Ground Lease Estoppel Certificate between CMB & Lincoln Plaza Partners, LLC 2232-L1
-3Z&75"
GROUND LEASE ESTOPPEL CERTIFICATE
WV.A' , , 2024
To: CLPF-Lincoln, LLC
do Clarion Partners, LLC
230 Park Avenue, 12th Floor
New York, NY 10169
Re: Agreement of Lease by and between City of Miami Beach, Florida, a municipal
corporation, as Owner/Landlord ("Landlord"), and Lincoln Plaza Partners, LLC, a Florida
limited liability company, as Tenant ("Original Tenant"), dated September 1, 1999 and
recorded September 3, 1999 in the Public Records of Miami-Dade County, Florida (the
"Official Records") Book 18770, Page 447; as assigned by Original Tenant to LNR
Jefferson, LLC, a Florida limited liability company("LNR"), in that certain Assignment and
Assumption Agreement recorded June 5, 2001 in Official Records Book 19700, Page
3095; as consented to in that certain Consent to Assignment and Assumption by City of
Miami Beach, Florida recorded May 17,2001 in Official Records Book 19669, Page 1035;
as further assigned by LNR to Lincoln Miami Beach Investments, LLC, a Delaware limited
liability company, now known as 1691 Michigan Ave Investments LP, a Delaware limited
partnership("1691 Michigan Ave"), in that certain Assignment and Assumption of Ground
Lease recorded July 20, 2006 in Official Records Book 24738, Page 4073; as further
assigned by 1691 Michigan Ave to CLPF - Lincoln, LLC, a Delaware limited liability
company("CLPF Tenant"), in that certain Assignment and Assumption of Ground Lease
recorded April 15, 2016 in Official Records Book 30039, Page 4656; and as further
assigned by CLPF Tenant to RK Rivani LLC, a Florida limited liability company("Buyer"),
in that certain Assignment and Assumption of Ground Lease,of even date herewith,to be
promptly recorded in the Official Records(collectively,the"Lease").
Ladies and Gentlemen:
The City of Miami Beach, Florida is the fee simple owner of the Land described in Exhibit A,
attached hereto, and made a part hereof, underlying the Improvements presently known as 1691
Michigan Avenue, Miami Beach, Florida, consisting of a project with a parking garage, ground
floor retail and office space(collectively,the"Premises").This Ground Lease Estoppel Certificate
(this"Certificate")is delivered by the undersigned in connection with an assignment of the Lease
to Buyer pursuant to Section 27.2 of the Lease. Capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Lease.
CLPF Tenant has requested that Landlord execute and deliver this Certificate in favor of CLPF
Tenant, Buyer, Amerant Bank, N.A. ("Buyer's Lender") and the title company issuing title
insurance in connection with the Lease (collectively, together with each of their respective
successors and/or assigns, the "Reliance Parties"), and with the intent and understanding that
Reliance Parties will rely on these presents in selling and purchasing CLPF Tenant's right, title
and interest under the Lease and in providing financing and title insurance in connection
therewith. Landlord represents and certifies to the Reliance Parties, as follows:
ACTIVE 697064945v2
1. The Lease has commenced and is presently in full force and effect and constitutes the
entire agreement between Landlord and CLPF Tenant with respect to the Premises and
has not been further modified, and attached hereto as Exhibit C is a true, correct and
complete copy of the Lease.The Fixed Expiration Date under the Lease is September 30,
2052, subject to two(2)extension terms of twenty(20)years each.
2. Except as shown in Exhibit B hereto, all Rental (including all Base Rent and Percentage
Rent) under the Lease has been paid as of the date of this Certificate; provided, however,
that the Percentage Rent payments received by Landlord for calendar years 2021 through
2023 may be subject to verification and modification pursuant to a future audit of the
Lease. The last monthly installment of Base Rent paid by CLPF Tenant to Landlord was
$32,709.37 and was paid to Landlord on March 4, 2024. The last annual payment of
Percentage Rent paid by CLPF Tenant to Landlord was $201,082.26 and was paid to
Landlord on February 14, 2024. To the actual knowledge of Landlord, but without
independent inquiry, Landlord is only aware of the outstanding Impositions reflected in
Exhibit B. There is no current Security Deposit being held by Landlord under the Lease.
3. Landlord acknowledges that Buyer's Lender is an "Institutional Lender", providing a first
leasehold mortgage in the original principal amount of $52,500,000.00, in the form
attached hereto as Exhibit "D" (the "Mortgage"), and subject to compliance with Section
11.2(c)(iii)of the Lease, the Mortgage shall be a"Recognized Mortgage" and the Buyer's
Lender a"Recognized Mortgagee" entitled to all rights, privileges, notices and protections
accorded to the holder of a"Recognized Mortgage"under the terms of the Lease, including
but not limited to Article 11 of the Lease. Notwithstanding the foregoing, no modifications
may be made which would cause the Mortgage to no longer qualify as a Recognized
Mortgage including,without limitation,the definition of"Property"in the Mortgage,the legal
description of the Premises, Buyer's interest to be encumbered, or any of Sections 9.11
through 9.15 of the Mortgage. Further, this Certificate is being provided with the
understanding that Tenant will be the Acceptable Operator for the Premises; but non-
compliance with the foregoing shall not affect the agreements and acknowledgments
made by Landlord herein.
4. Landlord shall give a copy of any notice of default or an Event of Default delivered to
"Tenant" under the Lease to Buyer's Lender in its capacity as Recognized Mortgagee to
comply with the notice requirements set forth in Section 11.4(b) of the Lease, at the
address set forth in in Exhibit E hereto, or at such other address as Buyer's Lender may
from time to time deliver to Landlord, in each case, in accordance with Section 26.1 of the
Lease.
5. Landlord confirms that it is in compliance with the provisions of Section 2.2 of the Lease.
6. To the actual knowledge of Landlord, but without independent inquiry, CLPF Tenant is not
in default in the performance of any covenant, agreement, obligation or condition
contained in the Lease and no event has occurred or condition exists which with the
passing of time or giving of notice or both, would constitute an Event of Default on the part
of CLPF Tenant under the Lease. Notwithstanding the foregoing, Landlord does not waive
any default or claims not currently known to Landlord or which arises after the date hereof.
2
ACTIVE 697064945v2
7. Landlord has not delivered to CLPF Tenant a notice of an Event of Default or any event
that,with the giving of notice or the passage of time, or both,would constitute an Event of
Default and which has not been cured.
8. This Certificate may be executed in counterparts, each of which shall be deemed an
original and all of which taken together shall be deemed one and the same instrument.
This Certificate may be relied upon by the Reliance Parties and shall inure to the benefit of their
respective successors and assigns.
(The balance of this page intentionally left blank]
3
ACTIVE 697064945v2
LANDLORD:
CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation of the State of Florida
By: XeM, M%/ 14
Name: Rickelle Williams
Title: Interim City Manager
Date: 6)4-b9-ZM
APPROVED AS TO
FORM&LANGUAGE
4 &FOR EXECUTION/�
ACTIVE 697064945v2 I =�
City Attorney`i •. — Date
. 1
EXHIBIT A
Lesaal Description
LEASEHOLD ESTATE:
That certain Lease by and between the City of Miami Beach, Florida a municipal corporation, as
Owner/Landlord,and Lincoln Plaza Partners,LLC,a Florida limited liability company,as Tenant,
dated September 1, 1999;as memorialized by that certain Agreement of Lease dated September 1,
1999 and recorded September 3, 1999 in the Public Records of Miami-Dade County,Florida(the
"Official Records") Book 18770, Page 447; as assigned by Tenant to LNR Jefferson, LLC, a
Florida limited liability company("LNR"),in that certain Assignment and Assumption Agreement
recorded June 5,2001 in Official Records Book 19700,Page 3095; as consented to in that certain
Consent to Assignment and Assumption by City of Miami Beach Florida recorded May 17, 2001
in Official Records Book 19669, Page 1035; as assigned by LNR to 1691 Michigan Ave
Investment, LP, a Delaware limited partnership ("1691 Michigan Ave") (formerly known as
Lincoln Miami Beach Investments, LLC, a Delaware limited liability company) in that certain
Assignment and Assumption of Ground Lease recorded July 20, 2006 in Official Records Book
24738,Page 4073;as further assigned by 1691 Michigan Ave to CLPF—Lincoln,LLC,a Delaware
limited liability company in that certain Assignment and Assumption of Ground Lease recorded
April 15, 2016 in Official Records Book 30039, Page 4656, in each case with respect to the
following described land:
Lots 7 through 10, inclusive, and Lots 14 through 20, inclusive, Block 37, PALM VIEW
SUBDIVISION,according to the plat thereof as recorded in Plat Book 6, Page 29, Public Records
of Miami-Dade County, Florida.
ACTIVE 697064945v2
EXHIBIT B
Total Amounts due Pursuant to Lien Search Dated February 27,2024
Base Rent for April, 2024 $32,709.37
Folio No. 02-3234-004-0695
Notice of Violation $500.00
Folio No. 02-3234-004-0690
Utility Bill $7,591.82
Permits $ 3,996.56
Klein Aire Conditioning $1,452.90
RCC Associates, Inc. $75.00
Advanced Fire and Security $526.00
R G Fifer Inc. $370.00
E Advanced Fire and Security $526.00
Express Permit Solution $1.00
R G Fifer Inc. $62.00
R G Fifer Inc. $308.00
Klein Aire Conditioning $11.40
Klein Aire Conditioning $17.10
Klein Aire Conditioning $36.00
Klein Aire Conditioning $68.40
Klein Aire Conditioning $180.00
Klein Aire Conditioning $1,140.00
Royal Plumbing Corp. $17.82
Royal Plumbing Corp. $26.73
ACTIVE 697064945v2
Royal Plumbing Corp. $56.28
Royal Plumbing Corp. $106.93
Royal Plumbing Corp. $281.40
Royal Plumbing Corp. $1,782.20
ACTIVE 697064945v2
EXHIBIT C
Lease
[See attached.]
ACTIVE 697064945v2
•
•
i (
AEC. W TTOC 447. 998463144 1999 SEP as l4100
AGREEMENT OF LEASE
between
CITY OF MIAMI BEACH,FLORIDA
(Owner)
and
LINCOLN PLAZA PARTNERS,LLC
(Tenant)l
Dated as of /*'', ,1999
LINCOLN PLAZA PROJECT
Prepared By and Record and Return to:
Joel N.Min+ker,Esq.of
Joel N.Mosher,P.A.of
Bloom&Mhiaker
1401 Michell Avenue
7th Floor
Miami,Florida 33131
i
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EXHIBIT 1
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I8770N 448
TABLE OF CONTENTS
RECITALS -1-
TERMS OF AGREEMENT -1-
Article 1-Definitions -2-
Section 1.1 Definitions -2-
Article 2-Demise of Land and Term of Lease -13-
Section 2.1 Demise of Land for Term -13-
Section 2.2 No Encumbrances -14-
Section 2.3 Sale of Entire Interest -14-
Article 3-Rent -14-
Section 3.1 Method and Place of Payment -14-
Section 3.2 Rent -15-
Section 3.3 Percentage Rent -17-
Section 3.4 Impositions -19-
Section 3.5 Net Lease -22-
Section 3.6 Security Deposit -22-
Article 4-Late Charges -?3-
Section 4.1 Late Charges -23-
•
Article 5-Inflation Adjustment .23-
Section 5.1 Inflation Adjustment -23-
Article 6-Use -23-
Section 6.1 Use -23-
Section 62 Prohibited Uses -24-
Section 6.3 Garage Parking Rates -25-
Article 7-Insurance -25-
Section 7.1 Insurance Requirements -25-
Section 7.2 Treatment of Proceeds -26-
Section 73 General Provisions Applicable to All Policies -27-
Section 7.4 Additional Coverage -28-
Section 7.5 No Representation as to Adequacy of Coverage -29-
Section 7.6 Blanket or Umbrella Policies -29-
Section 7.7 Liability Insurance Requirements -29-
Section 7.8 Property Insurance Requirements -30-
Section 7.9 Other Insurance Requirements -32-
Section 7.10 Construction Insurance Requirements -33-
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Section 7.11 Annual Aggregates -34-
Section 7.12 Determination of Replacement Value -34-
Section 7.13 Master Subleases -34-
Section 7.14 Additional Interests -34-
Article S-Damage,Destruction and Restoration -35-
Section 8.1 Notice to Owner -35-
Section 8.2 Casualty Restoration -35-
Section 8.3 Restoration Funds -35-
Section 8.4 Effect of Casualty on This Lease -37-
Section 8.5 Collection of Proceeds -38-
Article 9-Condemnation ... -38-
Section 9.1 Substantial Taking -38-
Section 9.2 Less Than Substantial Taking. • -39-
Section 9.3 Restoration Funds -40-
Section 9.4 Temporary Taking -42-
Section 9.5 Governmental Action Not Resulting in a Taking -43-
Section 9.6 Collection of Awards -43-
Section 9.7 Negotiated Sale -43-
Section 9.8 Intention of Parties -43-
Section 9.9 No Waiver. -43-
Section 9.10 Effect of Taking on This Lease -44-
Article 10-Sale of the Project,Transfer and Subletting -44-
Section 10.1 Purpose of Restrictions on Transfer. -44-
Section 10.2 Definitions. -44-
Section 10.3 Restrictions on Sale of the Project or Transfer. -45-
Section 10.4 Transfers. -49-
Section 10.5 Required Notices -50-
Section 10.6 Effectuation of Transfers and Sales of the Project. -50-
Section 10.7 Office and Retail Master Subleases -51-
Article 11-Mortgages -51-
Section 11.1 Right to Mortgage -51-
Section 11.2 Definitions -52-
Section 11.3 Effect of Mortgages -52-
Section 11.4 Notice and Right to Cure Tenant Defaults -53-
Section 11.5 Recognized Mortgagee or its Designee as
Tenant Under this Lease -55-
Section 11.6 Execution of New Tenant's Documents -56-
Section 11.7 Application of Proceeds from Insurance or
Condemnation Awards -59-
Section 11.8 Appearance at Condemnation Proceedings -59-
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Section 11.9 Rights Limited to Recognized Mortgagees -59-
Section 11.10 No Surrender or Modification -60-
Section 11.11 Recognition by Owner of Recognized
Mortgagee Most Senior in Lien -60-
Section 11.12 Recognized Mortgagee's Assignment Rights -60-
Section 11.13 Notices Under a Mortgage -62-
Article 12-Subordination -62-
Section 12.1 Subordination of Percentage Rent -62-
Section 12.2 No Subordination of Owner's Proprietary Interest in Land -62-
Section 12.3 Tenant's Interest in the Premises Subject to Title Matters -63-
Article 13-Project Construction -63-
Section 13.1 Tenant's Obligation to Construct Project -63-
Section 13.2 Description of the Project -63-
Article 14-Maintenance,Repair and Alterations -63-
Section 14.1 Maintenance Standards -63-
Section 14.2 Removal of Building Equipment -64-
Section 14.3 No Obligation to Repair or to Supply Utilities -64-
Section 14.4 Waste Disposal -64-
Section 14.5 Alterations -64-
Article 15-Requirements -67-
Section 15.1 Tenant's Obligation to Comply With Requirements -67-
Section 15.2 Definition .. -67-
Section 15.3. Owner's Obligation to Comply With Requirements. -68-
Article 16-Management and Operation of Project -68-
Section 16.1 Management of Project -68-
Section 16.2 Garage Revenue Control Equipment -69-
Section 163 Transfer of Acceptable Operator's Interest
in the Management Agreement. -70-
Section 16.4 Owner's Rights and Remedies. -70-
Section 16.5 Repair,Renovation and Replacement Reserve Account. -71-
Section 16.6 More Than One Acceptable Operator. -72-
Article 17-Discharge of Liens -72-
Section 17.1 Creation of Liens -72-
Section 17.2 Discharge of Liens -72- I i
Section 173 No Authority to Contract in Name of Owner -74-
Article 18-Representations -74-
Section 18.1 No Brokers -74-
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Section 18.2 No Other Representations -74-
Article 19-No Liability for Injury or Damage -75-
Section 19.1 Liability of Owner or Tenant 75-
Section 19.2 Owner's Exculpation -76-
Section 193 Notice of Injury or Damage -76-
Section 19.4 Tenant's Exculpation -76-
Section 19.5 No Punitive Damages. -77-
Section 19.6 Survival. -77-
Article 20-Indemnification -77-
Section 20.1 Indemnification of Owner -77-
Section 20.2 Indemnification of Tenant -78-
Section 20.3 Contractual Liability -78-
Section 20.4 Defense of Claim,Etc -79-
Section 20.5 Notification and Payment -79-
Section 20.6 Governs Lease -79-
Section 20.7 Survival -80-
Article 21-Covenant Against Waste and Inspection -80-
Section 21.1 Waste. -80-
Section 21.2 Inspection of Premises. -80
Article 22-Owner's Security Interest in Building Equipment -80-
Section 22.1 Grant of Security Interest -80-
Article 23-Leasehold Condominium -81-
Section 23.1 Creation of Leasehold Condominium. -81-
Article 24-Right to Perform the Other Party's Obligations -84-
Section 24.1 Right to Perform the Other Party's Obligations -84-
Section 24.2 Discharge of Liens -84-
Section 24.3 Reimbursement for Amounts Paid Pursuant to this Article -85 •
-
Section 24.4 Waiver,Release and Assumption of Obligations -85-
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Article 25-Events of Default,Conditional Limitations,Remedies,Etc. -85-
Section 25.1 Definition -85-
Section 25.2 Enforcement of Performance;Damages and Termination -87-
Section 25.3 Expiration and Termination of Lease -87-
Section 25.4 Waiver of Rights of Tenant and Owner -88-
Section 25.5 Receipt of Moneys After Notice or Termination -88-
Section 25.6 Strict Performance -89-
Section 25.7 Right to Enjoin Defaults -89-
Section 25.8 Remedies Under Bankruptcy and Insolvency Codes -90
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Section 25.9 Funds Held By Tenant -91-
Section 25.10 Inspection -91-
Article 26-Notices,Consents and Approvals -91-
Section 26.1 Service of Notices and Other Communications -91-
Section 26.2 Consents and Approvals -93-
Article 27-Certificates By Owner and Tenant -95-
Section 27.1 Certificate of Tenant. -95-
Section 27.2 Certificate of Owner -96-
Article 28-Financial Reports and Records -96-
Section 28.1 Books and Records;Audit Rights -96-
Article 29-Surrender at End of Term -100-
Section 29.1 Surrender of Premises -100-
_ Section 29.2 Delivery of Subleases,Etc -100-
Section 29.3 Title to Improvements -100-
Section 29.4 Title to Reserve Account. -100-
Section 29.5 Cash and Accounts Receivable -101-
Section 29.6 Personal Property. -101-
Section 29.7 Survival Clause -101-
1
Article 30-Quiet Enjoyment -101-
Section 30.1 Quiet Enjoyment -101-
Article 31-Reserved -102-
Article 32-Administrative and Judicial Proceedings,Contests,Etc. -102-
Section 32.1 Tax Contest Proceedings -102-
Section 32.2 Imposition Contest Proceedings -102-
Section 323 Requirement Contest -103-
Section 32.4 Owner's Participation in Contest Proceedings -104-
Section 32.5 Nonapplicability of this Article 32. -104-
Article 33-Nondiscrimination -104-
Section 33.1 Nondiscrimination -104-
Article 34-Indictment,Investigations,Etc. -104-
Section 34.1 Cooperation in Investigations -104-
Article 35-Environmental Matters -105-
Section 35.1 Definitions -105-
Section 35.2 Representations and Warranties of Tenant -106-
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Section 35.3 Use of Hazardous Materials -107-
Section 35.4 Tenant Indemnification of Owner -107-
Section 35.5 Compliance -107-
Section 35.6 Notices -107
Section 35.7 Owner's Remedies -107-
Section 35.8 Defaults -108-
Section 35.9 Owner Responsibility. -109-
Section 35.10 Survival -109-
Article 36-Reciprocal Rights of First Refusal -109-
Section 36.1 Tenant's Reciprocal Right of First Offer -109-
Section 36.2 Owner's Reciprocal Right of First Refusal -110-
Section 36.3 Assignment -112-
Section 36.4 No Merger. -112-
Article 37-Miscellaneous -112-
Section 37.1 Governing Law -112-
Section 37.2 References and Interpretation of Lease -112-
Section 37.3 Entire Agreement -113-
Section 37.4 Counterparts -113-
Section 37.5 Waiver,Modification,Etc -113-
Section 37.6 Effect of Other Transactions -114-
i Section 37.7 Severability -114-
Section 37.8 Merger 114-
Section 37.9 Remedies Cumulative -114-
Section 37.10 Performance at Each Party's Sole Cost and Expense -115-
Section 37.11 Recognized Mortgagee Charges and Fees -115-
Section 37.12 Successors and Assigns -115- •
Section 37.13 Recording of Lease -115-
Section 37.14 Notice of Defaults -115-
Section 37.15 No Liability of Officials and Employees of Owner or Tenant -115-
Section 37.16 Conflict of Interest -116-
Section 37.17 No Partnership or Joint Venture -116-
Section 37.18 Time Periods -116-
Section 37.19 Time is of the Essence -116-
Section 37.20 Radon Notice -117-
Section 37.21 No Third Party Beneficiaries -117-
List of Exhibits -119-
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REC. 87708 454
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE, dated as of the , day of ra'1.1999 (the
"Commencement Date"),by and between the CITY OF MIAMI BEACH,FLORIDA,amunicipal
corporation duly organized and existing under the laws of the State of Florida, as Owner, and
LINCOLN PLAZA PARTNERS,LLC,a Florida limited liability company,as Tenant.
RECITALS
WHEREAS,on December 30,1997,pursuant to the authorization of the Mayor and City
Commission,the Administration issued a Request for Proposals for the development of public-private
parking facilities in the area of south Dade Boulevard("RFP");and
WHEREAS,the City issued the RFP in order to solicit qualified development teams to bid
on certain publicly-owned sites identified in the RFP and/or to propose the development of parking
on privately owned property;and
W IERFAS, on April 6, 1998, the City received proposals from five (5) different
. development teams for various sites throughout the South Beach area;and
WHEREAS,on June 30,1998,an Evaluation Committee appointed bythe City Manager and
approved by the Mayor and City Commission,heard presentations from the five teams;and
WHEREAS,in accordance with the criteria identified in the RPP,the Evaluation Committee
ranked the proposals and provided their recommendations to the City Manager;and
WHEREAS,on July 15, 1998,the City Commission adopted Resolution No.98-22857,
authorizing the Administration to negotiate with a joint venture composed of SRC Lincoln Plaza
LLC,a Florida limited liability company and RDP Lincoln Plaza LLC,a Florida limited liability
company and Michael Milberg(which joint venture is now known as Lincoln Plaza Partners LLC),
with regard to the site located between 171 Street and Lincoln Lane and Jefferson and Michigan
Avenues in the City;and
WHEREAS,said negotiations have been concluded and the Mayor and City Commission,
in Resolution No.99-23236,adopted after two(2)duly noticed public hearings held pursuant to the
Development Agreement Act and Sections 82-36 through 82-40 of the City Code. It is in the best
interest of the City to enter into an Agreement of Lease and Development Agreement with Lincoln
Plaza Partners LLC for the development of the aforementioned Project Site.
•
TERMS OF AGREEMENT
NOW,THEREFORE,it is hereby mutually covenanted and agreed by and between the
parties hereto that this Lease is made upon the terms,covenants and conditions hereinafter set forth.
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Article 1-Definitions
Section 1.1 Definitions.
For all purposes of this Lease the terms defined in this Article 1 shall have the following
meanings and the other provisions of this Article 1 shall apply:
"Acceptable Operator" means any corporation or Person which has the following
qualifications:
1. The Acceptable Operator must be,or have a management contract with,a
Property Manager,
2. The Acceptable Operator must establish and maintain an on site property
management office within a portion of the Project.
•
3. The Acceptable Operator and any Property Manager hired by the Acceptable
Operator shall have no outstanding building code violations for which notice has been served(other
than those which are being corrected or contested diligently and in good faith) against any property
owned or managed by such Acceptable Operator within the City of Miami Beach,Miami-Dade
County and any cities located within Miami-Dade County.
4. The Acceptable Operator must have been in the business of operating similar
projects and parking garages for the past five(5)years(or have management personnel who have
been in the business of operating similar projects and parking garages for at least five(5)years).
5. The Acceptable Operator must have been in the business of managing retail
or office space for at least five(5)years (or have management personnel who have been in the
business of managing retail or office space for at least five(5)years).
Any entity contracted as an Acceptable Operator must continue to meet the above throughout its
service as an Acceptable Operator hereunder unless certain of said qualifications were waived by the
Owner,in writing.
6. An Acceptable Operator shall not be a Foreign Instrumentality.
"Accounting Principles"means generally accepted accounting principles as promulgated by
the American Institute of Certified Public Accountants,except as otherwise provided by this Lease,
with such changes as Owner and Tenant shall mutually agree are consistent with this Lease in order
to reflect technologies and methodologies not addressed in the Accounting Principles.
"Affiliate"or"Affiliates"means,with respect to any Person,any other Person that,directly
or indirectly,through one or more intermediaries,controls or is controlled by,or is under common
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control with,such Person.For purposes hereof,the term"control"(including the terms"controlled
by"and"under common control with")shall mean the possession of a Controlling Interest.
"Alterations"has the meaning provided in Section 145(a).
"Annual Financial Statements"has the meaning provided in Section 28.1(c).
"Annual Report"has the meaning provided in Section 27.1(b).
"Assignee"has the meaning provided in Section 10.2(b).
"Assignment"has the meaning provided in Section 10.2(a).
"Back Rent"has the meaning provided in Section 10.2(c).
"Base Rent"has the meaning provided in Section 3.2(c).
• "Building Equipment"means all installations incorporated in,located at or attached to and
used or usable in the operation of,or in connection with,the Premises and shall include,but shall not
be limited to,machinery,apparatus,devices,motors,engines,dynamos,compressors,pumps,boilers
and burners,heating,lighting,plumbing,ventilating,air cooling and air conditioning equipment;
chutes,ducts,pipes,tanks,fittings,conduits and wiring;incinerating equipment;elevators,escalators
and hoists; washroom, toilet and lavatory plumbing equipment; window washing hoists and
equipment;and all additions or replacements thereof,excluding,however,any personal property
which is owned by subtenants,licensees,concessionaires or contractors(except to the extent any of
the foregoing are Affiliates of Tenant).
"Building Index"has the meaning provided Section 7.12(b).
"Business Day" or"business day"means a day other than Saturday,Sunday or a day on
which banking institutions in the State of Florida are authorized or obligated by law or executive
order to be closed and are,in fact,closed.
"Casualty Restoration"has the meaning provided in Section 8.2(a).
"Certificate of Occupancy"means the document by that name that is required prior to the
occupancy of any premises by Section 307.1 of the South Florida Building Code as amended from
time to time;provided,however,that such definition shall not apply to a temporary certificate of
occupancy if issued only for the Garage and retail portions of the Project and only for a period not
to exceed twelve(12)months prior to the office portion of the Project receiving a Certificate of
Occupancy. Such term shall include both Temporary CO and Final CO,as the context may require.
"City"means the City of Miami Beach,Florida,a municipal corporation duly organized and
existing under the laws of the State of Florida.
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"CO Date"means the date on which Tenant receives a Certificate of Occupancy for any of
the Garage,office building or retail space,whichever occurs first.
"Commencement Date"has the meaning provided in the preamble of this Lease.
"Commissioner"means a duly elected or appointed member of the City Commission of the
City of Miami Beach.
"Condemnation Restoration"has the meaning provided in Section 9.2(b).
"Condominium Tenant"has the meaning provided in Section 23.1(bXii).
"Consenting Party"has the meaning provided in Section 26.2(c)(i).
"Construction Agreements" means all agreements executed in connection with any
Construction Work affecting the Premises and the Improvements,including,without limitation,a
Restoration, Alteration or other Construction Work performed in connection with the use,
maintenance or operation of the Premises.
"Construction Commencement Date" has the meaning provided in the Development
Agreement. to�1 , oar,:n.!r .4",."«E v( ,vr, .cu.04 L
r
"Construction Phase"means the period beginning on the Possession Date and ending on the
CO Date.
"Construction Work"means any construction work performed under any provision of this
Lease affecting the Premises and the Improvements, including, without limitation, the initial
construction of the Project, a Restoration,Alteration or other construction work performed in
connection with the use,maintenance or operation of the Premises.
"Controlling Interest"means the ownership of greater than fifty percent(50%)of the voting
Equity Interests in a Person or the ownership of greater than fifty percent(50%) of the votes
necessary to elect a majority of the Board of Directors or other governing body of such Person.
"CPI"means the Consumer Price Index for All Urban Consumers for the United States,all
items,index base period 1982-84=100(commonly referred to as CPI-U),as published periodically
by the United States Bureau of Labor Statistics.
"Date of Taking"has the meaning provided in Section 9.1(cXi).
"Debt"has the meaning provided in Section 11.2(a).
"Debt Service"means all payments in respect of principal and interest on Debt(including,
without limitation,the net cost to Tenant of interest rate protection agreements and arrangements,
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and any and all fees paid to the lender(s),administrative fees and charges,extension fees,and the
like). In the event,and only during the period in which,a Recognized Mortgagee or its Designee
becomes Tenant under this Lease by virtue of a foreclosure of its Recognized Mortgage or by virtue
of an assignment or conveyance in lieu thereof,Debt Service shall mean the payments that would
have been due under the Recognized Mortgage if foreclosure or conveyance in lieu thereof had not
occurred and there had been no acceleration of the Recognized Mortgage,and in the event that the
maturity date of the Recognized Mortgage has occurred or occurs in such period,Debt Service shall
mean the amount that would have been due in order to make monthly payments,calculated on a Ievel
debt service basis,of(a)interest on the remaining unpaid principal indebtedness(i.e.,the"balloon")
secured by the Recognized Mortgage computed at the contract(i.e.,non-default)rate specified in the
maturing Recognized Mortgage,plus(b)principal payments using the same amortization period as
the maturing Recognized Mortgage(i.e.,if the maturing Recognized Mortgage had a ten(10)year
term with a twenty-five(25)year amortization period,the amortization period for calculating the
monthly principal payments on the remaining principal balance shall be twenty-five(25)years).
"Declaration"has the meaning provided for in Section 23.1(a).
"Default"means any condition or event,or failure of any condition or event to occur,which
constitutes,or would after the giving of notice and lapse oftime On accordance with the terms ofthis
Lease)constitute,an Event of Default.
"Default Notice"has the meaning provided in Section 25.1(b). S,, D1�G 2.4 t
"Delay Date" means the earlier to occur of(i) the CO Date or (ii) the date which is
twenty-four(24)months after the ion D (which date shall not be subject to Unavoidable
Delay). 6 i 01 t 2'4 e 51.10g
"DEP"means the State of Florida Department of Environmental Protection.
"DERM" means the Miami-Dade County Department of Environmental Resources
Management.
"Development Budget"has the meaning provided in the Development Agreement.
"Environment"has the meaning provided in Section 35.1(c).
•
"Environmental Compliance"has the meaning provided in Section 35.5.
"Environmental Condition"has the meaning provided in Section 35.1(d).
"Environmental Damages"has the meaning provided in Section 35.1(e).
"Environmental Laws"has the meaning provided in Section 35.1(b).
I I
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"EPA"means the Environmental Protection Agency of the United States.
"Equity Interest"has the meaning provided in Section 10.2(d).
"Event of Default"has the meaning provided in Section 25.1.
"Expiration of the Term"means the expiration of the initial Term of this Lease,or the
expiration of any extensions thereof,as the case may be,or on such earlier date as this Lease may be
terminated as provided herein.
"Fair Market Rent" means the rent that the Land should bring if it were raw and
unimproved(i.e.,all existing Improvements shall be disregarded)and if it were available for use only
for the same uses as the Project as it is then being used,in a competitive and open market under all
conditions requisite to a fair lease,Owner and Tenant each acting prudently,lamowledgeably,and
assuming the rent is not affected by undue stimulus. Implicit in this definition is consummation of a
lease as of a specified date under conditions whereby:
(i) Owner and Tenant are typically motivated;
(ii) Both parties are well-informed or well-advised and acting in what they
consider their own best interests;
(iii) A reasonable time is allowed for exposure in the open market;
(iv) Payment is made in terms of cash in U.S.dollars or in terms of
financial arrangements comparable thereto;and
(v) The rent represents the normal consideration for property leased unaffected
by special or creative financing or concessions granted by anyone associated with the lease.
