9C-1 = 9C-2 DIVISON 10 - SPECIALTIES Section 10A Signs, Graphics and Supports 10A-1 108 Miscellaneous Specialties 10B-1 10C Toilet Accessories 10C-1 = 10C-2 10D Exterior Screening (By McCarthy) DIVISION 14 - CONVEYING SYSTEMS Section 14A- Electric Elevators • 14A-1 = 14A-4 DIVISION 15 - MECHANICAL Section 15A- Plumbing and Drainage Section 15B - Heating and Ventilating DIVISION 16 - ELECTRICAL Section 16A Electrical Work PART 3 -EXECpTLQN, . do, 7F3.01 CONDITION OF SUBSTRATE A. Examine the substrate and the Conditions under which the elastic expansion joint units will be installed. Do not proceed with the work until unsatisfactory conditions have been corrected Vdt. i rPi'osv:0 S y Toe .rim 7F3.02 INSTALLATION A. Comply with manufacturer's instructions for handling and installation of the elastic expansion joint materials,except where more stringent requirements ate shown or specified. B. Perform ail cutting,and fitting required for the installation of the Items. Set the work accurately hi location, alignment and elevation, plumb, lovol, true, measured from established lines and levels. C. Seal ell butt joints, mitered joints and points where joints terminate with manufacturer's recommended sealant. • • • ELASTIC EXPANSION JOINTS 7F•2 D,fyISION 100�_-- AJID WINQOWS PART j • UN§j 41.E 891.01 DESCRIPTION OF WORK A. Provide aluminum door$ and frames and fixed light windows at elevator lobby at roof. Parking office. 881.02 QUALITY ASSURANCE A. Standards: Comply with the requirements and recommendations in applicable specifications end standards by NAAMM, AAMA and AA. PART 2 -pRQs{ICTI 082.01 MATERIALS AND ACCESSORIES A. Ababa Provide alloy and temper as recommended by manufacturer for strength,corrosion resistance,application of required finish end control of color, but not less than 22,000 psi ultimate tensile strength. S. fast Eutenea:Aluminum,non-ma patio stainless steel or other non-corrosive metal C. 1�r atheratrinthne; Provide manufacturer's standard replaceable stripping of wool, polypropylem or nylon woven pile. Et. ,�. For.glazing factory-installed glass provide manufacturer's ' standard atdpping of molded neoprene or molde PVC. E. Hprd-wster Provide manufacturer's standard hardware for entrance doors. 082.02 FABRICATION A. Prg abd aticn; Except as otherwise indicated, provide each continuous unit of framework,doors,windows,and ail accessory items,as a' unit. Complete the fabrication,assembly,finishing,application ware o d ail other work, before shipment to the protecitnAlto the of act extent poaelble. f T.3 - EXE uTigH 8B101 INSTALLATION A. Sat units plumb, level and true to lino. without warp or rack of frames, doors or panels. Anchor securely In place. Separate aluminum and Other corrodible metal surfaces from sources of cerroa7en or electrolytic action at points of contact with other materiala. DNA Z ; a, ALUMINUM ASSEMBLIES 88-1 • DIVISION 8 DOORS AND WINDOWS SECTION 8C GLASS AND GLAZING PART 1 - GENERAL 8C1.01 DESCRIPTION OF WORK A. The extent of glass, and glazing work is shown on the drawings and includes but is not limited to the following types of glass: 1. Tempered Glass - Elevator Lobby at Roof, Parking Office. 8C1.02 - QUALITY ASSURANCE A. Glass shall meet requirements of FS DD-G-451 and FS DD-G-1403 for applicable type of glass hereinafter specified. B. Safety Glass: Comply with ANSI 297.1 with label on each piece. PART 2 - PRODUCTS 8C2.01 GLASS A. Laminated Safety Glass: Two sheets of double-strength "A" quality, clear sheet glass (FS DD-G-451,Type II,Class 1, Quality q5); permanently laminated together with a 0.025 inch thick sheet of clear plasticized polyvinyl butyral. B. Tempered Glass: Plate glass (FS DD-G-451D-77, Type I), which has been heat-strengthened by manufacturer's standard process to achieve a flexural strength of 4 times normal glass strength. C. Glazing Sealants/Compounds: Provide hardness of materials as recommended by the manufacturer for the required application and condition of installation in each case. PART 3 - EXECUTION 8C3.01 ' STANDARDS AND PERFORMANCE A. Watertight and airtight installation of each piece of glass is required. Each installation must withstand normal temperature changes, wind loading, impact loading (for operating sash and doors) without failure of any kind including loss or breakage of glass, failure of sealants or gaskets, deterioration of glazing materials and other defects in the work. GLASS AND GLAZING 8C-1 DIVISION 8 DOORS. WINDOWS. AND GLASS SECTION 8F ROLLING GRILLES PART 1 - GENERAL 8F1.01 DESCRIPTION OF WORK A. Provide complete operating door assemblies at truck dock and at the main entrance/exit of the parking garage including door curtains,guides,counterbalance mechanism, operators and installation accessories,as shown on the drawings and herein specified. B. The following types of rolling grilles are specified in this section: 1. Aluminum rolling grilles. 8F1.02 QUALITY ASSURANCE A. Furnish each rolling grille as a complete unit produced by one manufacturer, including hardware, accessories, mounting and installation components. B. Furnish all rolling grille units by one manufacturer for the entire project. PART 2 - PRODUCTS 8F2.01 MANUFACTURERS A. Manufacturers offering products to comply with requirements for rolling grilles include the following: • 1. Apton Metal Products Corp. 2. Atlas Steel Products Co. 3. The Cookson Co. 4. Cornell Iron Works, Inc. 5. Kinnear Div., Harsco Corp. 6. Mahon Rolling Doors. 7. Overhead Door Corp. 8. Pacific Rolling Doors 9. Southwestern Steel Rolling Door Co. 10. J.G. Wilson Corp. 11. Windsor Door Co. Div., Ceco Corporation 8F3.02 . INSTALLATION A. Install door and operating equipment complete with necessary hardware,jamb and head mold strips,anchors,inserts,hangers,and equipment supports in accordance with final shop drawings, manufacturer's instructions, and as specified herein. ROLLING GRILLES 8F-1 •• k)••4_ i I - - _�n�. I LirT. LT,v J._ - DIVISION 9 FINISlaS fi,ECYIUN„ eA,_i„_! TINO „trzgrigalkla 8A1.01 DESCRIPTION OF WORK A. The extent of painting work includes painting parking lines, arrows, miscellaneous meta%concrete blocksurfaces where indicated on the drawings, exposed pipes end primed metal surfaces of equipment installed under the mechanical and electrical sections. $A1.02 OUALITY ASSURANCE A. Dint Cootilinati : Provide finish coats which are compatible with the prime paints used. B. Beater+ Sle ds: $$PC a 'Systems and Specifications', published by the Steel Suuature Painting Council. SA1.03 JOB CONDITIONS A. Apply solvent-thinned paints only when the temperature of surfaces to be painted and the surrounding air temperatures are between 45 degrees F. end 95 degrees F., unless otherwise permitted by the paint manufacturer's printed Instructions. SA2.O1 MATEAIAL. QUALITY A. Provide only absolutely pure Linseed oil, turpentine, shellac, and other like materials that are of the highest quality, with identifying labels intact end seals unbroken. Use no thinners other than those specified by the manufacturer. Punt shall be equal to Sherwin Williams heavy duty maintenance coating. 9A2.02 FINISH APPUCATION SCHEDULE A, Provide point systems for the vorioua substrates as follows: • 1. (grtati(Matelai 1 coat primer 2 coats high gloss alkyd enamel • 2, re2WitdarisiSPA �t. �.=rrsr S-nucc.o I coat latex sumo' filler 2 coats semi-gloss latex PAINTING 9A-1 . If.; •�_ri• SILCL.!-1GlIL� e. Lr:\ L5 r . 9A2.02 FINISH APPLICATION SCHEDULE (coned) A. 3. 'raffia;and Parklog Stall Markings: 1 cost traffic paint (yellow) 14 to 15 wet film thieknase PART 3 •JXECUTION 9A3.01 SURFACE PREPARATION A. Perform a0 preparation and cleaning procedures in strict accordance with the paint manufacturer's instructions for each particular substrate condition. 9A2.02 APPUCATION A. Apply paint with brush,roller,spray, or other,acceptabie practice in accordance with the manufacturer's directions v3:r4, -eo Ar.Cw'~een Air'Agvvt S. Spread all materials evenly and smoothly without runs, sags or other defects, Make ■dges of paint adjoining other materials or colors sharp and clean,without overlapping. PAINTING 9A-2 DIVISION 9 CERAMIC SECTION 9C - CERAMIC TILE PART 1 - GENERAL 9C1.01 DESCRIPTION OF WORK A. Ceramic tile shall be used in all washroom facilities, floors and walls. Perform all work necessary and required for the construction of the project. Such work includes but is not limited to the following: 1. Glazed and unglazed ceramic tile. 2. Installation of ceramic tile. 3. Setting bed. 4. Grout. 5. Surface preparation and final cleaning. 9C1.02 QUALTTYASSURANCE A. Materials and installation for ceramic tile work shall comply with applicable requirements of local building codes, Handbook for Ceramic Tile Installation published by Tile Council of America, Inc., ASTM Specifications referenced and applicable portions of ANSI Specifications A108, A118 and A137. PART 2 - PRODUCTS • 9C2.01 SETTING MATERIALS A. Latex modified dry set Portland cement mortar conforming to ANSI A108 and A118 produced under Tile Council of America Formula; 759 for quarry tile, pavers and ceramic mosaics on walls and floors. 9C2.02 CERAMIC TILE A. All tile shall be graded and meet or exceed requirements of ANSI A137.1, U.S. Department of Commerce SPR-R61, and Tile of America. 9C2.03 GROUT MATERIALS. A. Latex Modified Portland Cement Grout: Hydroment colors as selected. CERAMIC TILE 9C-1 PART 3 -EXECUTION 9 C3.01 INSTALLATIONTILES A. All all tile shall be properly installed, (including expansion and crack control joints), grouted, cleaned, protected, and cured in accordance with the applicable Standard Specifications of The Tile Council of America and the American National Standards. CERAMIC TILE 9C-2 DIVISION 10 SPECIALTIES SECTION 10A SIGNS. GRAPHICS AND SUPPORTS PART 1 - GENERAL 10A1.01 DESCRIPTION OF WORK A. Furnish and install reflective traffic signs and graphics at the locations and in accordance with the details shown on the drawings. 10A 1.02 QUALITY ASSURANCE A. Manufacturer's Instructions: The assembly, erection, and installation of each type of sign or graphic shall be accomplished in strict accordance with signage manufacturer's instructions. PART 2 - PRODUCTS 10A2.01 MATERIALS A. Signs: Aluminum blanks of 6061-T6 aluminum alloy conforming to ASTM B-209-47, 0.125 inches thick. B. Reflective Sheeting: Equal to 3M Company "Scotchlite" reflective sheeting engineer grade, Series, 3200. Colors as indicated on the drawings. C. Anchors and Fasteners: General: aluminum, non-magnetic stainless steel or other non-corrosive metal fasteners which are compatible with the items being fastened. 10A2.02 FABRICATION A. The fabrication of aluminum sign blanks including cutting to size and shape and the punching of mounting holes shall be completed prior to metal degreasing and the application of reflective sheeting. B. Non-reflective copy, shall be applied by the silk screen process in a manner specified by the reflective sheeting manufacturer. C. Encapsulated lens reflective sheeting shall be of the pressure sensitive adhesive type and shall be applied in a manner specified by the reflective sheeting manufacturer. PART 3 - EXECUTION • 10A3.01 INSTALLATION OF ACCESSORIES A. Provide anchorage devices and fasteners where necessary for securing signs; including, threaded fasteners for concrete and masonry inserts, through-bolts, • lag bolts, and other connectors as required. SIGNS, GRAPHICS, & SUPPORTS 10A-1 DIVISION 10 SPECIALTIES SECTION 10B MISCELLANEOUS SPECIALTIES (NIC) PART 1 - GENERAL 10B1.01 DESCRIPTION OF WORK A. The following specialty items are included under this section: 1. Two Control Booths 10B1.02 QUALITY ASSURANCE A. Manufacturer's instruction comply with manufacturer's instructions and recommendations for all phases of the work,including preparation of substrate, installation of materials, and protection of installed specialty unit. PART 2 - PRODUCTS 10B2.01 CONTROL BOOTH A. Furnish a prefabricated control booth constructed of aluminum with a natural satin anodized finish. Control booth shall be complete with electrical outlet, lighting and heat. B. The control booth shall be equal to Porta King Model #7648SL. PART 3 - EXECUTION 10B3.01 INSTALLATION A. Comply with manufacturer's recommendation for the installation of specialty units. • MISCELLANEOUS SPECIALTIES (NIC) 10B-1 DIVISION 10 - SPECIALTIES SECTION 10C -TOILET ACCESSORIES PART 1 - GENERAL 10C1.01 DESCRIPTION OF WORK A. The work of this section includes, but is not limited to, the following: 1. Toilet accessories. 10C1.02 QUALITY ASSURANCE A. Coordinate the work of this section with related work of other sections. Provide location templates or diagrams to accurately locate required blocking and supports. B. Provide toilet accessories which are the products of one manufacturer. PART 2 - PRODUCTS 10C2.01 TOILET ACCESSORIES A. Stainless Steel: AISI type 302/304, with NAAMM No. 4 satin finish, 22 gage minimum. B. Galvanized Plating: Nickel and chromium electro-deposited on base metal of steel or brass, ASTM B456, type SC2. C. Chromium Plating: Nickel and chromium electro-deposited on base metal of steel or brass, ASTM B456, type SC2. D. Fasteners: Where exposed, provide fasteners finished to match accessory. PART 3 - EXECUTION 10C3.01 INSTALLATION A. Install work truly plumb, level, square and in alignment with adjacent work. B. Adjust operating parts to work easily, smoothly, and correctly. C. Toilet room is to have handicapped install toilet accessories at locations and TOILET ACCESSORIES 10C-1 heights required by authorities having jurisdiction for handicapped accessibility as approved by Architect. TOILET ACCESSORIES 10C-2 l - � DIVISION 10 SPECIALTIES SECTION 10B MISCELLANEOUS SPECIALTIES PART 1 - GENERAL 10B1.01 DESCRIPTION OF WORK A. The following specialty items are included under this section: 1. Two Control Booths 10B1.02 QUALITY ASSURANCE A. Manufacturer's instruction comply with manufacturer's instructions and 'recommendations for all phases of the work,including preparation of substrate, installation of materials, and protection of installed specialty unit. PART 2 - PRODUCTS 10B2.01 CONTROL BOOTH A. Furnish a prefabricated control booth constructed of aluminum with a natural satin anodized finish. Control booth shall be complete with electrical outlet, lighting and heat. B. The control booth shall be equal to Porta King Model #7648SL. PART 3 - EXECUTION 10B3.01 INSTALLATION A. Comply with manufacturer's recommendation for the installation of specialty units. • MISCELLANEOUS SPECIALTIES 10B-1 DIVISION 1d"COFVEYING_SYSIEdS TRIC ELEYP711S PART 1 - GENFRAJ, 14A1.01 DESCRIPTION OF WORK A. The extent of work includes furnishing and installing two electric passenger elevators. 