'Final CO"means acertificate(s)ofoccupancy issued by the City's Building Department for
all or a portion of the Improvements,other than a Temporary CO(s).
"First Transferee"has the meaning provided in Section 11.12(e).
"Fixed Expiration Date"means the date which is the last day of the month in which the
fiftieth(50th)anniversary of the Delay Date shall occur,provided,however,that in the event the
Term is extended as provided herein,Fixed Expiration Date shall mean the last day of any extension
or extensions of the Term in accordance with the provisions of Section 2.1 hereof.
"Foreclosed Tenant"has the meaning provided in Section 11.12(e).
"Foreclosure Transferee" and"Foreclosure Transfer"have the meanings provided in
Section 11.12(c).
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"Foreign Instrumentality"means aforeign(i.e.,non-United States of America)government
or instrumentalitythereofor a Person controlled thereby.A Person shall be deemed to be"controlled
by" a foreign government or instrumentality if such government or instrumentality, directly or
indirectly,directs or causes the direction of the management and policies of such Person.
"Garage"means the part of the Premises consisting of approximately seven hundred(700)
parking spaces,a portion of which shall be available as a public parking facility subject to the terms
and conditions of Section 6.1(b).
"Governmental Authority or Authorities"means the United States of America,the State
of Florida,the City(acting in its governmental,not proprietary,capacity),Miami-Dade County,and
any agency,department,commission,board,bureau,instrumentality or political subdivision(including
any county or district)of any of the foregoing,now existing or hereafter created,having jurisdiction
over Tenant,or any owner,tenant or other occupant of;or over or under the Premises or any portion
thereof or any street,road,avenue or sidewalk comprising a part of,or in front of;the Premises,or
any vault in or under the Premises,or airspace over the Premises.
"Imposition(s)"has the meaning provided in Section 3.4(b).
"Improvement(s)" means any building (including footings and foundations), Building
Equipment,and other improvements and appurtenances of every kind and description now existing
or hereafter erected,constructed,or placed upon the Land(whether temporary or permanent),and
any and all alterations and replacements thereof,additions thereto and substitutions therefor.
"Institutional Lender"means a Person which,atthe time it' ►.' -•:I i:�� f II I: Lender,
J.-11;1:1. f .J c 'hill i,r't�a:c���k '' i ;,• rt 1, f •
� �f ali u.,; 'i,i:ia 1 ' )
• ..,) , In eaccase whether acting indivi'
`+ a s uciary or representative(such as an agency)capacity];an insurance company organized and
existing under the laws of the United States of America or any state thereof or a foreign insurance
company[in each case whether acting individually or in a fiduciary or representative(such as an
agency)capacity];an institutional investor such as a publicly held real estate investment trust,an
entity that qualifies as a"REMIC"under the Internal Revenue Code of 1986,as amended,or other
public or private investment entity in each case whether acting as principal or agent);a brokerage or
investment banking organization [in each case whether acting individually or in a fiduciary or
representative(such as an agency)capacity as principal or agent];tin employees'welfare,benefit,
pension or retirement fund;an institutional leasing companylaill
origataiestratiMEEVIEnststivapp any governmental agency or entity insured by a
governmental agency or any combination of Institutional Lenders;provided that each of the above
entities shall qualify as an Institutional Lender only if(at the time it becomes an Institutional Lender)
it shall(a)have assets of not less than One Hundred Million Dollars($100,000,000)adjusted for
inflation and(b)not be an Affiliate of Tenant(it being further agreed that none of the standards set
forth in this definition shallbe applicable to participants or co-lenders inaloan secured by a Mortgage
which is heldby anlnstitutional Lender[whether acting individually or in afiduciary or representative
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(such as an agency)capacity]. The term"Institutional Lender"also includes an Affiliate of an
Institutional Lender as described in this paragraph.
"Joint Board"means the Joint Historic Preservation and Design Review Board created and
established pursuant to the Land Use Regulations or any board or body which may succeed to its
functions.
"Land"means the real property and air rights,if any,described on Exhibit A attached hereto
and incorporated by reference herein.
"Late Charge Rate"has the meaning provided in Article 4.
"Lease"means,collectively,this Agreement of Lease and all exhibits and attachments hereto,
• as any of the same may hereafter be supplemented, amended, restated, severed, consolidated,
extended,revised and otherwise modified,from time to time,either in accordance with the terms of
this Lease or by mutual agreement of the parties.
"Lease Year"means(a)the period commencing on the Delay Date,and expiring on the last
day of the next occurring December which is at least twelve (12) months thereafter; (b) each
succeeding 12-month period during the Term;and(a)the final shorter period,if any,ending on the
last day of the Term.
"Major Alteration"has the meaning provided in Section 14.S(a)(vi).
"Management Agreement"means a written agreement between Tenant and Acceptable
Operator pursuant to which Acceptable Operator has agreed to manage and operate the Premises in
accordance with the terms thereof,and any replacements,substitutions,restatements or modifications
thereof.
"Managing Member(s)"means the Member(s)who can legally bind the limited liability
company.
"Master Sablease(s)"has the meaning provided in Section 10.2(1). •
•"Master Subtenant"has the meaning provided in Section 10.2(g).
"Mayor"means the Mayor of the City.
"Member(s)"means a Person who owns an Equity Interest in a limited liability company.
"Membership Interest(s)"means the Equity Interest of a Member.
"Mortgage"has the meaning provided in Section 11.2(b).
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"Mortgagee"means the holder of a Mortgage.
"Net Condemnation Award"has the meaning provided in Section 9.1(cxiii).
"Net Insurance Proceeds"has the meaning provided in Section 8.2(a).
'Notice"has the meaning provided in Section 26.1.
"Notice of Failure to Cure"has the meaning provided in Section 11.4(a).
"Operating Expense(s)" means, without duplication, all costs and expenses incurred in
owning,maintaining,conducting and operating the Premises,other than Debt Service and any other
payments of pricipal or interest[whether or not permitted hereunder(and this reference thereto not
constituting consent or approval thereof)],Rental,depreciation,amortization and the original costs
of constructing the Improvements pursuant to the Development Agreement. Operating Expenses
shall include,without limitation,all operating costs;all wages and benefits and payroll taxes;other
goods,supplies,utilities and services;all repairs and maintenance;all professional fees and expenses;
all costs of advertising,marketing and promotion;all costs incurred by Tenant or any Affiliate of
Tenant under any leasing agreement,management agreement or other similar agreement regarding
the leasing or management of the Project entered into by Tenant or any Affiliate of Tenant; all
Impositions, all insurance costs; all payments under equipment leases; all real estate, personal
property and other taxes, assessments, governmental charges and other Impositions (other than
income taxes, unless imposed in lieu of any of the foregoing taxes, assessments, charges or
Impositions);provided however,that no deduction shall be
permitted for Alterations which under
this Lease require the consent of Owner(unless such consent has been obtained or is deemed to be
obtained). Any Operating Expense payable to an Affiliate of Tenant or Acceptable Operator shall
be deemed an Operating Expense only to the extent of the fair market value of the goods or services
supplied by such Affiliate.
"Owner"means the City,acting in its proprietary capacity,and any assignee or transferee of
the entire Owner's Interest in the Premises,from and after the date of the assignment or transfer
pursuant to which the entire Owner's Interest in the Premises was assigned or transferred to such
assignee or transferee.
"Owner Indemnified Parties"means,collectively,the City(and any successor Owner),and
their respective elected and appointed officials(including the City's Mayor and City Commissioners),
directors,officials,officers,shareholders,members,partners,holders of other ownership interests,
employees, successors, assigns, agents, contractors, subcontractors, experts, licensees, lessees,
mortgagees,trustees,partners,principals,invitees and Affiliates. An"Owner Indemnified Party"
shall mean any of the foregoing.
"Owner's Interest in the Premises"means Owner's interest in the Land and Owner's interest
in this Lease.
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"Parties"means Owner and Tenant.
"Permit"has the meaning provided in Section 35.1(f).
"Permitted Transfer"has the meaning provided in Section 16.3(c)(iii).
"Person" means an individual, corporation, partnership, joint venture, limited Iiability
company,limited liability partnership,estate,trust,unincorporated association or other entity;any
Federal,state,county or municipal government or any bureau,department,political subdivision or
agency thereof;and any fiduciary acting in such capacity on behalf of any of the foregoing.
"Plans and Specifications" has the meaning given to such term in the Development
Agreement,
"Possession Date" means the earlier to occur of(i)one(1)year(which is not subject to
Unavoidable Delays)from the Commencement Date or(ii)the date upon which Tenant elects to take
possession of the Land. xr Z..d.47 %44‘, i-a)4" 7Adtvl, ao/
"Premises"means,collectively,the Land and the Improvements.
"Prohibited Uses"has the meaning provided in Section 6.2(a).
"Project"has the meaning provided in Section 13.1.
"Project Opening Date"means the date on which the Project is opened to the public for
business,but not later than the date that is thirty(30)days following the issuance of a CO for the
entire Project.
"Project Revenue(s)"has the meaning provided in Section 3.3(c).
"Property Manager" means a commercial real estate property manager licensed to do
business in the State of Florida and the City.
"Public Company" means a Person that is required to comply with the reporting •
requirements under the Securities Exchange Act of 1934,as amended,or any successor statute.
"Recognized Accounting Firm" means Ernst & Young/Kenneth Leventhal; Coopers &
Lybrand;Arthur Andersen;Price Waterhouse;Deloitte&Touche;KPMG Peat Marwick;Pannell,
Kerr&Foster;Mallah,Furman,Berkowitz,Dick,Pollack&Burnet;Rachlin,Cohen&Holtz;or any
successor entity of any of the foregoing or any other certified public accountants mutually acceptable
to Tenant and Owner.
"Recognized Mortgage"has the meaning provided in Section 11.2(c).
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"Recognized Mortgagee"means the holder of a Recognized Mortgage;provided,however,
( that, except to the extent permitted by Section 11.2(c), a Recognized Mortgagee may not be an
Affiliate of Tenant(except if Tenant is an Affiliate of a Recognized Mortgagee that has caused this
Lease to be assigned to such Affiliate in lieu of foreclosure of the Recognized Mortgage of such
Recognized Mortgagee).
"Reinstatement Date"has the meaning provided in Section 11.5(a).
"Release"has the meaning provided in Section 35.1(g).
"Replacement Value"has the meaning provided in Section 7.12(a).
"Rental"means rent,Base Rent,Percentage Rent,adjustments and any other sums,costs,
expenses or deposits which Tenant is obligated,pursuant to any provisions of this Lease, to pay
and/or deposit.
"Request for Proposals" or "RFP" means Request for Proposals (RFP No. 20-97/98
(Amended))issued by the City on December 30, 1997,with respect to the Land.
"Requesting Party"has the meaning provided in Section 26.2(c)(ii).
"Requirements"has the meaning provided in Section 15.2.
"Reserve Account"has the meaning provided in Section 16.5(a).
"Restoration"means either a Casualty Restoration or a Condemnation Restoration,or both.
"Sale of the Project"has the meaning provided in Section 10.2(e).
"Security Deposit" has the meaning provided in Section 3.6.
"Significant Alteration"has the meaning provided in Section 14.5(a)(i).
"Substantial Completion"has the meaning provided in the Development Agreement.
"South Florida Building Code"means the South Florida Building Code(Revised 1994),as
amended from time to time,or any successor thereto.
"Substantial Controlling Interest"means the ownership of greater than fifty percent(50%)
of the Equity Interests in a Person and the ownership of greater than fifty percent(50%)of the votes
necessary to elect a majority of the Board of Directors or other governing body of such Person.
"Temporary CO"means a temporary certificate of occupancy,as the same may be amended
from time to time,issued by the City's Building Department for all or a portion of the Improvements.
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"Tenant"means Lincoln Plaza Partners,LLC,a Florida limited liability company,and any
{ assignee,transferee or subtenant of the entire Tenant's Interest in the Premises that is permitted under
this Lease from and after the date of the permitted assignment,transfer or sublease pursuant to which
the entire Tenant's Interest in the Premises was assigned,transferred or sublet to such assignee,
transferee or subtenant.
"Tenant Indemnified Parties" means Tenant and its directors, officers, shareholders,
employees,successors,assigns,subtenants,agents,contractors,subcontractors,experts,licensees,
lessees,mortgagees,joint venturers,members,holders of other ownership interests,partners of a
partnership constituting a partner or Member of Tenant, Members of a limited liability company
constituting a partner or Member of Tenant,trustees,partners,principals,invitees and Affiliates.A
"Tenant Indemnified Party"shall mean any of the foregoing.
"Tenant's Interest in the Premises" means Tenant's interest in this Lease and Tenant's
ownership of the Improvements as provided in Section 293.
"Term"means the term of years commencing on the Commencement Date and,subject to
earlier termination as provided hereunder, expiring at 11:59 p.m. on the Fixed Expiration Date.
"Term,"as the context may require,shall include the initial period from the Commencement Date to
the Fixed Expiration Date and any extensions or renewals thereof.
"Threat of Release"has the meaning provided in Section 35.1(h).
"Title Matters"has the meaning provided in Section 2.1.
"Transfer"has the meaning provided in Section 10.2(h).
"Transferee"has the meaning provided in Section 10.2(1).
"Unavoidable Delays" means delays due to strikes, slowdowns, lockouts, acts of God,
inability to obtain labor or materials, war,enemy action,civil commotion, fire,casualty, eminent
domain,catastrophic weather conditions,a court order which actually causes a delay(unless resulting
from disputes between or among the party alleging an Unavoidable Delay, present or former
employees,officers members,partners or shareholders of such allegingor Affiliates(or present
party
or former employees,officers,partners,members or shareholders of such Affiliates)of such alleging
party),the application of any Requirement,or another cause beyond such party's control or which,
if susceptible to control by such party, shall be beyond the reasonable control of such party. Such
party shall use reasonable good faith efforts to notify the other party not later than twenty(20)days
after such party knows of the occurrence of an Unavoidable Delay;provided,however,that either
party's failure to notify the other of the occurrence of an event constituting an Unavoidable Delay
shall not alter,detract from or negate its character as an Unavoidable Delay or otherwise result in the
loss of any benefit or right granted to the delayed party under this Lease. In no event shall(i)any
party's financial condition or inability to fund or obtain funding or financing constitute an
"Unavoidable Delay" (except for an Institutional Lender's inability to fund,which inability is not
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caused by Tenant)with respect to such party and(ii)any delay arising from a party's(or its Affiliate's)
default under this Lease or the Development Agreement constitutes an"Unavoidable Delay"with
respect to such party's obligations hereunder. The times for performance set forth in this Lease(other
than for monetary obligations of a party)shall be extended to the extent performance is delayed by
Unavoidable Delay,except as otherwise expressly set forth in this Lease.
"U.S. Government" means the federal government of the United States of America,
including all agencies and departments thereof.
Article 2-Demise of Land and Term of Lease
Section 2.1 Demise of Land for Term.
(a) Owner does hereby demise and lease to Tenant,and Tenant does hereby lease
and take from Owner, the Land, together with all the appurtenances, rights, privileges and
hereditaments thereto, "AS IS" subject to (i)the terms and conditions of this Lease and (ii)the
matters set forth in Exhibit 2.1(the"Title Matters")attached hereto and incorporated by reference
herein,to have and to hold unto Tenant,its successors and assigns for an initial Term commencing
on the Commencement Date and continuing until the fiftieth(50th)anniversary of the Delay Date="t +03
unless sooner terminated pursuant to the terms hereof; provided, however, that as a condition
precedent to Tenant's entering upon and taking possession of Parcel 1 (as described on Exhibit A
attached hereto),Tenant shall deliver to Owner special warranty deeds(subject only to the matters
set forth in Exhibit 2.1 hereto and further subject to a right of reverter in the event that this Lease
is terminated for any reason prior to the Commencement of Construction,and free of any other liens,
charges or encumbrances other than taxes not yet due and payable)to Parcel 2(as described on said
Exhibit A) to the City, as grantee. Upon satisfaction of the condition precedent set forth in the
immediately preceding sentence,Tenant's right to possession and control of the Land shall extend
to Parcels 1 and 2(as described on said Exhibit A). Unless (A)this Lease has been previously
terminated in accordance with the provisions hereof,or(B)there exists an uncured Event of Default
of Tenant on the date the current Term is scheduled to end,or(C)Tenant notifies the City within the
last twenty-four(24)months of the end of the Term in question that it is not going to elect to extend
this Lease for each extension provided in this Section 2.1 on the terms and conditions provided
herein,this Lease shall be automatically extended for up to two(2)additional Terms of twenty(20)
years each, for a total possible maximum Term of ninety (90) years (plus the period from the
Commencement Date to the Delay Date).Notwithstanding anything contained in this Section 2.1(a)
to the contrary, the Land shall not include Parcel 2 until such time as said Parcel is conveyed to
Owner as set forth in this Section 2.1(a).
(b) Notwithstanding anything to the contrary contained herein,Tenant shall have
the right to be released from its liability and obligations[except the obligation to pay Rental and/or
Impositions prior to the Possession Date pursuant to Section 3.2(a)I and to terminate the
Development Agreement and this Lease prior to the Possession Date because (i) changes to the
Preliminary Plans and Specifications required by the DRB,Joint Board,or any other Governmental
Authority(including the City),render the Project economically unfeasible in the reasonable business
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judgment of Tenant,(ii)the Project cannot meet concurrency requirements under Section 163.3180,
Florida Statutes (1997), or the costs of concurrency mitigation are, in the reasonable business
judgment of Tenant,economically unfeasible,or(iii)Tenant,after good faith efforts,has been unable
to obtain a full building permit for the Project pursuant to the Plans and Specifications submitted by
Tenant. In the event of termination of the Development Agreement and this Lease pursuant to this
Section 2.1, each Party shall bear its own costs and expenses incurred in connection with the
Development Agreement and this Lease and neither Party shall have any further liability to the other.
Section 2.2 No Encumbrances.
Owner will not permit or suffer any encumbrance, mortgage,pledge or hypothecation of
Owner's Interest in the Premises except with respect to those matters(such as utility easements and
nonmonetary reciprocal easement agreements)reasonably approved by Tenant in writing and which
do not adversely affect the operation or development of the Project. At Tenant's request,Owner
shall join in any utility easements and other easements necessary for the Project. Tenant shall pay all
of Owner's reasonable attorneys'fees and costs associated therewith and shall indemnify and hold
harmless Owner from any and all liability and expenses associated therewith. Notwithstanding the
foregoing,Owner shall have the absolute right to pledge its interest in the Rental and/or Impositions
payable hereunder so long as such pledge does not include a pledge of Owner's Interest in the
Premises(other than the Rental and/or Impositions payable hereunder),and the pledgee shall have
no rights under this Lease other than the right to receive payments of Rental and/or Impositions. Any
pledge of Rental and/or Impositions permitted hereunder shall not create any rights in the pledget
thereunder to enforce any of the provisions of this Lease. Owner shall deliver to Tenant and any
Recognized Mortgagee,within fifteen(15)days after the effective date thereof,a true and correct
copy of any pledge instrument permitted hereunder.
Section 2.3 Sale of Entire Interest.
Owner shall not sell,transfer,convey or assign Owner's Interest in the Premises,except for
a sale,transfer,conveyance or assignment of the entire Owner's Interest in the Premises.
Article 3-Rent
Section 3.1 Method and Place of Payment.
Except as otherwise specifically provided herein,all Rental and/or Impositions shall be paid
without notice or demand. All Rental and/or Impositions payable to Owner(except Impositions,if
the Requirements governing such payments are to the contrary)shall be paid by good checks(payable
upon presentment)drawn on a United States or state chartered bank,in currency of the United States
of America. Rental and/or Impositions that are payable to Owner(other than Impositions,if the
Requirements governing such payments are to the contrary)shall be payable at the address of Owner
set forth herein or at such other place as Owner shall direct by notice to Tenant. Impositions that are
not payable directly to Owner shall be payable in the form and at the location provided by
Requirements governing the payment of such.
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Section 3.2 Rent.
(a) Rent Prior to the Possession Date. On the Commencement Date,in
consideration of the execution of this Lease by Owner,Tenant shall pay Owner the lump sum ofFifty
Thousand Dollars($50,000),which sum shall be full and complete consideration for the period from
the Commencement Date to the Possession Date,and a portion of which represents reimbursement
to Owner for certain expenses incurred by Owner pursuant to Section 82-39 of the Miami Beach City
Code,as amended.
(b) Rent After the Possession Date. Tenant and Owner agree that Owner will
lose significant parking revenues during the Construction Phase. In order to compensate Owner for
said lost revenues,Tenant shall pay One Hundred and Seventy-Five Thousand Dollars($175,000)
per year as rent,commencing on the Possession Date and ending on the earlier to occur of(i)the CO
Date and(ii)the Delay Date.
(c) Rent After the Delay Date. Tenant shall pay Owner annual rent for each
Lease Year,including any adjustments thereto(the"Base Rent"),during the Term commencing on
the Delay Date. The initial Base Rent shall be Two Hundred Fifty Thousand Dollars($250,000),and
shall be increased as described in Sections 3.2(d),3.2(e)and 3.2(f)hereof,until the Expiration of the
Term. In no event shall Base Rent during an adjustment period be less than the Base Rent during any
prior period.
(d) Adjustments to Base Rent. (i)The Base Rent shall be increased to Three
Hundred Thousand Dollars($300,000)per annum,commencing on the first month of the sixth(6th)
Lease Year,and(ii)the Base Rent shall be further increased by the lesser of twelve percent(12%)
or the cumulative CPI over the previous five(5)year period and shall be adjusted commencing with
the first(1")month of the eleventh(111°)Lease Year and every five(5)Lease Years thereafter.
(e) Appraisal Adjustments to Base Rent. Sometime during the 49l (if the
Term has been extended)and 69t1i(if the Term has been extended)Lease Years,the Parties shall
cause to be made appraisals of the Fair Market Rent according to the provisions set forth below,for
the purpose of adjusting the Base Rent,which adjustments shall be effective at the beginning of the
fiftieth(50th)(if the Term has been extended)and seventieth(70th)(if the Term has been extended)
Lease Years,while maintaining the Percentage Rent payments as provided in Section 3.3 herein:
(i) Appraisals shall be made by three(3)real estate appraisers,each of
•
which(i)shall be a member of the American Institute of Real Estate Appraisers,and(ii)shall have
not less than ten(10)years experience in managing and appraising real estate. One appraiser shall
•
be selected and appointed by Owner(the"Owner's Appraiser"),and shall be paid by Owner, one
shall be selected and appointed by Tenant(the"Tenant's Appraiser")and shall be paid by Tenant;and
the third shall be selected and appointed by the first two (2)appraisers so appointed (the "Third
Appraiser").The cost of the Third Appraiser shall be evenly split between Tenant and Owner.In the
event of a failure of Owner's Appraiser and Tenant's Appraiser to agree on the Third Appraiser
within fifteen (15) days after their appointment, the Third Appraiser shall be appointed by the
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President of the American Institute of Real Estate Appraisers(or its successor)on the application of
either appraiser appointed by Owner or Tenant on ten(10)days' notice to the other appraiser so
appointed.
(ii) In the event either Owner or Tenant shall fail to appoint an appraiser
within fifteen(15)days after demand from the other to make the appointment,then the appraiser
appointed by the party not in default shall appoint the second appraiser,and the two(2)appraisers
so appointed shall appoint the Third Appraiser. If the first two(2)appraisers so appointed shall fail
to agree on such Third Appraiser within fifteen(15)days after their appointment,the Third Appraiser
shall be appointed in the same manner provided in Subsection 3.2(e)(i)herein.
(iii) After appointment, the three(3)appraisers,after having been duly
sworn to perform their duties with impartiality,shall proceed promptly to prepare an appraisal of the
Fair Market Rent. The Fair Market Rent determined by the appraisers shall be binding and conclusive
on Owner and Tenant.The appraisers shall have the right,by majority vote among them,to determine
the procedure to be adopted in arriving at the Fair Market Rent(but in so doing they must apply the
definition of Fair Market Rent as provided herein),and may,in their discretion,dispense with formal
hearings,it being agreed that their task will be solely that of appraisal.
(iv) If prior to the expiration of the initial Term or any extended Term the
Fair Market Rent has not been determined for any reason, Tenant shall continue to pay rent as
calculated pursuant to Section 3.2(c) utilizing the Base Rent in effect for the year prior to the
expiration date of the initial Term or any extended Term. When the Fair Market Rent has been
determined,the Base Rent will be increased as provided retroactively to the expiration date of the
initial Term or any extended Term,and the rent payments shall be recalculated in accordance with
Section 3.2(c). If the adjusted Base Rent results in rent due Owner,Tenant shall pay to Owner with
the next installment of rent,the amount of rent due,if any.In no event shall the adjusted Base Rent
result in a decrease in the Base Rent in effect for the year prior to the expiration of the initial Term,
or any extended Term,as applicable.
(f) Additional Adjustment to Base Rent. It is the intention of Owner,and
Tenant acknowledges,that the City will derive an additional benefit from the Premises being placed
on the tax roll. Therefore,as a condition to Owner's agreement to enter into this Lease and subject
to the provisions of Section 3.4(h)hereof,Tenant agrees that the Premises shall be subject to real
estate taxes which Tenant is required to pay hereunder and Tenant shall not seek,based on immunity
from taxation, exemption from taxation, classified use, restrictive covenant, applicable judicial
limitation,local or state land use regulation,historic preservation ordinance,moratorium or other
limitation,to reduce or eliminate the assessed value of the Premises nor reduce,eliminate,abate or
defer the real estate taxes thereon. If after the CO Date,the Premises are not subject to real estate
taxes or if the real estate taxes are reduced,waived,abated,deferred or exempted due to legislation,
judicial action or otherwise,Tenant shall,for each applicable year during the remaining Term of this
Lease and any extensions thereof,make payments to the City in lieu of real estate taxes,in an amount
equal to the City's portion and,for so long as a redevelopment trust fund and/or tax increment district
exists,the Miami-Dade County portion of real estate taxes on the Premises for every year as if they
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had been imposed. Payment in lieu of real estate taxes will be added to Base Rent under this Lease.
For the purposes of this Section 3.2(1),the amount of the payment in lieu of real estate taxes for any
calendar year shall be equal to the sum of the assessed value(in use)of the Land,plus an amount
equal to the value of the Improvements determined in accordance with the assessment methodology
used for other comparable non-exempt,non-classified commercial properties in the area multiplied
by the then applicable millage rate for that calendar year.
(g) Payment of Rent and Base Rent. On and after the Possession Date,rent and
Base Rent shall be paid in monthly installments equal to one-twelfth of the then applicable annual rent
and Base Rent and shall be paid in advance, on the first day of each and every calendar month
thereafter during the Term. All rent and Base Rent which is due for any period of less than a full
month or a full calendar year shall be appropriately apportioned,
(h) interim Garage Rent. Notwithstanding anything to the contrary contained
in this Lease, in the event that the Garage is substantially completed and receives a temporary
certificate of occupancy prior to the office portion of the Project,for the period commencing on the
date such temporary certificate of occupancy is issued and ending on the earlier of(i)twelve(12)
months from the date such certificate of occupancy is issued,(ii)the CO Date or(iii)the Delay Date,
Tenant shall pay to Owner an additional Twenty-Five Thousand Dollars($25,000)per year as Base
Rent,prorated on a monthly basis with respect to the Garage.
(i) Interim Retail Rent. Notwithstanding anything to the contrary contained in
this Lease,in the event that the retail portion of the Project is substantially completed and receives
a temporary certificate of occupancy prior to the office portion of the Project, for the period
commencing on the date such temporary certificate of occupancy is issued and ending on the earlier
of(i)twelve(12)months from the date such certificate of occupancy is issued,(ii)the CO Date or
(iii) the Delay Date, Tenant shall pay to Owner an additional Twenty-Five Thousand Dollars
($25,000)per year as Base Rent,prorated on a monthly basis,with respect to the retail portion of
the Project.
Section 33 Percentage Rent.
(a) Tenant shall pay Owner annual percentage rent for each Lease Year(the
"Percentage Rent")during the Term in an amount equal to two and one-half percent(2%7%)of the
amount of Project Revenue for each Lease Year commencing on the earlier to occur of(i)the ninth
(9th)Lease Year or al@,- •�• rovided,however,for the initial and final Lease Years,the
Percentage Rent I ��ed ac, ording to the actual number of days in such Lease Year.
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(b) Payment of Percentage Rent. Tenant shall pay the full amount of Percentage ,
Rent due in annual installments,in arrears,within sixty(60)days after the end of each Lease Year
for the preceding Lease Year. The Percentage Rent that accrues in the ninth(9th)Lease Year shall
be payable in ten(10)equal annual installments,without interest. Each of such ten(10)annual
installments of the Percentage Rent for the ninth(9th)Lease Year shall be paid to Owner at the same
time as the Percentage Rent that is due and payable for the tenth(10°) through nineteenth(10)
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Lease Years is paid pursuant to this Section 3.3(b). The obligation to pay Percentage Rent shall
survive Expiration of the Term as to Percentage Rent which accrued prior to the Expiration of the
Term,subject to Article 28.
•
(c) Definition.
•
"Project Revenue" means(without duplication):
(i) all revenue,payments,income received,escalation adjustments,rental
and operating cost reimbursements reserved under any lease,sublease.
concession,license,or other arrangement or from the operation of the
Project(including any reimbursements for Operating Expenses and
f common area maintenance) and paid to Tenant for the use or
occupancy of any portion of the Project;provided,however,that for
purposes of calculating Project Revenue(i)if any space in the Project
other than the Project management office(which shall be limited to a
maximum of one thousand(1.000)square feet)is leased to,or used
by.Tenant,any Affiliate of Tenant,subtenant,or any other Person at
a rental which is less than fair market rental value of such space
(determined as of the date such lease is signed), the rent shall he
increased by an amount equal to the difference between the rent being
paid and the fair market rental value; and (ii) if any space in the
• Project is leased to, or used by Tenant, any Affiliate of Tenant,
subtenant,or any other Person on a basis whereby the Tenant pays
• real estate taxes, common arca maintenance charges or operating
costs other than utilities directly to the taxing authority or service
provider rather than to Tenant, the rent under such leases shall he
increased by the amount of such taxes;common arca maintenance •
charges and/or operating costs(other than utilities)paid directly to the
taxing authority or service provider by the Tenant;and
(ii) all revenue, receipts, or other income derived by Tenant from the
Garage or any other parking service, including revenue derived by
Tenant from valet service;and
(iii) Proceeds of rental loss insurance to the extent that such proceeds
replace items of revenue referenced in(i)and(ii)above.
If Tenant shall enter into a Master Sublease of all or substantially all of the
Project or of twenty percent(20%)or more of the Garage to a single tenant."Project Revenue"with
respect to the space included in the Master Sublease shall he computed with respect to the revenues
received by the Master Subtenant(hut in such case the rental payments made by the Master Subtenant
to Tenant shall he excluded).
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Project Revenue shall be computed on a cash basis in accordance with the
Accounting Principles.
The following shall,however,be excluded from Project Revenue:
(1) Federal,state and municipal excise,sales,resort,use,and other taxes
collected from patrons or guests as a part of or based upon the sales
price of any goods or services, including with limitation, gross
receipts,room,bed,admission,cabaret,or similar taxes;
(2) Any gratuities collected;
(3) Allowances,rebates and refunds not included in Project Revenue in
accordance with the Accounting Principles;
(4) The proceeds of any financing or refinancing;
(5) Interest on funds in the Reserve Account;
(6) Proceeds from the Sale of the Project;
(7) Real estate commissions and management fees;
(8) any reimbursements paid by the tenants to Tenant for increases in
amounts paid by Tenant to Owner pursuant to the terms of this Lease
(to the extent such increases occur during the term of the respective
tenant's lease);and
(9) Payments to the Reserve Account.
Section 3.4 Impositions.
(a) Obligation to Pay Impositions. In addition to the payment of Rental,from
and after the Possession Date,Tenant shall pay or cause to be paid,in the manner provided in this
Section 3.4,all Impositions that at any time thereafter are assessed,levied,confirmed,imposed upon,
or charged to Owner or Tenant with respect to(i)the Premises,or(ii)any vault,passageway or space
in, over or under any sidewalk or street in front of or adjoining the Premises, or(iii) any other
appurtenances of the Premises,or(iv)any personal property,Building Equipment or other facility
used in the operation thereof,or(v)any document to which Tenant is a party creating or transferring
an interest or estate in the Premises of, by or to Tenant, or (vi) the use and occupancy of the
Premises,or(vii)this transaction.
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(b) Definition.
"Imposition" or"Impositions" means the following imposed by a Governmental
Authority:
(i) real property taxes and general and special assessments(including,
without limitation,any special assessments for business improvements
or imposed by any special assessment district);
(ii) personal property taxes;
(iii) sales and/or use taxes on Rental;
(iv) water,water meter and sewer rents,rates and charges;
(v) excises;
(vi) levies;
(vii) license and permit fees;
(viii) any other governmental levies of general application, fees, rents,
assessments or taxes and charges,general and special,ordinary and
extraordinary,foreseen and unforeseen,now or hereafter enacted of
any kind whatsoever;
(ix) service charges of general application with respect to police and fire
protection,street and highway maintenance,lighting,sanitation and
water supply;and
(x) any fines,penalties and other similar governmental charges applicable
to the foregoing,together with any interest or costs with respect to
the foregoing.
(c) Payment of Impositions. •
(i) Subject to the provisions of Section 32.2 hereof,from and after the
Possession Date, Tenant shall pay each Imposition or installment
thereof not later than the date the same may be paid without interest
or penalty(which is the date of delinquency). However,if by law of
the applicable Governmental Authority any Imposition may at the
taxpayer's option be paid in installments(whether or not interest shall
accrue on the unpaid balance of such Imposition), Tenant may
exercise the option to pay the Imposition in such installments and shall
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be responsible for the payment of such installments with interest,if
any.
(ii) If Tenant twice fails within any thirty-six(36)month period to make
any payment of an Imposition(or installment thereof)on or before the
date the same may be paid without penalty,Tenant shall,at Owner's
request,and notwithstanding paragraph(i)above,pay all Impositions
or installments thereof thereafter payable by Tenant not later than
twenty(20)days before the date of delinquency. However,if Tenant
thereafter makes all such payments as required in this paragraph(ii)
for thirty-six(36)consecutive months without failure,the Imposition
payment date in paragraph(i)above shall again become applicable,
unless and until there are two further failures within a thirty-six(36)
month period,in which case Tenant shall again have the right to cure
the failure so that the payment date in paragraph(i)above shall again
be applicable,and this provision shall continue to be applicable to each
situation in which there are two further failures within a thirty-six(36)
month period. Nothing in this paragraph shall be construed to limit
Owner's Default remedies as set forth elsewhere in this Lease after
failure by Tenant timely to pay any Imposition.
(d) Evidence of Payment. Tenant shall furnish to Owner,within thirty(30)days
after the date of Owner's request therefor,an official receipt of the appropriate taxing authority or
other proof reasonably satisfactory to Owner,evidencing the payment thereof.
(e) Evidence of Non-Payment. Any certificate,advice or bill of the appropriate
official designated by law to make or issue the same or to receive payment of any Imposition asserting
non-payment of such Imposition shall beprima facie evidence that such Imposition is due and unpaid
at the time of the making or issuance of such certificate,advice or bill,at the time or date stated
therein. Tenant shall,immediately upon receipt of any such certificate,advice or bill,deliver a copy
of the same to Owner.
(f) Apportionment of Imposition. Any Imposition relating to a fiscal period of
the taxing authority, a part of which occurs after the Possession Date and a part of which occurs
before the Possession Date or after the Expiration of the Term,shall be apportioned pro rata between
Owner and Tenant.
(g) Exclusions from Impositions. Except as expressly set forth above,nothing
contained herein shall be construed to require Tenant to pay or to be charged for any portion of(i)
municipal,state or federal income or gross receipts taxes assessed against Owner(other than sales
or use taxes imposed on Rental,notwithstanding that Owner may be primarily liable by law for the
payment thereof);(ii)municipal,state or federal capital levy,estate,succession,inheritance,transfer
or gains taxes,of Owner,(iii)corporation or franchise taxes imposed on Owner or any corporate
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WAN 475
owner of the fee of the Land;or(iv)any penalties or late charges assessed against Owner(unless the
( same result from Tenant's failure to timely pay Impositions).
(h) Tax Abatements and Reductions. Subject to the provisions of Section
3.2(0 which shall control over this Section 3.4(6)when in conflict,Tenant shall be entitled to the
benefit of any tax abatements and reductions as are,or may be,available under applicable law as if
Tenant were the fee owner of the Premises. Owner shall not be required to join in any action or
proceeding in connection with such abatement or reduction unless the provisions of any Requirement
at the time in effect require that such action or proceeding be brought by and/or in the name of
Owner. If so required, Owner shall join and cooperate in such proceedings or permit them to be
brought by Tenant in Owner's name,in which case Tenant shall pay all reasonable costs and expenses
(including,without limitation,-attorneys'fees and disbursements)incurred by Owner in connection
therewith
Section 3.5 Net Lease.
It is the intention of Owner and Tenant that(a)Rental be absolutely net to Owner without any
abatement,diminution,reduction,deduction,counterclaim,setoffor offset whatsoever,except to the
extent expressly set forth in this Lease,and(b)Tenant pay all costs,expenses and charges of every
kind or nature(except as expressly provided for herein to the contrary)relating or allocable to the
Premises that may arise or become due or payable during or after(but attributable to a period falling
within)the Term.
Section 3.6 Security Deposit.
On the Possession Date and continuing until the CO Date,Tenant shall either(i)deposit with
Owner the sum of Two Hundred Fifty Thousand Dollars($250,000)in cash or(ii)post an irrevocable
standby letter of credit in form and substance reasonably acceptable to Owner, payable on
presentation(site credit),in favor of Owner in the amount of Two Hundred Fifty Thousand Dollars
($250,000)(the "Security Deposit")and payable according to the following;
"This letter of credit may be drawn upon in full by the beneficiary hereunder upon the
presentation to the bank of a statement signed by the Mayor,City Manager or any
Assistant City Manager of beneficiary that an uncured Event of Default exists under
the Agreement of Lease between the beneficiary and Lincoln Plaza Partners,LLC
dated [insert date]."
If Tenant elects to post the Security Deposit in cash,it shall be placed by Owner in an interest
bearing account with interest earned to follow the money.The Security Deposit shall be considered
as security for the payment of all of Tenant's obligations,covenants and agreements under this Lease.
Within thirty(30)days after the CO Date, Owner shall(provided that Tenant is not in Default under
the terms of this Lease)return the Security Deposit to Tenant less any portion that Owner shall have
used to make good any Default of Tenant. In the event of any such Default by Tenant,Owner shall
have the right,but not the obligation,to apply all or any portion of the Security Deposit to cure the
+ i
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Default,in which event the Tenant shall be obligated to deposit with Owner the amount necessary
to restore the Security Deposit to the amount in effect prior to the deduction. If a Default exists on
the CO Date and if Tenant diligently and in good faith proceeds to cure the Default and,in fact,cures
the Default,then,in that event,the Security Deposit shall be returned to Tenant.
Article 4-Late Charges
Section 4.1 Late Charges.
If Tenant shall fail to make any payment of Base Rent,Percentage Rent,or other Rental
and/or Impositions within thirty(30)days after the same shall be due,the late payment shall bear
interest from the date due until the date paid at a rate(the"Late Charge Rate")equal to the lesser
of(a)Four Percent(4%)per annum in excess of the prime rate in effect from time to time at Citibank,
N.A.(or The Chase Manhattan Bank,N.A.,if Citibank,N.A.shall not then have an established prime
rate;or the prime rate of any major banking institution doing business in New York City,as selected
by Owner,ifnone of the aforementioned banks shall be in existence or have an established prime rate)
and(b)the maximum interest rate permitted by law. All interest payable under this Section 4.1 shall
be deemed Rental(but shall not be compounded)and shall be due and payable by Tenant on fifteen
(15) days demand. 'The collection by Owner of any interest under this Section 4.1 shall not be
construed as a waiver of Tenant's default or of Tenant's obligation to perform any term,covenant or
condition of this Lease nor shall it affect any other right or remedy of Owner under this Lease.
Article 5-Inflation Adjustment
Section 5.1 Inflation Adjustment.
Unless otherwise expressly provided hereunder,any dollar amount described in this Lease as
"adjusted for inflation"or"subject to adjustment for inflation"(or words of similar import)shall
be adjusted by multiplying such amount by a fraction,the numerator of which shall be the CPI for
the calendar year immediately preceding the date of such adjustment,and the denominator of which
shall be the CPI for the calendar year during which the Delay Date occurred. All amounts subject to
adjustment hereunder shall be adjusted effective as of January 1 of each year pursuant to the formula
described above. If the CPI ceases to be published,and there is no successor thereto,such othe
reasonably similar index as Owner and Tenant mutually designate shall be substituted for the CPI.
No such adjustment shall result in Base Rent being an amount that is less than the Base Rent prior
to the adjustment.
Article 6-Use
Section 6.1 Use.
(a) Continuous Legal Use. Tenant shall use and operate the Premises throughout
the Term only as permitted by this Lease. In any event,the Premises shall be used only in accordance
with the final Certificates] of Occupancy therefor which from time to time exist(or temporary
� I
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Certificate[s]of Occupancy,to the extent that final Certificate[s]of Occupancy have not been issued
therefor).
(b) Scope of Use. In accordance with Tenant's obligations to meet and comply
with the maintenance and operating standards set forth in Article 14 and other provisions of this
Lease,Tenant shall,from and after the Project Opening Date,operate the Premises as an office,retail
and commercial(excluding any apartments,hotels,apartment hotels or residential uses)project and
parking garage containing not less than seven hundred(700)parking spaces. The number of parking
spaces required by the Land Development Regulations for the uses within the Premises shall be
available to Tenant to sublease or license to its subtenants;provided,however,that the remainder of
the parking spaces in the Garage(but in no event less than one hundred(100)parking spaces)shall
be available for use by members of the general public at all times and all of the spaces in the Garage
shall be available for use by members of the general public during non-office hours to the extent not
used by subtenants. Furthermore,Tenant shall provide not less than fifty(50)parking spaces for
monthly parking for members of the general public who are not subtenants of the Premises at monthly
garage parking rates established by Tenant,which rates shall not be higher than the highest rate paid
by any subtenant in the Premises. Notwithstanding the preceding sentence,Tenant reserves the right
to close or restrict access to any portion of the Premises in connection with Alterations undertaken
in accordance with the provisions of this Lease or to such extent as may,in the reasonable opinion
of Tenant's counsel,be legally necessary to prevent a dedication thereof or the accrual of prescriptive
rights to any Person or Persons.
(c) Character and Operation of the Premises. The parties recognize and
acknowledge that the manner in which the Premises are developed,operated and maintained are
matters of critical concern to the City by reason of the need to alleviate a serious parking shortage
within the City,and Tenant hereby agrees to develop,operate and maintain the Premises and all other
property and equipment located thereon which are owned, leased or maintained by Tenant in a
manner consistent with other comparable first class projects of similar age and in good order,
condition,repair and appearance,and in compliance with Article 14. To accomplish this result,
Tenant shall establish such reasonable rules and regulations governing the use and operation of the
Premises by subtenants as Tenant shall deem necessary or desirable in order to comply with Article
16 and assure the level of quality and character of operation of the Premises required herein,and it
will use all reasonable efforts to enforce such rules and regulations.
Section 6.2 Prohibited Uses.
(a) Without limiting the provisions of Section 6.1,Tenant shall not use or occupy
the Premises or any part of the Premises,and neither permit nor suffer the Premises to be used or
occupied,for any of the following("Prohibited Uses"):
(i) for any unlawful or illegal business,use or purpose,including,but not
limited to businesses, uses or purposes which are immoral or
disreputable(including"adult entertainment establishments"and"adult
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bookstores"),or any business,use or purpose that is extra hazardous,
or which will violate the Environmental Laws;
(ii) for any use which is a public nuisance;
(iii) tatoo parlors,psychics, palm and tarot card readers, body piercing
shops or as a gambling casino or facility,in the event that gambling is
ever made a legal activity under Federal,state or local law;
(iv) in any manner that will violate any Certificate of Occupancy for the
Premises,or which will violate any laws,ordinances or other rules or
regulations applicable to the Premises;
(v) in such manner as may make void or voidable any insurance then in
force with respect to the Premises;or
(vi) for any use involving any ownership structure such as time share,time
interval, cooperative or condominium (commercial or otherwise),
except as provided herein.
(b) Immediately upon its discovery of any Prohibited Use,Tenant shall take all
reasonably necessary steps,legal and equitable,to compel discontinuance of such business or use,
including, if necessary, the removal from the Premises of any subtenants, licensees, invitees or
concessionaires,subject to applicable Requirements.
Section 6.3 Garage Parking Rates.
All charges for parking in the Garage,including,but not limited to,the hourly,daily,weekly,
monthly and evening flat rates,shall not be less than garage parking rate being charged by the City
or the Miami Beach Redevelopment Agency and shall not be greater than comparable garage parking
rates being charged in Miami-Dade County,Florida. Parking rates shall not be increased for special
events such as Art Deco Weekend,boat shows or any similar events or activities that create high
demand for parking spaces in the area of the Project.
Article 7-Insurance
Section 7.1 Insurance Requirements,
(a) Liability Insurance. At all times during the Term,Tenant,at its sole cost and
expense,shall carry or cause to be carried insurance against liability with respect to the Premises and
the operations related thereto,whether conducted on or off the Premises in an amount of not less than i
Twenty-Five Million Dollars ($25,000,000) per occurrence, subject to adjustment for inflation,
combined single limit,and designating Tenant as a named insured,and Owner and,if required by a
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Recognized Mortgage,a Recognized Mortgagee as additional insureds. Such insurance shall meet
( all of the standards,limits,minimums and requirements described in Section 7.7.
(b) Property Insurance. At all times during the Term,Tenant at its sole cost and
expense,shall carry or cause to be carried"All Risk"(or its equivalent)property damage insurance
protecting Tenant,Owner and any Recognized Mortgagees as their interests may appear against loss
to the Premises and Improvements and meeting all of the standards, limits, minimums and
requirements described in Section 7.8.
(c) Other Insurance. At all times during the Term, Tenant shall procure and
carry insurance meeting all of the standards,limits,minimums,and requirements described in Section
7.9.
(d) Construction Insurance. Prior to the commencement of any Construction
Work,Tenant shall procure or cause to be procured,and after such dates shall carry or cause to be
carried,until final completion of such work,in addition to and not in lieu of the insurance required
by the foregoing subsections(a),(b),and(c),the insurance described in Section 7.10.
(e) Garage Liability/G aragekeeper's Liability Insurance. From and after the
CO Date,Tenant shall procure or cause to be procured,and after such date shall carry or cause to
be carried with respect to the Garage,Garagekeeper's legal liability coverage in an amount not less
than Five Million Dollars($5,000,000),subject to adjustment for inflation,per occurrence,with a
deductible determined by Owner, but not more than Fifty Thousand Dollars ($50,000) per loss,
subject to adjustment for inflation;and(ii)automobile liability insurance covering any automobile
owned,non-owned or hired in an amount not less than Twenty-Five Million Dollars($25,000,000),
subject to adjustment for inflation,per occurrence,with a deductible determined by Tenant of not
more than Ten Thousand Dollars($10,000)per loss,subject to adjustment for inflation.
Section 7.2 Treatment of Proceeds.
(a) Proceeds of Casualty Insurance in General. Insurance proceeds payable
with respect to a property loss shall be payable either to Owner or any Recognized Mortgagee or
other Institutional Lender pursuant to a mutually acceptable insurance trust agreement, either of
which shall hold such proceeds in trust for the purpose of paying the cost of the Casualty Restoration,
or shall be payable to Tenant with respect to insurance proceeds not exceeding One Million Dollars
($1,000,000), adjusted for inflation, per occurrence, and such proceeds shall be applied to the
payment in full of the cost of such Casualty Restoration in accordance with the provisions of Article
8.
(b) Proceeds of Rent Insurance. Rent Insurance referred to in Section 7.9 shall
be carried in the name of Tenant as named insured and shall be payable to Owner and Tenant to be
applied to Rental and/or Impositions for the period from the occurrence of the damage or destruction
until completion of the Restoration as determined in accordance with the provisions of Article 8.
Without limiting the foregoing provisions of this Section 7.2(b), if required by a Recognized
` t
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Mortgage, such amounts shall be paid to a Recognized Mortgagee so long as all Rental and/or
( Impositions are first paid to Owner subject to the provisions of Section 12.1 herein.
(c) Cooperation in Collection of Proceeds.Tenant,Owner and any Recognized
Mortgagee shall cooperate in connection with the collection of any insurance proceeds that may be
due in the event of a loss, and Tenant, Owner and any Recognized Mortgagee shall as soon as
practicable execute and deliver such proofs of loss and other instruments as may be required of
Tenant,Owner or any Recognized Mortgagee,respectively,for the purpose of obtaining the recovery
of any such insurance proceeds.
(d) Adjustments for Claims. All property insurance policies required by this
Article 7 shall provide that all adjustments for claims with the insurers involving a loss in excess of
One Million Dollars($1,000,000)adjusted for inflation be made jointly with Tenant,Owner and the
Recognized Mortgagee.
Section 73 General Provisions Applicable to All Policies.
(a) Insurance Companies. All of the insurance policies required by this Article
shall be procured from companies licensed or authorized to do business in the State of Florida that
have a rating in the latest edition of"Best's Key Rating Guide"of"A:VIII"or better or another
comparable rating reasonably acceptable to Owner,considering market conditions.
(b) Required Forms. All references to forms and coverages in this Article 7 shall
be those used by the Insurance Services Organization (ISO) or equivalent forms reasonably
satisfactory to Owner in all material respects.
(c) Required Certificates. Certificates of insurance evidencing the issuance of
all insurance required by this Article 7 to the extent then required, describing the coverage and
providing for thirty(30) days prior notice to Owner by the insurance company of cancellation or
non-renewal, shall have been delivered to Owner by the Possession Date, and in the case of any
policies replacing or renewing any policies expiring during the Term,not later than fifteen(I 5)days
before the expiration dates of any expiring policies. The certificates of insurance shall be issued by
or on behalf of the insurance company and shall bear the original signature of an officer or duly
authorized agent having the authority to issue the certificate. The insurance company issuing the
insurance,or its duly authorized agent,shall also deliver to Owner proof reasonably satisfactory to
Owner that the premiums for at least the first year of the term of each policy(or installment payments
to the insurance carrier then required to have been paid on account of such premiums)have been
paid. During the performance of any Construction Work,Tenant shall deliver to Owner an entire
duplicate original or a copy(certified by Tenant to be true,complete and correct)of each policy. At
all other times, Tenant shall deliver to Owner an entire duplicate original or a copy(certified by
Tenant to be true, complete and correct)of each policy within a reasonable period of time after
Owner's request therefor. Tenant shall notify Owner of any material changes in the coverage
provided under any policy promptly after requesting an insurance company to make such change or
receiving any notice from an insurance company advising Tenant of any such change;provided,
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however,that no such change may reduce or otherwise modify the insurance coverage required under
this Lease.
(d) Compliance with Policy Requirements. Tenant shall not violate or permit
to be violated any of the conditions,provisions or requirements of any insurance policy required by
this Article,and Tenant shall perform,satisfy and comply with,or cause to be performed,satisfied
and complied with,all conditions,provisions and requirements of all insurance policies.
(e) Required Insurance Policy Clauses. Each policy of insurance required to
be carried pursuant to the provisions of this Article and each certificate issued by or on behalf of the
insurer shall contain(i)a provision stating substantially that no act or omission of Tenant(or any
other Person) or any use or occupation of the Premises for purposes more hazardous than are
permitted by the policy shall invalidate the policy as to Owner or affect or limit the obligation of the
insurance company to pay to Owner the amount of any loss sustained and that no act or omission of
Owner shall invalidate the policy as to Tenant or affect or limit the obligation of the insurance
company to pay to Tenant the amount of any loss; (ii)a written waiver of the right of subrogation
against all of the named insureds and additional insureds,including Owner in its capacity as owner
of the Land and any Recognized Mortgagee named in such policy,with respect to losses payable
under such policy;(iii)a clause designating Owner,and any Recognized Mortgagee as loss payee or
additional insured, as their interests may appear for losses in excess of One Million Dollars
(S1,000,000),adjusted for inflation;and(iv)an agreement by the insurer that such policy shall not
be canceled,materially modified,or denied renewal without at least thirty(30)days prior written
notice to Owner and the holder of the Recognized Mortgage named under a standard New York form
of mortgagee endorsement or its equivalent,specifically covering,without limitation,cancellation or
non-renewal for non-payment of premium, except that ten(10) days' notice or statutory notice,
whichever is greater,shall be given with respect only to non-payment of premium.
(f) Separate Insurance. Tenant shall not carry separate liability or property
insurance concurrent in form or contributing in the event of loss with that required by this Lease to
be furnished by Tenant, unless Owner and any Recognized Mortgagee are included therein as
additional insureds with respect to liability or loss payee with respect to property,as their interests
may appear,with loss payable as in this Lease provided. Tenant shall immediately notify Owner of
the carrying of any such separate insurance and shall cause the same to be delivered as in this Lease
hereinbefore required.
(g) Du ration of Policies. Tenant shall procure policies for all insurance required
by any provision of this Lease for periods of not less than one(1)year and shall procure renewals
thereof from time to time at least fifteen(15)days before the expiration thereof,except that Builders`
Risk Insurance shall only be renewed for the term of any construction period.
Section 7.4 Additional Coverage.
(a) Other Insurance. Tenant shall maintain such other insurance, in such
amounts as from time to time reasonably may be required by Owner,against such other insurable
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hazards as at the time are commonly insured against in the case of mixed-use garages in South Florida
of a size,nature and character similar to the size,nature and character of the Project.
(b) Adjustment of Limits. All ofthe limits of insurance required pursuant to this
Article 7 shall be subject to review by Owner and,in connection therewith,Tenant shall carry or
cause to be carried such additional amounts as Owner may reasonably require from time to time,but
Owner may not impose such new limits any more frequently than once in every five(5)year period
from the CO Date. Any request by Owner that Tenant carry or cause to be carried additional
amounts of insurance shall not be deemed reasonable unless such additional amounts are commonly
carried in the case of similar projects in South Florida of a size,nature and character similar to the
size,nature and character of the Project;provided,however,that the provisions of this subsection
(b)shall not relieve Tenant of its obligation to carry or to cause to be carried All Risk insurance in
an amount not less than the Replacement Value as provided in Section 7.12(a). Tenant shall be
responsible for all deductibles.
Section 7.5 No Representation as to Adequacy of Coverage.
The requirements set forth herein with respect to the nature and amount of insurance coverage
to be maintained or caused to be maintained by Tenant hereunder shall not constitute a representation
or warranty by Owner or Tenant that such insurance is in any respect adequate.
Section 7.6 Blanket or Umbrella Policies.
The insurance required to be carried by Tenant pursuant to the provisions of this Lease may,
at Tenant's election, be effected by blanket, wrap-up and/or umbrella policies issued to Tenant
covering the Premises and other properties owned or leased by Tenant or its Affiliates,provided such
policies otherwise comply with the provisions ofthis Lease and allocate to the Premises the specified
coverage,including,without limitation,the specified coverage for all insureds required to be named
as insureds or additional insureds hereunder,without possibility of reduction or coinsurance by reason
of,or because of damage to,any other properties named therein. If the insurance required by this
Lease shall be effected by any such blanket or umbrella policies,Tenant shall furnish to Owner,upon
Owner's request,certificates of insurance and copies(certified by Tenant to be true,complete and
correct) of such policies as provided in Section 7.3(e), together with schedules annexed thereto
setting forth the amount of insurance applicable to the Premises.
Section 7.7 Liability Insurance Requirements.
The insurance required by Section 7.1(a) shall consist of commercial general liability
insurance protecting against liability for bodily injury,death,property damage and personal injury.
Such insurance shall(within the limits of the insurance required by Section 7.1(a)):
(a) include a broad form property damage liability endorsement with fire legal
liability limit of not less than Fifty Thousand Dollars($50,000),subject to adjustment for inflation;
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(b) contain blanket contractual liability insurance covering written and oral
contractual liability;
(c) contain contractual liability insurance specifically covering Tenant's
indemnification obligations under Article 20,to the extent such indemnification obligation is for an
insurable risk;
(d) contain independent contractors coverage;
(e) contain a notice of occurrence clause;
(f) contain a knowledge of occurrence clause;
(g) contain an errors and omissions clause;
(h) contain coverage for suits arising from the use of reasonable force to protect
persons and property;
(i) contain an endorsement providing that excavation and foundation work are
covered and the"XCU"exclusions have been deleted;
(j) contain a waiver of completion and occupancy condition;
(k) contain no exclusions unless specifically approved in each instance by Owner,
other than the industry standard exclusions for projects of similar size and location;
(1) contain Products Liability/Completed Operations coverage;and
(m) provide for a deductible determined by Tenant, but not more than Fifty
Thousand Dollars($50,000)per loss,subject to adjustment for inflation.
Section 7.8 Property Insurance Requirements.
The insurance required by Section 7.1(b)shall consist at least of property damage insurance
under an "AU Risk" policy or its equivalent covering the Premises and all Improvements with
replacement cost valuation and an Agreed Amount Endorsement (to be effective not later than
promptly following the CO Date)in an amount not less than the full Replacement Value(determined
in accordance with Section 7.12)and including the following coverages or clauses:
(a) coverage for physical loss or damage to the Improvements;
(b) a replacement cost valuation without depreciation or obsolescence clause;
(c) debris removal coverage;
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(d) provision for a deductible determined by Tenant, but net more than Fifty
Thousand Dollars($50,000)per loss(for other than flood or windstorm, with regard to which the
deductible shall be a commercially reasonable amount),subject to adjustment for inflation;
(e) contingent liability from operation of building laws;
(f) demolition cost for undamaged portion coverage;
(g) increased cost of construction coverage;
(h) an Agreed Amount Endorsement (to be effective not later than promptly
following the CO Date) in an amount not less than the full Replacement Value negating any
coinsurance clauses;
(i) flood coverage(to the extent available at commercially reasonable rates,limits
and deductibles);
(j) windstorm coverage(to the extent available at commercially reasonable rates,
limits and deductibles);
(k) coverage for explosion caused by steam pressure-fired vessels(which coverage
may be provided under a separate policy reasonably approved by Owner);
(1) business interruption coverage in accordance with Section 7.9;
(m) a clause designating Owner and a Recognized Mortgagee as additional
insureds,as their interests may appear;and
(n) contain no exclusions unless approved in writing by Owner,other than the
industry standard exclusions for projects of similar size and location.
Tenant shall be named insured,and Owner and any Recognized Mortgagee shall be additional
insureds,as their interests may appear.The Recognized Mortgagee or Owner shall be designated loss
payee on such"All Risk"policy for the benefit of Owner,Tenant and any Recognized Mortgagee.
If not included within the"All Risk"coverage above,Tenant shall also carry or cause to be carried
coverage against damage due to(i)water and sprinkler leakage and collapse,which shall be written
with limits of coverage of not less than the full Replacement Value per occurrence,with a deductible
of not more than Fifty Thousand Dollars($50,000),subject to adjustment for inflation and(ii)flood,
which shall be written with limits of coverage of not less than Twenty-Five Million Dollars
($25,000,000),witha deductible of not more than Two Hundred Fifty Thousand Dollars($250,000),
subject to adjustment for inflation, to the extent available at commercially reasonable rates and
deductibles.
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If Tenant elects to insure Tenant's personal property used in connection with the Premises,
the replacement value of such personal property shall be added to the amount of insurance required
by this Section.
For the purposes of this Section 7.8, any rate,limit or deductible shall be "commercially
reasonable"if such rate,limit or deductible is comparable to the rates,limits or deductibles in the
insurance carried by similar projects in South Florida of a size,nature and character similar to the
size,nature and character of the Project.
Section 7.9 Other Insurance Requirements.
The insurance required by Section 7.1(c)shall consist at least of the following:
(a) Business Interruption Insurance to include Rent Insurance on an"All Risk"
basis in an amount equal to(i)prior to the CO Date,not less than the annual Base Rent and(ii)
following the CO Date,not less than the aggregate amount of annual Rental and/or Impositions. The
insurance specified in this subsection shall:
(i) provide coverage against all reasonably insurable risks of physical loss
or damage to the Improvements;
(ii) Extra Expense coverage,with a limit of at least One Million Dollars
($1,000,000), adjusted for inflation, to cover overtime and other
extra costs incurred to expedite repairing or rebuilding the damaged
portion of the Premises;
(iii) provide for coverage through the attainment of pre-existing business
levels;
(iv) contain flood and windstorm coverage to the extent available at
commercially reasonable rates,limits and deductibles;
(v) contain explosion caused by steam pressure fired vessels coverage
(which coverage may be provided under a separate policy reasonably
approved by Owner);
(vi) provide for a deductible determined by Tenant,but for not more than
Fifty Thousand Dollars ($50,000)per loss(other than for flood or
windstorm, with regard to which the deductible shall be a
commercially reasonable amount),subject to adjustment for inflation;
(vii) designate Owner, Tenant and any Recognized Mortgagee as loss
payee but shall be payable only to Tenant with respect to Business
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Interruption proceeds not exceeding One Hundred Thousand Dollars
($100,000),subject to adjustment for inflation,per occurrence;and
(viii) contain no exclusions,unless approved by Owner,other than industry
standard exclusions for projects of similar size and location.
(b) Statutory Workers'Compensation and any other insurance required by law
covering all employees of Tenant or any entity performing work on or for the Premises or the
Improvements(unless and to the extent provided by such other parties),including Employers Liability
coverage, all in amounts not less than the statutory minimum, except that Employers Liability
coverage shall be in an amount not less than One Million Dollars($1,000,000),subject to adjustment
for inflation.
(c) After CO Date,Boiler and Machinery Insurance,covering the entire heating,
ventilating and air-conditioning systems,in all its applicable forms,including Broad Form,boiler
explosion, extra expense and loss of use in an amount not less than the replacement cost of such
heating,ventilating and air conditioning systems,located on any portion of the Premises and other
machinery located on any portion ofthe Premises,which shall designate Tenant as named insured and
loss payee and designate Owner and any Recognized Mortgagee as additional insureds.
(d) Automobile liability insurance covering any automobile or other motor vehicle
used in connection with the Project in an amount not less than Twenty-Five Million Dollars
($25,000,000),subject to adjustment for inflation,per occurrence,with a deductible determined by
Tenant of not more than Ten Thousand Dollars($10,000)per loss,subject to adjustment for inflation.
Section 7.10 Construction Insurance Requirements.
The insurance required by Section 7.1(d)shall consist et least of the following:
(a) Builder's Risk Insurance(standard"AB Risk"or equivalent coverage)in an
amount not less than the cost of construction,written on a completed value basis or a reporting basis,
for property damage protecting Tenant, Owner, the general contractor, and any Recognized
Mortgagee, with a deductible determined by Tenant of not more than Fifty Thousand Dollars
($50,000),subject to adjustment for inflation(except as to flood and windstorm,with regard to which
the deductible shall be a commercially reasonable amount),to include rental payment coverage from
the date of projected completion and extending for at least twelve(12)months following such date
of projected completion.
(b) Automobile liability insurance covering any automobile or other motor vehicle
used in connection with work being performed on or for the Premises in an amount not less than Five
Million Dollars($5,000,000),subject to adjustment for inflation,per occurrence,with a deductible
determined by Tenant of not more than Ten Thousand Dollars($10,000),subject to adjustment for
inflation.
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f (c) The insurance required pursuant to Section 7.7.
Section 7.11 Annual Aggregates.
Excluding Umbrella/Excess Liability Insurance,ifthere is imposed under any liability
insurance policy required hereunder an annual aggregate which is applicable to claims other than
products liability and completed operations,such an annual aggregate chall not be less than two(2)
times the per occurrence limit required for such insurance.
Section 7.12 Determination of Replacement Value.
(a) Definition. The current replacement value of the Improvements(the
"Replacement Value") shall be the full cost of replacing the Improvements according to
Requirements in effect at that time,including,without limitation,all hard costs of construction as well
as the costs of post-casualty debris removal,and soft costs,including without limitation,architects',
engineers',surveyors',assessors'and other professional fees and development fees. On the CO Date,
Replacement Value of the Improvements shall be deemed to be an amount equal to the actual costs
incurred or expended in connection with the construction of the Premises as certified by the architect
upon completion of the Premises, other than foundations and financing and other soft costs not
applicable to replacement,adjusted for each year after completion of the Premises in accordance with
the percentage change in the Building Index. If the insurance required by Section 7.8 above is not
sufficient to cover the Replacement Value,then within fifteen(15)days after such adjustment,said
insurance shall be increased or supplemented to fully cover such Replacement Value. In no event
shall such Replacement Value be reduced by depreciation or obsolescence of the Improvements.