14A1.02 QUALITY ASSURANCE A. Elevator Code: Except for more stringent requirements as indicated or imposed by governing regulations, comply with applicable requirements of the "American Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks" (ANSI A17.1) published by the American Society of Mechanical Engineers. hereinafter referred to as the "Code'. B. Electrical Code: For electrical work included In the elevator work, comply with the "National Electrical Code" (latest edition), by NFPA. C. Installer, Either the elevator manufacturer or a license of the manufacturer, who has experience with the installation of similar elevators, and who is currently under contract for maintenance of similar elevator; in the area. PART 2- PRnoUCTS Itgxt. 1bk) 1 14A2.01 SCHEDULE OF ELEVATORS: A. Elevator Number 1 and 2; 1. Capacity and Speed: 2.5oo 163, IV) , Cam 0y4/4; 2. Power Supply:.See electrical drawings. 3. Travel Distance (Approx.): 58 feet (maximum). 4. Landings Served:Six. 5. Operation: Duplex-Selective Collective a. Auxiliary Operations: as specified and including top of car station and emergency car-moving device. 6. Power Supply: 480/277 volts, 3 phase, 60 hertz, AC 7. Car Enclosure: a. Door. Single speed,center opening 3 feet-6 inches wide x 7 feet-0 Inches high. b. Ceiling Height; 8 feet 8. Hoistway Entrances: a. Door: 3 feet-0 inches wide x 7 feet-0 Inches wide. 9. Special Features: a. Emergency lighting in cars. b. Oil visnoslty temperature control. G, Nofii. t'•f - J lcw4 OLZVAtve - CS' LAZt Z,�t Zy WC C' ti 10, Special Requirements: �� y M �w�tw 1A4 CL J i e CcwwNu c \Vt1 S rS4-2v a. Handicapped accessibility per code. b. Firemans service switch. c. Two beam light ray door control, 14A2.02 SIGNAL EQUIPMENT A. General: Except as otherwise indicated, provide manufacturer's standard elevator signal equip(nent which Is consistent with operational complexity of each elevator or group of elevators,including but not limited to the following: 1. Metal Finish: Stainicea steel with No. 4 directional polish and clear belted epoxy coating. 2. Call Buttons: Non-cancellable illuminated type (light extinguishes when call Is answered), of either mechanical-electrical type (silver-to-silver contacts) ELECTRIC ELEVATORS 14A-2 or electronic type. 3. Raised letter/numeral indications will be furnished on all operating panels to comply with Handicapped Code. 4. Car station panel. 5. Corridor pushbottom stations. 6. Lobby direction lantern/gong. 7. Car position indicator. 8, Telephone. 9. Alarm System. 10. Signs. 14A2.03 PASSENGER ELEVATOR CANS A. Finishes for Passenger Elevator Cars shall be as follows: 1. Car Doors: Stainless Steel with No. 4 polish finish. 2. Door Frame and rront Wall: Stainless Steel with No. 4 Polish Finish. 3. Side Wails: Plastic Laminate Paneling. (Vc‘b.A4 R�tS rc) • 4. Back Wall: Laminated P PetvtVhbi (,VJ4 L;tt‘eNk)• 5. Stainless steel handrail on back wall. 6, Floor Covering: Composite Vinyl Tile, 7, Ceiling: Luminous Ceiling System. 8, Emergency Lighting, • 9. Mechanical Ventilation. ELECTRIC ELEVATORS 14A-3 14A2.04 PASSENGER HOISTWAY ENTRANCES A. Hoistway entrances are hereby defined to include doors, frames, sills, hardware, transom panels and accessories as shown and scheduled. Finishes as follows: 1. Door Panels: painted hollow metal. 2. Entrance Frames: Painted hollow metal. 3. Sills: Extruded Aluminum. PART 3 - EXECUTION 14A3.01 INSTALLATION OF ELEVATOR SYSTEM A. General: Comply with Code, manufacturer's instructions and recommendations. Comply with National Electrical Code (ANSI C1 by NFPA) for electrical work required during installation 14A3.03 INSTRUCTION AND MAINTENANCE A Instruct Owner's personnel in the proper use, operations and daily maintenance of the elevators. Review emergency provisions, including emergency access and procedures to be followed at time of failure in operation and other building emergencies. B. Maintenance Period: Starting at the time of final acceptance of elevator work, provide complete systematic inspection and maintenance of each elevator for a period of 1 year. ELECTRIC ELEVATORS 14A 4 PROPOSED PARKING FACILITY 634 - 660 Collins Avenue Miami Beach, Florida Supplementary Outline Specifications May 20, 1994 1. All plates and other embedded items in precast concrete are to be hot-dipped galvanized after fabrication of embedment. All field welds shall be cleaned in accordance with the surface preparation requirements for zinc rich coatings (ZRC) and three coats of ZRC applied. 2. All double tees should have 4" diameter holes through the stems at the one third span points. Double tees above the retail space shall have an 8" diameter hole through the stems at midspan in addition to 4" holes. 3. An alternate price shall be provided to paint the underside and sides of stems of all double tees and beams along with columns within the parking area of this project. 4. The walls on the west and south side shall have a stucco coating with scoring as shown on the drawings. 5. Each planter section shall have a drain and drain riser. Risers shall be sized to meet the South Florida Building Code and have a minimum diameter of 2 inches. 6. Irrigation piping and water supply shall be provided to all planters. Six hose bibs shall be provided on each floor from the irrigation piping. 7. Appropriate flashing and waterproofing shall be provided at column line C at the first structural level above the retail spaces. 8. Water service and sanitary sewer service to be stubbed into center of future back corridor of the retail space. 9. The following retail space items are not in contract: • Slab-on-grade • Demising walls • East wall of retail corridor • New of fill-in store fronts • Tenant material and separate conduit from the electric equipment room to tenant spaces. PROPOSED PARKING FACILITY Miami Beach, Florida Supplementary Outline Specifications May 20, 1994 Page 2 • Separate conduits from the electric room/storage room to tenant spaces for telephone. • An cleetric raceway along the entire Collins Avenue side of the ro placed overhead. property - to be • Tenant washrooms • Vent rixrs, stacks, etc. • Tenant HVAC systems AA•kokk 4404 Crtk 4�A k. 4( \$ 10. ProvideV three waterproof duplex receptacles n each parking floor. 11. Install an annunciator system back to an annunciator panel in the parking office. The annunciator system shall be a two-way communication intercom system to various locations within the parking facility. Activation of system shall be manual at the main annunciator panel and automatic by the activation of various speakers throughout the structure. Activation shall be by pressing a large red button at any intercom. There shall be 6 speakers located on each floor along with one in each elevator and 3 at the revenue control lanes. 12. General Parking Lighting shall be as follows: 12 fc average at driving lanes 5 fc over parking stalls 40 fc average at the main entrance/exit to the garage A maximum to minimum ratio of lighting shall be no greater than 4 to 1 measured at 30" above the floor. 13. Water Distribution a, System shall include: i, City water service and complete installation of water meter, per Miami Beach Water Department Standards and sized for future retail and fire protection system. iktc PROPOSED PARKING FACILITY Miami Beach, Florida Supplementary Outline Specifications May 20, 1994 Page 3 ii. Back-flow prevention devices iii. Water distribution piping. iv. (2) hose bihbs per floor and planter irrigations with vacuum breakers. v. Service to wasiuvums 14. Waste Water Collection a. Furnish and install waster water collection system extended city sewer. Systems shall include: i, Roof drains, interior rain-water leaders, down spouts and cleaaouts. ii. Floor drains, trench drains, waste and vent. iii, Underground drainage piping, basins and manholes, both inside and outside the building, iv. Oil interceptor v. Sump pumps (if required) vi. Stub-in into future retail oktq'N qwi SMv Q' p eAR:� t keV o - P%1 . 15. Plumbing Fixtures and Trim a. Furnish and install complete system of plumbing fixtures and trim properly set and connected to water supplies, soil or waste and vent systems, b. System shall include: i. Electric water heaters ii. Plumbing fixtures iii. Fixture supports PROPOSED PARKING FACILITY Miami Beach, Florida Supplementary Outline Specifications May 20, 1994 Page 6 vii. Emergency Iighting system. viii. Lighting system. ix. Emergency exit signs. x. Grounding system. xi. Revenue control xii. Minimum size of conduit shall be 3/4*. 21. Electrical Service and Distribution a. Work Included: I. Complete 480/277 volts incoming power services from existing building. lt. 480/277 volts 3 phase 4 wire distribution and branch panel boards. iii. 120/208 volts 3 phase four wire distribution and branch circuit panel boards, including service disconnects, iv. A complete grounding system. 22, Lighting a. Furnish and install lighting fixtures to meet or exceed the City of Miami standards and good lighting practices along with footcandle requirements identified in Rein 12 above. 23. Parking Equipment per Miami Beach City Manager referral of parking equipment supplier/installer: Work includes: .a. Closed circuit television system (24 cameras) �Y • b. Audio communications system (20 intercom stations) 0 PROPOSED PARKING FACILITY Miami Beach, Florida Supplementary Outline Specifications May 20, 1994 Page 7 c. Control console (in office) or all security and gate control d. Automatic gate loops (4) e. Revenue control system (2 machine readable ticket spitters) (2 machine readable cast terminals computer) (1 software package and LAN to read) f. Store all transaction in office computer terminal (includes valet software) g. Two guard booths with A/C and lighting h. Conduit for CCTV, audio and gate system - supplied and installed all control cable and loops supply and pulled in place. i. All equipment installed and operational less any electrical service required. DIVISION 1 GENERAL REQUIREMENTS SECTION 1A GENERAL • 1 A.01 The Contractor shall provide all materials, labor and equipment necessary to complete the work in conformance with the construction documents consisting of the contract, instructions to bidders, general conditions, supplementary general conditions, and technical specifications. 1 A.02 The Contractor shall obtain and pay for required permits and approvals. 1 A.03 The Contractor shall provide temporary water, light and power,toilet facilities, field offices, telephones and construction fences. 1 A.04 The Contractor shall provide a project sign identifying the project, owner, 'general contractor, design team, etc. Sign to be as approved by the Owner. 1 A.05 Contractor to provide periodic cleaning and rubbish removal to protect existing property as required by the Owner or code agencies. 1 A.06 Contractor to provide Owner with manufacturers' literature for all items of equipment. After installation, contractor to supply operating manuals and arrange for instruction of personnel where applicable. • GENERAL REQUIREMENTS 1 A-1 I ACTIVITY ' 1994 • 1995 DESCRIPTION DEC JAN IFEB IMAR APR MAY JUN JUL AUG SEP OCT NOV DEC JAN FEB tMAR IAPR IMAY JUN JUL AUG SEP OCT NOV DEC CONTRACT NEGOTIATIONS CONTRACT NEGOTIATIONI I CITY COMMISSION APPROVAL l I_LITT CONIIGGIOI APPROVAL VIROIMEHTM.REPORT ALL jaw I O PROJECT CLOSING (SO DAYS) • ` 1 IFOJECT CLOSING (Go DAYS) DESIGN S/(ECOSTRUCTION rESIGN S PECONGTWXTION I I CAST DOEIMEfTS-PION/FRAM: (SO DAYS) raitErAnanMil FRON/FRAME (Go DAYS) CONS?DOCUMENTS-BALANCE OF FACILITY ' CONE*DOCUMENTS I GS .D(LLA1NCE CF FACILITY PRECAST ESDWINS/QIOP DRAWINGS I PRECAST ENoINEER1NS/SHOP (DRAWINGS PRECAST PROOIICTION ( PRECAST PAOOIJCTIQN SID/AWARD-P ON/FRAME ( BID/WARD-FION/FRAME .�' \!I SID/AWARD- BALANCE OF FACILITY I I W I -BALANCE OF FACILITY N • . 11 OLDS PERMIT -DEMOLITION _QLOD PERMIT -DEMOLITION I SLOG PERMIT APPROVALS- ON/FRAME �! U PERMIT SOS PEIT APPROVALS -FN i N/FRA ' OLDS PERMIT APPROVAL/- BALANCE OF FACILITY BOG PERMIT APPROVALS - BALANCE OF FACILITY CONSTRICTION PHASE ION PHASE („—) MOSILIZE/DEMOLITION r MOBILIZ /DEMOLITION FOUNDATIONS FOUNDATIONS PRECAST ERECTION PRECAST ERECTION MECl/ELECT/PLUMING MECH}ELECT/PLUMBING I EXTERIOR TREATMENT ' EXTERIOR TREATMENT ELEVATORS : ELEVATORS 1 ' RETAIL FINISHES L RETAIL FINISHES• J RGN6LIST I I 1 1 ; PAR INS OCCUPANCY .PARKINS OCCUPANCY I • LEGEND RUN DATE 17MAR94 ACTIVITY DESCRIPTION) BASE DATE 010EC93 BALLET VALET -MILESTONE PARKING/RETAIL FACILITY { MSCARTHY CITY OF MIAMI BEACH. FLORIDA • /////// ///,//,// FILE NAME: BALLET SCHEDULE OF PERFORMANCE EXHIBIT J CUSTOMGANTT PLUS c N-ItIT K t` ', APPLICATION AND CERTIFICATE FOR PAYMENT MA DOCUMENT G702 (Instructions nreverse side) PAO ONI UI 1:.,(,1., TO (OWNER): Ballet Valet PROJECT: Parking Garage APPLICATION NO: 1 Distribution to: 640 Ocean Drive Collins Avenue [_I OWNER . S. Miami Beach, Florida Miami Beach, Florida PERIOD TO: May f27, 1994 U ARCHITECT El CONTRACTOR FROM (CONTRACTOR): McCarthy Brothers Company VIA (ARCHITECT): Desman Associates ARCHITECT'S ❑ 1341 N. Rock Hill Road 300 W. Washington Street PROJECT NO: St. Louis, MO 63124 I' , Chicago, Illinois 60606 CONTRACT FOR: Design and Construction Services CONTRACT DATE: May 27, 1994 CONTRACTOR'S APPLICATION FOR PAYMENT Continuation Sh el, AIA Document is m for Pment, as hown703, isattaw,hed in connection with the Contract. ICHANGE ORDER SUMMARY 1. ORIGINAL CONTRACT SUM $ 6,330,800.00 '� �� Change Orders approved in ADDITIONS DEDUCTIONS 2. Net change by Change Orders $ 0.00 previous months by Owner 3. CONTRACT SUM TO DATE (Line 1±2) $ 6,300.800.00 - TOTAL 4. TOTAL COMPLETED & STORED TO DATE $ 193,764.00 Approved this Month • (Column G on G703) Number Date Approved 5. RETAINAGE: a. 110 % of Completed Work $6,000.00 (Column D+E on G703) • b. _% of Stored Material $ (Column F on G703) • Total Retainage (Line 5a+5b or • TOTALS • Total in Column I of G703) $ 6,000.00 Net change by Change Orders 6. TOTAL EARNED LESS RETAINAGE $ 187,764.00 The undersigned Contractor certifies that to the best of the Contractor's knowledge, (Line 4 less Line 5 Total) information and belief the Work covered by this.Application for Payment has been 7. LESS PREVIOUS CERTIFICATES FOR completed in accordance with the Contract Documents, that all amounts have been PAYMENT (Line 6 from prior Certificate) $ 0.00 .