(b) Building Index. As used herein, the "Building Index" shall mean the
Marshall and Swift Cost Index or such other published index of construction costs which shall be
selected from time to time by Owner and reasonably agreed to by Tenant,provided that such index
shall be a measure of construction costs widely recognized in the insurance industry and appropriate
to the type and location of the Improvements.
Section 7.13 Master Subleases.
All Master Subleases shall require the Master Subtenant to carry liability insurance naming
Tenant,Owner and any Recognized Mortgagee as additional insureds with limits reasonably prudent
under the circumstances.
Section 7.14 Additional Interests.
All insurance policies in this Article 7 shall contain a provision substantially to the effect that
the insurance provided under the policy is extended to apply to Owner,as its interests may appear.
Any holder of a Recognized Mortgage which,pursuant to the Recognized Mortgage,is required to
be named under any of the insurance carried hereunder shall be named under a standard New York
form of mortgagee endorsement or its equivalent.
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Article 8-Damage,Destruction and Restoration
Section 8.1 Notice to Owner.
If the Premises are damaged or destroyed in whole or in any material part by fire or other
casualty,Tenant shall notify Owner of same as soon as reasonably possible after Tenant's discovery
of same.
Section 8.2 Casualty Restoration.
(a) Obligation to Restore. If all or any portion of the Pleases are damaged or
destroyed by fire or other casualty,ordinary or extraordinary,foreseen or unforeseen,whether prior
to or after completion of the initial construction of the Project,Tenant shall,in accordance with the
provisions of this Article 8 and Article 2 of the Development Agreement(a copy of which is attached
hereto as Exhibit 8.2;the provisions of which shall be deemed to apply to all Construction Work
necessary to complete the Casualty Restoration,to the extent the same are not inconsistent with the
terms hereof)restore the Premises to the condition thereof as it existed immediately before such
casualty(a "Casualty Restoration"), regardless of whether the Net Insurance Proceeds shall be
sufficient therefor. "Net Insurance Proceeds"shall mean the actual amount of insurance proceeds
paid following a fire or other insured casualty.
(b) Commencement of Construction Work. Subject to Unavoidable Delays,
Tenant shall commence the Construction Work in connection with a Casualty Restoration within
ninety(90)days after receipt of the Net Insurance Proceeds by the Recognized Mortgagee or Owner
arising from the damage or destruction which caused the need for such Casualty Restoration and shall
diligently pursue the completion of such Casualty Restoration.
(c) Pay Down of Mortgages Prohibited. No Mortgagee (Recognized or
otherwise)shall have the right to apply any insurance proceeds paid in connection with any casualty
toward payment of the sum secured by its Mortgage to the extent that this Lease requires that Tenant
effect a Casualty Restoration with such proceeds.
Section 8.3 Restoration Funds.
(a) Except as may be otherwise required by any Recognized Mortgage,all Net
Insurance Proceeds shall, if in an amount equal to Five Hundred Thousand Dollars ($500,000),
adjusted for inflation, or less per occurrence,be paid to Tenant and applied as provided herein, If
greater than Five Hundred Thousand Dollars($500,000),adjusted for inflation,then all Net Insurance
Proceeds shall be deposited with the Recognized Mortgagee,or,if none,with another Institutional
Lender pursuant to a mutually acceptable trust agreement. Provided Tenant is conducting the
Casualty Restoration in accordance with this Lease,the Net Insurance Proceeds shall be paid out
from time to time as the Casualty Restoration progresses,upon the written request of Tenant,which
request shall be accompanied by the following:
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(i) A certificate signed by Tenant and the architect or engineer in charge
of the Casualty Restoration,reasonably satisffrtory to Owner,dated
not more than fifteen(15)days prior to such request,setting forth:
(1) that the sum then requested either has been paid by Tenant or
is justly due to contractors, subcontractors, materialmen,
engineers, architects or other persons who have rendered
services or furnished materials for the work specified, and
stating that no part of such expenditures has been or is being
made the basis of any previous or then pending request for the
withdrawal of the Net Insurance Proceeds;
(2) a brief description of the services and materials;
(3) that,except for the amount described in Section 83(a)(i)(1),
there is no outstanding indebtedness actually known to the
persons signing such certificate,after due inquiry,which is
then due for labor,materials,or services in connection with
the Casualty Restoration;
(4) that the cost, as estimated by the persons signing such
certificate, of the work required to complete the Casualty
Restoration does not exceed the amount of the remaining Net
Insurance Proceeds,plus any amount deposited by Tenant to
defray the expenses of the Casualty Restoration;and
(5) that the work described has been completed in accordance
with the plans and specifications applicable thereto,in a good
and workmanlike manner and in accordance with all
Requirements.
(ii) Lien waivers,title insurance company reports or such other evidence,
reasonably satisfactory to Owner,to the effect that there has not been
filed with respect to the Premises,any vendor's,mechanic's,laborer's,
materialman's or other lien which has not been discharged of record,
except such as will be discharged by payment of the amount then
requested;and
(iii) Such other documentation regarding the Casualty Restoration as
Owner or the Recognized Mortgagee shall reasonably require.
(b) Tenant shall,prior to the commencement of the Casualty Restoration,furnish
to Owner an estimate of the total cost of the Casualty Restoration certified by the architect or
engineer in charge of the Casualty Restoration. If such cost estimate or any subsequent estimate
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provided pursuant to Section 83(a)shall show that the cost of completing the Casualty Restoration
is in excess of the amount ofthe Net Insurance Proceeds then available,Tenant shall promptly deposit
with the holder of the Net Insurance Proceeds an amount equal to such excess. The amount so
deposited shall be included in the Net Insurance Proceeds for all purposes of this Article 8.
(c) Upon compliance by Tenant with the foregoing provisions of this Article 8,
the holder of the Net Insurance Proceeds shall pay,to Tenant or the persons named in the certificate
referred to in Section 8.3(a),from the Net Insurance Proceeds,an amount equal to ninety percent
(90%)of the cost of the Casualty Restoration which is evidenced by the request. At the completion
of each contract or subcontract in connection with the Casualty Restoration,the balance of the Net
Insurance Proceeds relating to that portion of the work,to the extent of and as required to complete
the payment of Casualty Restoration costs relating to that portion of the work,shall be paid to Tenant
and Tenant shall provide to Owner reasonable evidence that the Casualty Restoration relating to that
portion of the work has been paid for in full.
(d) If the amount of any Net Insurance Proceeds,excluding deposits made by
Tenant pursuant to Section 83(b)above,shall exceed the entire cost of the Casualty Restoration,
such excess,upon completion of the Casualty Restoration,shall,if this Lease shall be in full force and
effect,and not in default,be disbursed to Tenant,or if this Lease is no longer in full force and effect
or is in default,such excess shall be paid to and retained by Owner and shall be(i)credited against
any amounts due hereunder which are in default,or(ii)deemed to be Percentage Rent hereunder to
the extent that Percentage Rent was reduced during Casualty Restoration and not reimbursed from
insurance proceeds and if any balance remains then,in that event,said remaining balance to Tenant
as Project Revenue.Any amounts deposited by Tenant pursuant to Section 8.3(b)hereof shall be
returned to Tenant to the extent the same are not necessary to fund the cost of the Casualty
Restoration.
Section 8.4 Effect of Casualty on This Lease.
This Lease shall not terminate,be forfeited or be affected in any manner,and there shall be
no reduction or abatement of Rental(except to the extent Owner receives the net proceeds of the
insurance described in Section 7.8), by reason of damage to, or total or partial destruction of,or
untenantability of, the Premises or any part thereof resulting from such damage or destruction.
Tenant's Rental obligations hereunder shall continue as though the Premises had not been damaged
or destroyed and shall continue without abatement,suspension,diminution or reduction whatsoever.
Subject to Unavoidable Delays and taking into account Tenant's Casualty Restoration obligations
(including,without limitation,the effect of the casualty and the Casualty Restoration on the Tenant's
ability to comply with the maintenance obligations under Article 14 hereof),Tenant's non-Rental •
obligations hereunder shall continue as though the Premises had not been damaged or destroyed and
shall continue without abatement,suspension,diminution or reduction whatsoever. •
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Section 8.5 Collection of Proceeds.
Each of the parties shall execute such documents as may be reasonably required to facilitate
collection of any insurance proceeds paid or payable in connection with any casualty affecting the
Premises.
Article 9-Condemnation
Section 9.1 Substantial Taking.
(a) Termination of Lease for Substantial Taking. If all or Substantially All of
the Premises are taken(excluding a taking of the fee interest in the Premises if,after such taking,
Tenant's rights under this Lease are not affected and no rights of any Recognized Mortgagee are
affected)for any public or quasi-public purpose by any lawful power or authority by the exercise of
the right of condemnation or eminent domain or by agreement among Owner,Tenant,Recognized
Mortgagee and those authorized to exercise such right, this Lease shall terminate on the Date of
Taking and the Rental and/or Impositions payable by Tenant hereunder shall be apportioned and paid
to the Date of Taking.
(b) Disbursement of Award. If all or Substantially All of the Premises are taken
or condemned as provided in Section 9.1(a), the Net Condemnation Award paid or payable to
Owner,Tenant or any lender or mortgagee claiming through either of them in connection with such
taking or condemnation shall be paid as follows: (1) there shall first be paid to Owner an amount
equal to the Net Condemnation Award multiplied by a fraction, the numerator of which is the
appraised value of the Land immediately prior to such condemnation,and the denominator of which
is the appraised value of the Premises immediately prior to such condemnation;(2)there shall next
be paid to the Recognized Mortgagee so much of the Net Condemnation Award as shall equal the
unpaid principal indebtedness secured by such Recognized Mortgagee with interest thereon at the rate
specified therein to the date of payment(including any prepayment fees thereon and any so-called
"yield maintenance"or"make-whole"amounts or other sums intended to assure to the Recognized
Mortgagee a certain rate of return under the loan secured by the Recognized Mortgage,if any,as well
as any costs payable by Tenant in connection with such Recognized Mortgage pursuant to any"swap"
or other interest rate protection or hedging mechanism);and(3)the remaining Net Condemnation
Award shall be disbursed to Tenant. The appraised values referred to in Section 9.1(b)(1)shall be
determined using the appraisal process outlined in Section 12(e),except that the appraised values
shall be based upon "fair market value"and not Fair Market Rent.
(c) Definitions.
(i) "Date of Taking"means the earlier of(1)the date on which actual
possession of all or Substantially All of the Premises, or any part
thereof, as the case may be, is acquired by any lawful power or
authority pursuant to the provisions of applicable law or(2)the date
on which title to all or Substantially All of the Premises,or any part
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thereof, as the case may be, has vested in any lawful power or
authority pursuant to the provisions of applicable law.
(ii) "Substantially All of the Premises" means such portion of the
Premises as, when so taken, would leave, in Tenant's good faith
determination,a balance of the Premises that,due either to the area so
taken or the location of the part so taken in relation to the part not so
taken, would not, under economic conditions,physical constraints,
zoning laws, building regulations and other Requirements then
existing, readily accommodate a new or reconstructed building or
buildings and other improvements of a type fully comparable to the
Improvements existing at the Date of Taking. Tenant shall notify
Owner,on or about the Date of Taking,in writing of its determination
as to whether or not"Substantially All of the Premises has been taken.
If Tenant does not determine that Substantially All of the Premises"
has been taken,then this Lease shall not terminate and expire but shall
continue in force and effect, subject to the other provisions of this
Article 9. If Tenant determines that Substantially All of the Premises"
has been taken,then this Lease shall terminate and expire on the Date
of Taking pursuant to Section 9.1(a).
(iii) "Net Condemnation Award"shall mean the actual amount of the
award paid in connection with or arising from the acquisition or other
taking of all or Substantially All of the Premises or any portion of the
Premises by any authority,less all reasonable out-of-pocket expenses
incurred by Owner,Tenant or Recognized Mortgagee in connection
with obtaining such award, including, without limitation, all
reasonable attorneys'fees and disbursements incurred in connection
therewith.
Section 9.2 Less Than Substantial Taking.
(a) Taking of Less than Substantially All of the Premises. If less than
Substantially All of the Premises are taken for any public or quasi-public purpose by any lawful power
or authority by the exercise of the right of condemnation or eminent domain or by agreement among
Owner,Tenant,any Recognized Mortgagee and the entity authorized to exercise such right,whether
prior to or after the completion of the initial construction of the Project,this Lease shall continue for
the remainder of the Term(subject to paragraph(b)below)without diminution of any of Tenant's
obligations hereunder,but with a fair and equitable abatement of Rental and,in the event Tenant is
then making payments to Owner pursuant to Section 3.2(f),such payments,taking into account,
amongst other things,that the Net Condemnation Award(if not sufficient for the Condemnation
Restoration) is insufficient to complete the Condemnation Restoration.
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(b) Obligation to Restore the Premises. If less than Substantially All of the
Premises are taken as provided in Section 9.2(a), whether prior to or after the completion of the
initial construction of the Project,Tenant shall,in accordance with the provisions of this Article 9
and Article 2 of the Development Agreement(a copy of which is attached hereto and incorporated
by reference herein as Exhibit 8.2; the provisions of which shall be deemed to apply to all
Construction Work necessary to complete the Condemnation Restoration,to the extent the same are
not inconsistent with the terms hereof)restore the remaining portion of the Premises,to the extent
feasible,to the condition thereof as it existed immediately before such taking(a"Condemnation
Restoration"),regardless of whether the Net Condemnation Award shall be sufficient therefor.
(c) Disbursement. If less than Substantially All of the Premises are taken as
provided in Section 9.2(a),the Net Condemnation Award payable to Owner,Tenant and any lender
or mortgagee claiming through either of them shall be paid as follows: (1)first to the cost of the
Condemnation Restoration; (2) second to Owner for payment of any amounts due and payable
hereunder which are in default other than Percentage Rent;(3)third to the Recognized Mortgagee
for any amounts due and payable under its Recognized Mortgage which are in default;(4)fourth to
Owner for any accrued,but unpaid,Percentage Rent;(5)fifth to Recognized Mortgagee to the extent
required by the Recognized Mortgage as a result of the less than Substantial Taking;and(6)sixth
pursuant to Section 9.1(b)(1).
(d) Commencement of Construction Work. Subject to Unavoidable Delays,
Tenant shall commence the Construction Work in connection with a Condemnation Restoration
within ninety(90)days after receipt of the Net Condemnation Award arising from the taking which
caused the need for such Condemnation Restoration and shall diligently pursue the completion of
such Condemnation Restoration.
(e) Pay Down of Mortgages Prohibited. No Mortgagee (Recognized or
otherwise) shall have the right to apply any award proceeds paid in connection with any taking
toward payment of the sum secured by its Mortgage to the extent that this Lease requires that Tenant
effect a Condemnation Restoration with such proceeds.
Section 93 Restoration Funds.
(a) If in connection with a taking the Net Condemnation Funds are in excess of
Five Hundred Thousand Dollars ($500,000), adjusted for inflation, then the Net Condemnation
Award shall be deposited with the Recognized Mortgagee,or,if none,with an Institutional Lender
pursuant to a mutually acceptable trust agreement Except as may otherwise be required by a
Recognized Mortgagee, if such Net Condemnation Funds are less than Five Hundred Thousand
Dollars($500,000)adjusted for inflation,the same shall be paid directly to Tenant to be applied as
provided herein. Provided Tenant is conducting the Condemnation Restoration in accordance with
this Lease,the Net Condemnation Award shall be paid out from time to time as the Condemnation
Restoration progresses,upon the written request of Tenant,which request shall be accompanied by
the following:
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(i) A certificate signed by Tenant and the architect or engineer in charge
of the Condemnation Restoration,reasonably satisfactory to Owner,
dated not more than fifteen(15)days prior to such request, setting
forth:
(1) that the sum then requested either has been paid by Tenant or
is justly due to contractors, subcontractors, materialmen,
engineers, architects or other persons who have rendered
services or furnished materials for the work specified, and
stating that no part of such expenditures has been or is being
made the basis of any previous or then pending request for the
withdrawal of the Net Condemnation Award;
(2) a brief description of the services and materials;
(3) that,except for the amount described in Section 9.3(a)(i)(1),
there is no outstanding indebtedness actually known to the
persons signing such certificate,after due inquiry, which is
then due for labor,materials,or services in connection with
the Condemnation Restoration;
(4) that the cost, as estimated by the persons signing such
certificate,ofthe work required to complete the Condemnation
Restoration does not exceed the amount of the remaining Net
Condemnation Award,plus any amount deposited by Tenant to
defray the expenses of the Condemnation Restoration;and
(5) that the work described has been completed in accordance with
the plans and specifications applicable thereto,in a good and
workmanlike manner and in accordance with all Requirements;
(ii) Lien waivers,title company reports or such other evidence,reasonably
satisfactory to Owner,to the effect that there has not been filed with
respect to the Premises, any vendor's, mechanic's, laborer's,
materialman's or other lien which has not been discharged of record,
except such as will be discharged by payment of the amount then
requested;and
(iii) Such other documentation regarding the Condemnation Restoration as
Owner or the Recognized Mortgagee shall reasonably require.
(b) Tenant shall,prior to the commencement of the Condemnation Restoration,
furnish to Owner an estimate of the total cost of the Condemnation Restoration certified by the
architect or engineer in charge of the Condemnation Restoration. If such cost estimate or any
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subsequent estimate provided pursuant to Section 9.3(axl)(4)shall show that the cost of completing
the Condemnation Restoration is in excess of the amount of the Net Condemnation Award then
available,Tenant shall promptly deposit with the holder of the Net Condemnation Award an amount
equal to such excess. The amount so deposited shall be included in the Net Condemnation Award for
all purposes of this Article 9.
(c) Upon compliance by Tenant with the foregoing provisions of this Article,the
holder of the Net Condemnation Award shall pay,to Tenant or the persons named in the certificate
referred to in Section 9,3(a)(i),from the Net Condemnation Award,an amount equal to ninety percent
(90%) of the cost of the Condemnation Restoration which is evidenced by the request. At the
completion of each contract or subcontract in connection with the Condemnation Restoration,the
balance of the Net Condemnation Award relating to that portion of the work,to the extent of and as
required to complete the payment of Condemnation Restoration costs relating to that portion of the
work, shall be paid to Tenant and Tenant shall provide to Owner reasonable evidence that the
Condemnation Restoration relating to that portion of the work has been paid for in full.
(d) If the amount of any Net Condemnation Award,excluding deposits made by
Tenant pursuant to Section 93(b) above, shall exceed the entire cost of the Condemnation
Restoration,such excess,upon completion of the Condemnation Restoration,shall,if this Lease shall
be in full force and effect,be disbursed to Tenant or if this Lease shall not be in full force and effect,
such excess shall be paid to and retained by Owner and shall be deemed to be Percentage Rent to the
extent that Percentage Rent was reduced during Casualty Restoration and not reimbursed from
insurance proceeds and if any balance remains then,in that event,said remaining balance to Tenant
as Project Revenue hereunder. Any amounts deposited by Tenant pursuant to Section 93(b)above
shall be returned to Tenant to the extent the same are not necessary to fund the cost of the
Condemnation Restoration.
Section 9.4 Temporary Taking.
(a) Notice of Temporary Taking. If the temporary use of the whole or any
portion of the Premises is taken for a public or quasi-public purpose by a lawful power or authority
by the exercise of the right of condemnation or eminent domain or by agreement between Tenant and
those authorized to exercise such right,Tenant shall give Owner notice within five(5)Business Days
thereof. The Term 01911 not be reduced or affected in any way by reason of such temporary taking and
Tenant shall continue to pay to Owner the Rental and/or Impositions without reduction or abatement;
provided,however,if such temporary taking is for a period in excess of ninety(90)days,then such
taking shall be deemed a permanent taking and the provisions of Sections 9.1 and 9.2,as applicable,
shall apply.
(b) Temporary Taking Not Extending Beyond the Term. If the temporary .
taking is for a period not extending beyond the Term(including a taking restricted entirely to Tenant's 1 '
Interest in the Premises and not affecting Owner's interest in any way),Tenant shall apply the award
it receives in compensation therefor toward a Condemnation Restoration in accordance with Section
I j
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9.3,and Tenant shall, subject to the rights of any Recognized Mortgagee,be entitled to retain any
remaining amount of such award.
(c) Temporary Taking Extending Beyond the Expiration of the Term. If the
temporary taking is for a period extending beyond the Expiration of the Term,the award or payment
shall first be disbursed pursuant to Section 93 to be applied toward such restoration of the
Improvements as may have been necessitated by such taking,and the remainder shall be equitably
apportioned between Owner and Tenant as of the Expiration of the Term.
Section 9.5 Governmental Action Not Resulting in a Taking.
In case of any governmental action not resulting in the taking or condemnation of any
portion of the Premises but creating a right to compensation therefor,such as the changing of the
grade of any street upon which the Premises abut,then this Lease shall continue in full force and effect
without reduction or abatement of Rental and/or Impositions. Any award payable thereunder shall be
applied(i)first to reimburse Tenant for any Construction Work performed by Tenant resulting from
such governmental action and for attorneys'fees and costs related thereto as well as to Owner for its
attorneys' fees and costs related thereto; provided, however, that Owner was not acting in its
governmental capacity,(ii)second,any remaining amount shall be used to cure any monetary defaults
under this Lease,and(iii)the remainder shall be paid to Tenant.
Section 9.6 Collection of Awards.
Each of the parties shall execute such documents as may be reasonably required to facilitate
collection of any awards made in connection with any condemnation proceeding referred to in this
Article 9.
Section 9.7 Negotiated Sale.
In the event of a negotiated sale of all or a portion of the Premises in lieu of condemnation,the
proceeds shall be distributed as provided in cases of condemnation.
Section 9.8 Intention of Parties.
The existence of any present or future law or statute notwithstanding,Tenant waives all rights
to quit or surrender the Premises or any part thereof by reason of any condemnation or taking of less
than Substantially All of the Premises.
Section 9.9 No Waiver.
Notwithstanding anything to the contrary contained herein,the City,acting in its governmental
capacity, does not waive, and hereby reserves, its right to consent or withhold consent to any
acquisition of property owned by or belonging to the City,including the Premises.
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Section 9.10 Effect of Taking on This Lease.
Except as provided in Section 9.1,this Lease shall not terminate,be forfeited or be affected
in any marmer,and there shall be no reduction or abatement of Rental and/or Impositions,by reason
of any taking of the Premises or any part thereof Except as provided in Section 9.2(a),Tenant's
Rental and/or Imposition obligations hereunder shall continue as though the Premises had not been
taken and shall continue without abatement,suspension,diminution or reduction whatsoever. Subject
to Unavoidable Delays and taking into account Tenant's Condemnation Restoration obligations,
Tenant's non-Rental obligations hereunder shall continue as though the Premises had not been taken
and shall continue without abatement,suspension,diminution or reduction whatsoever.
Article 10-Sale of the Project,Transfer and Subletting
Section 10.1 Purpose of Restrictions on Transfer.
Subject to the provisions of this Article 10;this Lease is granted to Tenant solely for the
purpose of development of the Land and its subsequent use in accordance with the terms hereof,and
not for speculation in landholding. Tenant recognizes that, in view of the importance of the
development of the Land to the general welfare of the community,the qualifications and identity of
Tenant are of particular concern to the community and Owner. Tenant further recognizes that it is
because of such qualifications and identity that Owner is entering into this Lease with Tenant and,in
so doing,is further willing to accept and rely on the obligations of Tenant for the faithful performance
of all undertakings and covenants by it to be performed.
Section 10.2 Definitions.
(a) "Assignment"means a sale,exchange,assignment,transfer or other disposition
by Tenant of all or a portion of Tenant's Interest in the Premises, whether by operation of law or
otherwise,which is not a Transfer or a Master Sublease. The creation or granting of a Mortgage shall
not constitute an Assignment or a Transfer.
(b) "Assignee" means a purchaser, assignee,transferee, or other Person which
acquires all or any portion of Tenant's Interest in the Premises.
(c) "Back Rent" means the amount of unpaid Rental (other than accrued, but
unpaid,Percentage Rent)as of the Reinstatement Date,including accrued simple interest on the unpaid
Rental (other than accrued, but unpaid, Percentage Rent) from the date due at the default rate
specified in the Recognized Mortgage,as well as reasonable attorneys'fees and costs at the trial court
and all appellate levels and other expenses incurred by Owner in connection with enforcing this Lease.
(d) "Equity Interest"means,with respect to any entity,(1)the legal(other than
as a nominee)or beneficial ownership of outstanding voting or non-voting stock of such entity if such
entity is a business corporation,a real estate investment trust or a similar entity,(2)the legal(other
than as a nominee)or beneficial ownership of any partnership,Membership Interest or other voting
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or non-voting ownership interest in a partnership,joint venture,limited liability company or similar
entity,(3)a legal(other than as a nominee)or beneficial voting or non-voting interest in a trust if such
entity is a trust and(4)any other voting or non-voting interest that is the functional equivalent of any
of the foregoing.
(e) "Sale of the Project"means(i)any Assignment or Master Sublease by Tenant
of fifty percent(50%)or more of Tenant's Interest in the Premises or(ii)any change,by operation
of law or otherwise, in the ownership of an Equity Interest in Tenant wherein such change in
ownership, directly or indirectly, produces any change in the Substantial Controlling Interest of
Tenant.
(f) "Master Sublease(s)" means any sublease (including a sub-sublease or any
further level of subletting)of all or any portion of the Premises,but does not include subleases serving
the functional equivalent of a Recognized Mortgage or subleases to actual space users or other
subleases entered into in the ordinary course of business for parking,retail,office or other space at the
Premises;provided,however,that in the event of a sublease of greater than Twenty Percent(20%)
of the parking on the Premises(other than to subtenants of space in the Project to meet their parking
needs), Owner shall have the right to approve the subtenant.
(g) "Master Subtenant"means any party granted rights by Tenant under a Master
Sublease or by any other Master Subtenant(immediate or remote)under a Master Sublease.
(h) "Transfer" means (i) any change, by operation of law or otherwise, in the
, ownership of an Equity Interest in Tenant,wherein such change in ownership,directly or indirectly,
does not produce any change in the Substantial Controlling Interest of Tenant,or(ii)any transaction
or series of transactions,by operation of law or otherwise,including,without limitation,the issuance
of additional Equity Interests or the direct or indirect revision of the beneficial ownership or control
structure of the management or operation of Tenant or any direct or indirect constituent entity of
Tenant,which,in either case,does not produce any change,by operation of law or otherwise,in the
Substantial Controlling Interest in Tenant.
(i) "Transferee"means a Person to which a Transfer is made.
Section 103 Restrictions on Sale of the Project or Transfer.
(a) No Sale of the Project or Transfer Prior to CO Date. There shall not be) t ''
any Sale of the Project or Transfer prior to the CO Date other than as permitted by the provisions in s'pw,/
Section 10.4 and other than a Foreclosure Transfer. _ i0,8--AQ��
TD
(b) No Sale of the Project or Transfer to a Foreign Instrumentality.
Notwithstanding anything in this Lease to the contrary,there'hall not be any Sale of the Project or C4. 40
any Transfer to a Foreign Instrumentality. �L N ie
U •
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(c) estri 'on n Sale of he Pro'ed. • a 'cions of Section
1 here'
(i) a real estate investor or real estate investment entity(including without
limitation,a real estate investment trust)investing funds for its own
account,
(ii) a pension fund,pension fund advisor or investment advisor investing
on behalf of others,or
((iii) a developer who either invests,for its own account(with or without
additional equity investors investing with said developer), in or
develops commercial real estate projects located within or outside the
United States;
provided,however,that such Permitted Buyer in fact meets or exceeds and certifies to Tenant and
Owner that it meets or exceeds the criteria described in subsections A ! .ugh G below )
�.._ ;y •1;�•r• ;; . , . any time within the thirty(30)day period described
in
e last paragraph of this Section 10.3(c), Owner shall be entitled to engage an independent
accounting firm to review the books,records and other information upon which the certifications and
financial statements described below were based for the purpose of determining whether the
certifications or the financial statements described below are accurate and complete.
(A) Together, with the Permitted Buyer's Affiliates, has equity
ownership in real estate (or, in the case of pension fund
advisors or investment advisors, current real estate equity
under management)plus cash and/or cash equivalent of at least
Twenty Million Dollars($20,000,000),adjusted for inflation,
[of which not less than Ten Million Dollars ($10,000,000),
adjusted for inflation,must be equity ownership in real estate]
(such real estate may either be owned or,in the case of pension
fund advisors or investment advisors, under management by
Affiliates owned or controlled by such Permitted Buyer or its
principals), as set forth in the most recent year end financial
statements of the persons or entities used to arrive at said
Twenty Million Dollars($20,000,000),adjusted for inflation.
Said financial statements shall be examined b an Inde.•adent
certify • p . c accounting • an• shall be accompanied 1
s chindependentcertifi public accounting s examined
special report-, in accordance with attestation standar
established ds
by the American Institute of Certified Public
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Accountants, statin: that the • . of the Permitted Buyer's
Nu/ ownership in real estate based •.n Curren : ��-�.T
v: ue:••cas ore:• equiv: ent of which at least Ten Million
Dollars(NTU,U00,UUU),adjustedlor inflation,consists of equity ,
ownership in real estate) exceeds Twenty Million Dollars
($20,000,000), adjusted for inflation, (or, if such examined -
financial statements are not available, such equity may
alternatively be established by evidence reasonably satisfactory
to Owner's independent certified public accounting firm,
however, such alternative evidence must be submitted to
Owner and approved by Owner's independent certified public
accounting firm prior to any Sale of the Project being effective.
Such approval shall be deemed given if the alternative evidence
has not been disapproved in writing, with reasons given for
disapproval,within forty-five(45)days of all such evidence.
being submitted to Owner);
(B) Ts not (nor is any of the individuals or entities included for
purposes of the calculation of the Twenty Million Dollars
($20,000,000),adjusted for inflation,equity plus cash and/or
cash equivalent described in (A) above), a Foreign
Instrumentality;
(C) Must not have been(nor are any of the individuals or entities
included for purposes of the calculation of the Twenty Million
Dollars($20,000,000),adjusted for inflation,equity plus cash
and/or cash equivalent described in(A)above)within the seven
(7)years preceding the date of the Sale of the Project, in an
adversarial relationship in litigation or are not in an adversarial
relationship in litigation currently pending with Owner,in both
cases including but not limited to, litigation with respect to
• ordinances, charter provisions or resolutions of the City,
including building codes or tax code violations(but excluding
zoning appeals and appeals of property tax assessments);
(D) Must not be owned,controlled or run by entities or individuals
(including for this purpose,all entities and individuals included •
for purposes of the calculation of the Twenty Million Dollars
($20,000,000),adjusted for inflation,equity plus cash and/or
cash equivalent described in (A) above) who have been
convicted,or are presently under indictment,for felonies under
the laws of any foreign or domestic jurisdiction;
� I
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(E) Must not(including for this purpose all entities and individuals
included for purposes of the calculation of the Twenty Million
Dollars($20,000,000),adjusted for inflation,equity plus cash
and/or cash equivalent described in(A)above)have filed or
been discharged from bankruptcy,reorganization or insolvency
proceedings within the past seven years(bankruptcy filings by
Affiliates shall not disqualify an assignee,unless such Affiliates
were included for purposes of determining the Twenty Million
Dollars($20,000,000),adjusted for inflation,equity plus cash
and/or cash equivalent calculation described in(A)above);
(F) Must not in its charter or organizational documents(defined as
the articles of incorporation and bylaws for any corporation,
the operating agreement of any limited liability company,the
partnership agreement and partnership certificate for any
partnership, the trust agreement for any trust and the
constitution of the relevant government for any governmental
entity, but expressly excluding any statements, positions,
actions or allegations not contained in such charter
organizational documents)expressly advocate or have as its
stated purpose: (x) the violent overthrow of, or armed
resistance against, the U.S. Government; or (y) genocide,
violence,hatred or animosity toward persons based solely on
their race,religion,creed,color,sexual orientation or national
origin;and
(G) Unless the Permitted Buyer is publicly held,must have an entity
within the group of entities included for purposes of the
calculation of the Twenty Million Dollars ($20,000,000),
adjusted for inflation,equity plus cash and/or cash equivalent
described in(A)above which has not less than a five(5)years
operating history or must have entered into a Management
Agreement with an Acceptable Operator.