•,., paid by the Contractor for Work for which previous Certificates for Payment were 8. CURRENT PAYMENT DUE $ . _187,764.00 .t— 4:;:iIssued and payments received from the Owner, and that current payment shown 9. BALANCE TO FINISH, PLUS RETAINAGE $ h,I37,.036.00 ,,,,,_,,,herein is now due. (Line 3 less Line 6) CONTR OR: State of: I cS`x i.1T, County.of:�A, Lr•)'`...�] Subscribed and s orn tobefore a thi 171� t1 (,( i"te ,19 ' ply Notary Public:i Y� l- ,� , (� JAM;A.i.i TTL fl BY t • � � — Date: 2� Il MyCommissio xpires: /1 •/C,,/ ARV PLIBLIC STATE .':1 If=en p /0,49UM C::11:,:r !O?wi.CII,:_.r..rs AMOUNT CERTIFIED MY ti` r"s.,Q.`i ft"$ �713/.x.3.6 ....IN .Uot�� ARCHITECT'S CERTIFICATE FOR PAYMENT (Attach explanation if amount certified differs from the amount applied for.) In accordance with the Contract Documents, based on on-site observations and the ARCHITEC : data comprising the above application,the Architect certifies to the Owner that to the best of the Architect's knowledge,information and belief the Work has progressed as By: ' Date. • 99 _ indicated,the quality of the Work is in accordance with the Contract Documents,and This ificate i •of gotiable. The AMOUNT CERTIFIED is payable onlyto the the Contractor is entitled to payment of the AMOUNT CERTIFIED. b P y Contractor named herein. Issuance,payment and acceptance of payment are without prejudice to any rights of the Owner or Contractor under this Contract. MA nOCUMENT G702•APPLICATION AND CERTIFICATE FOR PAYMENT•MAY 1983 EDITION•AIA• •kg.1983 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASIIINGTo)N. I).C:. 20006 ,,,,,,,, ,,,,,,, CONTINUATION SHEET AlA DOCUMENT G703 PAGE 1 OF 2 PAGES MA Document G702,APPLICATION AND CERTIFICATE FOR PAYMENT, containing APPLICATION NUMBER: 1 Contractor's.signed Certification is attached. APPLICATION DATE: May 27, 1994 In tabulations below,amounts are stated to the nearest dollar. PERIOD FROM: January 1, 1994 Use Column I on Contracts where variable retainage for line items may apply. TO: May 27 , 1994 ARCHITECT'S PROJECT NO: A , B C D E F G H I WORK COMPLETED TOTAL COMPLETED ITEM DESCRIPTION OF WORK SCHEDULED I BALANCE RETAINAGE No. VALUE ' This Application AND STORED % TO FINISH Previous TO DATE (G-C) Stored Materials IC-G) Applications Work in Place (not in O or E) ID+E+F) 1 Excavation 58,031.00 0.00 0.00 0.00 58,031.00 2 Demolition 77,035.00 . 0.00 0.00 0.00 77,035.0C �'�fl 3 Site Improvements 23,636.00 0.00 0.00 0.00 23,636.0C ;' 4 Landscape & Irrigation 115,000.00 0.00 0.00' 0.00 115,000.0C 5 Dewatering Allowance 5,000.00 0.00 0.00 0.00 5,000.00 6 Termite Control 6,054.00 0.00 0.00 0.00 6,054.0C 7 Auger Cast Piles 144,1164.00 0.00 0.00 0.00 144,164.0C 8 Cast In Place Concrete 276,'478.00 0.00 0.00 0.00 276,478.00 9 Precast Concrete 2,753,671.00 0.00 60,000.00 0.00 60,000.00 2% 2,693,671.00 6,000.00 10 Masonry 28,108.00 0.00 0.00 0.00 28,108.0C 11 Misc. Metals 14,823.00 0.00 0.00 0.00 14,823.00 12 Rough Carpentry 14,332.00 0.00 0.00 0.00 14,332.00 13 Caulking & Wtrproofing 180,918.00 0.00 0.00 0.00 .180,918.0( 14 Roofing 2,619.00 0.00 0.00 0.00 2,619.00 15 Expansion Joints 46,963.00 0.00 0.00 0.00 46,963.00 16 Hollow Mtl & Fin Hdwre 13,536.00 0.00 0.00 0.00 13,536.00 17 Glass & Glazing 11, 170.00 0.00 0.00_ _ 0.00 x 14, 18 Rolling Grilles 14,526.00 0.00 0.00 0.00 1 ,526.00 ,526.00 i �L,19 Painting 21,564.00 0.00 0.00 0.00 21,564.00 - 20 Drywall & Stucco 15,083.00 0.00 0.00 0.00 15,083.00 21 Ceramic Tile 1,796.00 0.00 0.00 0.00 1,796.00 22 Acoustical Ceiling 740.00 0.00 0.00 0.00 740.0C 23 Resilient Flooring 555.00 0.00 0.00 0.00 555.00 24 Signage Allowance 20,000.00 0.00 0.00 0.00 20,000.00 .25 Specialties 9,761.00 0.00 0.00 0.00 9,761.00 26 Exterior Screen 441,731.00 0.00 0.00 0.00 441,731.0C 27 Elevators 174,965.00 0.00 0.00 0.00 174,965.0C 28 Plumbing 191,760.00 0.00 0.00 0.00 191,760.0C 29 H.V.A.C. 26,302.00 0.00 0.00 0.00 26,302.00 AIA DOCUMENT G703 • CONTINUATION SHEET • APRIL 1978 EDITION • AR) • O 1978 THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVE.,N.W.,WASHINGTON, D.C. 20006 G703-1978 CONTINUATION SHEET AIA DOCUMENT G703 PAGE 2 OF 2 PAGES • AIA Document G702,APPLICATION AND CERTIFICATE FOR PAYMENT,containing APPLICATION NUMBER: 1 Contractor's signed Certification is attached. APPLICATION DATE: May 27, 1994 In tabulations below,amounts are stated to the nearest dollar. PERIOD FROM: January 1, 1994 Use Column I on Contracts where variable retainage for line items may apply. TO: May 27 1994 ARCHITECT'S PROJECT NO: . A B , C 0 E F G H I ITEM DESCRIPTION OF WORK SCHEDULED WORK COMPLETED TOTAL COMPLETED No. VALUE This Application AND STORED % BALANCE RETAINAGE Previous TO DATE (G=U T ( FINISH Applications Work in Place Stored Materials (D+E+F) IC—G) (not in D or El 30 Fire Protection 1 21,517.00 0.00 0.00 0.00 21,517.00 31 Electrical 259,997.00 0.00 0.00 0.00 259,997.00 _ '.� '132 DIRECT COST 4,971,835.00 .0.00 0.00 0.00 4,971,835.00 33 General Conditions 540, 126.00 0.00 27,000.00 0.00 27,000.00 5% 500, 126.00 0.00 34 6% Design Fee 332,458.00 0.00 100,220.00 0.00 100,220.30 30% 232,238.00 0.00 35 Perf. & Payment Bond 43,225.00 0.00 0.00 0.00 43,225.00 36 7% Construction Fee 443,156.00 0.00 6,544-.00 0.00 6,544.00 1.4% 436,612.00 0.00 6,330,800.00 0.00 193,7G4.00 0.00 193,764.00 3.0% 6,137,036.00 6,000.00 AIA DOCUMENT G703 • CONTINUATION SHEET • APRIL 1978 EDITION • AIA* • © 1978 THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVE., N.W.,WASHINGTON, D.C. 20006 G703—1978 • a Is • RUCrU - . c. March 11, 1994 Mr, Kris Anderson McCARTSY 1341 North Rock Hill Road St. Louis, Miami 63124 _ - Re rence: Ballet Valet Parking Structure Dear Mr: Anderson: In order to meet the accelerated ached:de requirements of this project, Coce slab Structures recommends that the precast shop drawings and calculations begin as soon as pose le. To proceed with these drawings, Coreslab Structures will require a letter of intent from McCarthy Concoction with a guaranteed payment of S60,000 to be paid in full within thirty . days after the shop drawings and calculations are submitted. Coreslab Structured appreciates the opportimity to be involved in this project and would be glad to asiswer any gelation, you may have regarding the above. Sincerely, C0RESLAB STRUCTURES (FLA) INC. Allen Witt,P.E. • Sales Engineer - AW/d1 wool N.W. 121st.Way•Medley.Rands 33170•(303)023 050 FAX(mil 0254457 • Arizona•Reties•Oklett me•Orsario•Taos 4 I410. If tl THE GOLDMAN PROPER TIES COMPANY 1 • May 26, 1994 Ballet Valet Invoice *526941 McCarthy Brothers .Company 1341 North Rock Hill Road St. Louis, Missouri 63124 Re: Expenditures to date paid by Ballet Valet Parking Company, Ltd as of Hay 3, 1994, for Parking Garage located at 7th and Collins Avenue, Miami Beach, Fla. Date Chk # Vendor Amount Rat 5/03/94 2172 Rosenberg Des 168 Landscape Des. • 2/02/94 2083 Rosenberg Des 1,220 Landscape Des. 1/05/94 2041 Arquitectonica 7,500 Design/Builde 12/21/93 2022 Rosenberg Des :1,442 Landscape Des 11/22/93 1990 Arquitectonica 10,000 Design/Build 10/15/93 1956 Arquitectonica 5,000 Design/Build 9/28/93 1934 Arquitectonica 5.000 Design/Build 9/29/93 1935 Rosenberg Des 900 Landscape Des 9/02/93 1902 Arquitectonica 2,500 Design/Build • $ 33,730 Amount Due and owing $ 33,730 a New Yerk ■Goldman Propartlae •Galdwan traparltas •Mimi Rene\ Greene Street 103 Greene Street 640 Ocean Drive Park Central Hotel Sono Kitchen end Be' New York.New York 10012 Miami Beach,Florida 33139 Imperial Hotel The SOOO Building Phone:(2121925.241S Pnone:(305)531.4411 Tiffany Hotel Eagle Ronan Inc. Fax:(212)941.9835 Fat:(305)673.3100 Riviera Kitchen and Bet • __ . Ballet Valet Perking Co. MAKHCE me- ® RF , - A 'STRUCTU'RES' N! 10886 • 10501 N.W. 121A.Way at. 5 26-44 Msd.y.fonds 33170 FAX(30Q 80�7 Job BALLET VALET• PARKING STBuCT(jJKS McCARTHY 1341 NORTH ROCK ROAD ST. LOUSI, MISSOURI 63124 OurJobNo. 4024 ATTN: KRIS ANDERSON Customer No. • Customer Order No. Past due accounts ara subject to a servlc,charge of 11%per month(10%per annum). Billing No. 1 • TO CHARGE YOUR ACCOUNT PER OUR LETTER DATED MARCH 11, 1994 FOR CALCULATION 6 DRAFTING TO DATE IN THE AMOUNT OF 60,000.00 FOR MORE INFORMATION PLEASE SEE ATTACHED PHOTO COPY. • DESMAN :icxl WEST WASHiNOToN S mHfh f,SUITE 1010.CHICAGO.ILLINOIS ems ASSOCIATES 312/2113-3130 FAX 312/283.8406 INVOICE * C94229___ DATE 5/27/94 TO: McCarthy Parking Structures 1341 North Rock Hill Road St. Louis, MO 63124 Attn: Rristopher N. Anderson Re: 7th & Collins Ballet Valet Miami Beach, Florida Beeman Project No. 93080 • Professional Services through May 27, 1994 $66.490.00 (Includes Arquitectonica & Rosenberg Associates) TOTAL AMOUNT THIS INVOICE $66,490.00 ZO'd Z00' °N 6S:8 P6.9Z AdW 90P8-£9Z-ZT£:QI _ S31dIJOSSd NbWS3Q Steel Hector& Davis . Miami,Florida' Amy Lehman Of Counsel (305)577-2998 • May 31, 1994 Murray Shear, Esq. David Berger, Esq . Broad & Cassel 175 NW First Avenue Suite 200 Miami , FL 33128-1835 Leo Rose, Esq. Therrel Baisden & Meyer Weiss 1111 Lincoln Road Mall Suite 500 Miami , FL 33139 RE: Closing of that certain Acquisition, Construction and Development Agreement (the "Development Agreement" ) among the City of Miami Beach, a Florida municipal corporation, The Ballet Valet Parking Company, Ltd. , . and McCarthy Brothers Company. Unless defined otherwise, capitalized terms used herein shall have the meaning attributed to them in the Development Agreement . Gentlemen: The City and BV have today consummated the Development Agreement and closed on the sale of the real property and air space as more particularly described in the Agreement to Purchase and Sell Real Property and Air Space by and between the City and BV. Within thirty (30) days of the date hereof , the City and BV shall execute the following documents : i . Memorandum of Option. Pursuant to Section 9 . 2 of the Development Agreement , the City and BV have agreed to record among the Public Records of Dade County, Florida , a memorandum of the existence of Ballet Valet ' s option to purchase the Garage pursuant to the terms of the Development Agreement . The Memorandum of Option shall be prepared by counsel for BV and shall incorporate the basic terms of BV' s option as provided by the terms of Article 'IX of the Development Agreement . Miami Office 1900 Phillips Point West 215 South Monroe 4000 Southeast Financial Center 777 South Flagler Drive Suite.601 Miami,FL 33131-2398 West Palm Beach,FL 33401-6198 Tallahassee,FL 32301-1 804 (305)577-7000 (407)650-7200 (904)222-2300 Fax:(305)358-1418 • Fax:(407)655-1509 Fax:(904)222-8410 ' } Steel Hector& Davis • Leo Rose, Esq. Murray Shear, Esq. David Berger, Esq. May 31, 1994 Page 2 • ii . Memorandum of Right of First Refusal . Pursuant to Section 10 . 2 of the Development Agreement , the City and BV have agreed to record among the Public Records of Dade County, Florida , a memorandum of the existence of the City' s Right of First Refusal to purchase the Retail Space in accordance with the terms of the Development Agreement . The Memorandum of Right of First Refusal shall be prepared by counsel for the City and shall incorporate the basic terms of the City' s Right of First Refusal as provided by the terms of Article X of the Development Agreement . iii . Parking Agreement . Counsel for the City shall prepare a parking agreement which shall incorporate the terms of Section 11 . 9 of the Development Agreement and such other terms and provisions as may be agreeable to the City and BV. iv . Maintenance Agreement . The City and BV shall agree on a standard of maintenance appropriate to the Project . Counsel for BV shall prepare' a • maintenance agreement to evidence such standard and to incorporate the terms of Section 2 . 13 of the Development Agreement . The Maintenance Agreement shall be recorded among the public records of Dade County, Florida . 2 . At such time as the As-built plans for the Garage and Retail Space have been prepared and approved by the City and, BV, and as to Lot 1 by' Leo-James , Inc. , a Florida corporation, ( "Leo-James" ) , such that the lower elevation of the Air Space can be ascertained with particularity, the City, BV and Leo-James (as to Lot 1) hereby agree to. adjust the legal description of the lower elevation of such Air Space as to the Retail Space and Lot 1, if the actual lower elevation of the Air Space differs from that described in those certain deeds delivered to the City in connection with the closing of the Development Agreement . 3 . At such time as the As-built plans for the Garage have been prepared, BV shall provide the City with an Exhibit to the Steel Hector& Davis Leo Rose, Esq. Murray Shear, Esq. David Berger, Esq. May 31, 1994 Page 3 Development Agreement. which shall depict and describe the location of the Ramp Space. Sincerely, Amy I man ACCEPTED AND AGREED This b day of aQ_ , 1994 CITY OF 'AMI BEACH, - BALLET VALET CORP. a Florid Florida unicipal co - •.ration corporation d/ By. By. MazoY R. An ny Goldman as sident The Ballet Valet Parking Company, Ltd. , a Florida limited partnership The Ballet Valet Corp. , a Florida corpora ion BY: Anthony Goldman . President LEO-JAMES, INC. , a Florida corporation solely with respect to paragraph 2 as to Lot 1 BY: \\ t FORM APP. /ED as LE PT. AL1/2744 Date _.T292i 1341 NORTH ROCK HILL ROAD ST.LOUIS,MISSOURI 63124 (314)968-3300 FAX(314)968-3037 June 6, 1994 Mr. Tony Goldman President Ballet Valet Parking Company • 640 Ocean Drive Miami Beach, FL 33139 RE: Exhibit G to Acquisition Construction and Development Agreement, by and between City of Miami Beach, a Florida municipal corporation, The Ballet Valet Parking Company, Ltd., a Florida limited partnership and McCarthy Brothers Company (the "Development Agreement"), Dear Tony: Please let this letter serve to clarify Exhibit G dated May 25, 1994 to the Development Agreement and to evidence McCarthy's agreement as to certain insurance requirements of the Development Agreement. In accordance with Exhibit G, there are certain Retail costs associated with he construction of the Garage. These costs are the waterproofing membrane, south fire wall and fire sprinklers at loading, storage, trash and the electric room and are excluded from the GMP Design/Build Costs of the garage (the "Excluded Items"). Pursuant to this letter agreement, McCarthy Brothers agrees to provide the Excluded Items at McCarthy's sole cost and expense, in consideration of receipt of Ballet Valet's fifty percent (50%) interest in all savings in the actual audited GMP Garage Construction Cost which reduces such costs below the GMP Garage Construction Cost per the Development Agreement. As further clarification to Exhibit G, Ballet Valet and McCarthy agree that Ballet Valet shall be responsible for (i) Ballet Valet soft costs other than those previously agreed to be paid to Ballet Valet as referenced in Pay Request number one (1); (ii) surveys not paid for by the City pursuant to the Development Agreement; (iii) the environment audit cost not paid for by the City pursuant to the Development Agreement; (iv) moveable equipment and furnishings that Ballet Valet is providing to the project, (i.e., the plant maintenance equipment of which Ballet Valet is responsible for up to $50,000 of cost and the City is responsible for any additional amounts); (v) Southside Owner approvals and costs over and above those defined in Exhibit "G"; (vi) all geotechnical testing and inspection required; (vii) any retail space design or construction costs; Retail Design Builder Agreement between Ballet Valet and McCarthy to be mutually agreed to by the parties; (viii) Ballet Valet agrees to imdenmify McCarthy for any cost increases if site not delivered ready for demolition by Ballet Valet by July 15, 1994; (ix) the seven loading dock spaces are not included in the Contract documents per Ballet Valet agreement with the City on June 6, 1994, Ballet Valet is responsible for $68,600.00 (7 spaces x $9800/car) to be paid direct to McCarthy once the total spaces are finalized but not sooner than six (6) months from closing; the first seven spaces over and above the 639 currently defined and within the revenue controlled portion of the Garage will be credited back to Ballet Valet (if applicable); (x) by June 10, 1994, $50,000 will be held in escrow at a banking institution mutually agreed to by the parties as security for Ballet Valet's obligation in (ix) above; and McCarthy shall be responsible for all other items not specifically defined as the responsibility of 07. . , Page 2 June 6, 1994 Ballet Valet or the City in the Development Agreement, Exhibit G thereto and the Design Builders Agreement. In addition, McCarthy agrees to name Ballet Valet as an "additional insured" on all insurance policies, other than Workmen's Compensation, which McCarthy is required to obtain under the terms of the Development Agreement. Capitalized terms used herein shall have the meaning attributed to them in the Development Agreement. Sincerely, arthy Kristopher N. Anderson Senior Vice President By: Kristopher N. Anderson Senior Vice President Dated: (42 j T i ACCEPTED AND AGREED: By: The Ballet Valet Corp., a lori Corporation By: R. Anthony Go m President Dated: i #'/ KNA:sbk balletc.let . P{ �i. . -MJFI•will~i 7 ZLnuLL - I U• .3dD 13(.3 (r d = JUN b, 1`jy4 3:45a M 4074 .03 I • • LOADING AREA AGREEMENT • The patties agree that BV shall pay the $9, 800 per space for seven parking dp000e in the loading area. Said amount shall .be excluded from any draw request to the City by McCarthy and/or BV. Failure of ZV to pay said oum to McCarthy shall not constitute a default by the City under the Development Agreement or any other agreement between the partied . • CITY MIAMI BEACH, a orida 1-li;1 vii AP e : S,/ .D mun• ci al corporation • .LEG PT. Dy • B� ' in Nam SQ Date a' Attest : • • • • City clerk• • • • THE BALLET VALET PARKING COMPANY, LTD. , a Florida limited partnership • • • • By: The Ballet Valet Corp. , a Florida corporation, sole general partner • By: • R. Anthony Goldman, President McCARTHY BROTHERS COMPANY, a Missouri corporation By: Kris Anderson, President MB CITY MGR ' S OFFICE _T 305-673-?782 ,'— A 05 ' 94 15 : 20 No . 018 P . 02 ` ....., ..",... .Jv, ♦+wr i v ,..ia!✓ VI 4' J UI, UP 1 JJ`1 4 1 4a'r1 MC1 r■, r.rj.a L�1AhTiQC., AR EMEN The parties agree that BV shall pay the $9, 800 per space for seven parking opaooe in the loading area, Said amount Rhall be excluded £r m arty draw request to the City by McCarthy and/or BV, Fallol'e� of V to pay acid oum to McCarthy shall not constitute re default by the City under the Development Agreement or any other ayieoment ebtween the parties . CITY OF MIAMI BEACH, a Florida municipal. corporation - Dy : Yrinme,_ _ 'Ii416e:Nemaros - Attest ; City irk " THE BALLBT VAL= YAKKING COMPANY, LTD. , a Florida limited partnership By: The Ballet Valet Co , a Florida corpox •ia cola general par By: R. o ,y Go an, Pr de McCARTHY BROTHERS COMPANY, a Missouri corporation X Kris hnc e�:sQf, resa ant • • JUN— 5-94 MON 1 '�` "` j2 M�CARTHY P _ c3 40 .vv-+ V r..)-•r ►at J ,Ib'94 15:22 Na.019 P.02 i PIN4 AREA AkREEten I The parties agree that By a3:a11 pay the $9,900 per apace for *Wotan p.r)d q bpi Ls the Xoadimg arts*, Said amount shall be exo. uded fr any draw requdet to the City by McCarthy and/or 8V.• Tailor* Cl V to pay said cum to MrC1►Ft1y *hail, not eonstituto r default by he City under the Development Agreement or any other agreement twean the partLeo, CITY OF mIA,MX O ACE, a Florida • :quttiCipal corporation BYi Pri }ams — • nt Attoat) ycer TIO BALLET VALET Y.Ak)c1NG CO MANY, LTD., a Florida limited partnership By: The Ballet Valet Corp,, $ Florida corporation, ogle general partner By: k. otiy Go d ._..ar.,�. PraaldeAt McCARTHY BROTHERS COMPANY, a Mom co or Lion • By: 1 Kr s An Srion, cos ant • • 4 . • J T H E GOLDM A N PR OPER TIES COMP ANY • May 25 , 1994 Greg Brier SIN CITY, INC . "VELVET" 634 Collins Avenue Miami Beach, Fla 33139 Re : Lease dated July 1 , 1993 Between Ballet Valet Parking Company, Ltd ( "lessor" ) and Sin City, Inc . ( " lessee" ) at 634 Collins Avenue , Miami Beach, Florida. • • Dear Greg, Pursuant to Article 2 . 3 of the above referenced lease you are hereby notified to vacate the premises by June 30 , 1994 in accordance with the terms and conditions set forth in the above mentioned lease. Sincerey, • // -T•/ Goldman • RECEIVED, ACCEPTED AND AGREED Sin City, Inc . • GREG BRIER 3 New York j Goldman Properties •J Goldman Properties Miami Beach Greene Street 103 Greene Street 640 Ocean Drive Park Central Hotel Soho Kitchen and Bar New York, New York 10012 Miami Beach, Florida 33139 Imperial Hotel The Soho Building Phone: (212)925-2415 Phone: (305)531-4411 Tiffany Hotel Eagle Ranch Inc. Fax: (212)941-9835 Fax: (305)673-3106 Riviera Kitchen and Bar Urban Advice Ballet Valet Parkina Co. r��I'1H'.�• `c 94 L. :F F'f•I _'r,-__,HECT!JF' �F-1'••.'I'7 _ F'. �-'� 1994 • • R. Anthony Goldman - Goldman Properties 640 Ocean Drive Miami Beach, Florida 33139 Re: Lease Agreement between the Ballet Valet Parking Company, Ltd. a Florida limited partnership, as Landlord, and Sin City, Inc . , a Florida corporation, as Tenant, dated July 1, 1993, (the "Lease") Dear Tony: The undersigned is the Tenant under the Lease. In regard to the Lease, the undersigned hereby certifies : 1 . The Lease constitutes the entire agreement between Tenant and Landlord, has not been amended, modified or supplemented. 2 . Landlord has complied with all of the requirements and conditions precedent and subsequent to the commencement of the term of the Lease as specified in the Lease. 3 . The Lease is for a term of seven (7) years , subject to Landlord ' s right to terminate the Lease . 4 . The current monthly base rental due by Tenant is $5, 000 . 5 . There are no offsets, counterclaims or defenses with respect to rent or any other payments due under the Lease. The annual rent under the Lease is as set forth in the Lease . Rental has been paid through May, 1994 . No rent is in arrears and no rent has been paid more than one month in advance . All rental payments under the Lease shall be paid as therein provided until the Tenant has been notified by you or your successors or assigns . 7 . Landlord has not been and is not presently in default under any terms , covenants or provisions of the Lease and there exists no event which with the giving of notice or the passage of time would constitute a default under the Lease . 8 . Tenant acknowledges that ( a) it has no notice of any assignment, hypothecation of pledge of rents or of the _ Lease; and (b) no cancellation, modification, MAY 25 '94 12:E 3FM cr HECTOR & DAVIS ' F.3 assignment , subletting , renewal , amendment or extension of the Lease shall be made without Landlord' s written consent and approval. 9 . Tenant_ has paid Landlord a security deposit in the amount 'of $- . N�a- Q : . 10 . . Any notice, demand, request or other communication given to Tenant under the Lease, should be sent to the - following address : Attention: 11 . Tenant hereby acknowledges that it will vacate the leased premises no later than - Pc 1J. k `* , 1994, (the "Expiration Date") and that from May 26, 1994 through the Expiration Date, the Tenant ' s liability insurance policy will include, as an additional insured, : City of Miami Beach, a Florida municipal corporation. The information supplied in this letter may be relied upon by .you and any prospective purchaser of the land and building , or any part thereof or estate therein. Very truly yours , ITS C DATE: 4E/2. 1 AL/2729 • -2- vir THE AMERICAN INSTITUTE OF ARCHITECTS • • •J ir•, ,.lye Bond Nos. 8129-02-75 & 127534 AIA Document A311 Performance Bond KNOW ALL MEN BY THESE PRESENTS: that McCarthy Brothers Company, 1341 North Rock Hill Road, mew inurl lull name and addre.,or legal Nile of Coniraclorl St. Louis. Missouri 63124 as Principal, hereinafter called Contractor, and, Federal Insurance Company*, 15 Mountain View Road, Warren, New Jersey 07061 and National Union Mere Insert lull name and addreas or legal title el SeseNq Fire Insurance Company of Pittsburgh, PA*, 70 Pine Street, New York, New York 10270, Co-Sureies, as Surety, hereinafter called Surety, are held and firmly bound unto Ballet Valet Parking Company. 640 ocean Drive, Miami Beach, Florida 33139 and mete fawn lull name and add.esa et legal one of Owned ,The',City of Miami Beach, Florida as Obligee,,hereinafter called Owner, in the amount of Six Million, Three Hundred Thirty l'li(SUWfnd, Eight Hundred and NO/100 (Federal Insurance Company - 53,165,400.00 and National `•.L'r t'n fire Insurance Cry of Pittsburp,h, PA = $3,165, 400.00 Dollars (S 6,330,800.00 ----�, • for the payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, Contractor has by written agreement dated 19 , entered into a contract with Owner for Mere Insert lull,r+3ml.address and descr10tton Ol meal Design/Build Parking Garage • in accordance with Drawings and Specifications prepared by IMere Insert lull name and addre,,or Ie;at Idle of AKAdrell • which contract is by reference made a part hereof, and is hereinafter referred to as the Contract. AIA DOCUMENT AM • PtRFORmANCE BOND ANO LABOR AND MAIFRIAE PAYMENT BONO • AIA i l9R(:aAY IV O E0.•TILE AMERICAN INSTITUTE Of ARCHITECTS. 171S N Y AVE.,N W,WASHINGTON,a C 20006 1 • PERFORMANCE BOND . Multiple Obligee Now, THEREFORE, THE CONDITION OF THis OBLIGATION is such that, if Contractor shall promptly and faithfully perform said Contract, then this obligation shall be null and void; otherwise it_shall remain in full force and effect. The Surety hereby waives notice of any alteration or defaults under the contract or contracts of completion extension of time made by the Owner. arranged under this paragraph) Sufficient funds to pay the Cost of completion less the balance of the contract price; Whenever Contractor shall be, and declared by Owner to be in default under the Contract, the Owner having but riot exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount performed Owner's obligations thereunder, the Surety may promptly remedy the default, or shall promptly set forth in the first paragraph hereof, The term "balance `of the contract price,' as used in this paragraph, shall 11 Complete the Contract in accordance with its terms mean the total amount payable by Owner to Contractor and conditions, or under the Contract and any amendments thereto, less 2) Obtain a bid or bids for completing the Contact in the amount properly paid by Owner to Contractor. accordance with its terms and conditions, and upon de- Any suit under this bond must be instituted before termination by Rutty of the lowest responsible bidder, the expiation of two 121 years from the date on which Su or, if the Owner elects, upon determination by the final payment under the Contract falls due. Owner and the Surety jointly of the lowest responsible No right of action shall accrue on this bond to or for bidder. arrange for a contract between such bidder and the use of any person or corporation other than the Owner. and make available as Work progresses !even Owner named herein or the heirs, executors, admrnis- though there should be a default or a succession of trators or successors of the Owner. t PROVIDED, houeve; rhat the pal and Surety shall no Liable to the Obligce ) or anv of th eti to 1 ess the Qb l•!Fee(s a a tv of then have performed the obligations to the Principal in a cc&Ydance with.rht' terms or said contract, and aggregate��cess o r't a pta e PrirgW and svm cty shall not be liable to the t761 ee(s) in the slat curl* Provided, t or the _t ,�,�,, elves in such sun "Jointly arid Sever y" as well " ra u on sas each Bose we the �ir nq oant acts or actionsa t any r of us, and c o °Sias �i,m'only as is settio opposite't�t of such�� y. p�h�for the payment surety. • Signet and scaled this day of 19 / MCCK rthy Brothers Co. ._ ,I ipaL� an y .t. • t .., ,,.., , � .. ,WiSS Seal ( .vf,.s1N l Er AGNED FEDERAL INSURANCE COMPANY a a-7-_, (Limits or 1i b iity - 1. ,16S,4W.UU) Surety 1 nessrd,r _ _ _ .r�O U NT EI 1 ,,�C'D i"k . irman'' 1 Attorney-in-fact NATIONAL UNION FIRE INSURANCE COMPANY OF P ITTSBURCH, PA '•'L � ._._... (li'nits of liability • $3,165,400.00) Surety RkID 'NT LF'yr 1�itncss i u ra"5: °lulu AEC 1n-tact ALA DOCUMENT AM • PERFORMANCE SONO ANO LABOR ANO MATERIµ PAYMENT BONO • MA • 1 IBRUAXY mu (I).