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(d) Foreclosure Transfer. A Foreclosure Transfer pursuant to the provisions of
Section 11.12 shall not require the consent of Owner.
Section 10.4 Transfers.
Tenant represents and warrants that Tenant has not made,created or suffered any Transfers
as of the Commencement Date and that the entities and individuals who or which have an ownership
interest in Tenant on the Commencement Date are listed,together with their percentage and character
of ownership, in Exhibit 10.4 attached hereto and incorporated by reference herein. Except as
permitted,pursuant to Sections 10.4(n)-(c)herein, no Transfer may or shall be made, suffered or
created by Tenant,its successors,assigns or transferees without complying with the terms of Sections
10.5 and 10.6 and other sections herein applicable thereto. The following Transfers shall be permitted
hereunder without the consent of Owner or any other action by Owner:
(a) Any Transfer of a Member's interest in Tenant or the admission of additional
Members to Tenant provided that,after all such Transfers,the previous Managing Member(s) of
Tenant shall maintain,under the operating agreement of Tenant,control over the development and day
to day operation and leasing of the Project(subject,however,to any contract made with an Acceptable
Operator);
(b) Any Transfer by a Person who is a Member of Tenant of his Membership
interest in Tenant into a charitable trust,a blind trust,or for estate planning purposes;and
(c) A Transfer from the holder of an Equity Interest in Tenant(I)to his or her
mother, father, spouse, brother, sister or child (an "Immediate Family Member"), or any
combination thereof,of that holder; (2)to a trust whose sole beneficiary(ies)is (y)a holder of an
Equity Interest in Tenant or(z)an Immediate Family Member of a holder of an Equity Interest in
Tenant; (3)to a personal representative of the estate of a deceased holder of an Equity Interest in
Tenant;(4)to a Person in which a holder of an Equity Interest in Tenant holds,directly or indirectly,
the Substantial Controlling Interest;or(5)to any other holder of an Equity Interest in Tenant in which
Transferee does not become (unless such Transferee already was) the holder of a Substantial
Controlling Interest as a result of such Transfer;(for purposes of this Section 10.4(c)only,the tum
"Transfer" shall include a transfer of an Equity Interest in a Person or Persons having an Equity
Interest,directly or indirectly,in Tenant). pp
(d) If, at the time of a requested Tratsfer undertions 10.4(a) or 10.4(b),
Tenant is a corporation or other type of entity,then the references to limited liability company shall
be changed to the type entity in question and the Membership Interest being transferred shall be
changed to the appropriate ownership interest.
Any consent to a Transfer shall not waive any of Owner's rights to consent to a subsequent
Transfer. Any Transfer made in violation of the terms hereof shall be null and void and of no force
and effect
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Section 10.5 Required Notices.
� _ I
(a) Tenant shall give notice to Owner of every ro ale of
jhe Project„which notice shall contain the following information:(1 the name and address of proposed
Transferee;(ii)the name and address of proposed transferor;(iii)the nature of the transaction;(iv)the
percentage interest conveyed;and(v)such other additional information as Owner shall reasonably
I: est in connection with the nronose� Transfer and/or_proposed Sale of the Project; provided, l0dot5
however, Owner shall make such request within ten(10)Business Days after receipt of Tenant's
information. p addition,with respect to any proposed Transfer other than those described in Sections
10.4(a)through 10.4(c)above and with respect to any Sale of the Project,Tenant shall give or cause
to be given to Owner written notice requesting approval of the proposed Transfer and/or proposed
Sale of the Project and submit all information necessary for Owner to make an evaluation of the
proposed Transferees and/or proposed purchaser of a Substantial Controlling Interest and the
proposed Transfer and/or Sale of the Project and to obtain Owner's consent to same. Owner shall,
within sixty(60)days of its receipt of such information,advise Tenant if it shall consent to same. If
Owner shall fail to respond during such sixty(60)days,it shall be deemed to have consented to the
proposed Transfer and/or proposed Sale of the Project in question. If Owner shall not consent to a
proposed Transfer and/or proposed Sale of the Project,Owner shall state all of its reasons for such
disapproval in its notice to Tenant withholding its consent.
(b) In addition to all other obli ons' ••sed $4n,Tenant hereunder Tenant shall
reimburse wrier upon•emend,for any reasonable costs incurred by Owner in connection wi any
sue T and/or Sale of the Project and/or Master Sublease,including withoirtlimitation,th out-
o -pocket cos • i•: :in•eines and invest/:ations into the acceptabili of the•ro osed Transferee
an•ror purchaser of a Substantial Controlling Interest and/or Master Sublessee,and e reasons• e
eg, costs mcurr-•,if any,in connection erewith.
Section 10.6 Effectuation of Transfers and Sales of the Project.
No Sale of the Project or Transfer of the nature described in Sections 10.3 and 10.4 shall be
effective unless and until:
(a) executed copies of the documents and other agreements between the parties
to effectuate the Sale of the Project and/or Transfer are delivered to Owner;and
(b) in the case of a Sale of the Project,the entity to which a Sale of the Project is
made,by instrument in writing and in form and substance satisfactory to Owner and in form recordable
among the land records,shall,for itself and its successors and assigns,and especially for the benefit
of Owner, expressly assume all of the obligations of Tenant under this Lease and agree to be
personally liable and subject to all conditions and restrictions to which Tenant is subject;provided,
however,that a Recognized Mortgagee shall not be liable under this Lease with respect to any matter
arising prior to its actual ownership of the Project,except:
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(i) unpaid Rental and/or Impositions (but Percentage Rent, Back Rent
and/or Impositions only to the extent the Recognized Mortgagee is
obligated to pay such Percentage Rent,Back Rent and/or Impositions
pursuant to Article 11), other monetary obligations of Tenant under
this Lease,including defaults which can be cured by the payment of
money and are in a liquidated amount,non-monetary defaults which a
Recognized Mortgagee can cure or remedy without title and
possession,(all such defaults to include any then existing event,matter
or occurrence which, with the passage of time or the happening of
future events,matters or occurrences,becomes an Event of Default),
(ii) as provided in Article 11(it being understood,nevertheless,that the
limitation of any such liability of Recognized Mortgagee shall not
impair, impede or prejudice any other right or remedy available to
Owner for default by Tenant and/or the then current transferee).
Recognized Mortgagee shall not be liable under this Lease with respect to any matter arising
subsequent to the period of its actual ownership of the Project;provided however,that the fact that
Recognized Mortgagee has no liability for matters arising subsequent to the period of its actual
ownership shall not relieve or except any subsequent transferee or successor of or from such
obligations, conditions or restrictions,or deprive or limit Owner of or with respect to any rights,
remedies or controls with respect to the Project or the construction of the Improvements.
Section 10.7 Office and Retail Master Subleases.
Subject to the terms and conditions of this Lease,Tenant shall have the right to enter into
individual office,retail,parking and commercial subleases at any time and from time to time during
the term of this Lease with such subtenants,but only for uses that are not prohibited under Article 6,
and upon such commercially reasonable terms and conditions as Tenant shall,in its sole discretion,
deem fit and proper. At Owner's request,Tenant shall allow Owner to review and inspect any and
all subleases for individual office,retail,commercial and parking spaces in the Project. Upon receipt
of a written request from Tenant or any sublessee under an office or retail sublease,Owner shall enter
into attonunent and non-disturbance agreements with sublessees in the office,retail,commercial and
parking spaces of the Premises. Such attomnment and non-disturbance agreements shall be entered into
upon such terms and conditions as are customary for such agreements.
Article 11-Mortgages
Section 11.1 Right to Mortgage.
(a) Except as otherwise expressly provided for in this Lease, Tenant shall not
mortgage,pledge,hypothecate or otherwise encumber Tenant's Interest in the Premises.
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(b) Tenant shall have the right to mortgage, pledge, hypothocate or otherwise
encumber Tenant's Interest in the Premises to secure Debt by a Recognized Mortgage(s)without
Owner's approval.
Section 11.2 Definitions.
(a) "Debt"means the principal amount of debt and interest thereon secured by
Tenant's Interest in the Premises, together with any other amounts owed by Tenant under a
Recognized Mortgage to a Recognized Mortgagee. In addition,Debt shall include any debt obtained
in connection with(i)a required Casualty Restoration or Condemnation Restoration,as applicable,
if the Net Insurance Proceeds are, or the Net Condemnation Award is, inadequate to achieve the
required Casualty Restoration or Condemnation Restoration,as applicable and(ii)any advances made
by a Recognized Mortgagee with respect to Tenant's Interest in the Premises for the payment of taxes,
assessments,insurance premiums or other costs incurred for the protection of Tenant's Interest in the
Premises or the liens created by the Recognized Mortgage,and reasonable expenses incurred by such
Recognized Mortgagee,by reason of a default by Tenant under such Recognized Mortgage or under
this Lease.
(b) 'Mortgage"means any mortgage or deed of trust,and all extensions,spreaders,
splitters, consolidations,restatements, replacements,modifications and amendments thereof,that
constitutes a lien on all or a portion of Tenant's Interest in the Premises,and any security interest in
or assignment of the Lease or the rents,issues or profits related thereto.
(c) "Recognized Mortgage"means a Mortgage z that is held by a Person(other
than an Affiliate)which is an Institutional Lender,(ii)which expressly provides that it is subject and
subordinate to the terms of this Lease and,except as expressly set forth herein regarding Owner's
subordination in certain circumstances of its right to Percentage Rent, to Owner's Interest in the
Premises, and (iii) a photostatic copy of which is, following the execution and delivery thereof,
delivered to Owner,together with a certification by Tenant confirming that the photostatic copy is a
true copy of the Mortgage and a certification by the Recognized Mortgagee thereunder confirming
the address of such Recognized Mortgagee for notices. Notwithstanding anything contained herein
to the contrary,an Affiliate may be part of a lending group constituting a Recognized Mortgagee for
so long as such Affiliate(i)does not own more than a forty-nine percent(49%)beneficial interest in
the debt held by such Recognized Mortgagee with respect to Tenant or the Project and(ii)is not the
lead lender or agent for the Iending group.
Section 11.3 Effect of Mortgages.
(a) Owner's Interest. No Mortgage shalt extend to or be a lien or encumbrance
upon,Owner's Interest in the Premises or any part thereof or any appurtenant rights thereto which
have not been granted to Tenant under this Lease. A Mortgage may extend to and be a lien or
encumbrance upon the entire Tenant's Interest in the Premises.
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(b) Mortgagee's Rights Not Greater than Tenant's. The execution and delivery
of a Recognized Mortgage shall not give or be deemed to give a Recognized Mortgagee any greater
rights against Owner than those granted to Tenant hereunder,except as otherwise expressly provided
in this Lease.
Section 11.4 Notice and Right to Cure Tenant Defaults.
(a) Notice to Recognized Mortgagee. Owner shall give to the Recognized
Mortgagee, in the manner provided by the provisions of Section 26.1 at such address as such
Recognized Mortgagee may confirm to Owner in the certification delivered to Owner pursuant to
Section 11.2(c)or given by notice to Owner in accordance with Section 26.1,a copy of each notice
of Default at the same time as it gives notice of Default to Tenant,and no such notice of Default shal l
be deemed effective with respect to any Recognized Mortgagee unless and until a copy thereof shall
have been so received by or refused by such Recognized Mortgagee,as applicable. Owner shall also
give the Recognized Mortgagee notice("Notice of Failure to Cure")in the event Tenant fails to cure
a Default within the period, if any, provided in this Lease for such cure, promptly following the
expiration of such period(i.e.,an Event of Default). Only Events of Default expressly described in
the Notice of Failure to Cure may give rise to a termination of this Lease by Owner pursuant to its
termination rights hereunder.
(b) Right and Time to Cure. The Recognized Mortgagee shall have a period of
sixty(60)days after receipt of the Notice of Failure to Cure,in the case of any Event of Default,to
(1)cure the Event of Default referred to in the Notice of Failure to Cure or(2)cause it to be cured,
subject to the provisions of Section 25.1(b).Nothing contained herein shall be construed as imposing
any obligation upon any Mortgagee to so perform or comply on behalf of Tenant. Anything contained
in this Lease to the contrary notwithstanding,Owner shall have no right to terminate this Lease prior
to the delivery of a Notice of Failure to Cure or following the delivery of a Notice of Failure to Cure
if, within sixty (60) days after receipt of Owner's Notice of Failure to Cure, any Recognized
Mortgagee shall:
(i) notify Owner of such Recognized Mortgagee's desire to cure the matter
described in such Notice of Failure to Cure;
(ii) pay or cause to be paid all Rental and/or Impositions then due and in
arrears as specified in the Default Notice from Owner to such
Recognized Mortgagee (provided, however, that such Recognized
Mortgagee shall not be required to pay or cause to be paid any
amounts payable by Tenant under Section 28.1(b)to the extent such
amounts relate to any Lease Year other than the Lease Year for which
the most recent Annual Financial Statements have been made available
to Owner;provided further,however,in the event that the Recognized
Mortgagee (A) provides notice to Owner pursuant to Section
11.4(b)(i), and (B) files a foreclosure within sixty (60) days of its
receipt of the Notice of Failure to Cure and diligently prosecutes such
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foreclosure, the Recognized Mortgagee's curative obligations with
regard to an Event of Default as provided in this Section 11.4(b)(ii)
shall be excused, subject to the provisions of Section 11.4(bxiv),
which shall be applicable during the pendency of a foreclosure);
(iii) cure all Defaults by Tenant in the observance or performance of any
term, covenant or condition of this Lease on Tenant's part to be
observed or performed (other than the payment of Rental and/or
Impositions),or if any such Default is of such a nature that it cannot
reasonably be remedied within such sixty (60) day period (but is
otherwise reasonably susceptible to cure),Recognized Mortgagee shall,
(i)within sixty(60)days after the giving of such Notice of Failure to
Cure, advise Owner of such Recognized Mortgagee's intention to
institute all steps(and from time to time,as reasonably requested by
Owner,such Recognized Mortgagee shall advise Owner of the steps
being taken)necessary to remedy such Default(which such steps shall
be reasonably designed to effectuate the cure of such Default in a
professional manner), and (ii) thereafter diligently prosecute to
completion all such steps necessary to remedy the same, it being
acknowledged by Owner that,if possession or control of the Premises
is required to effect such cure,the diligent prosecution of a foreclosure
of a Recognized Mortgage, and the continuing efforts by such
Recognized Mortgagee to effect such cure following completion of
such foreclosure, shall constitute a part of the steps necessary to
remedy such Default Nothing in this Lease shall require a Recognized
Mortgagee or its Designee or Foreclosure Transferee to cure any
default of Tenant not reasonably susceptible of being cured by such
Person(e.g., defaults stated in Section 25.1(e), (f), (g),(h), (j) and
(k);and
(iv) if such Recognized Mortgagee files a foreclosure,during the pendency
of such foreclosure, pays or causes to be paid all current monthly
Rental and/or Impositions due beginning upon the filing of such
foreclosure;provided,however,Percentage Rent shall be due only if,
and to the extent that, Project Revenues are sufficient to pay
Percentage Rent after the payment of Operating Expenses and Debt
Service, and the Recognized Mortgagee shall provide to Owner a
monthly statement setting forth Project Revenues and Operating
Expenses.
Notwithstanding the foregoing provisions of this Section 11.4(b),following the delivery of
a Notice of Failure to Cure, within five (5) Business Days following the written request of any
Recognized Mortgagee (which request may be contained in the notice from such Recognized
Mortgagee to Owner given pursuant to Section 11.4(bXi)),Owner shall deliver to such Recognized
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Mortgagee a statement certifying the aggregate amount of Rental and/or Impositions then due and in
arrears hereunder and the estimated per diem increase in such amount, but no such request shall
increase any of the time periods provided for in this Section 11.4(b).
(c) Acceptance of Mortgagee's Performance. Owner shall accept performance
by a Mortgagee of any covenant,condition or agreement on Tenant's part to be performed hereunder
with the same force and effect as though performed by Tenant.
(d) Other Rights of Mortgagees. Notwithstanding any other provision of this
Lease,no payment made to Owner by any Mortgagee shall constitute the Mortgagee's agreement that
such payment was,in fact,due under the terms of this Lease.
(e) Owner's Self-Help Rights. Notwithstanding the foregoing provisions of this
Section 11.4, if a Recognized Mortgagee fails (for any reason) to cure any Default by Tenant
described in Section 11.4(b)(iii)within sixty(60)days following receipt of the Notice of Failure to
Cure regarding such Default, then Owner may upon notice, but shall be under no obligation to,
perform the obligation of Tenant the breach of which gave rise to such Default,without waiving or
releasing Tenant from its obligations with respect to such Default. Tenant hereby grants Owner access
to the Premises in order to perform any such obligation. Any amount paid by Owner in performing
Tenant's obligations as provided in this Section 11.4(e),including all costs and expenses incurred by
Owner in connection therewith,shall constitute Rental hereunder and shall be reimbursed to Owner
within thirty(30)days following Owner's demand therefor,together with a late charge on amounts
actually paid by Owner, calculated at the Late Charge Rate from the date of notice of any such
payment by Owner to the date on which payment of such amounts is received by Owner.
(f) Acceptance of Owner's Performance. Tenant shall cause all Mortgages to
contain a provision requiring that all Mortgagees shall accept performance by Owner, within the
applicable grace periods available to Tenant, to cure defaults under any covenant, condition or
agreement on Tenant's part to be performed under such Mortgages with the same force and effect as
though performed by Tenant.
Section 11.5 Recognized Mortgagee or its Designee as Tenant Under this Lease.
If a Recognized Mortgagee or its Designee becomes Tenant under this Lease,then,in that
event, such Recognized Mortgagee or such Designee shall,during the period of its tenancy:
(a) pay all current Rental and/or Impositions less the Percentage Rent commencing
as of the date such Recognized Mortgagee or such Designee becomes Tenant(the"Reinstatement
Date");Percentage Rent which was due for periods prior to the Reinstatement Date shall be forgiven
and shall not thereafter be payable;
(b) comply with all the covenants and conditions of this Lease, except that the
payment of Rental and/or Impositions shall be as specified in this Section 11.5;
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(c) pay all Back Rent and/or Impositions as of the Reinstatement Date in the
following manner:
(i) Monthly,but only to the extent sufficient funds are received by such
Recognized Mortgagee or such Designee from Project Revenue after
deducting Operating Expenses,Debt Service(which shall be retained
by the Recognized Mortgagee or its Designee)and amounts paid in
Section 11.5(a);
(ii) Back Rent and/or Impositions shall continue as an obligation of the
Recognized Mortgagee or its Designee until paid in full;and
(d) pay all Percentage Rent which accrues subsequent to the Reinstatement Date
as follows:
(i) For so long as the Recognized Mortgagee or its Designee is Tenant
under this Lease,Percentage Rent shall be payable monthly,but only
to the extent that funds are available therefor after making the
payments set forth in Section 11.5(a),(b)and(c)above. Percentage
Rent shall be waived (and not accrued) to the extent that Project
Revenue in any Lease Year is not sufficient to pay Percentage Rent
after payments have been made with respect to amounts set forth in
Sections 11.5(a)-(c).
(ii) Upon a Foreclosure Transfer, any amounts of Percentage Rent
accrued,but unpaid,shall be forgiven.
Section 11.6 Execution of New Tenant's Documents.
(a) Notice of Termination. If this Lease is terminated by mason of an Event of
Default,or by reason of the rejection thereof by or on behalf of Tenant in bankruptcy or for any other
reason,Owner shall give prompt notice thereof to each Recognized Mortgagee.
(b) Request for and Execution of New Tenant's Documents. lf,within sixty
(60) days of receipt of the notice referred to in Section 11.6(a),the Recognized Mortgagee shall
request,in writing,a new lease(the"New Tenant's Documents"),to the Recognized Mortgagee or
to a Designee or Foreclosure Transferee identified in such request (other than a Foreign
Instrumentality(if the Premises are owned by the City or any instrumentality of the Agency or the
City)or an Affiliate of Tenant),then,subject to the provisions of Sections 11.6(c)and 11.7,within
ninety(90)days after Owner shall have received such request,Owner shall execute and deliver New
Tenant's Documents covering the remainder of the Term to the Recognized Mortgagee or to any
Designee or Foreclosure Transferee that has satisfied the requirements set forth in Section 10.3, 10.4,
and such Recognized Mortgagee(or its Designee or Foreclosure Transferee)shall execute and deliver
{
such New Tenant's Documents to Owner within thirty(30)days following receipt thereof by such
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Recognized Mortgagee(or Designee or Foreclosure Transferee). Such New Tenant's Documents
shall be effective upon the execution thereof by both Owner and such Recognized Mortgagee or its
Designee or Foreclosure Transferee. The New Tenant's Documents shall be at the then current Rental
and/or Impositions(subject,however,to Sections 11.4 and 11.5 as to Percentage Rent, Back Rent
and/or Impositions)and otherwise contain all of the covenants,conditions,limitations and agreements,
and all of Tenant's rights and remedies, contained in this Lease (including, without limitation, a
conveyance by Owner of all then-existing Improvements);provided,however,Owner shall not be
deemed to have represented or covenanted that such New Tenant's Documents are superior to claims
of Tenant,its other creditors or a judicially appointed receiver or trustee for Tenant;provided further,
however,such New Tenant's Documents will have the same priority over any encumbrances on the
estate of Owner which Tenant has or had by virtue of this Lease and the Recognized Mortgagee(or
its Designee or Foreclosure Transferee)will not have any obligation to perform any acts under this
Lease which shall at such time have already been performed by Tenant. Simultaneously with the
making of such New Tenant's Documents,the party obtaining such New Tenant's Documents and all
other parties junior in priority of interest in the Premises shall,at the option the Recognized Mortgagee
or its Designee or Foreclosure Transferee,execute,acknowledge and deliver such new instruments,
including new mortgages and new Master Subleases,as applicable,and shall make such payments and
adjustments among themselves,as shall be necessary and proper for the purposes of restoring to each
of such parties as nearly as reasonably possible,the respective interest and status with respect to the
Premises which was possessed by the respective parties prior to the termination of this Lease as
aforesaid.
Concurrently with the execution and delivery of such New Tenant's Documents,Owner shall
assign to the tenant,declarant or co-declarant(the"New Tenant")named therein all of its right,title
and interest in and to moneys(including,without limitation,(i)subrents collected which have not been
applied or are not being held for application to Rental and/or Impositions and the costs incurred by
Owner to operate,maintain and repair the Premises and(ii)insurance and condemnation proceeds
which have not been applied or are not being held for application to the costs incurred by Owner to
restore the Premises),if any,then held by or payable to Owner which Tenant would have been entitled
to receive but for termination of this Lease or Owner's exercise of its rights upon the occurrence of
an Event of Default;provided,however,that Owner shall not be required to assign such moneys to
such New Tenant unless and until such New Tenant shall have cured all Events of Default that existed
under this Lease prior to the execution of such New Tenant's Documents to the extent such Events
of Default are reasonably susceptible to cure by such New Tenant.
Upon the execution and delivery of New Tenant's Documents under this Section 11.6(b),all
Master Subleases which theretofore may have been assigned to Owner shall be assigned and
transferred,without recourse,representation or warranty,by Owner to the New Tenant named in such
New Tenant's Documents. Between the date of termination of this Lease and the date of execution
and delivery of the New Tenant's Documents(but not later than thirty(30)days following receipt of
such New Tenant's Documents by such Recognized Mortgagee,as provided in Section 11.6(b)),if
a Recognized Mortgagee shall have requested such New Tenant's Documents as provided in this
Section 11.6(b),Owner shall not enter into any new Master Subleases,cancel or modify any then
existing Master Subleases or accept any cancellation,termination or surrender thereof(unless such
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termination shall be effected as a matter of law on the termination of this Lease)without the written
consent of a Recognized Mortgagee,except as permitted in the Master Subleases.
For so long as the Recognized Mortgagee(or its Designee or Foreclosure Transferee)shall
have the right to enter into a new ground lease with Owner pursuant to this Section 11.6(b),Owner
shall not enter into a new lease of the Land with any Person other than the Recognized Mortgagee(or
its Designee or Foreclosure Transferee), without the prior written consent of the Recognized
Mortgagee. The provisions of Section 11.6(b)shall survive the termination,rejection ordisaffirmance
of this Lease and shall continue in full force and effect thereafter to the same extent as if Section
11.6(b) were a separate and independent contract made by Owner, Tenant and any Recognized
Mortgagee and,from the effective date of such termination,rejection or disaffumance of this Lease
to the date of execution and delivery of such new ground lease if such Recognized Mortgagee(or its
Designee or Foreclosure Transferee)has requested the New Tenant's Documents within sixty(60)
days after receipt of the aforesaid notice from Owner,the Recognized Mortgagee may use and enjoy
the leasehold estate created by this Lease without hindrance by Owner. The aforesaid agreement of
. Owner to enter into a new ground lease with the Recognized Mortgagee shall be deemed a separate
agreement between Owner and such Recognized Mortgagee,separate and apart from this Lease as
well as a part of this Lease,and shall be unaffected by the rejection of this Lease in any bankruptcy
proceeding by any party.
(c) Conditions Precedent to Owner's Execution of New Tenant's Documents.
The provisions of Section 11.6(b)notwithstanding,Owner shall not be obligated to enter into New
Tenant's Documents with a Recognized Mortgagee or its Designee or Foreclosure Transferee unless:
(i) the Recognized Mortgagee or its Designee or Foreclosure Transferee
shall pay to Owner,concurrently with the execution and delivery of the New Tenant's Documents,all
unpaid Rental and/or Impositions due under this Lease(subject,however,to Sections 11.4 and 11.5
as to Percentage Rent, Back Rent and/or Impositions) up to and including the date of the
commencement of the term of the New Tenant's Documents and all reasonable out-of-pocket
expenses,as evidenced byreceipted bills therefor,including,without limitation,reasonable attorneys' •
fees and disbursements and court costs,incurred in connection with the Default or Event of Default,
the termination of this Lease and the preparation of such New Tenant's Documents, less the net
revenue of the Premises actually received by Owner from the date of termination of this Lease to the
date of execution of the New Tenant's Documents,with any excess of the total of such sums and
expenses to be applied by Owner to the payment of Base Rent and Percentage Rent (subject to
Sections 11.4 and 11.5)due under such New Tenant's Documents;and
(ii) in the case of a Default or Event of Default,the Recognized Mortgagee
or its Designee or Foreclosure Transferee shall promptly after execution of the New Tenant's
Documents,satisfy all obligations and cure all Events of Defaults existing or continuing under this
Lease at the time of its termination (as though the Term had not been terminated) and which are
reasonably susceptible to cure by such Recognized Mortgagee (or its Designee or Foreclosure
Transferee).
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(d) No Waiver of Default. The execution of New Tenant's Documents shall not
constitute a waiver of any Default existing or continuing immediately before termination of this Lease
and,except as to a Default which is not reasonably susceptible of being cured by the Recognized
Mortgagee or its Designee or Foreclosure Transferee(e.g.,the insolvency of Tenant),the New Tenant
under the New Tenant's Documents shall cure,within the applicable periods in such New Tenant's
Documents(which periods shall be identical to the periods set forth in Section 25.1), all Defaults
existing under this Lease immediately before its termination. Nothing in this Lease shall require a
Recognized Mortgagee or its Designee or Foreclosure Transferee,as a condition to the exercise of
its right to enter into New Tenant's Documents, to cure any default of Tenant not reasonably
susceptible of being cured by such Person(e.g.,a bankruptcy-related default).
(e) Payments under Lease. If the Recognized Mortgagee or its Designee or
Foreclosure Transferee shall enter into New Tenant's Documents pursuant to this Article and if,upon
such termination of this Lease,Tenant,but for such termination,would have been entitled to receive
any amount pursuant to the provisions of this Lease,then Owner agrees that,subject to any rights of
setoff Owner may have, the same shall be paid to the Recognized Mortgagee or its Designee or
Foreclosure Transferee,as the New Tenant under the New Tenant's Documents,in the same manner
and to the same extent as it would have been paid or apply the same to or for the benefit of the
Recognized Mortgagee or its Designee or Foreclosure Transferee as if this Lease had not been
terminated.
(f) The provisions of this Section 11.6 shall survive the Expiration of the Term.
Section 11.7 Application of Proceeds from Insurance or Condemnation Awards.
To the extent that this Lease requires that insurance proceeds paid in connection with any
damage or destruction to the Premises,or the proceeds of an award paid in connection with a taking
referred to in Article 9,be applied to restore any portion of the Premises,no Mortgagee shall have
the right to apply the proceeds of insurance or awards toward the payment of the sum secured by its
Mortgage,except for the reasonable costs of collection thereof.
Section U.S Appearance at Condemnation Proceedings.
A Recognized Mortgagee shall have the right to appear in any condemnation proceedings and
to participate in any and all hearings,trials and appeals in connection therewith.
Section 11.9 Rights Limited to Recognized Mortgagees.
The rights granted to a Recognized Mortgagee under the provisions of this Lease shall not
apply in the case of any Mortgagee that is not a Recognized Mortgagee.
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Section 11.10 No Surrender or Modification.
Owner agrees not to accept a voluntary surrender,termination or modification of this Lease
at any time while such Recognized Mortgage(s)shall remain a lien on Tenants leasehold estate. It is
further understood and agreed that any such Recognized Mortgagee(s)shall not be bound by any
surrender,termination or modification of this Lease unless such surrender,termination or modification
is made with the prior written consent of such Recognized Mortgagee, and this Lease shall not
terminate by merger or otherwise as long as the lien of the Recognized Mortgage(s) remains
undischarged. The foregoing is not meant to and shall not prohibit a sale of the fee to Tenant so long
as no merger of estates shall result therefrom unless all Recognized Mortgagees are satisfied
concurrently therewith, Notwithstanding the foregoing, Owner's waiver or postponement of any
obligation of Tenant or any remedy Owner may have under this Lease shall not constitute a
modification for purposes hereof.
Section 11.11 Recognition by Owner of Recognized Mortgagee Most Senior in Lien.
If there is more than one Recognized Mortgagee,only that Recognized Mortgagee,to the
exclusion of all other Recognized Mortgagees,whose Recognized Mortgage is most senior in lien shall
be recognized as having rights under Sections 11.4,11.5 or 11.6,unless such first priority Recognized
Mortgagee has designated in writing to Owner a Recognized Mortgagee whose Mortgage is junior
in lien to exercise such right.
Section 11.12 Recognized Mortgagee's Assignment Rights.
(a) Notwithstanding anything contained in Article 10 or elsewhere in this Lease
to the contrary,a Foreclosure Transfer(other than to a Foreign Instrumentality for so long as the City
is Owner)shall not require the consent of Owner or constitute a breach of any provision of or a
Default under this Lease. Upon any such Foreclosure Transfer,Owner shall recognize the Foreclosure
Transferee as Tenant hereunder,provided,however,that such new Tenant shall deliver to Owner,or
shall cause to be delivered to Owner, within thirty (30) days alter the execution thereof, the
appropriate instruments provided in Sections 10.5 and 10.6 (subject to the provisions of Section
11.12(6)).
(b) Except as expressly provided otherwise in this Lease,no Mortgagee or other
Foreclosure Transferee shall be liable under this Lease unless and until such time as it becomes Tenant
hereunder,and then only for so long as it remains Tenant hereunder.
(c) Definitions:
(i) "Foreclosure Transfer"means a transfer occurring as a result of the
foreclosure of a Recognized Mortgage,or any sale of Tenant's Interest
in the Premises,or any other transfer or assignment ofTenant's Interest
in the Premises by judicial proceedings pertaining to a Recognized
Mortgage or by virtue of the exercise of any power contained in a
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Recognized Mortgage,or by an assignment-in-lieu or other consensual
conveyance,or otherwise:
(x) by or on behalf of Tenant or pursuant to foreclosure
proceedings to a Recognized Mortgagee (or its Designee or
Foreclosure Transferee);or
(y) by or on behalf of Tenant or a Recognized Mortgagee(or its
Designee or Foreclosure Transferee)or pursuant to foreclosure
proceedings to a purchaser of Tenant's Interest in the Premises
at a foreclosure sale pursuant to a Recognized Mortgage or by
a Recognized Mortgagee(or its Designee or its Foreclosure
Transferee) after consummating a Foreclosure Transfer as
described in clause(x)above or after such foreclosure sale.
(ii) "Foreclosure Transferee" means the purchaser, transferee or other
assignee in a Foreclosure Transfer.
(iii) "Designee"means an Affiliate of a Recognized Mortgagee that is the
designee or nominee of such Recognized Mortgagee.
(d) If a Recognized Mortgagee or its Designee acquires Tenant's Interest in the
Premises pursuant to a Foreclosure Transfer,all accrued but unpaid Percentage Rent shall be forgiven
and shall not thereafter be due and payable[except to the extent that the Recognized Mortgagee has
failed to pay amounts it was required to pay pursuant to Section 11,4(b)(iv)].
(e) If a Recognized Mortgagee or its Designee acquires Tenant's Interest in the
Pielnises and thereafter conveys or assigns Tenant's Interest in the Premises to a third party(the"First
Transferee")then,in that event,
(i) all accrued but unpaid Percentage Rent at the time of the conveyance
to the First Transferee shall be forgiven and shall not thereafter be due
and payable[except to the extent the Recognized Mortgagee has failed
to pay amounts it was required to pay pursuant to Section 11.5(d));
(ii) for a period of five (5)years after the First Transferee acquires the
Tenant's Interest in the Premises,Percentage Rent shall not accrue or
be due and payable(it being understood that Percentage Rent shall be
waived during such five year period);and
(iii) Subsequent to the five (5) year period referenced in Section
11.12(e)(ii)above,Percentage Rent shall thereafter accrue and be due
and payable in accordance with the provisions of this Lease.
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(1) Notwithstanding the provisions of Section 11.12(e),there shall be no abatement
of Percentage Rent if any portion of the Equity Interest in the Person that is the First Transferee is
owned, either legally or beneficially,by the tenant under this Lease that was foreclosed upon(the
"Foreclosed Tenant")or any Person who had a legal or beneficial interest in the Foreclosed Tenant.
Section 11.13 Notices Under a Mortgage.
Tenant shall give to Owner copies of all notices of default received from a Mortgagee within
ten(10)days after receiving written notice of same from Mortgagee.
(a) Notices. Tenant shall cause all Mortgages to contain a provision requiring that
all Mortgagees shall send to Owner,simultaneously with the sending of such default notices to Tenant,
copies of all default notices or other notices relating to the failure of Tenant to keep any Mortgage in
good standing,which notices are sent pursuant to any loan document or security document to Tenant.
(b) Estoppel Requests, Tenant shall cause all Mortgages to contain a provision
requiring that the Mortgagee shall comply with all reasonable estoppel requests of Owner. Owner
shall comply with all reasonable estoppel requests of any Mortgagee.
Article 12-Subordination
Section 12.1 Subordination of Percentage Rent.
In the event of a foreclosure under the Recognized Mortgage,Owner's right to Percentage
Rent shall be subordinate,expressly as described in this Lease. This subordination shall not extend
to(a)any Mortgage,other than a first mortgage by a Recognized Mortgagee on Tenant's Interest in
the Premises, now or hereafter existing, (b) any other liens or encumbrances hereafter affecting
Tenant's Interest in the Premises or(c)any Master Sublease or any mortgages,liens or encumbrances
now or hereafter placed on any Master Subtenant's interest in the Premises.
Section 12.2 No Subordination of Owner's Proprietary Interest in Land.
Owner's proprietary interest in the Land,including,without limitation,Owner's interest in this
Lease,as the same may be modified,amended or renewed in accordance with the provisions of this
Lease,shall not be subject or subordinate to(a)any Mortgage now or hereafter existing,(b)any other
liens or encumbrances hereafter affecting Tenant's Interest in the Premises or(c)any Master Sublease
or any mortgages,liens or encumbrances now or hereafter placed on any Master Subtenant's interest
in the Premises.
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Section 12.3 Tenant's Interest in the Premises Subject to Title Matters.
Tenant's Interest in the Premises,including,without limitation,this Lease and the leasehold
estate of Tenant hereby created and all rights of Tenant hereunder are and shall be subject to the Title
Matters.
Article 13-Project Construction
Section 13.1 Tenant's Obligation to Construct Project
The parties acknowledge that Tenant shall construct the Improvements on the Land described
in Section 13.2 and other improvements described in the Plans and Specifications in accordance with
the terms of the Development Agreement and the terms hereof(together with any and all permitted
additions and/or alterations thereto and replacements thereof, the "Project"). If,with respect to a
matter relating to the Construction Work for the initial construction of the Project,a conflict arises
between the terms of the Development Agreement and the terms of this Lease, the terms of the
Development Agreement shall govern until the Project Opening Date,and thereafter the terms of this
Lease shall govern.
Section 13.2 Description of the Project.
Subject to the provisions of Section 14.5, the Project will consist of a mixed-use project
containing a parking garage with approximately seven hundred(700)parking spaces and rentable area
(as defined in accordance with ANSI/BOMA Z65.1 -1996 Standards)of approximately one hundred
thousand to one hundred twenty thousand (100,000 to 120,000) square feet of office space and
approximately thirty thousand to forty thousand (30,000 to 40,000) square feet of retail and/or
commercial space;provided,however,that in no event shall the Project exceed the floor area ratio
permitted under applicable City Requirements.
Article 14-Maintenance,Repair and Alterations
Section 14.1 Maintenance Standards.
(a) Tenant shall, at its own cost and expense, take good care of, and keep and
maintain,the Premises in good and safe order and condition,and shall make all repairs therein and
thereon,interior and exterior,structural and nonstructural,ordinary and extraordinary,foreseen and
unforeseen,necessary to keep the Premises in good and safe order and condition,as other comparable
first class projects in similar usage and of similar age are kept(reasonable wear and tear excepted).
Further, Tenant shall, at its own cost and expense, maintain the Garage in accordance with the
standards set forth in the Parking Garage Maintenance Manual(August 1996),published by the
National Parking Association/Parking Consultants Council, a copy of which is attached hereto and
incorporated by reference herein as Exhibit 14.1(a),as the same may be revised from time to time and
shall at all times adhere to the operating schedules and standards set forth in Exhibits 14.1(b) and
14.1(c)attached hereto and incorporated by reference herein.
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(b) Tenant shall not commit,and shall use all reasonable efforts to prevent,waste,
damage or injury to the Premises.
(c) MI repairs,replacements and renovations made by Tenant shall be substantially
equal in quality and class to the original quality of the Improvements being repaired and shall be made
in compliance with the Requirements.
(d) Tenant shall keep clean and free from dirt, mud, standing water,rubbish,
obstructions and physical encumbrances all areas of the Premises.
Section 14.2 Removal of Building Equipment.
Tenant shall not,without the consent of Owner,remove or dispose of any Building Equipment
from the Premises unless such Building Equipment(i)is promptly replaced by Building Equipment of
at least equal utility and quality,or(ii)is removed for repairs,cleaning or other servicing,provided
Tenant reinstalls such Building Equipment with reasonable diligence;except,however,Tenant shall not
be required to replace any Building Equipment that performed a function that has become obsolete,
unnecessary or undesirable in connection with the operation of the Premises in accordance with the
terms of this Lease.
Section 14.3 No Obligation to Repair or to Supply Utilities.
Owner(in its proprietary capacity only)shall not be required to supply any facilities,services
or utilities whatsoever to the Premises. Owner shall not have any duty or obligation to make any
alteration,change,improvement,replacement,Restoration or repair with respect to the Premises.
Section 14.4 Waste Disposal.
Tenant shall dispose of waste from all areas of the Premises in accordance with Requirements
and in a prompt and sanitary manner.
Section 14.5 Alterations.
(a) Subject to the terms and conditions of this Article 14 and the other applicable
provisions of this Lease,Tenant may,at any time and from time to time,at its sole cost and expense,
make alterations, additional installations, substitutions, improvements, renovations or betterments
(collectively,"Alterations");in and to the Premises or any portion thereof provided that:
(i) no Alterations(or series of related Alterations)estimated to cost more
than One Hundred Fifty Thousand Dollars ($150,000), adjusted for
inflation(as estimated by Tenant's architect or engineer)(a"Significant
Alteration")and no Alteration affecting the structural portions,roofs
or the healing,air conditioning,elevator,plumbing,electrical,sanitary,
mechanical or other service or utility systems shall be undertaken except
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under the supervision of a licensed architect or licensed professional
engineer;
(ii) the Alterations will not result in a violation of any Requirement or
change the use permitted in Section 6.1 or violate any other provision
of this Lease;
(iii) the outside appearance,character or permitted use of the Premises shall
not be materially adversely affected unless approved pursuant to the
provisions of Section 14.5(d),and the Alterations shall not materially
(1)weaken or impair the structure,(2)reduce the size or(3)lessen the
value of,the Premises;
(iv) the proper functioning of any of the heating,air conditioning,elevator,
plumbing,electrical,sanitary, mechanical and other service or utility
systems of the Premises shall not be materially adversely affected;
(v) if any Alteration(excluding interior subtenant improvements that do not
materially affect the major building components)is(or related series of
Alterations are)estimated to cost more than Five Hundred Thousand
Dollars ($500,000), adjusted for inflation (as estimated by Tenant's
architect or engineer),Tenant shall obtain the prior written consent of
Owner for such Alterations(a"Major Alteration")in accordance with
the provisions of 26.2 below;and
(vi) no Major Alteration in excess of One Million Dollars($1,000,000),
adjusted for inflation,shall be undertaken prior to Tenant's delivering
to Owner,at Tenant's option,either(x)a performance bond and a labor
and materials payment bond (issued by a surety company reasonably
satisfactory to Owner and licensed to do business in the State of
Florida),each in an amount equal to one hundred percent(100%)of the
estimated cost and otherwise in form reasonably satisfactory to Owner
or(y)such other security for the completion of the Major Alteration,as
may be reasonably satisfactory to Owner; provided, however, this •
Section 14.5 shall not apply to a Recognized Mortgagee or its Designee
during the period that it is Tenant under this Lease.
(b)
Reimbursement of Owner's Expenses. Tenant shall reimburse Owner for all
actual out-of-pocket architectural and engineering expenses for architectural and engineering review
reasonably incurred by Owner in connection with its decision to grant or withhold consent to a
proposed Major Alteration and inspecting the Major Alteration to determine whether the same is being
or has been performed in accordance with the terms of this Lease,including only the actual reasonable
fees and expenses of any architect or engineer employed for such purposes. Any Major Alteration for
which consent has been received shall be performed substantially in accordance with the approved Plans
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and Specifications,and no material amendments or material additions to the Plans and Specifications
shall be made without the prior consent of Owner in accordance with the terms hereof.
(c) Approvals. Tenant, at its expense, shall obtain all necessary permits and
certificates from Governmental Authorities for the commencement and prosecution of any Alterations
and final approval from Governmental Authorities upon completion,promptly deliver copies of the
same to Owner and cause the Alterations to be performed in compliance with all applicable
Requirements and requirements of Mortgagees and insurers of the Premises,and any Board of Fire
Underwriters,Fire Insurance Rating Organization,or other body having similar functions,and in good
and workman like manner, using materials and equipment at least equal in quality and class to the
original quality of the installations at the Premises that are being replaced.
(d) Submission and Review of Alterations. Tenant shall submit to Owner plans
and specifications showing in reasonable detail any proposed Major Alteration. Owner shall review the
plans and specifications for any proposed Major Alteration and shall approve the same provided that
the proposed Major Alteration will not:
(i) impair the structural integrity of the Premises;or
(ii) reduce Project Revenues after completion of the Major Alterations;or
(iii) reduce Floor Area or parking spaces,unless Tenant agrees,in writing,
to restore the portion of the Premises so modified to the original condition upon request of Owner prior
to the Expiration of the Term;or
(iv) change any exterior of the building,unless the DRB,HPB or Joint Board,
as applicable,approves the change;or
(v) deviate from any approved uses of the Premises.
Within thirty(30)days after Owner's receipt of such plans and specifications,the City Manager of
Owner shall notify Tenant of its approval or disapproval thereof and, in the event of the Owner's
disapproval, the reasons therefor. If Tenant desires to modify in any material respect previously
approved plans and specifications (as such may have been modified by approved plans and
specifications),Tenant shall submit any such proposed modifications to Owner for Owner's approval.
Within fifteen(15)days of its receipt of the proposed modifications,Owner shall notify Tenant in
writing with specificity of any material inconsistencies of which Owner disapproves between the plans
and specifications as modified and the plans and specifications previously approved by Owner. Tenant
shall,at its election,have the option of(x)submitting Owner's disapproval to arbitration as to the(i)
materiality of the inconsistency and/or(ii)reasonableness of disapproval or(y)submitting revised
modifications to the plans and specifications to meet Owner's objections(which revised plans and
specifications shall be reviewed as herein above provided),
(e) Costs of Alterations. The costs of all Alterations shall be borne by Tenant.
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(f) Prevailing Wages. All Persons employed by Tenant with respect to Alterations
of the Project shall be paid,without subsequent deduction or rebate unless expressly authorized by
Requirements,not less than the relevant prevailing wage as prescribed by the City of Miami Beach
Prevailing Wage Ordinance,Miami Beach City Code,Section 3IA-27,as amended,but only to the
extent such Prevailing Wage Ordinance is applicable to the Alteration of the Improvements.
Article 15-Requirements
Section 15.1 Tenant's Obligation to Comply With Requirements.
In connection with any Construction Work,and with the maintenance,management,use and
operation of the Premises and Tenant's performance of its obligations hereunder,Tenant Thal l comply
promptly with all Requirements,without regard to the nature of the work required to be done,whether
extraordinary or ordinary,and whether requiring the removal of any encroachment(but Tenant may
seek to obtain an easement in order to cure an encroachment, if permitted by Requirements), or
affecting the maintenance,management,use or occupancy of the Premises,or involving or requiring
any structural changes or additions in or to the Premises and regardless of whether such changes or
additions are required by reason of any particular use to which the Premises,or any part thereof,may
be put. No consent to,approval of or acquiescence in any plans or actions of Tenant by Owner,in its
proprietary capacity as landlord under this Lease,or Owner's designee shall be relied upon or construed
as being a determination that such are in compliance with the Requirements, or, in the case of
construction plans,are structurally sufficient,prudent or in compliance with the Requirements.
Section 15.2 Definition.
'Requirements"means:
(a) any and all laws,rules,regulations,constitutions,orders,ordinances,charters,
statutes, codes, executive orders and requirements of all Governmental
Authorities having jurisdiction over a Person and/or the Premises or any street,
road,avenue or sidewalk comprising a part of,or lying in front of,the Premises
or any vault in,or under the Premises(including,without limitation,any of the
foregoing relating to handicapped access or parking,the Building Code of the
City and the laws, rules, regulations, orders, ordinances, statutes,codes and
requirements of any applicable Fire Rating Bureau or other body exercising
similar functions);
(b) the temporary and/or permanent certificate or certificates of occupancy issued •
for the Premises as then in force;and
(c) any and all provisions and requirements of any property, casualty or other
insurance policy required to be carried by Tenant under this Lease.
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Section 15.3. Owner's Obligation to Comply With Requirements.
In connection with the performance of Owner's obligations hereunder,Owner shall comply
promptly with all Requirements.
Article 16-Management and Operation of Project
Section 16.1 Management of Project.
(a) Following the Project Opening Date,and continuing throughout the Term of this
Lease, Tenant shall be an Acceptable Operator or shall enter into one (1) or more Management
Agreement(s)with an Acceptable Operator(s)and shall prudently manage and operate,or cause the
Premises to be prudently operated and managed by the Acceptable Operator pursuant to Section
16.3(d) and in accordance with the terms and conditions of this Lease, and pursuant to a written
Management Agreement:
(i) Providing for services,and containing terms and conditions,reasonable
and customary for the operation of comparable first-class buildings of similar age and design;
(ii) Providing that the Premises are operated and maintained in good order
and condition, including such repair, replacement, renovation, and maintenance, as necessary,
reasonable wear and tear excepted;and
(iii) Consistent with the standards for garage operation and for public area
maintenance and operation as set forth,respectively,in the:
(1) Parking Garage Maintenance Manual(August 1996),published
by the National Parking Association/Parking Consultants Council,a copy of which is attached hereto
as Exhibit 14.1(a),as the same may be revised from time to time;
(2) Owner's Garage Maintenance Standards, attached hereto as
Exhibit 14.1(b), as the same may be revised from time to time by mutual consent of Owner and
Tenant;and
(3) Owner's Operating Standards,as set forth in Exhibit 14.1(c),as
same may be revised from time to time by mutual consent of Owner and Tenant.
(b) The services to be performed by the Acceptable Operator shall include,without
limitation,the following:
(i) Acceptable Operator will provide technical services to assist Tenant in
the furnishing and equipping,maintenance and operation of the Premises. These services will include,
among other things, (1)review and approval of architectural plans,plans for design,and plans for
fixtures and equipment to ensure that the Garage will meet the standards set forth in this Lease; (2)
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develop criteria for fixtures and equipment and assist in obtaining sources of supply;and(3)assistance
in coordinating purchases and installation of fixtures and equipment.
(ii) Acceptable Operator will provide required services to Tenant to prepare
the Garage for opening,including,without limitation,(1)recruiting,training and employing personnel;
(2)pre-opening marketing and advertising;(3)negotiating contracts for supplies and similar items;(4)
assistance in obtaining necessary licenses and permits;and(5)assistance in purchasing initial operating
supplies.
(c) Tenant shall provide in the Management Agreement that Acceptable Operator
shall operate and manage the Premises in accordance with the provisions of this Lease, including
without limitation,Article 6 hereof. Acceptable Operator shall have authority to operate the Premises
in the name of,and for the account of,Tenant.
(d) Tenant hereby agrees to incorporate the covenants and agreements contained
in this Article in the Management Agreement as covenants and agreements of the Acceptable Operator.
(e) The Acceptable Operator's interest in the Management Agreement shall be
subject and subordinate to(i)the Owner's Interest in the Premises;and(ii)the terms and conditions of
this Lease. As between Owner and Tenant,in the event of any conflict between the terms of this Lease
and the terms of the Management Agreement,the terms of this Lease shall govern. Tenant shall remain
responsible for performing all of its obligations hereunder notwithstanding the fact that the Premises
is being managed by the Acceptable Operator.
(f) Notwithstanding anything to the contrary contained in this Section 16.1,the
Premises may be managed by an operator(including Tenant) that is not an Acceptable Operator,
provided that such operator is approved by the Owner,which approval may be granted or withheld in
Owner's sole and absolute discretion, for any reason or for no reason whatsoever. Any operator
approved by Owner pursuant to this Section 16.1(1)shall be deemed to be an Acceptable Operator for
all purposes of this Lease.
Section 16.2 Garage Revenue Control Equipment.
(a) Tenant shall,at all times from the CO Date to the earlier to occur of(i)the date
on which this Lease is terminated for any reason or(ii)the Fixed Expiration Date,maintain and utilize
fully automated garage revenue control equipment.
(b) On or prior to the earlier to occur of(i) the date on which this Lease is
terminated for any reason or(ii)the Fixed Expiration Date,Tenant shall provide fully automated garage
revenue control equipment in the Garage that is compatible with the equipment that the City uses for
its municipal parking system,in the event that the equipment used for the Garage is not compatible at
that time.
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Section 16.3 Transfer of Acceptable Operator's Interest in the Management Agreement.
If Acceptable Operator effectuates a(i)transfer of the Management Agreement;(ii)termination
of Management Agreement or(iii)engagement of a new Manager for the Permises,Owner shall be
notified in writing ten(10)days prior to the date thereof. The notice required by this Section 16.3
shall contain the following information:
(i) the name and address of the new Acceptable Operator or transferee;
(ii) the nature of such transaction and the percent interest to be conveyed;
(iii) in the case of a Management Agreement,a true and complete copy of
the instrument effectuating such transaction; and
(iv) a copy of any new Management Agreement or any modifications to
an existing Management Agreement.
Section 16.4 Owner's Rights and Remedies.
(a) Tenant will(i)perform or cause to be performed Tenant's material obligations
under the Management Agreement, (ii) enforce the performance by Acceptable Operator of all of
Acceptable Operator's material obligations under the Management Agreement;and(iii)give Owner
prompt written notice and a copy of any notice of default,event of default,termination or cancellation
sent or received by Tenant.
(b) Upon termination of this Lease,Acceptable Operator shall:
(i) to the extent of Acceptable Operator's interest and to the extent
permitted by Requirements,surrender and assign to Owner or its designee any and all licenses,permits
and/or governmental authorizations required for the operation of the Premises;
(ii) deliver to Owner any and all of Owner's properties within the possession
of Acceptable Operator,including,without limitation,all keys,locks and safe combinations,ledgers,
bank statements for the Premises accounts, books and records,insurance policies,bonds and other
documents,agreements,leases and licenses required for the operation of the Premises;and
(iii) remit to Owner the balance of any account of the Premises.
(iv) Owner shall not incur any liability to Project Manager under the
Management Agreement except to the extent Owner has liability under this Lease;
(c) The rights of Owner set forth in this Section 16.4 shall,to the extent in conflict
with the rights of any Recognized Mortgage,be subject to the rights of such Recognized Mortgagee
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provided such Recognized Mortgagee is in the process of,and is diligently,exercising its rights under
the applicable Recognized Mortgage.
Section 16.5 Repair,Renovation and Replacement Reserve Account.
(a) Maintenance and operation of the Premises will be at no cost to Owner,and
Tenant shall itself, or cause (and the Management Agreement shall so provide) the Acceptable
Operator, in Tenant's name and for the benefit of Tenant, to establish a separate interest bearing
account(the"Reserve Account")for the purpose of funding the repair,renovation and replacement
of fixtures and equipment required for the operation of the Premises in accordance with the terms of
this Lease,as well as to assure that funds are available for maintenance of the Premises from and after
the CO Date. To fund the Reserve Account, Tenant shall deposit, or shall cause the Acceptable
Operator to deposit,within thirty(30)days after the end of each month during the Term of this Lease
from and after the CO Date for such month one-twelfth(1/12th)of an amount which is equal to the sum
ofTwenty-Five Cents($0.25)per square foot annually of office space(including common areas)times
the number of square feet of office space in the Premises, plus Ten Cents($0.10) per square foot
annually times the number of square feet in the Garage(including common areas). No deposit need be
made to the Reserve Account for the square footage of retail space within the Premises.
Owner,in its sole and absolute discretion,for any reason and for no reason whatsoever,may consider
a reduction of the required payments to the Reserve Account as set forth in this Section 16.5(a)above
any time after the CO Date.
(b) Tenant shall cause the Acceptable Operator to make expenditures from the
Reserve Account for the purposes permitted hereunder as is necessary to maintain or improve the
Premises in accordance with this Lease(including capital expenditures);provided,however,that in the
event that a Recognized Mortgage provides for a method or procedure for making or authorizing
expenditures from the Reserve Account,the provisions of such Recognized Mortgage shall control over
the provisions hereof.
(c) Tenant hereby grants to Owner a security interest in the Reserve Account,and
all profits and proceeds thereof,in order to secure Tenant's obligations under this Section 16.5,which
security interest in such Reserve Account shall be automatically fully subject and subordinate only to
the rights of the Recognized Mortgagee and any purchase money lender with regard to Reserve
Account. Tenant hereby agrees not to grant a security interest in the Reserve Account to any Person
other than a Recognized Mortgagee,Owner or a purchase money lender. Owner shall execute and
deliver all such instruments as any Recognized Mortgagee or purchase money lender shall reasonably
require in order to confirm Owner's subordination of its security interest as aforesaid.
(d) Funding of Reserve Account during Foreclosure or while Recognized Mortgag
or its Designee is Tenant. During the period that(i)a Recognized Mortgagee is pursuing a foreclosure
against Tenant;or(ii)a Recognized Mortgagee or its Designee is the Tenant under this Lease,such
Recognized Mortgagee or its Designee shall have the option of(1)not funding the Reserve Account;
provided,however,such relief from funding shall not be deemed to affect in any way the operational
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and maintenance standards imposed upon the Project pursuant to this Lease (including, without
limitation,Section 6.4);provided further,however,such relief from funding,in any event,shall end
upon the earlier to occur of(A)four(4)years after the date of the earlier to occur of(i)the filing of
such foreclosure,or(ii)the date upon which such Recognized Mortgagee or its Designee becomes the
Tenant under this Lease;or(B)the date a Foreclosure Transferee other than a Recognized Mortgagee
or its Designee becomes the Tenant under this Lease;or(2)funding the Reserve Account as provided
in this Section 16.5.
(e) Notwithstanding anything to the contrary herein contained,to the extent that a
Recognized Mortgage contains provisions requiring Tenant to maintain a Reserve Account for the same
purpose as this Section 16.5,the provisions of this Section 16.5 shall be waived and the provisions of
the Recognized Mortgage shall be controlling. In no event shall Tenant be required to maintain more
than one(1)Reserve Account for the purposes set forth herein.
Section 16.6 More Than One Acceptable Operator.
Tenant may,in its discretion,cause different components of the Premises to be operated and
maintained by different Acceptable Operators.
Article 17-Discharge of Liens
Section 17.1 Creation of Liens.
(a) Tenant shall not create,cause to be created,or suffer or permit to exist(i)any
lien,encumbrance or charge upon this Lease,the leasehold estate created hereby,the income therefrom
or the Premises or any part thereof or appurtenance thereto, which is not removed within the time
period required pursuant to Section 17.2,(ii)any lien,encumbrance or charge upon any assets of or
funds appropriated to,Owner,or(iii)any other matter or thing whereby the estate,rights or interest
of Owner in and to the Premises or any part thereof or appurtenance thereto might be materially
impaired.Notwithstanding the above,Tenant shall have the right to execute Mortgages,subleases and
other instruments(including,without limitation,equipment leases)as provided by,and in accordance
with,the provisions of this Lease.
(b) Owner shall not create,cause to be created,or suffer or permit to exist(i)any
lien,encumbrance or charge upon this Lease,the leasehold estate created hereby,the income therefrom
(except as otherwise set permitted in Article 2)or the Premises or any part thereof or appurtenance
thereto,which is not removed within the time period required pursuant to Section 17.2,(ii)any lien,
encumbrance or charge upon any assets of,or funds appropriated to,Tenant,or(iii)any other matter
or thing whereby the estate,rights or interest of Tenant in and to the Premises or any part thereof or
appurtenance thereto might be materially impaired.
Section 17.2 Discharge of Liens.
(a) If any mechanic's, laborer's,vendor's, materialman's or similar statutory lien
(including tax liens,provided the underlying tax is an obligation of Tenant by law or by a provision of
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this Lease)is filed against the Premises or any part thereof,or if any public improvement lien created,
or caused or suffered to be created by Tenant shall be filed against any assets of,or funds appropriated
to,Tenant or Owner,Tenant shall,within thirty(30)days after Tenant receives notice of the filing of
such mechanic's,laborer's,vendor's,materialman's or similar statutory lien or public improvement lien,
cause it to be discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise.However,Tenant shall not be required to discharge any such lien if Tenant
shall have(a)furnished Owner with,at Tenant's option,a cash deposit,bond,letter of credit from an
Institutional Lender(in form reasonably satisfactory to Owner)or other security(such as a personal
guaranty or title company indemnity)reasonably satisfactory to Owner,in an amount sufficient to pay
the lien with interest and penalties and(b)brought an appropriate proceeding to discharge such lien and
is prosecuting such proceeding with diligence and continuity;except that if,despite Tenant's efforts to
seek discharge of the lien,Owner reasonably believes that a court judgment or order foreclosing such
lien is about to be entered or granted and so notifies Tenant,Tenant shall,within ten(10)days after
notice to such effect from Owner(but not later than three (3) business days prior to the entry or
granting of such judgment or order of foreclosure),cause such lien to be discharged of record or Owner
may thereafter discharge the lien in accordance with Section 24.2 and look to the security furnished
by Tenant for reimbursement of its cost in so doing. Notwithstanding anything to the contrary
contained in this Section 17.2(a), in the case of a public improvement lien which provides for
installment payments as a means of satisfying such lien, Tenant shall be required only to pay, on
a timely basis, all installments when due.
(b) Notwithstanding anything to the contrary contained in Section 17.2, if any
mechanic's,laborer's,vendor's,materialman's or similar statutory lien(including tax liens,provided the
underlying tax is an obligation of Owner by law or by a provision of this Lease)is filed against the
Premises or any part thereof or Tenant's interest therein as a result of any action of Owner,its officers,
employees,representatives or agents,Owner shall,within thirty(30)days after Owner receives notice
of the filing of such mechanic's,laborer's,vendor's,materialman's or similar statutory lien,cause it to
be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or
otherwise. However,Owner shall not be required to discharge any such lien if Owner shall have(i)
furnished Tenant with,at Owner's option,a cash deposit,bond,letter of credit from an Institutional
Lender(in form reasonably satisfactory to Tenant)or other security(such as a personal guaranty or title
company indemnity)reasonably satisfactory to Tenant,in an amount sufficient to pay the lien with
interest and penalties and (ii) brought an appropriate proceeding to discharge such lien and is
prosecuting such proceeding with diligence and continuity;except that if,despite Owner's efforts to
seek discharge of the lien,Tenant reasonably believes that a court judgment or order foreclosing such
lien is about to be entered or granted and so notifies Owner,Owner shall,within ten(10)days of notice
to such effect from Tenant(but not later than three(3)business days prior to the entry or granting of
such judgment or order of foreclosure),cause such lien to be discharged of record or Tenant may
thereafter discharge the lien in accordance with Section 24.2 and look to the security furnished by
Owner for reimbursement of its cost in so doing.
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Section 173 No Authority to Contract in Name of Owner.
Nothing contained in this Article shall be deemed or construed to constitute the consent or
request of Owner,express or implied,by implication or otherwise,to any contractor,subcontractor,
laborer or materialman for the performance of any labor or the furnishing of any materials for any
specific improvement of, alteration to, or repair of,the Premises or any part thereof, nor as giving
Tenant any right,power or authority to contract for, or permit the rendering of,any services or the
furnishing of materials that would give rise to the filing of any lien,mortgage or other encumbrance
against Owner's interest in the Land or any part thereof or against assets of Owner,or Owner's interest
in any Rental and/or Impositions. Notice is hereby given,and Tenant shall cause all Construction
Agreements to provide,that to the extent enforceable under Florida law,Owner shall not be liable for
any work performed or to be performed at the Premises or any part thereof for Tenant or any Master
Subtenant or for any materials furnished or to be furnished to the Premises or any part thereof for any
of the foregoing,and no mechanic's,laborer's,vendor's,materialman's or other similar statutory lien for
such work or materials shall attach to or affect Owner's interest in the Land or any part thereof or any
assets of Owner,or Owner's interest in any Rental and/or Impositions. The foregoing shall not require
Tenant to request advance waivers of lien from contractors or subcontractors.
Article 18-Representations
Section 18.1 No Brokers.
Each of Owner and Tenant represents to the other that it has not dealt with any broker,finder
or like entity in connection with this Lease or the transactions contemplated hereby,and each party shall
indemnify the other against any claim for brokerage commissions,fees or other compensation by any
Person alleging to have acted for or dealt with the indemnifying party in connection with this Lease or
the transactions contemplated hereby.
Section 18.2 No Other Representations.
Tenant acknowledges,represents and confirms that it or its authorized representatives have
visited the Premises and are fully familiar therewith,the physical condition thereof(including but not
limited to subsurface conditions)and Title Matters affecting the Premises. Tenant accepts the Premises
in existing condition and state of repair and Tenant confirms that: except for the representation
contained in Section 18.1 (and any other representation expressly set forth in this Lease), (i) no
representations, statements,or warranties,express or implied,have been made by, or on behalf of,
Owner with respect to the Premises or the transactions contemplated by this Lease,the status of title
thereto(except as set forth in Exhibit 2.1),the physical condition thereof,the zoning,wetlands or other
laws,regulations,rules and orders applicable thereto or the use that may be made of the Premises,or
the presence or absence of"hazardous substances"(as defined in the Comprehensive Environmental
Response,Compensation and Liability Act of 1980,as amended,42 USCA§9601 et seq.)on or under
the Premises, (ii) Tenant has relied on no such representations, statements or warranties, and (iii)
Owner shall not be liable to Tenant,in any event whatsoever,to correct any latent or patent defects in
the Premises.
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Article 19-No Liability for Injury or Damage
Section 19.1 Liability of Owner or Tenant.