•THE AME81CAN INSTITUTE OF ARCHITECTS. 171S N Y AVE.,N.W..WASHINGTON,D. C. :0006 2 0 • THE AMERICAN INSTITUTE OF ARCHITECTS • N� I ,I� • Bond Nos. 8129-02-75 & 127534 • MA Document A311 • Labor and Material Payment Bond THIS SONO IS ISSUED SIMULTANEOUSLY WITH PERFORMANCE MOND IN FAVOR OF THE UWNER CONDITIONED ON THE FULL AND FAITHFUL PERFORMANCE OF THE CONTRACT • KNOW ALL MEN BY THESE PRESENTS: that McCarthy Brothers Company, 1341 North Rock Hill Road, (Hfe .e.ert full name..d address or legal tole•1 Cont•.ctosl St. Louis, Missouri 63124 • as Principal, hereinafter called Principal, and. Federal Insurance Company*, 15 Mountain View Road, Warren, New Jersey 07061 and National Union Mere .n.er1 lull na.ne sad add...i or legal title o1 Scotto Fire Insurance Company of Pittsburgh, PA*, 70 Pine Street. New York, New York 10270, Co-Sureies, as Surety, hereinafter called Surety, are held and firmly bound untcBallet Valet Parking Company, 640 Ocean Drive, Miami Beach, Florida 33139 and I"eie ie»N rv11 11a•..f Ind address or tesei Istl•ed o..ii.11 The City of Miami Beach. Florida - as.Obligee. hereinafter called Owner, for the use and benefit of claimants as hereinbelow defined, in the • t Six Million. Three Hundred ThirtyThousand, Eight Hundred And NO/100 • amount of Federalo is CY�� ;0 si�5;4000.0000) and National Union Fire insurance (Meet {need. a moon equal to at ua one-half OF Mr CO once! Dollars (S6,330,800.00 1, far the'payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WFjEREAS, Principal has by written agreement dated 19 , entered into a contract with Owner for Mere Insert full n.•.c add rat and de.cr. ,on or Prolfcn Design/Build Parking Garage • in accordance with Drawings and Specifications prepared by .Mer..e,ent hull R.M.and add.e..es 1•pl Idle•r Architecn whit', contract is by reference made a part hereof, and is hereinafter referred to as the Contract. AEA DOCUMENT A311 • PERFORMANCE MONO AND LABOR AND MATERIAL. PAYMENT SONO • MA • FEBRUARY 1970 W.•THE AMERICAN INSTITUTE OF ARCHITECTS.17)S N.Y.AVE.,H.W.,WASHINGTON.D. C.200% 3 Multiple Obligee - v" payhew,. r►;rkrrott. THE CONDITION Or THIS, OS UGATiON is such that. if Principal shall promptly make • claimants as hereinafter defined,for all labor and material used or reasonably required for u.e in the performance of the Contract, then this obligation shall be void: otherwise it shalt remain in full force and effect.subject,however,to the fol- lowing conditions: T A claimant is defined as one having a direct con- accuracy the amount claimed and the name of the party tract with the Principal or with a Subcontractor of the to whom the materials were furnished, or for whom Principal (or labor, material, or both, used or reasonably the work or labor was done or Performed, Such notice required for use in the performance of the Contract,labor and or USC being construed include that part of shall be served by marling the same by registered mall ad- water, +(as, power, light, heat, oil, gasoline, telephone dresseor certified marl, postage prepaid, ,n an envelope service or rental of equipment directly applicable the where danooff office the riscregularly ipal, nma ntaineder Or yfort any the placefans- Contract action of business, or served in any manner in which legal p 2 The above named Principal and Surety hereby aforesaid ess may be served in the state in which the project jointly and severally agree with the Owner that every not be made byaipublic offis located. cer that such service need claimant as herein defined, who has not been full before the of apaid in bl After the expiration of one t11 days after date expirationon whicho the last period claimant's( year followingaidC the work after r the was done or performed,of suchmat ciai ante date ong under oon,Phrincipal ceased that Work on said Contract, it g h bond, prohibiwever,ted if any limlaw controlling r eng furnished by such claimant, may sub on this bond for bodied in thisc bond is such by any last/ controlling the UM' of such claimant. prosecute the suit to final the construction hereof such limitation shall be deemed judgment for such sum Or sums as may be justly due ofto lib amended so as to be equal to the minimum period claimant, and have execution thereon. The Owner shall mitatr°" permitted by such law. not be liable for the payment of any costs or expenses el Other than in a state Court of competent jurisdiction of any such surf. an and for the count or other Y political subdivision of 3 Ni suit or action shall be commenced hereunder the state in which the Project, or any pare thereof, is situated, or in the United States District Court for the by any claimant; district in which the Project, or any uated, and not elsewhere part thereof, is sit- al Unless claimant, other than tine having a direct contract with the Princ+pal, shall have even written to any two of the following: g 4 The amount of this bond shall be reduced by and noticeor payments made in good Owner or the Surety above named. thinPrininci nety (901 faith hereunder,pal, the to the extent ofa iny nclusiveent of the payment by Suretyof days after such claimant did or performed the last of mechanics' hens which may be filed of record against the work or labor. or furnished the last of the materials said improvement, whether or not claim for she amount for wnich said claim is made, staling with substantial of such lien be presented under and against this bond tjtcros ,::ii!VIDtD, however, st t the Pripci paJ and Surety shall riot be�.:ti rri : tents of said contract, or them have eridrmed the obligations i to the tr 1 icip( ) or co r dof . and pPrincipal in accordance . ::uVTDm, further, that the Principal ;end Surety :';ors'-• .t�� in excess or the penal sun abe stated. shall not be liable to the t li�cets) in the .:„i" - .tletj, we the reties, bind ourselves in such sum "Jointly and Sever thepurpose b ail ,s joint action or act Ons•3P tan y�� ;u well . "$a rally" `7 -e each Surety a , bluntly and severally with the i>rycar °f us. :end tor other forth opposite the name of such surety. ,c for the p-tyr►ienc or such _:na,u :inn sealed this - day of 19 - McCarth Brothers Company• r 4 1 krriSIGNED J.407 c'' 51614~' FEDERAL INSU RE�1DENT AGEPd7 t or RANCE CO?lpANy • !! � ' e NTERSIGNED -, /4 .. ~�< o man NATIONAL UNION FIRE ec OF PITTSBURGH, PA INSURANCE COMPANYRESIDENT AGENT -�__. is Di liability, - NT • of a S. Holman,. tic May 27 '94 14:00 6669 , T DORSEY INSURANCE TEL :' 146-7887 MAY 27 '94 02:55PM/ 2 ..a::y;xyk,..4.4`:.: h� 1 °K R` ,;p ..•-i "" ., .t.r, eat. :,,,m$. • "5 '0• . ""O" R THIS CERTIFICATE IS ISSUED AS�A M OF INFORMATION ONLY AND"0° " CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE BEST-DORSEY INSURANCE DOES NOT AMEND.EXTEND OR ALTER THE COVERAGE AFFORDED SY THE 2222 Ponce do Leon Blvd POLICIES SELONI. Suite 400 , Coral Gables,FL 33134 COMPANIES AFFORDING COVERAGECOMPA LEITEERNY A COLONIA INSURANCE COMPANY . .. ... UR coMPANY B .. INSURED LETTER COMPANY Ocean Drive Associates Ltd LETTER C . do Mario CoufRey COMPANY ' 640 Ocean Drive LETTER PP Miami Beach. FL 33139 COMPANY LETTER E '�i ::T`:Y'!'on,'•�.`.•M::„•r�?'1T"° i.•`" :` K nkw%s dad ..:<^«e•::5. .w: '.it�.x.-n x.-.a. .�i `.M,.a,:.. ry c�,,iX:wY. THIS 19 TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TqS OP INSURANCE ram muNNIER utns CO: POLICY EPIECTIIM POLICY EXPIRATION LIII+ DATE(HINGE YY) OATS(RAM oorro ; GENERAL LIMIT, 'GENERAL AGOA GATT S 2,000,000 X 1 COMMERCIAL GENERAL LIABILITY PRODUCTS•COMPIOP AOGR. I 1,000.000 ra i CLAIMS NMDE X i OCCUR. : 'PERSONAL A AOY.INJURY S 1,0001000 A OWNERS A CONTRACTOR'S MOT. CPP-22.63.64 12/10193 12/10194 .EACH OCCURRENCE I S 1,000,000 FINE DAMAGE(Amon IIFI) •:S 50,000 `:MEN.EXPENSE(bry on perm& 'S 5,000 AGTOAOS IIA ILA SIl1TY • COI D SINGLE • .ANY AUTO 'S T ALL OWNED AUTOS • • BODILY INJURY s SCHEDULED AUTOS (Per piney $ • AIRED AUTOS BODILY INJURY ': NW-OWNED AUTOS (Per M) $ GARAGE LIASILITY ... •, PROPERTY DAMN $ ' • EXCESS MAMMY • : EACH OCCURENCE .I s UMBRELLA FORM ; AGGREGATE i I OTHER THAN UMOREU.A FORM ''I T • p • I STATUTORY UINTA WOANER'%DO ENIATION .... .EACH ACCIDENT ;1 SRO ?DISEAEEPOLICY UNIT Z. '8 • EMPLOYING'►,A LITY 016-EEA. EMPLOYEE 1 S OTHER • • DEe PROOF OF COVERAGE IS EXTENDED NDED FAPMAL OR LOCATIONS AT 634 COLLINS AVENUE,MIAMI BEACH AND 680-666 COLLINS AVENUE,MIAMI BEACH,FLORIDA THE BELOWkD NAMED CERTIFICATE HOLDER IS INCLUDED AS AN ADDITIONAL INSURED. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING COMPANY WILL ENDEAVOR TO MAILS DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE CITY OF MIAMI BEACH LEFT,BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBUGATION OR 1700 CONVENTION CENTER DR. LIABILITY OF ANY KINjgON ' E COMPANY,ITS AGENTS OR REPRESENTATIVES. MIAMI BEACH,FLORIDA AurNBRlao ..- 33139 ii 4tiOhliMI .:.,.. „„...-...y,..yc....iW:4q•:%Wi:w...u.sr+[2•aJ.tittiv.ll' - ..,, a� k- AMERICAN LAND TITLE ASSOCIATION COMMITMENT — 1966 N PA 10 0198 10 003910 10, CHICAGO TITLE INSURA NCE COMPANY r, 146 41 $ ' — COMMITMENT FOR TITLE INSURANCE CHICAGO TITLE INSURANCE COMPANY, a corporation of Missouri, herein called the Company, for a valuable consideration, hereby commits to issue its policy or policies of title insurance, as identified in L Schedule A, in favor of the proposed Insured named in Schedule A, as owner or mortgagee of the estate or interest covered hereby in the land described or referred to in Schedule A, upon payment of the premiums and 6 charges therefor; all subject to the provisions of Schedules A and B and to the Conditions and Stipulations fhereof. This Commitment shall be effective only when the identity of the proposed Insured and the amount of the policy or policies committed for have been inserted in Schedule A hereof by the Company, either at the °fin. time of the issuance of this Commitment or by subsequent endorsement. 4 �` t'` This Commitment is preliminary to the issuance of such policy or policies of title insurance and all liability 0 and obligations hereunder shall cease and terminate six months after the effective date hereof or when the F sa policy or policies committed for shall issue, whichever first occurs, provided that the failure to issue such policy k or policies is not the fault of the Company. IN WITNESS WHEREOF, Chicago Title Insurance Company has caused this Commitment to be signed ` and sealed as of the effective date of Commitment shown in Schedule A, the Commitment to become valid when countersigned by an authorized signatory. s . i y' CHICAGO .TITLE INSURANCE COMPANY By: Issued by: BROAD AND CASSEL Court House Center- #2000 4dee..-6,/,/veoZte:er. 175 N.W. First Avenue iv Miami, Florida 33128 / (305) 371-9100 President. ATTEST: V. ly A. E g f 41-Aay‘&4,44 att/n/Lx1/ 4, A. Secretary. 1,, Aut rized Signatory .. `«: 4 Murray D. Shear, P.A. • ,; Copyright 1966 American Land Title Association' SCHEDULE A Office File Number Commitment Number E ectiv D tt. Loan Amount t • 2 3 4 12937-0004/IS S 0 10-0198-10-003910 • ,7994- at 2:30 p.m. Owner's Amount S3,117,544.00 • 1. Policy or Policies to be issued: ALTA LOAN POLICY. Proposed Insured: ALTA OWNER'S POLICY, Form B. Proposed Insured: CITY OF MIAMI BEACH, a Florida municipal corporation • 2. The estate or interest in the land described or referred to in this Commitment and covered herein is a fee simple, and title thereto is at the effective date hereof vested in: LEO-JAMES, INC.,'a Florida corporation, as to Lot 1; THE BALLET VALET CORP., a Florida corporation,as to Lots 2, 3,4,and 5; THE BALLET VALET PARKING CO., Ltd., a Florida limited partnership, as to Lot 6 3. The Land is described as follows: See Exhibit "A" attached hereto. • • NOTE: This Commitment consists of insert pages labeled in Schedule.A. Schedule 8-Section 1, and Schedule 8-Section 2. This Commitment is of no force and effect unless all schedules are included, along with any Rider pages incorporated by reference in the insert pages. CHICAGO TITLE INSURANCE COMPANY (COMMITMENT-SCHEDULE A) Reorder Form No. 1895 (Rev.3/89) R:1RE\1293710004\ISES03.08A Commitment Number: 1 0-01 98-1 0-00391 0 Page 2 The following are the requirements to be complied with: 1. Instrument(s) necessary to create the estate or interest to be insured must be properly executed, delivered and duly filed for record. • (a) Warranty Deed from (i) LEO-JAMES, INC., a Florida corporation, as to Lot 1; (ii) THE BALLET VALET CORP., 'a Florida corporation, as to Lots 2, 3, 4, and 5; (iii) THE BALLET VALET PARKING CO., Ltd., a Florida limited partnership, as to Lot 6 10 THE • CITY OF MIAMI BEACH, conveying property described in Schedule "A". (b) Satisfactory proof in the form of an opinion from the City Attorney that all provisions of the City Charter in connection with the acquisition of real property have been complied with. (c) The Company will require a Certificate of Good Standing for Leo-James, Inc., from a date prior to June 5, 1968 to the present,together with a Corporate Resolution, signed by the Secretary of the corporation under seal, authorizing the transfer of the property from the Leo-James, Inc., to the Proposed Owner Insured; together with an Incumbency Certificate setting forth the corporate officers existing at the present time. (d) Certificate of Good Standing for the Ballet Valet Corp. from the State of Florida from a date prior to July 1, 1989 to the present; together with a Corporate Resolution, • signed by the Secretary of the corporation under seal, authorizing the transfer of the property from The Ballet Valet Corp. to the Proposed Owner Insured. (e) The Company will require a Certificate of Authority to Transact Business in the State of Florida for The Ballet Valet Parking Co., Ltd., a Florida limited partnership, from a date prior to June 22, 1993 to the present. In.addition, the Company must be supplied with a copy of the Limited Partnership Certificate for The Ballet Valet Parking Co., Ltd. and all Amendments thereto and reserves the right to make any additional requirements • and/or exceptions it deems necessary upon review of said documents. (f) The Company has been made aware of the fact that only a portion of the lots contained in Schedule A hereof are being transferred to the city. In addition, the Company has been made aware that there will be building by the city on the property acquired by the city as well as over the portion of the land being retained by the present titleholders. The Company has been informed that the ultimate legal description will contain easement rights for support as well as air rights over and above the land remaining in the possession of the present titleholders. The Company must be supplied with adequate documentation as to the location of the land actually being transferred to the city as well as the land which will be subject to the air rights and subject to the easement for support. Once these documents have been supplied to the Company the Company reserves the right to amend the legal description contained in Schedule A hereof and to make any other additional requirements it deems necessary in connection with said easements for support and air rights. 