(a) Owner Not LlableforInjury orDamage,Etc. The OwnerIndemnified Parties
shall not be liable to any Tenant Indemnified Party for,and Tenant shall indemnify and hold Owner
Indemnified Parties harmless from and against, any loss, cost, liability, claim, damage, expense
(including,without limitation,reasonable attorneys'fees and disbursements),penalty or fine incurred
in connection with or arising from any injury(whether physical(including,without limitation,death),
economic or otherwise)to Tenant or to any other Person in,about or concerning the Premises or any
damage to,or loss(by theft or otherwise)of,any of Tenant's property or of the property of any other
Person in, about or concerning the Premises, irrespective of the cause of injury, damage or loss
(including,without limitation,the acts or negligence of any tenant or occupant of the Premises or of
any owners or occupants of adjacent or neighboring property or caused by any Construction Work or
by operations in construction of any private,public or quasi-public work)or any latent or patent defects
in the Premises,except to the extent any of the foregoing is due to the gross negligence or willful
misconduct of any Owner Indemnified Party. The Owner Indemnified Parties shall not be liable,to the
extent of insurance proceeds paid by insurance carriers under Tenant's insurance policies,for any loss
or damage to any Person or property even if due to the gross negligence or willful misconduct of any
Owner Indemnified Party and,to that extent,Tenant relieves Owner Indemnified Parties from such
liability. Without limiting the generality of the foregoing,except to the extent caused by the gross
negligence or willful misconduct of any of Owner Indemnified Parties(and then only in such Owner
Indemnified Party's proprietary capacity as opposed to its governmental capacity),Owner Indemnified
Parties shall not be liable for(i)any failure of water supply,gas or electric current,(ii)any injury or
damage to person or property resulting from gasoline,oil,steam,gas,electricity,or hurricane,tornado,
act of God,act of war,enemy action,flood,wind or similar storms or disturbances,water,rain or ice,
or(iii)leakage of gasoline or oil from pipes,appliances,sewer or plumbing works.
(b) Zoning Changes. Except when Owner(if Owner,at the time of application is
the City),acting in its proprietary capacity,is the applicant,Owner hereby assigns to Tenant any and
all rights of Owner,as owner of the Land,under Requirements to execute objections or waivers of
objections to applications for variances or other exceptions or exemptions from zoning or other
Requirements by the owner of any property with respect to which,under applicable Requirements,the
owner of the Land would have the right to object or consent to variances or other exceptions or
exemptions from zoning or other Requirements. Such assignment shall in no way limit or otherwise
restrict any other rights of the City, any instrumentalities of the City, or any elected or appointed
officials or employees of the City,in its respective governmental capacities,from taking or refraining
from taking any action or expressing any views and opinions in connection with such application.If
Owner is required to join in such application by Requirements,Owner shall do so provided Tenant pays
all costs,including reasonable attorneys' fees,for same.
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Section 19.2 Owner's Exculpation.
(a) Except as such liability may be eliminated or reduced by any constitutional,
statutory,common law or other protections afforded to public bodies or governments(for such time
as Owner is a Governmental Authority),including,but not limited to,sovereign immunity statutes,the
liability of Owner (including, without limitation, with respect to any gross negligence or willful
misconduct),or of any other Person who has at any time acted as Owner(for such time as Owner is
a Governmental Authority)hereunder,for damages or otherwise,arising out of or in connection with
any breach of this Lease or any injury(whether physical(including death) economic or otherwise)
incurred in connection with this Lease or the Premises, shall be limited to One Million Dollars
($1,000,000), adjusted for inflation, under this Lease and the Development Agreement, in the
aggregate. As used in the preceding sentence, the terms 'breach" and "injury" shall include all
breaches and injuries arising out of the facts and circumstances resulting in such breach or injury.
(b) Except for conversion,fraud or willful misconduct(and then only to the extent
such party acted in its proprietary capacity as opposed to its governmental capacity),none of the Owner
Indemnified Parties(except Owner as provided in Section 192(a))shall have any liability(personal or
otherwise) hereunder, and except for Owner's Interest in the Premises (to the extent permitted by
applicable Requirements),no property or assets of the Owner Indemnified Parties shall be subject to
enforcement procedures for the satisfaction of Tenant's remedies hereunder or any other liability of the
Owner Indemnified Parties arising from or in connection with this Lease or the Premises. Nothing
contained herein shall be deemed a waiver of any equitable remedies available to Tenant.
•
(c) Nothing contained in this Section 19.2 or elsewhere in this Lease is in any way
intended to be a waiver of the limitation placed upon Owner's liability as set forth in§768.28,Fla.Stat.,
or of any other constitutional,statutory,common law or other protections afforded to public bodies
or governments.
Section 193 Notice of Injury or Damage.
Tenant shall notify Owner within thirty(30)days of any occurrence at the Premises of which
Tenant has notice and which Tenant believes could give rise to a claim of One Hundred Thousand
Dollars($100,000),adjusted for inflation,or more,whether or not any claim has been made,complaint
filed or suit commenced;however,Tenant's failure to so notify Owner shall not constitute or result in
a breach or default of any of the terms or conditions of this Lease or result in a loss of any benefit or
right granted to Tenant under this Lease.
Section 19.4 Tenant's Exculpation.
Except for(a)Tenant's liability for conversion,willful misconduct or fraud,(b)liabilities of
Tenant arising under applicable Requirements when Owner is acting in or pursuant to its governmental '
capacity,and(c)liability with respect to Tenant's obligation to pay Rental and/or Impositions that is
past due but not yet paid,and except with respect to any rights or remedies for non-monetary relief •
(including,without limitation,equitable relief),the liability ofTenant under this Lease and with respect
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to the Premises for damages or other monetary amounts shall be limited to One Million Dollars
($1,000,000)adjusted for inflation,under this Lease and the Development Agreement,in the aggregate.
Notwithstanding anything to the contrary in this Lease,Owner's right to terminate this Lease and force
Tenant to surrender title to and possession of the Improvements to Owner shall not be subject to the
limitation of liability contained in this Section 19.4. Other than Tenant's Interest in the Premises,no
other property or assets of Tenant shall be subject to levy of execution or enforcement procedure for
the satisfaction of Owner's remedies hereunder or any other liability of Tenant arising from or in
connection with this Lease or the Premises. Without limiting the preceding sentence,if,and only if,
a Tenant Indemnified Party other than Tenant engages in conversion,fraud or willful misconduct,then
such Tenant Indemnified Party shall have personal liability hereunder and the property and assets of
such Tenant Indemnified Party shall be subject to levy of execution or enforcement procedure for the
satisfaction of Owner's remedies hereunder with respect to such conversion, fraud or willful
misconduct. Nothing contained herein shall be deemed a waiver of any equitable remedies available
to Owner.
Section 19.5 No Punitive Damages.
Neither Owner nor Tenant shall be liable to the other for any punitive damages in connection
with this Lease and Owner and Tenant agree not to seek punitive damages from each other in
connection with any lawsuit or other claim relating to this Lease.
Section 19.6 Survival.
The provisions of this Article 19 shall survive the Expiration of the Term.
Article 20-Indemnification
Section 20.1 Indemnification of Owner.
(a) Tenant shall indemnify and hold Owner Indemnified Parties harmless from all
loss,cost,liability,claim,damage and expense(including,without limitation,reasonable attorneys'fees
and disbursements),penalties and fines, incurred in connection with claims by a Person against an
Owner Indemnified Party arising from(a)the use or occupancy or manner of use or occupancy of the
Premises by Tenant or any Person claiming through or under Tenant or(b)any acts, omissions or
negligence of Tenant or any Person claiming through or under Tenant,or of the contractors,agents,
servants,employees,guests,invitees or licensees of Tenant or any Person claiming through or under
such Person,in each case to the extent in,about or concerning the Premises either during or after the
expiration of,the Term,including,without limitation,any acts,omissions or negligence in connection
with any Construction Work or in the making or performing of any repairs,restoration,alterations or
improvements,except to the extent any of the foregoing is caused by the gross negligence or willful
misconduct of any of the Owner Indemnified Parties.
(b) In the event that any suit, action or proceeding is brought against Owner to
compel disclosure of any document described in Article 27 or Article 28,whether such suit,action or
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proceeding is brought under Chapter 119,Florida Statutes or any other provision of law,Tenant agrees
to defend,indemnify and hold the Owner Indemnified Parties harmless from and against any loss,claim,
damage,expense(including,without limitation,reasonable attorneys'fees and disbursements,including
both in-house and outside counsel,and also including any attorneys'fees and disbursements which any
court of competent jurisdiction may award to the plaintiff in such suit,action or proceeding,in all cases
including any appeals thereof or post judgment proceedings relating thereto),penalty or fine incurred
in connection with or arising from such suit,action or proceeding. Owner shall notify Tenant of any
such public records request but failure to give such notice shall not impose any liability on Owner.
Notwithstanding the foregoing,in the event that Owner receives a proper notice under Chapter 119,
Florida Statutes,as amended,to produce a document,and Owner has such document in its possession
and Owner fails to produce such document due to Owner's own negligence, malfeasance or
misfeasance,Tenant shall not be liable for any loss,claim,damage,penalty or fine as aforesaid.
Section 20.2 Indemnification of Tenant.
Owner shall indemnify and hold the Tenant Indemnified Parties harmless from all loss,cost,
liability, claim, damage and expense (including without limitation, reasonable attorneys' fees and
disbursements),penalties and fines,incurred in connection with claims by a Person against a Tenant
Indemnified Party arising from any acts,omissions or negligence of Owner made in its proprietary
capacity or any Person claiming through or under Owner(in its proprietary capacity only),or of the
contractors, agents, servants, employees, guests, invitees or licensees of Owner(in its proprietary
capacity only)or any Person claiming through or under such Person,in each case to the extent in,about
or concerning the Premises either during,or after the expiration of,the Term,except to the extent any
of the foregoing is caused by the gross negligence or willful misconduct of any of the Tenant
Indemnified Parties.
Section 20.3 Contractual Liability.
(a) The obligations of Tenant under this Article 20 or Article 19 shall not be
affected in any way by the absence or presence of insurance coverage (or any limitation thereon,
including any statutory limitations with respect to Workers'Compensation insurance),or by the failure
or refusal of any insurance carrier to perform an obligation on its part under insurance policies affecting
the Premises;provided,however,that if Owner actually receives any proceeds of Tenant's insurance
with respect to an obligation of Tenant under this Article,the amount thereof shall be credited against,
and applied to reduce, any amounts paid and/or payable hereunder by Tenant with respect to such
obligation.
(b) The obligations of Owner under this Article 20 or Article 19 shall not be
affected in any way by the absence or presence of insurance coverage,or by the failure or refusal of any
insurance carrier to perform an obligation on its part under insurance policies affecting the Premises;
provided,however,that if Tenant actually receives any proceeds of Owner's insurance with respect to
an obligation of Owner under this Article,the amount thereof shall be credited against,and applied to
reduce,any amounts paid and/or payable hereunder by Owner with respect to such obligation.
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Section 20.4 Defense of Claim,Etc.
(a) If any claim, action or proceeding is made or brought against any Owner
Indemnified Party by reason of any event to which reference is made in Section 20.1 or Article 19,
then,upon demand by Owner or such Owner Indemnified Party,Tenant shall either resist,defend or
satisfy such claim,action or proceeding in such Owner Indemnified Party's name,by the attorneys for,
or approved by,Tenant's insurance carrier(if such claim,action or proceeding is covered by insurance)
or such other attorneys as Owner shall reasonably approve. The foregoing notwithstanding, such
Owner Indemnified Party may at its own expense engage its own attorneys to defend such Owner
Indemnified Party, or to assist such Owner Indemnified Party in such Owner Indemnified Party's
defense of such claim,action or proceeding,as the case may be.
(b) If any claim, action or proceeding is made or brought against any Tenant
Indemnified Party by reason of any event to which reference is made in Section 20.2 or Article 19,
then,upon demand by Tenant or such Tenant Indemnified Party,Owner,or any successor owner,as
applicable, shall either resist, defend or satisfy such claim, action or proceeding in such Tenant
Indemnified Party's name,by the attorneys for,or approved by,Owner's insurance carrier(if such claim,
action or proceeding is covered by insurance)or by such other attorneys as Tenant shall reasonably
approve. The foregoing notwithstanding, such Tenant Indemnified Party may at its own expense
engage its own attorneys to defend such Tenant Indemnified Party,or to assist such Tenant Indemnified
Party in such Tenant Indemnified Party's defense of such claim,action or proceeding,as the case may
be.
Section 20.5 Notification and Payment.
(a) Each Owner Indemnified Party shall promptly notify Tenant of the imposition
of,incurrence by or assertion against such Owner Indemnified Party of any cost or expense as to which
Tenant has agreed to indemnify such Owner Indemnified Party pursuant to the provisions of this Article
20. Tenant agrees to pay such Owner Indemnified Party,as Rental hereunder,all amounts due under
this Article 20 within sixty(60)days after receipt of the notice from such Owner Indemnified Party.
(b) Each Tenant Indemnified Party shall promptly notify Owner of the imposition
of,incurrence by or assertion against such Tenant Indemnified Party of any cost or expense as to which
Owner has agreed to indemnify such Tenant Indemnified Party pursuant to the provisions of this Article
20. Owner agrees to pay such Tenant Indemnified Party all amounts due under this Article 20 within
sixty(60)days after receipt of the notice from such Tenant Indemnified Party.
Section 20.6 Governs Lease. •
The provisions of this Article 20 shall govern every other provision of this Lease. The absence
of explicit reference to this Article 20 in any particular provision of this Lease shall not be construed
to diminish the application of this Article 20 to such provision
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Section 20.7 Survival.
The provisions of this Article 20 shall survive the Expiration of the Term.
Article 21 -Covenant Against Waste and Inspection
Section 21.1 Waste.
Except as otherwise permitted by this Lease, Tenant covenants not to do or suffer any
demolition,waste or damage,disfigurement or injury to the Premises or any part of it. The provisions
of this Section 21.1 shall not apply to any demolition or disfigurement involved with repairs,
renovations, upgrading or new construction.
Section 21.2 Inspection of Premises.
Owner,its agents,employees and authorized representatives may enter the Premises at any time
in response to an emergency,and at reasonable times as Owner deems necessary to,incident to, or
connected with the performance of Owner duties and obligations hereunder or in the exercise of its
rights and functions.
Article 22-Owner's Security Interest in Building Equipment
Section 22.1 Grant of Security Interest.
Solely for the purpose of securing Tenant's obligations to deliver to Owner the Improvements
upon Expiration of the Term,Tenant hereby grants to Owner a security interest in all of the Building
Equipment now or hereafter located on the Premises and owned by Tenant,and in all products and
proceeds thereof; provided, however, that Owner's security interest shall be automatically fully
subordinate and subject to any purchase money financing permitted hereunder and any Recognized
Mortgagee's security interest in the Building Equipment. Upon the Expiration of the Term,Owner shall
be entitled to all of the rights,remedies,powers and privileges available to a secured party under(and
subject to the provisions of)the Uniform Commercial Code enacted by the State of Florida. Tenant
shall execute and deliver all such instruments and take all such action as Owner,from time to time,may
reasonably request in order to obtain the full benefits of the security interest described in this Section
22.1 and of the rights and powers herein created and to maintain and perfect the security interest
granted above. To the extent permitted by Requirements,Tenant irrevocably authorizes Owner to file
financing statements and continuation statements with respect to the foregoing collateral without the
signature of Tenant. Owner shall execute and deliver all such instruments as any Recognized
Mortgagee or permitted purchase money lender shall reasonably require in order to confirm Owner's
subordination of its security interest as aforesaid. Subject to Section 14.2,Tenant may,during the
Term,remove,replace and otherwise deal with the Building Equipment in the ordinary course of the
operation of the Project.
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Article 23-Leasehold Condominium
Section 23.1 Creation of Leasehold Condominium.
(a) Tenant shall have the right to create a leasehold condominium for Tenant's Interest in
the Project, provided that at the time of creation of said leasehold condominium,the declaration of
condominium(the"Declaration")is in compliance with Chapter 718,Florida Statutes,as amended,
and this Article 23;and further provided that the original Tenant,the declarant,shall not self,convey,
assign or otherwise transfer any of the condominium units until Substantial Completion of the Project
Owner shall consent to the Declaration,provided,however,that Owner shall have the right to approve
the form and substance of the Declaration. Tenant shall pay all reasonable costs of Owner's review of
the proposed Declaration,including,but not limited to reasonable fees and costs of Owner's outside
counsel.
(b) For purposes of this Lease,in the event of the creation ofa leasehold condominium,the
following terms and provisions shall apply to said leasehold condominium and the Declaration shall so
provide:
(i) The leasehold condominium shall be limited to three(3)units consisting of an
office unit,a retail unit and a garage unit The garage unit shall be the Garage,
as defined in this Lease.
(ii) Unless otherwise provided in the Declaration, the new Tenant(the
"Condominium Tenant") shall be a Florida not-for-profit condominium
association,created to operate and maintain the leasehold condominium. The
Declaration may provide, as agreed to by Owner and Tenant prior to the
recording of the Declaration, that Rental and/or, if payable to Owner,
Impositions shall be paid directly by unit owners to Owner,rather than to the
condominium association, in proportions reasonably acceptable to Owner,
provided,however,that in no event shall the mechanism or procedure for the
payment of Rental and/or Impositions,or any other amounts required by this
Lease to be paid to Owner,affect the priority of Owner's right to receive Rental
and/or,if payable to Owner,Impositions or any other payments due under this
Lease. Tenant shall,at Tenant's sole cost and expense,provide Owner with an
opinion of counsel(which counsel shall be acceptable to Owner)to the effect
that the aforementioned provisions of the Declaration do not affect the priority
of Owner's right to receive Rental and/or Impositions or any other payments
under this Lease.
(iii) There shall be an Acceptable Operator for each unit and there may be a
Property Manager and a Management Agreement for each unit.
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( (iv) There may be a Recognized Mortgagee and a Recognized Mortgage for each
unit,and the rights and obligations of said Recognized Mortgagees shall be
limited to the units burdened by their respective Recognized Mortgages.
(v) If a lease of a unit meets the definition of Master Sublease as to such unit,such
lease shall be treated as a Master Sublease for purposes of this Lease.
(vi) Percentage Rent shall be based upon Project Revenue derived from the
operations of each of the three(3)units,individually.
(vii) Article 10 relating to transfers and sales shall be separately applied to each of
the individual condominium units;provided,however,that the Twenty Million
Dollar($20,000,000),adjusted for inflation, equity requirement described in
Section 10.3(c)(A), shall be changed to Ten Million Dollars($10,000,000),
adjusted for inflation, for each unit at the time of acquisition and provided
further, however, if a Person acquires two (2) units, the aggregate equity
requirement computed pursuant to Section 103(c)(A)for such Person shall be
Ten Million Dollars($10,000,000),adjusted for inflation,or if a Person acquires
three (3) units, such aggregate equity requirement shall be Twenty Million
Dollars($20,000,000),adjusted for inflation. All other provisions ofthis Lease
shall be separately applied to each of the individual condominium units.
(viii) A Recognized Mortgagee holding a Recognized Mortgage on a unit shall not
become the Tenant under this Lease; provided,however, the Condominium
Tenant's obligation to pay Percentage Rent derived from a condominium unit
which has been transferred to a Recognized Mortgagee pursuant to a
Foreclosure Transfer shall be subordinated as provided in this Lease, and
Percentage Rent derived from such unit,when payable,shall be paid to Owner
in accordance with Article 11 and Article 12 of this Lease. The rights and
obligations of a Designee and a First Transferee from such Recognized
Mortgagee relative to Percentage Rent shall similarly apply.
(ix) Owner's rights to review financial records of Condominium Tenant shall include
the right to review corresponding financial records of all of the unit owners. To
the extent Condominium Tenant is obligated to pay costs and fees to Owner
relating to such review,Condominium Tenant shall pay such additional costs
and fees resulting from reviews ofthe financial records of three(3)unit owners
as opposed to a single Tenant.
(x) The Declaration shall provide for appropriate easements, covenants and
restrictions such that the operation,use and management of the condominium
is consistent with this Lease including,without limitation,Article 6 hereof and
all applicable Land Development Regulations(as such term is defined in the
Development Agreement).
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(xi) A unit owner which is in default of its obligations under the Declaration,after
reasonable notice and grace periods as provided in the Declaration,shall lose its
right to vote as a member, officer, director or in any other capacity of the
condominium association so long as the default remains uncured.
(xii) In the event a unit owner fails to pay any condominium assessment to Owner
or Condominium Tenant,as applicable,which includes that unit's proportionate
share of Rental and/or,if payable to Owner,Impositions,Owner shall accept
payments of Rental and/or Impositions to the extent paid to Condominium
Tenant,and/or by the other unit owners,and the balance of the Rental and/or
Impositions shall be treated as Back Rent and/or Impositions,and Owner shall
not proceed with remedies available to Owner for non-payment of Rental and/or
Impositions unless and until Condominium Tenant and the Recognized
Mortgagee holding a Recognized Mortgage on the defaulting unit have failed
to diligently proceed with their respective remedies against the defaulting unit
owner. In the event the Condominium Tenant by foreclosure or deed in lieu of
foreclosure of its lien for assessments, or a Recognized Mortgagee or its
Designee,obtains title to the unit after such a default,the obligations of such
new unit owner relative to payment of Back Rent and/or Impositions and
Percentage Rent under such circumstances shall be governed by the applicable
provisions of this Lease.
(xiii) The condominium a'ssociation's lien for the payment of assessments for common
expenses,including Rental and/or Impositions,shall be subordinate to the lien
of any and all Recognized Mortgages on the respective units, provided,
however, that in no event shall the relative priority of said condominium
association's lien affect the superior priority of Owner's right to receive Rental
and/or Impositions or any other payments due under this Lease. Tenant shall,
at Tenant's sole cost and expense,provide Owner with an opinion of counsel
(which counsel shall be acceptable to Owner) to the effect that the
aforementioned provisions of the Declaration concerning the relative priority of
said condominium association's lien do not affect the superior priority of
Owner's right to receive Rental and/or Impositions or any other payments due
under this Lease.
(ix) The Declaration shall cease to exist and shall become null and void as of the
Fixed Expiration Date.
The Declaration provided for in this Article 23 shall not alter the legal effect of any of the
provisions of this Lease which were in effect prior to the recording of such Declaration(i.e.,the legal
rights of Owner shall not be impaired,diminished or improved after the recording of such Declaration
except as otherwise specifically provided in this Article 23). Therefore,to effectuate the provisions
of this Section 23.1, all legal issues and interpretations under this Lease regarding the rights and
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obligations of Owner,including but not limited to all payments due Owner, shall be made as if the
Declaration did not exist subject to the provisions of this Article 23.
Article 24-Right to Perform the Other Party's Obligations.
Section 24.1 Right to Perform the Other Party's Obligations.
(a) If a Default shall occur and be continuing beyond any applicable grace period,
Owner may,but shall be wider no obligation to,perform the obligation of Tenant the breach of which
gave rise to such Default,without waiving or releasing Tenant from any of its obligations contained
herein,provided that Owner shall exercise such right only in the event of a bona fide emergency or after
five (5)Business Days notice, and Tenant hereby grants Owner access to the Premises in order to
perform any such obligation.
(b) If a default by Owner under this Lease shall occur and be continuing beyond any
applicable grace period,Tenant may,but shall be under no obligation to,perform the obligations of
Owner(other than those which are governmental as opposed to proprietary obligations)the breach of
which gave rise to such default or event of default,without waiving or releasing Owner from any of
its obligations contained herein,provided that Tenant shall exercise such right only in the event of a
bona fide emergency or after five(5)Business Days notice to Owner or the City,as applicable.
Section 24.2 Discharge of Liens.
(a) If Tenant fails to cause any mechanic's, laborer's,vendor's,materialman's or
similar statutory lien(including tax liens,providing the underlying tax is an obligation of Tenant by law
or by a provision of this Lease)to be discharged of record in accordance with the provisions of Article
17,Owner may,but shall not be obligated to,discharge such lien of record either by paying the amount
claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings. If
Owner's title is threatened or a material interest of Owner is impaired,Owner may also,if Tenant has
not done so(or bonded such lien),compel the prosecution of an action for the foreclosure of such lien
by the lienor and the payment of the amount of the judgment in favor of the lienor with interest,costs
and allowances.
(b) If Owner fails to cause any mechanic's, laborer's, vendor's, materialman's or
similar statutory lien(including tax liens,providing the underlying tax is an obligation of Owner by law
or by a provision of this Lease)to be discharged of record in accordance with the provisions of Article
17,Tenant may,but shall not be obligated to,discharge such lien of record either by paying the amount
claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings. If
Tenant's leasehold interest in the Premises(or any portion thereof)is threatened or a material interest
of Tenant is impaired,Tenant may also,if Owner has not done so(or bonded such lien),compel the
prosecution of an action for the foreclosure of such lien by the lienor and the payment of the amount
of the judgment in favor of the lienor with interest,costs and allowances.
(
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Section 24.3 Reimbursement for Amounts Paid Pursuant to this Article.
(a) Any amount paid by Owner in performing Tenant's obligations as provided in
this Article 24,including all costs and expenses incurred by Owner in connection therewith,shall
constitute Rental hereunder and shall be reimbursed to Owner within thirty(30) days of Owner's
demand,together with a late charge on amounts actually paid by Owner,calculated at the Late Charge
Rate from the date of notice of any such payment by Owner to the date on which payment of such
amounts is received by Owner.
(b) Any amount paid by Tenant in performing Owner's obligations as provided in
this Article 24,including all costs and expenses incurred by Tenant in connection therewith,shall be
reimbursed to Tenant within thirty (30) days of Tenant's demand, together with a Iate charge on
amounts actually paid by Tenant,calculated at the Late Charge Rate from the date of notice of any such
payment by Tenant to the date on which payment of such amounts is received by Tenant.
Section 24.4 Waiver,Release and Assumption of Obligations.
(a) Owner's payment or performance pursuant to the provisions of this Article 24
shall not be,nor be deemed to constitute,Owner's assumption ofTenant's obligations to pay or perform
any of Tenant's past,present or future obligations hereunder.
(b) Tenant's payment or performance pursuant to the provisions of this Article 24
shall not be,nor be deemed to constitute,Tenant's assumption of Owner's obligations to pay or perform
any of Owner's past,present or future obligations hereunder.
Article 25-Events of Default,Conditional Limitations,Remedies,Etc.
Section 25.1 Definition.
Each of the following events shall be an"Event of Default"hereunder:
(a) if Tenant fails to make any payment (or any part thereof) of Rental and/or
Impositions due hereunder and such failure continues for a period of thirty(30)days after notice is
given by Owner that the same is past due;
(b) if Tenant shall default in the observance or performance of any term,covenant
or condition of this Lease on Tenant's part to be observed or performed(other than the covenants for
the payment of Rental and/or Impositions or as expressly set forth below) and Tenant shall fail to
remedy such Default within thirty (30) days after notice by Owner of such Default (the "Default
Notice"),or if such a Default is of such a nature that it cannot reasonably be remedied within thirty(30)
days(but is otherwise susceptible to cure),Tenant shall not(i)within thirty(30)days after the giving
of such Default Notice,advise Owner ofTenant's intention to institute all steps(and from time to time,
as reasonably requested by Owner,Tenant shall advise Owner of the steps being taken)necessary to
remedy such Default(which such steps shall be reasonably designed to effectuate the cure of such
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Default in a professional manner),and(ii)thereafter diligently prosecute to completion all such steps
necessary to remedy the same;
(c) failure of Tenant to deliver the special warranty deeds subject to the provisions
of Section 2.1(a)to Parcel 2(as described on Exhibit A)on or before the Possession Date;
(d) if Tenant fails to operate the Garage as a parking facility as described in Section
6.1(b)in which event such failure shall be treated as a Default as described in Section 25.1(b);
(e) if a default by Tenant under the Development Agreement shall have occurred
and be continuing beyond any applicable cure period, including any cure period applicable to a
Recognized Mortgagee;
(f) to the extent permitted by law,if Tenant admits,in writing,that it is generally
unable to pay its debts as such become due;
(g) to the extent permitted by law,if Tenant makes an assignment for the benefit of
creditors;
(h) to the extent permitted by law,if Tenant files a voluntary petition under Title 11
of the United States Bankruptcy Code,or if Tenant files a petition or an answer seeking,consenting
to or acquiescing in, any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future Federal bankruptcy code or any other
present or future applicable Federal,state or other bankruptcy or insolvency statute or law,or seeks,
consents to, acquiesces in or suffers the appointment of any trustee, receiver, custodian, assignee,
sequestrator,liquidator or other similar official ofTenant,of all or any substantial part of its properties,
or of all or any part of Tenant's Interest in the Premises,and the foregoing are not stayed or dismissed
within one hundred and fifty(150)days after such filing or other action;
(i) to the extent permitted by law,if,within one hundred and fifty(150)days after
the commencement of a proceeding against Tenant seeking any reorganization, arrangement,
composition,readjustment,liquidation, dissolution or similar relief under the present or any future
Federal bankruptcy code or any other present or future applicable Federal,state or other bankruptcy
or insolvency statute or law,such proceeding has not been dismissed,or if,within one hundred and
eighty(180)days after the appointment,without the consent or acquiescence of Tenant,of any trustee,
receiver,custodian,assignee,sequestrator,liquidator or other similar official of Tenant,of all or any
substantial part of its properties, or of all or any part of Tenant's Interest in the Premises, such
appointment has not been vacated or stayed on appeal or otherwise, or if, within one hundred and
eighty(180)days after the expiration of any such stay,such appointment has not been vacated;
(j) if a levy under execution or attachment in an aggregate amount of One Hundred
Thousand Dollars($100,000),adjusted for inflation,at any one time,is made against the Premises or
any part thereof or rights appertaining thereto(except for a levy made in connection with actions taken
by Owner(other than solely as holder of Owner's Interest in the Premises)),the income therefrom,this
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Lease or the leasehold estate created hereby and such execution or attachment is not vacated or
removed by court order,bonding or otherwise within a period of sixty(60)days after Tenant becomes
aware of such levy or attachment,subject to Unavoidable Delays;or
(k) if any of the representations made by Tenant in Article 18 is proved to be or
becomes false or incorrect in any material respect and the circumstances are not cured or modified so
as to eliminate such material incorrectness within thirty(30)days after notice;
(I) any event described in Section 35.8 which is not cured by Tenant as provided
in Section 35.8.
In the event of a Default which with the giving of notice to Tenant and the passage of time
would constitute an Event of Default, Owner's notice of such Default to Tenant shall state with
specificity the provision of this Lease under which the Default is claimed,the nature and character of
such Default,the facts giving rise to such Default,the date by which such Default must be cured,and
that the failure of Tenantto&ure such Default by the date set forth in such notice will result in Owner
having the right to terminate this Lease.
Notwithstanding the foregoing,no Event of Default shall be deemed to have occurred until such
time as Owner shall have given Tenant notice of the occurrence of an Event of Default(an"Event of
Default Notice").
Section 25.2 Enforcement of Performance;Damages and Termination.
If an Event of Default occurs and Owner chooses to pursue a remedy with respect to that Event
of Default,Owner shall elect to:(a)enforce performance or observance by Tenant of the applicable
provisions of this Lease; (b) recover damages for breach of this Lease; or(c)terminate this Lease
pursuant to Section 25.3(a). Owner's election of a remedy hereunder with respect to an Event of
Default shall not limit or otherwise affect Owner's right to elect any of the remedies available to Owner
hereunder with respect to any other Event of Default.
Section 25.3 Expiration and Termination of Lease.
(a) If an Event of Default occurs, provided Owner has elected the remedy of
termination, Owner may,within ten(10)Business Days after the date of entry by a court of a final
judgment that an Event of Default exists(but without Tenant waiving any rights it may have to stay the
termination pending appeal),give Tenant and any Recognized Mortgagee notice stating that this Lease
and the Term shall terminate on the date specified in such notice,which date shall not be less than ten
(10)days after the giving of the notice,and this Lease and the Term and all rights of Tenant under this
Lease shall expire and terminate as if the date specified in the notice were the Fixed Expiration Date,
and Tenant shall quit and surrender Tenant's Interest in the Premises and possession thereof forthwith.