2. Payment of the full consideration to, or for the account of, the grantors or mortgagors. 3. Payment of all taxes, charges, assessments, levied and assessed against subject premises, which are due and • payable. 4. Satisfactory evidence should be had that improvements and/or repairs or alterations thereto are completed; that contractor, subcontractors and material men are all paid. CHICAGO TITLE INSURANCE COMPANY (COMMITMENT-SCHEDULE B-SECTION 1) Reorder Form No.1898(Rev.3/88) R:1RE112837\0004USES03.08B CO ITMENT...........>«< < >. ' :::: • Commitment Number: 1 0-01 98-1 0-00391 0 Page 3 5. Proof of payment of all municipal liens including liens for water, sewer, and gas. 6. Proof of payment of 1993 real property taxes and all years prior thereto. • 7. The following Notices of Violation have been filed by the City of Miami Beach and the Company will require satisfactions for said Notices of Violation: • (a) Notice of Violation filed February 6, 1991, in Official Records Book 14887, at Page 2940. r- 8. There appears of record the following Mortgages which must be satisfied: (a) Mortgage Deed from The Ballet Valet Parking Company, Ltd., to Moy Lee, filed June 22, 1993, in Official Records Book 15958, at Page 1338. (b) Mortgage Deed from The Ballet Valet Parking Company, Ltd., to LBS 59, Inc., filed June 22, 1993, in Official Records Book 15958, at Page 1343. (c) Mortgage Deed from Luis Sanchez and Estela Sanchez to Continental National Bank of ( Miami, filed December 4, 1986, in Official Records Book 13105, at Page 1065, together with UCC-1 Financing Statement filed December 4, 1986, in Official Records Book 13105, at Page 1070. (Lot 2) • ---,i (d) Mortgage Deed from The Ballet Valet Corp., to Continental National Bank of Miami, ..� filed July 31, 1989, in Official Records Book 14200, at Page 1128; together with • UCC-1 Financing Statement filed July 31, 1989, in Official Records Book 14200, at Page 1131, which Mortgage was modified by Mortgage Modification Agreement filed October 18, 1990, in Official Records Book 14747, at Page 253. (e) Mortgage Deed from The Ballet Valet Corp., to Luis Sanchez and Estela Sanchez, filed August 3, 1989, in Official Records Book 14205, at Page 929. (f) Mortgage Deed from The Ballet Valet Corp., to Pablo Orozco, Alicia Morejon and Mireya Caso, filed August 10, 1989, in Official Records Book 14213, at Page 1005. (Lots 3, 4, and 5) Said Mortgage having been assigned through mesne assignments to The Estate of Joseph P. Shelley, Sr., by instrument filed March 9, 1993, in Official Records Book 15838, at Page 1477. (g) Mortgage Deed from Serafin Ramos to Gordon Realty Company filed September 23, 1985, in Official Records Book 12646, at Page 427. (Lot 5) �(h) Mortgage Deed from The Ballet Valet Corp. to ASBEKA Industries of Ohio, Inc., Pension Trust filed August 10, 1989, in Official Records Book 14213, at Page.1022. 9. There appears of record a UCC-1 Financing Statement wherein Barracuda Beach, Inc., is the Debtor and The allet'Valet Parking Company, Ltd., is the Secured Party, filed May 12, 1993, in Official Records Book 15913, at Page 475. As such, the Company will require a termination of said Financing Statement. CHICAGO TITLE INSURANCE COMPANY (COMMITMENT-SCHEDULE I-SECTION 11 Reorder Form No.1898 IRev.3/89) R:\RE\12937\00041ISES03.08B. :::i..:::::::...i';;•ii:4::i:4:•ii:•i:;;:i::iii;:;i}.::yi:y;:;i;:v:}}iiiiiiiii.'•?:{iik}}i :L:^. 1Y!F:Rs :`•:`:f}: ::'.: ::': 2;::j;:`;:::+:Y$:::c::isiiisi:$:::::::%:>:c:`i%i'? i3i::<:%:i: • Commitment Number: 10-0198-10-003910 Page 4 10. There appears of record a Declaration of Restrictive Covenants filed October 30, 1991, in Official Records Book 15327, at Page 2085, of the Public Records of Dade County, Florida (Lots 3, 4 and 5). The Company will require a termination of this Declaration. • 11. The actual value of the estate qr interest to be insured must be disclosed to the Company, and subject to approval by the Company, entered as the amount of the policy to be issued. This Commitment is not effective until the amount of insurance is entered as the amount of the policy to be issued. Until the amount of the policy to be issued is determined, and entered as aforesaid, it is agreed that as between the Company, the applicant for this commitment, and every person relying on this commitment, the Company cannot be required to approve any such evaluation in excess of $100,000.00 and the total liability of the Company on account of this commitment shall not exceed said amount. • • CHICAGO TITLE INSURANCE COMPANY (COMMITMENT-SCHEDULE B-SECTION 1) _ Reorder Form No.1898(Rev.3/89) R:'RE\12937\0004USES03.088 :•:::.�:::::::.: ..............v::::::iiiii;::::•:}}}iin:...::::::::w v:::;:}iiiiii i. 4iii'Ri}i}i}}i;,. :•}}:ni;:.}}}t}}i vi::•}ii::nyt;:::•}}}}}::ta<<aii}}:}:}i:;.}};.}i}i}}i::}};•.isd:a}}::.}'}:}}}}}}'.}'o:}}}:t:•}::.::.i:v:5•i ii:t}}'•i'i::.'}: ::ii:;:.}y:::.i'iYn;'L}:4}}}'::::.ii'v:'.}:i?�i:Lii'L:}}:::::::}::::v,}iiY:+`::::::4iii•::':. Commitment Number: 1 0-01 98-1 0-00391 0 Page 5 II. Schedule B of the policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company. • • 1. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed Insured acquires for value of record the estate or interest or mortgage thereon covered by this Commitment. • 2. Standard Exceptions: (a) Rights or claims of parties in possession not shown by the public records. • (b) Easements, or claims of easements, not shown by the public records. (c) Encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by any accurate survey and inspection of the premises. • (d) Any lien, or right to a lien, for service, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. (e) Taxes or special assessments which are not shown as existing liens by the public records. (f) Any claim that any portion of said lands are sovereignty lands of the State of Florida, including submerged, filled or artificially exposed lands and lands accreted to such lands. (g) Taxes and assessments for the year 1994 which are not due and payable and subsequent years. CZ 3. Standard Exceptions (b) and (c) may be removed from the policy When a satisfactory survey and surveyor's report and inspection of the premises is made. `Alt 4. Standard exceptions (a)and (d)may be removed upon receipt of a satisfactory affidavit-indemnity from the party shown in title and in possession stating who is in possession of the lands and whether there are improvements being made at date of commitment or contemplated to commence prior to the date of closing which will not have been paid for in full prior to the closing. 5. Order from the City of Miami Beach Building and Zoning Department filed April 13, 1989, in Official ecords Book 14068, at Page 2954, of the Public Records of Dade County, Florida. (Lot 6) 6. Restrictions, limitations and easements contained in the Plat of OCEAN BEACH FIRST ADDITION, according to the Plat thereof, recorded in Plat Book 3, at Page 11, of the Public Records of Dade County, Florida. (As to all Lots) • TE: The title search shall be updated immediately prior to closing, and the right is reserved to impose additional requirements, and add additional exceptions, based on the search. • Note: On loan policies,junior and subordinate matters,if any,will not be reflected in Schedule B. RARE\12937\0004 U S E SO 3.0 8 C • EXHIBIT "A" Legal Description as to Lot 1 Commitment Number: 1 0-01 98-1 0-00391 0 Page 6 PARCEL 1: The Westerly 62.50 feet of Lot 1, Block 34, Ocean Beach, Fla., Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public Records of Dade County, Florida. PARCEL 2: Air rights contiguous and appurtenant to the easterly 13.16 feet of the aforesaid Lot 1. The vertical lower boundary of the Air Rights shall be at an elevation of 40.00 feet National Geodetic Vertical Datum (N.G.V.D.), 1929. The vertical upper boundary shall be at an elevation of infinity. PARCEL 3: The Air Rights for the following described parcel of land: Lot 1, less the Westerly 62.50 feet and less the Easterly 13.16 feet, Block 34, Ocean Beach, Florida, Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public Records of Dade County, Florida. The Lowest Vertical boundary of the above described Air Rights shall be at an elevation of 23 feet, National Geodetic Vertical Datum (N.G.V.D.), 1929. The upper boundary of said Air Rights is an elevation of infinity. Base of Air Rights contains 3217 square feet. EXHIBIT "A" Commitment R:\RE\12937\0004\MDSKJG07.26B EXHIBIT "A" Continued Legal Description as to Lots 2 - 5 Commitment Number: 1 0-01 98-1 0-00391 0 Page 7 • PARCEL I: That Part of Lots 2 through 5 inclusive, Block 34, Ocean Beach, Fla.,Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public Records of Dade County, Florida. Part of Lots 2 through 5: Bounded on the West by the Westerly line of said Lots 2 through 5, bound on the North by the Northerly line of Lot 2; bounded on the South of the Southerly line of Lot 5; bounded on the East by a line described as follows: Commence (P.O.C.) at the southwest corner of said Lot 5 and run S 79° 12'25" E along the Southerly line of Lot 5, a distance of 45.16 feet to the Point of Beginning of the referenced Easterly line, thence run N 10° 47'35" E along a line parallel with and 45.16 feet Easterly of the Westerly line of Lots 5 through 3 inclusive, a distance of 150.00 feet; thence run N 29° 55'12" E across Lot 2, a distance of 52.92 feet to the Northerly line of Lot 5, said point being 62.50 feet Easterly of the northwest corner of Lot 5. Area described contains 9465.5 Square Feet. • PARCEL II: Air Rights for a part of Lots 2 through 5 inclusive, Block 34, Ocean Beach, Fla., Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public Records of Dade County, Florida; said part bounded as follows: Bounded on the East by a line 13.16 feet Westerly of the Easterly line of said"Lots 2 through 5 inclusive, bounded on the North by the Northerly line of Lot 2; bounded on the South by the Southerly line of Lot 5; bounded on the West by a line described as follows: Commence (P.O.C.) at the Southwesterly corner of Lot 5 and run S 79°12'25" E along the Southerly line of Lot 5, a distance of 45.16 feet; to the Point of Beginning (P.O.B.) of said line; thence run N 10°47'35" E along a line 45.16 feet Easterly of the Westerly line of Lots 5 through 3, a distance of 150.00 feet to the Northerly line of referenced Lot 3; thence run N 29°55'12" E across Lot 2, a distance of 52.92 feet to the Northerly line of said Lot 2, said point being 62.50 feet from the Northwest corner of Lot 2. Area of the base of Air Rights is 15,902.50 Square Feet. The Lowest Vertical Boundary of the above described Air Rights is at an elevation of 23.00 feet, National Geodetic Vertical Datum (N.G.V.D.), 1929. The upper boundary of the said Air Rights is an elevation of infinity. PARCEL Ill: Air Rights for the Easterly 13.16 feet of Lots 2 through 5 inclusive, Block 34, Ocean Beach, Fla., Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public records of Dade County, Florida. • The Lowest Vertical Boundary of the above described Air Rights is at an elevation of 40.00 feet, National Geodetic Vertical Datum (N.G.V.D.), 1929. The upper boundary of the said Air Rights is an elevation of infinity. Area of the Base of the Air Rights is 2632 Square Feet. EXHIBIT "A" Commitment R:\RE\12937\0004\MDSKJG07.26B • EXHIBIT "A" Continued Legal Description as to Lot 6 Commitment Number: 10-0198-10-003910 Page 8 • • • PARCEL I: The Westerly 45.16 feet of Lot 6, Block 34, Ocean Beach, Fla. Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public Records of Dade County, Florida contains 2108 Square Feet. PARCEL II: Air Rights for the Easterly 13.16 feet of Lot 6, Block 34, Ocean Beach, Fla., Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public records of Dade County, Florida. The Lowest Vertical Boundary of the above described Air Rights is at an elevation of 40.00 feet, National Geodetic Vertical Datum (N.G.V.D.), 1929. The upper boundary of the said Air Rights is an elevation of infinity. Area of the Base of the Air Rights is 658 Square Feet. PARCEL III: • Air Rights for that part of Lot 6 described as Lot 6, less the Easterly 13.16 feet and less the Westerly 45.16 feet, Block 34, Ocean Beach, Fla., Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public records of Dade County, Florida. The Lowest Vertical Boundary of the above described Air Rights is at an elevation of 23.00 feet, National Geodetic Vertical Datum (N.G.V.D.), 1929. The upper boundary of the said Air Rights is an elevation of infinity. Area of the Base of the Air Rights is 4084 Square Feet. EXHIBIT "A" Commitment R:\RE\12937\0004\MDSKJG07.26B STANDARD EXCEPTIONS FOR OWNER'S POLICY The owner's policy will be subject to the mortgage, if any, noted under item one of Section 1 of Schedule B hereof and to the following exceptions: (1) rights or claims of parties in possession not shown by the public records; (2) encroachments, overlaps, boundary line disputes, and any matters which would be disclosed by an accurate survey and inspection of the premises; (3) easements, or claims of easements, not shown by the public records; (4) any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records; (5) taxes or special assessments which are not shown as existing liens by the public records. CONDITIONS AND STIPULATIONS 1. The term "mortgage,"when used herein, shall include deed of trust, trust deed, or other security instrument. 2. If the proposed Insured has or acquires actual knowledge of any defect, lien, encumbrance, adverse claim or other matter affecting the estate or interest or mortgage thereon covered by this Commitment other than those shown in Schedule B hereof, and shall fail-to disclose such knowledge to the Company in writing, the Company shall be relieved from liability for any loss or damage resulting from any act of reliance hereon to the extent the Company is prejudiced by failure to so disclose such knowledge. If the proposed Insured shall disclose such knowledge to the Company, or if the Company otherwise acquires actual knowledge of any such defect, lien, encumbrance, adverse claim or other matter, the Company at its option may amend Schedule B of this Commit- ment accordingly, but such amendment shall not relieve the Company from liability previously incurred pursuant to paragraph 3 of these Conditions and Stipulations. 3. Liability of the Company under this Commitment shall be only to the named proposed Insured and such parties included under the definition of Insured in the form of policy or policies committed for and only for actual loss incurred in reliance hereon in undertaking in good faith (a) to comply with the requirements hereof, or (b) to eliminate exceptions shown in Schedule B, or (c) to acquire or create the estate or interest or mortgage thereon covered by this Commitment. In no event shall such liability exceed the amount stated in Schedule A for the policy or policies committed for and such liability is subject to the insuring provisions, the Exclusions from Coverage and the Conditions and Stipulations of the form of policy or policies committed for in favor of the proposed Insured which are hereby incorporated by reference and are made a part of this Commitment except as expressly modified herein. 4. Any action or actions or rights of action that the proposed Insured may have or may bring against the Company arising out of the status of the title to the estate or interest or the status of the mortgage thereon covered by this Commitment must be based on and are subject to the provisions of this Commitment. M� Ji29*»a«. x4( a»«:_ �K M� . {© ` . « ± -. . \ AMERICAN LAND /, \ $ TITLE ASSOCIATION ' / . / STANDS FOB / \ t COMMITMENT \ . . . i . ( . a.,;,. • \ . . . r,- ( ��G0 �.?* \ 0 k : e { w . & 7 •: ! ¢ �� q / INCE cO s } . \ . . \ i. \ . K ' $ 4 . 6 . ¢ \ ,. \ N. V 6 / .. ( \ ( ; ( \ \ ( • ( ( , \ / \ . & . /:» ,} �� I + FORMERLY AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY FORM B-1970 (Rev. 10-17-70 and 10-17-84) 100198 04 000423 : 1.: 1 CHICAGO TITLE INSURANCE COMPANY ) DA T. H 1111 SUBJECT TO THE EXCLUSIONS FROM COVERAGE,THE EXCEPTIONS CONTAINED IN SCHEDULE B ! Ni Ni AND THE PROVISIONS OF THE CONDITIONS AND STIPULATIONS HEREOF;CHICAGO TITLE INSUR- six, ANCE COMPANY, a Missouri corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the amount of insurance stated in Schedule A, and costs, 1 attorneys'fees and expenses which the Company may become obligated to pay hereunder,sustained or incurred by -"I the insured by reason of: ,; 1. Title to the estate or interest described in Schedule A beingvested otherwise than as stated therein; :i e 2. Any defect in or lien or encumbrance on such title; 3. Lack of a right of access to and from the land; or k. 4, 4. Unmarketability of such title. £. i. In Witness Whereof,CHICAGO TITLE INSURANCE COMPANY has caused this policy to be signed and sealed as ' > of the date of policy shown in Schedule A, the policy to become valid when countersigned by an authorized i I`= signatory. , +I i 6 -I CHICAGO TITLE INSURANCE COMPANY Issued by: By: BROAD AND CASSEL ` Court House Center-#2000 +` 4w: 175 N.W. First Avenue �� . Miami, Florida 33128 305 371-9100 `E 1.rtar • ,-a. r. ..... ., .i' Pres' nt A " z ;'PATE ;. ` _ By: , I'; c,... 11, 4.4 ':i 1 7:744144.4. LettiteHA Z Secretary Pi 4I IMPORTANT = I:s This policy necessarily relates solely to the title as of the date of the policy.In order that a purchaser of the real K estate described herein may be insured against defects,liens or encumbrances,this policy should be reissued ' iqe/ in the name of such purchaser. ), - EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy: 1. (a) Governmental police power. (b) Any law,ordinance or governmental regulation relating to environmental protection. (c) Any law;ordinance or governmental regulation(including but not limited to building and zoning ordinances)restricting or regulating or prohibiting the occupancy,use or enjoyment of the land,or regulating the character,dimensions or location of any improvement now or hereafter erected on the land,or prohibiting a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part. (d) The effect of any violation of the matters excluded under (a), (b) or(c) above, unless notice of a defect, lien or encumbrance resulting from a violation has been recorded at Date of Policy in those records in which under state statutes deeds,mortgages,lis pendens,liens or other title encumbrances must be recorded In order to impart con- structive notice to purchasers of the land for value and without knowledge;provided,however,that without limitation, such records shall not be construed to include records in any of the offices of federal,state or local environmental protection,zoning,building,health or public safety authorities. 2. Rights of eminent domain unless notice of the exercise of such rights appears In the public records at Date of Policy. 3. Defects,liens,encumbrances,adverse claims,or other matters(a)created,suffered,assumed or agreed to by the insured claimant;(b)not known to the Company and not shown by the public records but known to the insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest Insured by this policy and not disclosed in writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder;(c)resulting in no loss or damage to the insured claimant;or(d)attaching or created subsequent to Date of Policy;or(e)resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy. A�,{ �� i r +.>'} �:\ ij\�:iiji:.{\iti rji::tiiii}L)iii::{:L{�i is "U{'�'`' 2„:.{. .{.:.. �?{i;' .} ?.. :ni .. •}::t;:'t;:;}}: ..:Oi'r• {>3 .S 1' n.�i Y.f -YS;:. ..f v. -pX '{:.•T.v.. •::k :'}}i'{: ':JJ `.`. }�: - .`"` \, 1.�`"'C:." i'-�-:.gyp-`-.-�-..-..:.::',:- .�+ -.h'' � ':��.: "a'�:' '.b9�C•�w+ ::xi,+.;{:a}t•:k?+:::g:}`.':;;::i`!•>••}�:io::%;::::�::::::: 2: :-ram- a .�..::;<?' {�., . �-{:�'`: Ste.} f,:?Y{trx:'t�Sii:•.�5:<i:A•}:.:+•::.+- .a" :y,:-9g s a ..c,.°.J :'+t.: .:,•+\'+sign: .:::tix•:s.�.•ra.a.{}%::%;i}::::}}:•:::.a.. .... .v.... .. .. h4�iML0.�v��~ �ai� _ .. ..\��:.?h:v:}:::ii:{}{::ii:i}:;:S�iiiii>iii?iii } SCHEDULE A • OFFICE FILE NUMBER POLICY NUMBER DATE OF POLICY AMOUNT OF INSURANCE 1 2 3 4 12937-0004 10 0198 04 000423 June 8, 1994 $ 3,1 17,544.00 at 4:30 p.m. 1. Name of Insured: City of Miami Beach, a Florida municipal corporation 2. The estate or interest in the land which is covered by this Policy is: Fee Simple 3. Title to the estate or interest in the land is vested in the Insured. 4. The land herein described is encumbered by the following mortgage or trust deed, and assignments: None and the mortgages or trust deeds, if any, shown in Schedule B hereof. • 5. The land referred to in this Policy is described as follows: See Exhibit "A" attached hereto. SCHEDULE A Owners Form This Policy valid only if Schedule B is attached. Reorder Form No. 3529(Rev. 1/89) R:\RE\12937\0004\MDSKJG07.25A SCHEDULE B Policy Number: 10 0198 04 000423 This policy does not insure against loss or damage ( ) which arise by reason of: General Exceptions: None • Special Exceptions: The mortgage, if any, referred to in item 4 of Schedule A., if this schedule is attached to an Owner's Policy. (1) Any claim that any portion of said lands are sovereignty lands of the State of Florida, including submerged, filled in or artificially exposed lands and lands accreted to such lands. (2) Taxes and assessments for the year 1994 and subsequent years. (3) Restrictions, limitations and easements contained in the Plat of OCEAN BEACH FIRST ADDITION, according -to the Plat thereof, recorded in Plat Book 3, at Page 11, of the Public Records of Dade County, Florida. (4) Acknowledgement and Agreement executed by James Resnick as Vice President of Leo-James, Inc. recorded June 8, 1994 in Official Records Book 16396 at Page 801, Public Records of Dade County, Florida. (5) Agreement to Grant Easements executed by the City of Miami Beach and Ballet Valet Parking Company, Ltd. recorded June 8, 1994 in Official Records Book 16396 at Page 807, Public Records of Dade County, Florida. The telephone number to present inquiries or obtain information about coverage and to provide assistance in resolving complaints is 1-800-959-5591. Coun er g BROAD AND CASSEL 175 N.W. 1st Avenue, St.2000 Miami, Florida 33128 Murray D. Shear, P.A. Authorized Signatory Note: If this schedule is attached to a Loan Policy, junior and subordinate matters, if any, are not reflected herein. Note: This Policy consists of insert pages labeled Schedules A and B. This Policy is of no force and effect unless both pages are included along with any added pages incorporated by reference. SCHEDULE B Loan or Owners Reorder Form No. 1896 (Rev. 3/89) R:\RE\12937\0004\MDSKJG07.25B EXHIBIT "A" Legal Description as to Lot 1 Policy Number: 10 0198 04 000423 Page 3 PARCEL 1: The Westerly 62.50 feet of Lot 1, Block 34, Ocean Beach, Fla., Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public Records of Dade County, Florida. PARCEL 2: Air rights contiguous and appurtenant to the easterly 13.16 feet of the aforesaid Lot 1. The vertical lower boundary of the Air Rights shall be at an elevation of 40.00 feet National Geodetic Vertical Datum (N.G.V.D.), 1929. The vertical upper boundary shall be at an elevation of infinity. PARCEL 3: The Air Rights for the following described parcel of land: Lot 1, less the Westerly 62.50 feet and less the Easterly 13.16 feet, Block 34, Ocean Beach, Florida, Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public Records of Dade County, Florida. The Lowest Vertical boundary of the above described Air Rights shall be at an elevation of 23 feet, National Geodetic Vertical Datum (N.G.V.D.), 1929. The upper boundary of said Air Rights is an elevation of infinity. Base of Air Rights contains 3217 square feet. EXHIBIT "A" Loan or Owners Reorder Form No. 1896 (Rev. 3/89) R:\RE\12937\0004\MDSKJG07.26A ,'' :'tea . _ * * : .. w? $s- ,i -'� _ ��o.�c •;Sk . EXHIBIT "A" Continued Legal Description as to Lots 2 - 5 Policy Number: 10 0198 04 000423 Page 4 • PARCEL I: That Part of Lots 2 through 5 inclusive, Block 34, Ocean Beach, Fla., Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public Records of Dade County, Florida. Part of Lots 2 through 5: Bounded on the West by the Westerly line of said Lots 2 through 5, bound on the North by the Northerly line of Lot 2; bounded on the South of the Southerly line of Lot 5; bounded on the East by a line described as follows: Commence (P.O.C.) at the southwest corner of said Lot 5 and run S 79° 12'25" E along the Southerly line of Lot 5, a distance of 45.16 feet to the Point of Beginning of the referenced Easterly line, thence run N 10° 47'35" E along a line parallel with and 45.16 feet Easterly of the Westerly line of Lots 5 through 3 inclusive, a distance of 150.00 feet; thence run N 29° 55'12" E across Lot 2, a distance of 52.92 feet to the Northerly line of Lot 5, said point being 62.50 feet Easterly of the northwest corner of Lot 5. Area described contains 9465.5 Square Feet. PARCEL II: Air Rights for a part of Lots 2 through 5 inclusive, Block 34, Ocean Beach, Fla., Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public Records of Dade County, Florida; said part bounded as follows: Bounded on the East by a line 13.16 feet Westerly of the Easterly line of said Lots 2 through 5 inclusive, bounded on the North by the Northerly line of Lot 2; bounded on the South by the Southerly line of Lot 5; bounded on the West by a line described as follows: Commence (P.O.C.) at the Southwesterly corner of Lot 5 and run S 79°12'25" E along the Southerly line of Lot 5, a distance of 45.16 feet; to the Point of Beginning (P.O.B.) of said line; thence run N 10°47'35" E along a line 45.16 feet Easterly of the Westerly line of Lots 5 through 3, a distance of 150.00 feet to the Northerly line of referenced Lot 3; thence run N 29°55'12" E across Lot 2, a distance of 52.92 feet to the Northerly line of said Lot 2, said point being 62.50 feet from the Northwest corner of Lot 2. Area of the base of Air Rights is 15,902.50 Square Feet. The Lowest Vertical Boundary of the above described Air Rights is at an elevation of 23.00 feet, National Geodetic Vertical Datum (N.G.V.D.), 1929. The upper boundary of the said Air Rights is an elevation of infinity. PARCEL III: Air Rights for the Easterly 13.16 feet of Lots 2 through 5 inclusive, Block 34, Ocean Beach, Fla., Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public records of Dade County, Florida. The Lowest Vertical Boundary of the above described Air Rights is at an elevation of 40.00 feet, National Geodetic Vertical Datum (N.G.V.D.), 1929. The upper boundary of the said Air Rights is an elevation of infinity. Area of the Base of the Air Rights is 2632 Square Feet. • EXHIBIT "A" Loan or Owners Reorder Form No. 1896 (Rev. 3/89) R:\RE\12937\0004\MDSKJG07.26A :: EXHIBIT "A" Continued' Legal Description as to Lot 6 Policy Number: 10 0198 04 000423 Page 5 • PARCEL I: The Westerly 45.16 feet of Lot 6, Block 34, Ocean Beach, Fla. Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public Records of Dade County, Florida contains 2108 Square Feet. PARCEL II: Air Rights for the Easterly 13.16 feet of Lot 6, Block 34, Ocean Beach, Fla., Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public records of Dade County, Florida. The Lowest Vertical Boundary of the above described Air Rights is at an elevation of 40.00 feet, National Geodetic Vertical Datum (N.G.V.D.), 1929. The upper boundary of the said Air Rights is an elevation of infinity. Area of the Base of the Air Rights is 658 Square Feet. PARCEL III: Air Rights for that part of Lot 6 described as Lot 6, less the Easterly 13.16 feet and less the Westerly 45.16 feet, Block 34, Ocean Beach, Fla., Addition No. 1, recorded in Plat Book 3, at Page 11 of the Public records of Dade County, Florida. The Lowest Vertical Boundary of the above described Air Rights is at an elevation of 23.00 feet, National Geodetic Vertical Datum (N.G.V.D.), 1929. The upper boundary of the said Air Rights is an elevation of infinity. Area of the Base of the Air Rights is 4084 Square Feet. EXHIBIT "A" Loan or Owners Reorder Form No. 1896 (Rev. 3/89) R:\RE\12937\0004\MDSKJG07.26A CONDITIONS AND STIPULATIONS 1. DEFINITION OF TERMS (e)In all cases where this policy permits or requires the Company to prose- The following terms when used in this policy mean: cute or provide for the defense of any action or proceeding, the insured (a)"insured":the insured named in Schedule A,and,subject to any rights hereunder shall secure to the Company the right to so prosecute or provide or defenses the Company may have had against the named insured,those defense in such action or proceeding,and all appeals therein,and permit the who succeed to the interest of such insured by operation of law as distin- Company to use,at its option,the name of such insured for such purpose. guished from purchase including,but not limited to,heirs,distributees,devi- Whenever requested by the Company,such insured shall give the Company sees,survivors,personal representatives,next of kin,or corporate or fiduciary all reasonable aid in any such action or proceeding,in effecting settlement, securing evidence,obtaining witnesses,or prosecuting or defending such successors. action or proceeding,and the Company shall reimburse such insured for any (b)"insured claimant":an insured claiming loss or damage hereunder. expense so incurred. (c)"knowledge":actual knowledge,not constructive knowledge or notice 4. NOTICE OF LOSS—LIMITATION OF ACTION which may be imputed to an insured by reason of any public records. • In addition to the notices required under paragraph 3(b)of these Conditions (d)"land":the land described,specifically or by reference in Schedule A, and Stipulations,a statement in writing of any loss or damage for which it is and improvements affixed thereto which by law constitute real property;pro- claimed the Company is liable under this policy shall be furnished to the vided, however,the term "land"does not include any property beyond the Company within 90 days after such loss or damage shall have been deter- lines of the area specifically described or referred to in Schedule A,nor any mined and no right of action shall accrue to an insured claimant until 30 days right,title, interest,estate or easement in abutting streets, roads,avenues, after such statement shall have been furnished.Failure to furnish such state- alleys,lanes,ways or waterways,but nothing herein shall modify or limit the ment of loss or damage shall terminate any liability of the Company under this extent to which a right of access to and from the land is insured by this policy. policy as to such loss or damage. 5.OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS (e)"mortgage": mortgage, deed of trust, trust deed, or other security The Company shall have the option to pay or otherwise settle for or in the instrument. name of an insured claimant any claim insured against or to terminate all (f)"public records":those records which by law impart constructive notice liability and obligations of the Company hereunder by paying or tendering of matters relating to said land. payment of the amount of insurance under this policy together with any costs, attorneys' fees and expenses incurred up to the time of such payment or 2.CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE tender of payment,by the insured claimant and authorized by the Company. The coverage of this policy shall continue in force as of Date of Policy in favor of an insured so long as such insured retains an estate or interest in the 6.DETERMINATION AND PAYMENT OF LOSS land,or holds an indebtedness secured by a purchase money mortgage given (a)The liability of the Company under this policy shall in no case exceed by a purchaser from such insured, or so long as such insured shall have the least of: liability by reason of covenants of warranty made by such insured in any (i)the actual loss of the insured claimant;or . transfer or conveyance of such estate or interest; provided, however, this (ii)the amount of insurance stated in Schedule A. policy shall not continue in force in favor of any purchaser from such insured of (b)The Companya either said estate or interest or the indebtedness secured by a purchase will pay,in addition to any loss insured against by this policy,all costs imposed upon an insured in litigation carried on by the Com- money.mortgage given to such insured. pany for such insured,and all costs,attorneys'fees and expenses in litigation • 3. DEFENSE AND PROSECUTION OF ACTIONS—NOTICE OF CLAIM TO carried on by such insured with the written authorization of the Company. BE GIVEN BY AN INSURED CLAIMANT (c)When liability has been definitely fixed in accordance with the condi- (a)The Company,at its own cost and without undue delay,shall provide for tions of this policy, the loss or damage shall be payable within 30 days the defense of an insured in all litigation consisting of actions or proceedings thereafter. commenced against such insured,or a defense interposed against an insured 7. LIMITATION OF LIABILITY in an action to enforce a contract for a sale of the estate or interest in said land, No claim shall arise or be maintainable under this policy(a)if the Company, to the extent that such litigation is founded upon an alleged defect, lien, after having received notice of an alleged defect,lien or encumbrance insured encumbrance,or other matter insured against by this policy. against hereunder, by litigation or otherwise, removes such defect, lien or (b)The insured shall notify the Company promptly in writing(i)in case any encumbrance or establishes the title,as insured,within a reasonable time action or proceeding is begun or defense is interposed as set forth in (a) after receipt of such notice;(b)in the event of litigation until there has been a above,(ii)in case knowledge shall come to an insured hereunder of any claim final determination by a court of competent jurisdiction,and disposition of all of title or interest which is adverse to the title to the estate or interest, as appeals therefrom,adverse to the title,as insured,as provided in paragraph 3 insured,and which might cause loss or damage for which the Company may hereof; or(c)for liability voluntarily assumed by an insured in settling any claim or suit without prior written consent of the Company. be liable by virtue of this policy,or(iii)if title to the estate or interest,as insured, is rejected as unmarketable. If such prompt notice shall not be given to the 8. REDUCTION OF LIABILITY Company,then as to such insured all liability of the Company shall cease and All payments under this policy,except payments made for costs,attorneys' terminate in regard to the matter or matters for which such prompt notice is fees and expenses,shall reduce the amount of the insurance pro tanto. No required;provided,however,that failure to notify shall in no case prejudice the payment shall be made without producing this policy for endorsement of such rights of any such insured under this policy unless the Company shall be payment unless the policy be lost or destroyed,in which case proof of such prejudiced by such failure and then only to the extent of such prejudice. loss or destruction shall be furnished to the satisfaction of the Company. (c)The Company shall have the right at its own cost to institute and without 9.LIABILITY NONCUMULATIVE undue delay prosecute any action or proceeding or to do any other act which It is expressly understood that the amount of insurance under this policy in its opinion may be necessary or desirable to establish the title to the estate shall be reduced by any amount the Company may pay under any policy or interest as insured, and the Company may take any appropriate action insuring either(a)a mortgage shown or referred to in Schedule B hereof which under the terms of this policy,whether or not it shall be liable thereunder,and is a lien on the estate or interest covered by this policy, or(b)a mortgage shall not thereby concede liability or waive any provision of this policy. hereafter executed by an insured which is a charge or lien on the estate or interest described or referred to in Schedule A,and the amount so paid shall (d)Whenever the Company shall have brought any action or interposed a be deemed a payment under this policy.The Company shall have the option to defense as required or permitted by the provisions of this policy,the Company apply to the payment of any such mortgages any amount that otherwise would may pursue any such litigation to final determination by a court of competent be payable hereunder to the insured owner of the estate or interest covered by jurisdiction and expressly reserves the right,in its sole discretion,to appeal this policy and the amount so paid shall be deemed a payment under this from any adverse judgment or order. , policy to said insured owner. CONDITIONS AND STIPULATIONS(Continued on Reverse Side) , CONDITIONS AND STIPULATIONS(Continued) 10.APPORTIONMENT proportion which said payment bears to the amount of said loss.If loss should If the land described in Schedule A consists of two or more parcels which result from any act of such insured claimant,such act shall not void this policy, are not used as a single site,and-a loss is established affecting one or more of but the Company,in that event,shall be required to pay only that part of any said parcels but not all,the loss shall be computed and settled on a pro rata losses insured against hereunder which shall exceed the amount,if any,lost basis as if the amount of insurance under this policy was divided pro rata as to to the Company by reason of the impairment of the right of subrogation. the value on Date of Policy of each separate parcel to the whole,exclusive of 12. LIABILITY LIMITED TO THIS POLICY any improvements made subsequent to Date of Policy, unless a liability or This instrument together with all endorsements,and other instruments, if value has otherwise been agreed upon as to each such parcel by the Corn any,attached hereto by the Company is the entire policy and contract between pany and the insured at the time of the issuance of this policy and shown by an the insured and the Company. express statement herein or by an endorsement attached hereto. Any claim of loss or damage, whether or not based on negligence, and 11.SUBROGATION UPON PAYMENT OR SETTLEMENT which arises out of the status of the title to the estate or interest covered Whenever the Company shall have settled a claim under this policy,all right hereby or any action asserting such claim,shall be restricted to the provisions of subrogation shall vest in the Company unaffected by any act of the insured and conditions and stipulations of this policy. • claimant.The Company shall be subrogated to and be entitled to all rights and No amendment of or endorsement to this policy can be made except by remedies which such insured claimant would have had against any person or writing endorsed hereon or attached hereto signed by either the President,a property in respect to such claim had this policy not been issued, and if Vice President,the Secretary,an Assistant Secretary,or validating officer or requested by the Company,such insured claimant shall transfer to the Corn- authorized signatory of the Company. pany all rights and remedies against any person or property necessary in . order to perfect such right of subrogation and shall permit the Company to use 13. NOTICES,WHERE SENT the name of such insured claimant in any transaction or litigation involving All notices required to be given the Company and any statement in writing such rights or remedies.If the payment does not cover the loss of such insured required to be furnished the Company shall include the number of this policy claimant,the Company shall be subrogated to such rights and remedies in the and shall be addressed to the Company at the issuing office or to: Chicago Title Insurance Company Claims Department 111 West Washington Street Chicago,Illinois 60602 • . o ....�' `�.Rc -:�+.,11y.. .ifi• 71 t'a: .:ems. .::.. .4 ., _ .a?y.'" "'r-:? _.t1 ^f..... e,_e_'..; R . -'�11 3 o Y — a n r �I • ` i s W. n0 ,bps car C/) o _ CI b c Z n CI 0 0 a, -4 . 0 CI% o z :h G� pIE yti l 1 a t" : 0 5 ..< Y O A `3~ ^ '"� o t o 1,1 `C i N `9ATy • l Jrri v 1 n ::. n o o' • i. rr i ■ , I -F. :,' .W •:. r'... .:.—v'_. .,A .. -. ;,__- _qr' ?:: :.'• _: *�s6`..: «a''.:> ..;y�.. :�=f,'' .,yeT... ,._ .,.•.. s;l t