If such termination is stayed by order of any court having jurisdiction over any case described in
Sections 25.1(h)or 25.1(i),or by federal or state statute,then,following the expiration of any such
stay,or if the trustee appointed in any such case,Tenant or Tenant as debtor-in-possession fails to
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assume Tenant's obligations under this Lease within the period prescribed therefor by law or within
thirty(30) days after entry of the order for relief or as may be allowed by the court,Owner,to the
extent permitted by law or by leave of the court having jurisdiction over such case,shall have the right,
at its election,to terminate this Lease on five(5)days'notice to Tenant,Tenant as debtor-in-possession
or the trustee. Upon the expiration of the five(5)day period,this Lease shall expire and terminate and
Tenant,Tenant as debtor-in-possession and/or the trustee immediately shall quit and surrender Tenant's
Interest in the Premises and possession thereof forthwith.
(b) If this Lease is terminated as provided in Section 25.3(a),Owner may,without
notice,re-enter and repossess Tenant's Interest in the Premises(which may include,but not be limited
to,re-entering and repossessing the Premises)and may dispossess Tenant by summary proceedings,
writ of possession,proceedings in bankruptcy court or otherwise,subject to applicable Requirements.
(c) If this Lease is terminated as provided in Section 253(a):
(i) Tenant shall pay to Owner all Rental and/or Impositions payable under
this Lease by Tenant to Owner to the date upon which the Term shall
have expired and come to an end and Tenant shall surrender to Owner
Tenant's Interest in the Premises(and possession thereof)in the manner
required by this Lease,and both parties shall be relieved of all further
obligations hereunder,except to the extent this Lease expressly provides
that an obligation hereunder shall survive the Expiration of the Term;
and
(ii) In no event shall Tenant be entitled to receive any credit or payment
with respect to the value of the Land and Improvements,title to which
shall automatically vest in Owner upon such termination.
Section 25.4 Waiver of Rights of Tenant and Owner.
To the extent not prohibited by law,Owner and Tenant hereby waive and release all rights now
or hereafter conferred by statute or otherwise that would have the effect of limiting or modifying any
of the provisions of this Article. Notwithstanding the foregoing,(i)neither party shall be deemed to
have waived the benefit of any automatic stay provisions under any present or future bankruptcy code
and(ii)Owner shall not be deemed to have waived or released any rights conferred by any sovereign
immunity conferred by statute or otherwise,as provided in Section 19.2(c)hereof.
Section 253 Receipt of Moneys After Notice or Termination. ••
No receipt of money by Owner from Tenant after the termination of this Lease,or after the
giving of any notice of the termination of this Lease,shall reinstate,continue or extend the Term or
affect any notice theretofore given to Tenant,or operate as a waiver of the right of Owner to recover
Tenant's Interest in the Premises(which may include,but not be limited to,recovering possession of
the Premises) by proper remedy. After the service of notice to terminate this Lease or the
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commencement of any suit or summary proceedings or after a final order or judgment for the
possession of Tenant's Interest in the Premises(which may include,but not be limited to,a judgement
for possession of the Premises),Owner may demand,receive and collect any moneys due or thereafter
falling due without in any manner affecting the notice,proceeding,order,suit or judgment,all such
moneys collected being deemed payments on account of the use and occupation of Tenant's Interest
in the Premises (including, without limitation, the use and occupation of the Premises) or, at the
election of Owner,on account of Tenant's liability hereunder.
Section 25.6 Strict Performance.
No failure by Owner or Tenant to insist upon strict performance of any covenant,agreement,
term or condition of this Lease or to exercise any right or remedy available to such party by reason of
the other party's default or an Event of Default,and no payment or acceptance of full or partial Rental
and/or Impositions during the continuance (or with Owner's knowledge of the occurrence)of any
Default or Event of Default,shall constitute a waiver of any such Default or Event of Default or of such
covenant, agreement, term or condition or of any other covenant, agreement, term or condition.
Subject to Section 11.11,no covenant,agreement,term or condition of this Lease to be performed or
complied with by either party,and no default by either party,shall be waived,altered or modified except
by a written instrument executed by the other party.No waiver of any Default or Event of Default shall
affect or alter this Lease,but each and every covenant,agreement,term and condition of this Lease
shall continue in full force and effect with respect to any other then existing or subsequent Default.
Payment by Tenant to Owner of any Rental and/or Impositions shall be without prejudice to,and shall
not constitute a waiver of,any rights of Tenant against Owner provided for under this Lease or at law
or in equity.Tenant's compliance with any request or demand made by Owner shall not be deemed a
waiver of Tenant's right to contest the validity of such request or demand.
Section 25.7 Right to Enjoin Defaults.
In the event of Tenant's Default or Event of Default,Owner shall be entitled to seek to enjoin
the Default or Event of Default and shall have the right to invoke any rights and remedies allowed at
law or in equity or by statute or otherwise,except to the extent Owner's remedies are expressly limited
by the terms hereof. In the event of any default by Owner of any term,covenant or condition under
this Lease,Tenant shall be entitled to seek to enjoin the default and shall have the right to invoke any
rights and remedies allowed at law or in equity or by statute or otherwise,except to the extent Tenant's
remedies are expressly limited by the terms hereof, Provided however,in the event of any such default,
Tenant shall be required to give Owner notice of such default and Owner shall have thirty(30)days
from receipt of such notice to effect a cure of such default or if such default is not reasonably
susceptible of being cured within such thirty(30)day period,Owner shall have a reasonable time to
effect a cure of such default so long as Owner is diligently prosecuting such cure. Each right and
remedy of Owner and Tenant provided for in this Lease shall be cumulative and shall be in addition to
every other right or remedy provided for in this Lease or now or hereafter existing at law or in equity
or by statute or otherwise except to the extent Owner's remedies and Tenant's remedies are expressly
limited by the terms hereof,and the exercise or beginning of the exercise by Owner or Tenant of any
one or more of the rights or remedies provided for in this Lease or now or hereafter existing at law or
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in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by Owner or
Tenant of any or all other rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise, except to the extent Owner's remedies and Tenant's
remedies are expressly limited by the terms hereof.
Section 25.8 Remedies Under Bankruptcy and Insolvency Codes.
If an order for relief is entered or if any stay of proceeding or other act becomes effective
against Tenant or Tenant's Interest in the Premises or Owner or Owner's Interest in the Premises as
applicable,in any proceeding which is commenced by or against Tenant or Owner,as applicable,under
the present or any future Federal Bankruptcy Code or in a proceeding which is commenced by or
against Tenant or Owner, as applicable, seeking a reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any other present or future applicable
federal,state or other bankruptcy or insolvency statute or law,Owner or Tenant,as applicable,shall
be entitled to invoke any and all rights and remedies available to it under such bankruptcy or insolvency
code,statute or law or this Lease,including,without limitation,such rights and remedies as may be
necessary to adequately protect Owner's or Tenant's,as applicable,right,title and interest in and to the
Premises or this Lease or any part thereof and adequately assure the complete and continuous future
performance of the other party's obligations under this Lease. Owner or Tenant,as applicable,may
petition the Bankruptcy Court to determine that adequate protection of Owner's or Tenants, as
applicable,right,title and interest in and to the Premises or this Lease,and adequate assurance of the
complete and continuous future performance of the other party's obligations under this Lease,shall
include,without limitation,all of the following requirements:
(a) that the other party shall comply with all of its obligations under this Lease;
(b) in the case of a proceeding concerning Tenant,that Tenant shall continue to use
the Premises in the manner required by this Lease;
(c) in the case of a proceeding concerning Tenant,that Owner shall be permitted
to supervise the performance of Tenant's obligations under this Lease;
(d) in the case of a proceeding concerning Tenant, that Tenant shall hire such
security personnel as may be necessary to insure the adequate protection and security of the Premises;
(e) in the case of a proceeding concerning Tenant,that Tenant shall have and will
continue to have unencumbered assets after the payment of all secured obligations and administrative
expenses to assure Owner that sufficient funds will be available to fulfill the obligations ofTenant under
this Lease;and
(f) in the case of a proceeding concerning Tenant,that Owner shall be granted a
security interest acceptable to it in property of Tenant to secure the performance ofTenant's obligations
under this Lease,subject to the rights of any Recognized Mortgagee under the Recognized Mortgage.
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Section 25.9 Funds Held By Tenant.
From and after the date,if any,on which an Event ofDefault(including,without limitation,any
Event of Default that occurs during the course of the Construction Work for the initial construction
of the Project)has been deemed to have occurred and while such Event of Default shall be continuing,
Tenant shall not pay, disburse or distribute any rents, issues or profits of the Premises, or portion
thereof, the proceeds of any insurance policies covering or relating to the Premises or any portion
thereof,or any awards payable in connection with the condemnation of the Premises or any portion
thereof (except to the extent such insurance proceeds or condemnation awards are required in
connection with any Restoration to be performed pursuant to Article 8 or 9)or any undistributed
proceeds from any sale or financing except to(i) creditors which are not Affiliates,in payment of
amounts then due and owing by Tenant to such creditors with respect to work at the Premises,(ii)
Affiliates,in payment of amounts then due and owing by Tenant to such Affiliates for items and services
provided to Tenant in connection with its operations conducted at the Premises or any portion thereof,
only to the extent such amounts do not exceed that which is customarily and reasonably paid in
arms-length transactions to Persons who are not Affiliates for comparable items and services,and(iii)
the holder of a Recognized Mortgage,in payment of the principal amount of, and all unpaid and
accrued interest then outstanding under,such Recognized Mortgage and any other amounts payable
pursuant to such Recognized Mortgage and any instruments and documents related thereto.
Section 25.10 Inspection.
Owner and its representatives chilli have the right,upon twenty-four(24)hours prior notice to
Tenant,to enter upon the Premises(a)to inspect the operation,sanitation,safety,maintenance and use
of the same(but Owner shall not thereby assume any responsibility or liability for the performance of
Tenant's obligations hereunder,nor any liability arising from the improper performance thereof)and
(b)to conduct inspections for the purpose of determining whether a Default or Event of Default has
occurred,provided that Owner shall be accompanied by a representative of Tenant(in areas of the
Project other than areas readily available to the general public),and provided further that such entry
shall not unreasonably interfere with the operation of the Premises. Tenant agrees to make a
representative of Tenant available to accompany Owner on any such inspection.
Article 26-Notices,Consents and Approvals
Section 26.1 Service of Notices and Other Communications.
(a) In Writing. Whenever it is provided herein that notice, demand,request,
consent,approval or other communication shall or may be given to,or served upon,either of the parties
by the other(or any Recognized Mortgagee),or whenever either of the parties desires to give or serve
upon the other any notice,demand,request, consent,approval or other communication with respect
hereto or to the Premises, each such notice, demand, request, consent, approval or other
communication(referred to in this Section 26.1 as a"Notice")shall be in writing(whether or not so
indicated elsewhere in this Lease)and shall be effective for any purpose only if given or served by
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certified or registered U.S.Mail,postage prepaid,return receipt requested,personal delivery with a
signed receipt or a recognized national courier service,addressed as follows:
if to Tenant: Lincoln Plaza Partners LLC
do SRC Lincoln Plaza LLC
230 Fifth Street
Miami Beach,FL 33139
Attention: Scott Robins,Managing Member l 9I34 01
with a copy to: Stuart K.Hoffman,Esq. Atfrpt2ttt(t
Holland&Knight ese c:
701 Brickell Avenue Q lel
Suite 3000 (-N R d �
Miami,FL 33131 1
if to Owner: City of Miami Beach 'V d"V'
City Manager
1700 Convention Center Drive
Miami Beach,Florida 33139
with a copy to:
City of Miami Beach
City Attorney
1700 Convention Center Drive
Miami Beach,Florida 33139
and with a copy to:
Bloom&Minsker
Suite 700
1401 Brickell Avenue
Miami,Florida 33131
Attention:Joel N.Minsker,P.A.
Any such Notice may be given,in the manner provided in this Section 26.1,(x)on either party's behalf
by its attorneys designated by such party by notice hereunder,and(y)at Tenant's request,on its behalf
by any Recognized Mortgagee designated in such request.
(b) Effectiveness. Every Notice shall be effective on the date actually received,as
indicated on the receipt therefor or on the date delivery thereof is refused by the recipient thereof.
(c) References.All references in this Lease to the"date"of Notice shall mean the
effective date,as provided in the preceding Section 26.1(b).
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Section 26.2 Consents and Approvals.
(a) Effect of Granting or Failure to Grant Approvals or Consents. All consents
and approvals which may be given under this Lease shall,as a condition of their effectiveness,be in
writing. The granting by a party of any consent to or approval of any act requiring consent or approval
under the terms of this Lease,or the failure on the part of a party to object to any such action taken
without the required consent or approval,shall not be deemed a waiver by the party whose consent was
required of its right to require such consent or approval for any other act.
(b) Standard. All consents and approvals which may be given by a party under this
Lease shall not(whether or not so indicated elsewhere in this Lease)be unreasonably withheld or
conditioned by such party and shall be given or denied within the time period provided,and if no such
time period has been provided,within a reasonable time.In furtherance of the foregoing,in determining
whether Owner has acted reasonably in not giving its consent or approval,the trier of fact shall take
into consideration(for so long as Owner is the City or any Governmental Authority)that Owner is a
political body governed by elected officials or persons that are appointed,directly or indirectly,by
elected officials. Upon disapproval of any request for a consent or approval,the disapproving party
shall, together with notice of such disapproval, submit to the requesting party a written statement
setting forth with specificity its reasons for such disapproval.
(c) Deemed Approval.
(i) If a party entitled to grant or deny its consent or approval(the
"Consenting Party")within the specified time period shall fail to do so,
then,except as otherwise provided in Section 26.2(c)(ii)and(iii),and
provided that the request for consent or approval(and the envelope in
which such request is transmitted to the extent permitted by the carrier)
bears the legend set forth below in capital letters and in a type size not
less than that provided below, the matter for which such consent or
approval is requested shall be deemed consented to or approved,as the
ease may be:
"FAILURE TO RESPOND TO THIS REQUEST WITHIN THE
TIME PERIOD PROVIDED IN THE LEASE AGREEMENT
BETWEEN CITY OF MIAMI BEACH,FLORIDA [NAME OF
CURRENT TENANT] SHALL CONSTITUTE AUTOMATIC
APPROVAL OF THE MATTERS DESCRIBED HERELN WITH
RESPECT TO SECTION[FILL IN APPLICABLE SECTION]OF
SUCH LEASE AGREEMENT."
(ii) If the matter to which consent or approval is requested pertains to
Article 10 or Article 16, then such matter shall not be deemed
consented to or approved unless(1)the Consenting Party fails to timely
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respond to the other party's(the"Requesting Party's")initial request,
which request(and the envelope in which such request is transmitted to
the extent permitted by the carrier)shall bear the legend set forth above
and(ii)the Requesting Party shall thereafter send a second request to
the Consenting Party which request(and the envelope in which such
request is transmitted to the extent permitted by the carrier)
conspicuously bears the legend set forth above,and Owner shall fail to
timely respond to such second request.
(iii) Notwithstanding anything to the contrary contained in this Lease,
including,without limitation,Sections 26.2(c)(i)and 26.2(c)(ii)above,
if the City or any instrumentality of the City shall be the "Owner"
hereunder and the matter(other than a matter referred to in Section
26.2(c)(iv))to be consented to or approved requires the consideration
of the City Commission and/or the governing body of such
instrumentality of the City as applicable (whether pursuant to
Requirements or the written opinion of the City Attorney,or the chief
legal officer of such other instrumentality of the City)then,provided
Owner gives Tenant notice of such requirement within the time period
provided for such consent or approval,such matter shall not be deemed
approved or consented to unless Owner shall fail to respond to Tenant's
request(or second request if the provisions of Section 26.2(c)(li)are
applicable)by the date which is fifteen(15)days after the first regular
meeting of the City Commission(and/or such other instrumentality's
governing body, es applicable)which occurs no earlier than ten(10)
days following the receipt of such request (or second request, as
applicable); but in any event not later than sixty(60)days following
such request(or second request),as applicable.
(iv) Owner hereby agrees,for so long as the City or any other Governmental
Authority shall be the "Owner" hereunder, that, subject to
Requirements,the City Manager or the chief operating officer of such
other Governmental Authority,as applicable, shall be authorized to
grant consents or approvals on behalf of the City and/or other
Governmental Authority as applicable, with respect to the following
Sections of this Lease: Article 7 and Sections 8.3, 9.3, 10.7 (for
execution of instruments), 14.2, 14.5, 16.1, 20.4, 27.2, 32.2(b) and
323.
(v) The foregoing provisions of this Section 26.2(c)shall not be construed
•
to modify or otherwise affect a party's right to litigate the failure of a
party to act reasonably in granting or denying a request for consent or
to timely respond to a request for a consent,but such right to litigate
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shall not serve to delay the time period within which a grant or denial of
such request is required hereunder.
(d) Remedy for Refusal to Grant Consent or Approval. If,pursuant to the terms
of this Lease, any consent or approval by Owner or Tenant is alleged to have been unreasonably
withheld,conditioned or delayed,then any dispute as to whether such consent or approval has been
unreasonably withheld,conditioned or delayed shall be settled by litigation. In the event there shall be
a final determination that the consent or approval was unreasonably withheld,conditioned or delayed
so that the consent or approval should have been granted,the consent or approval shall be deemed
granted and the Requesting Party shall be entitled to any and all damages resulting therefrom,subject
to the limitations provided in this Lease.
(e) No Fees,etc. Except as specifically provided herein,no fees or charges of any
kind or amount shall be required by either party hereto as a condition of the grant of any consent or
approval which may be required under this Lease(provided that the foregoing shall not be deemed in
any way to limit Owner acting in its governmental,as distinct from its proprietary, capacity from
charging governmental fees on a nondiscriminatory basis).
(t) Governmental Capacity.Notwithstanding anything to the contrary contained
in this Section 26.2,the City shall not be required by this Lease to give its consent to any matter arising
from or in connection with this Lease when the City is acting in its governmental capacity.
Article 27-Certificates By Owner and Tenant
Section 27.1 Certificate of Tenant.
(a) Tenant shall, within fifteen (15) days after notice by Owner,execute,
acknowledge and deliver to Owner,or any other Person specified by Owner,a written statement(which
may be relied upon by such Person)(a)certifying(i)that this Lease is unmodified and in full force and
effect(or if there are modifications,that this Lease,as modified,is in full force and effect and stating
such modifications)(and,if so requested, that the annexed copy of this Lease is a true,correct and
complete copy of this Lease),and(ii)the date to which each item of Rental and/or Impositions payable
by Tenant hereunder has been paid,and(b)stating(i)whether Tenant has given Owner written notice
of any default, or any event that, with the giving of notice or the passage of time, or both, would
constitute a default,by Owner in the performance of any covenant,agreement,obligation or condition
contained in this Lease,which default or event has not been cured, and (ii)whether, to the actual
knowledge of Tenant(but without independent inquiry),Owner is in default in performance of any
covenant,agreement,obligation or condition contained in this Lease,and,ifso,specifying in detail each
such default.
(b) Tenant shall file with Owner at least annually,a sworn affidavit,signed by an
authorized officer of Tenant,to the effect that since the date of the last such affidavit(or in the case
of the first such affidavit, since the Commencement Date)(1) no changes have been made to the
operating agreement or other organic document under which Tenant is organized (the "Tenant
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Document"), or, if changes shall have been made to the Tenant Document, a statement as to the
specific nature of the changes and a notification to Owner that the amended or modified Tenant
Document is on file at the office of Tenant located in Miami-Dade County, Florida, and that it is
available for inspection by Owner,(2)the full names and addresses ofholders of membership interests
in Tenant(who hold at least two percent(2%)interest in Tenant)are only those that are listed in such
affidavit,and that the Managing Member(s)confirms its continued ownership in Tenant(if Tenant is
an entity different than a Iimited liability company, this provision shall apply to the nature of the
appropriate ownership interests for the entity in question),and(3)the obligation of Tenant's Members
to each other related thereto under the operating agreement have not been amended or modified in any
way that is materially adverse to Owner,and(4)if the Managing Member of Tenant is a corporation,
it remains a Florida corporation in good standing and the annual report of said corporation,required
to be filed with the Department of State of the State of Florida pursuant to Chapter 607,Florida
Statutes, as amended(the "Annual Report"),and any fees required for the filing thereof,are not
delinquent;or,if not a Florida corporation,it is a corporation properly authorized to do business in the
State ofFlorida,and a statement to the effect that the Substantial Controlling Interest in said Managing
Member or any successor thereto has not changed. A copy of the latest Annual Report of the
Managing Member of Tenant shall be attached to the aforesaid certificate.
Section 27.2 Certificate of Owner.
Owner shall,within fifteen(15)days after notice by Tenant,execute,acknowledge and deliver
to Tenant,or such other Person specified by Tenant,a written statement(which may be relied upon by
such Person)(a)certifying(i)that this Lease is unmodified and in full force and effect(or if there are
modifications,that this Lease,as modified,is in full force and effect and stating such modifications)
(and,if so requested,that the annexed copy of this Lease is a true,correct and complete copy of this
Lease),and(ii)the date to which each item of Rental and/or Impositions payable by Tenant hereunder
has been paid,and(b)stating(i)whether an Event of Default has occurred or whether Owner has given
Tenant notice of any event that, with the giving of notice or the passage of time, or both, would
constitute an Event of Default,which Default or Event of Default has not been cured,and(ii)whether,
to the actual knowledge of Owner (but without independent inquiry), Tenant is in default in the
performance of any covenant,agreement,obligation or condition contained in this Lease,and,if so,
specifying,in detail,each such Default or Event of Default.
Article 28-Financial Reports and Records
Section 28.1 Books and Records;Audit Rights.
(a) Tenant shall at all times during the Term of this Lease keep and maintain
(separate from any of Tenant's other books,records and accounts),and shall cause the Project Manager
to keep and maintain, accurate and complete records pertaining to the Premises related thereto,
including, without limitation, books of account reflecting the Project Revenue of the Acceptable
Operator and such other matters referenced in this Lease,in accordance with the Accounting Principles
with such exceptions as may be provided for in this Lease, and provided that Tenant (and the
Acceptable Operator) may make such reasonable modifications in such books of account as are
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consistent with Acceptable Operator's standard practice in accounting for its operations under
management contracts generally. Owner and its representatives shall have,during normal business
hours and upon reasonable advance notice,access to inspect the books and records of Tenant and the
Acceptable Operator pertaining to the Project Revenue,including,without limitation,books of account
properly reflecting the operations of the Premises, which books and records shall be kept at the
Premises. Owner shall have the right to cause an audit by Owner's internal auditors(in accordance
with the Accounting Principles)of such books and records to be made at any time (but not more
frequently than one (1) time in any twelve (12) month period and only with respect to Project
Revenue),at Owner's expense(a copy of which shall be delivered to Tenant). Such right of inspection
and audit may be exercised at any time within three(3)years after the end of the Lease Year to which
such books and records relate,and Tenant and Acceptable Operator shall maintain all such books and
records for at least such period of time and,if any Dispute between the parties has arisen and remains
unresolved at the expiration of such period of time,for such further period of time until the resolution
of such Dispute. Notwithstanding anything to the contrary contained herein,at Tenant's option,the
audit described in this Section 28.1(a)shall be performed by Owner's external auditors(which shall
be a Recognized Accounting Firm),in which case Tenant shall pay the reasonable fees and expenses
of said external auditors;and,provided further that in the event that Owner determines to have such
audit performed by its external auditors, Owner shall pay the fees and expenses or said external
auditors.
(b) If, upon any audit by Owner as described above of the books or records of
Tenant or Acceptable Operator, (i)an error(which shall mean a mistake in calculation of Project
Revenue, an accounting error, but shall exclude any error based on assertions that Tenant acted
imprudently or unwisely in connection with the collection of the Project Revenue)shall be revealed
which results in there being due to Owner Percentage Rent for any Lease Year for which Annual
Financial Statements are being audited pursuant to Section 28.1(a), the amounts of any such
underpayments of Percentage Rent which may be disclosed by such audit, together with interest
accrued thereon at the Late Charge Rate from the date on which such underpayment was made until
the date of payment of the correct amount,shall be paid to Owner upon thirty(30)days demand or(ii)
an error(as defined in clause(i)above)shall be revealed which resulted in an overpayment by Tenant
to Owner of Percentage Rent,Owner shall remit the amount of such overpayment(less the cost of such
audit)to Tenant within thirty(30)days after the completion of such audit. If Owner does not notify
Tenant of any error in the calculation of Percentage Rent within three(3)years after the end of any
Lease Year, then Owner shall be deemed to have conclusively waived any and all objections with
respect to any Percentage Rent payments with respect to such Lease Year.
(c) As soon as available,but in no event later than the date which is one hundred
fifty(150) days after the end of each Lease Year, Tenant shall make available at the Premises for
inspection and examination(or photocopying)by Owner or its representatives a copy of the annual
financial statements(the"Annual Financial Statements")for such Lease Year(which statements shall
be audited by any Recognized Accounting Firm) accurately reflecting receipt of Project Revenue
prepared and certified by Tenant and such independent certified public accountant in accordance with
the Accounting Principles.
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(d) As soon as available,but in no event later than thirty(30)days after the end of
each month, Tenant shall make available at the Project for inspection and examination (or
photocopying)by Owner or its representatives an unaudited statement of Project Revenue for both the
current month and Lease Year to date.
(e) As soon as available,but in no event later than thirty (30) days prior to the
commencement of each Lease Year,Tenant shall make available at the Project for inspection and
examination(or photocopying)by Owner or its representatives an informational copy of a projected
income and expense statement reflecting the budget for the Project for such coming Lease Year(the
"Budget").
(f) Notwithstanding any of the foregoing provisions of this Article 28,so long as
Owner is the City or any instrumentality of the City,the following provisions shall be applicable to the
books and records of the Project, the Annual Financial Statements, the Budget and any other
documents (collectively,the "Project Documents")required to be delivered or made available to
Owner under this Article 28:
(i) All Project Documents shall be maintained at the Premises.
(ii) All Project Documents shall be made available to Owner and its
representatives as provided above.
(iii) If a copy of any Project Document is made by Owner or any of its
representatives and delivered to Owner's offices,there shall be attached
to the front of the first page of such Project Document a sheet of paper
bearing the legend set forth below in capital letters and in a type size not
less than that provided below:
"L'HL ATTACHED DOCUMENT CONTAINS BUSINESS OR
FINANCIAL INFORMATION.THE ATTACHED DOCUMENT
IS TO BE KEPT SOLELY IN THE OFFICE OF THE CITY
• ATTORNEY OF THE CITY OF MIAMI BEACH, FLORIDA.
THE ATTACHED DOCUMENT IS TO BE REVIEWED ONLY
IN SUCH OFFICE AND SHALL BE RELEASED SOLELY IN
ACCORDANCE WITH APPLICABLE LAW."
(g) Any third party representatives(including,without limitation,any Recognized
Accounting Firm) of Owner that review any Project Documents shall execute a confidentiality
agreement mutually acceptable to Owner and Tenant. If a copy of any Project Document is made by
any such representative for use in the offices of such representative,there shall be attached to the front
of the first page of such Project Document a sheet of paper bearing the legend set forth below in capital
letters and in a type size not less than that provided below:
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"THE ATTACHED DOCUMENT CONTAINS BUSINESS OR
FINANCIAL INFORMATION. THE ATTACHED DOCUMENT IS
SUBJECT TO A CONFIDENTIALITY AGREEMENT AND SHALL BE
KEPT SOLELY IN THE OFFICES OF [INSERT NAME OF
REPRESENTATIVE]. THE ATTACHED DOCUMENT IS TO BE
REVIEWED ONLY IN SUCH OFFICES AND SHALL BE RELEASED
SOLELY IN ACCORDANCE WITH SUCH CONFIDENTIALITY
AGREEMENT AND APPLICABLE LAW."
(h) Promptly following receipt of a request under any Requirement for the release
of a copy of any Project Document,Owner shall send notify Tenant of such request,but neither Owner
nor any Owner Indemnified Party shall incur any liability to Tenant or any Tenant Indemnified Party
if Owner fails to provide any such notice.
(i) Neither Owner nor any Owner Indemnified Party shall incur any liability to
Tenant or any Tenant Indemnified Party in the event any Project Document is stolen,misplaced or
otherwise released in violation of the foregoing provisions of this Section 28.1.
(j) The obligations of Tenant and Owner under this Article 28 shall survive the
Expiration of the Term.
(k) Any third party representatives(including,without limitation,any Recognized
Accounting Firm) of Owner that review any Project Documents shall execute a confidentiality
agreement mutually acceptable to Owner and Tenant. If an extract of any Project Document is made
by any such representative for use in the offices of such representative,there shall be attached by Owner
or its representative to the front of the first page of such Project Document a sheet of paper bearing
the legend set forth below in capital letters and in a type size not less than that provided below:
"THE ATTACHED DOCUMENT CONTAINS BUSINESS OR
FINANCIAL INFORMATION THAT HAS BEEN DESIGNATED AS
CONFIDENTIAL BY [INSERT NAME OF TENANT]. IRE
ATTACHED DOCUMENT IS SUBJECT TO A CONFIDENTIALITY
AGREEMENT AND SHALL BE KEPT SOLELY IN THE OFFICES OF
(INSERT NAME OF REPRESENTATIVE]. TIS ATTACHED
DOCUMENT IS TO BE REVIEWED ONLY IN SUCH OFFICES AND
SHALL BE RELEASED SOLELY IN ACCORDANCE WITH SUCH
CONFIDENTIALI'T'Y AGREEMENT AND APPLICABLE LAW."
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Article 29-Surrender at End of Term
Section 29.1 Surrender of Premises.
Upon the Expiration of the Term(or upon a re-entry by Owner upon the Premises pursuant to Article
25),Tenant,without any payment or allowance whatsoever by Owner,shall surrender the Pt=vises to
Owner in good order,condition and repair, reasonable wear and tear excepted and (subject to the
provisions of Article 8)damage from casualty excepted,free and clear of all Master Subleases,liens
and encumbrance other than as set forth below and the Title Matters. Tenant hereby waives any notice
now or hereafter required by law with respect to vacating the Premises on the Expiration of the Term.
Section 29.2 Delivery of Subleases,Etc.
Upon the Expiration of the Term(or upon a re-entry by Owner upon the Premises pursuant to Article
25),Tenant shall deliver to Owner the following(to the extent then in Tenant's possession or control):
Tenant's original executed counterparts, if available (and if not available, true and correct copies
thereof), of all subleases then in effect, any service and maintenance contracts then affecting the
Premises,true and complete maintenance records for the Premises,all original licenses and permits then
pertaining to the Premises, permanent or temporary certificates of occupancy then in effect for the
Premises,and all warranties and guarantees then in effect which Tenant has received in connection with
any work or services performed or Building Equipment installed in the Premises(such to be delivered
without representation or warranty by Tenant), together with a duly executed assignment thereof
(without recourse)to Owner in form suitable for recording,and all financial reports required by Article
28 and any and all other documents of every kind and nature whatsoever relating to the operation of
the Premises and the condition of the Improvements.
Section 293 Title to Improvements.
Owner recognizes and agrees that until Expiration of the Term,ownership of and title to the
Improvements shall be in Tenant and that until such time,Tenant has,and shall be entitled to,all rights
and privileges of ownership of such Improvements. Ownership of and to all Improvements shall
automatically vest in Owner upon the Expiration of the Term,without the payment of consideration
therefor, and without the necessity for the execution and delivery by Tenant of any instrument
transferring title.Notwithstanding the foregoing,Tenant covenants and agrees that upon the Expiration
of the Term, Tenant shall, upon Owner's request, execute and deliver to Owner any instrument or
document reasonably requested by Owner to confirm title to said Improvements in Owner.
Section 29.4 Title to Reserve Account.
Ownership of and to the Reserve Account and all proceeds thereof shall automatically vest in
Owner(subject to the lien therein of the Recognized Mortgagee)upon the Expiration of the Term,
without the payment of consideration therefor,and without the necessity for the execution and delivery
by Tenant of any instrument transferring title thereto.Notwithstanding the foregoing,Tenant covenants
and agrees that upon the Expiration of the Term, Tenant shall,upon Owner's request, execute and
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deliver to Owner any instrument or document reasonably requested by Owner to confirm title to said
Reserve Account and proceeds thereof in Owner.
Section 29.5 Cash and Accounts Receivable.
Tenant shall retain the right to all cash and accounts receivable on or in connection with the
Premises existing as of the Expiration of the Term and Owner shall pay Tenant for all unopened
consumable supplies located at the Premises upon the Expiration of the Term(based on Tenant's actual
cost therefor); provided, however that Tenant shall turn over to Owner all deposits, accounts
receivables and other payments for periods after the Expiration of the Term. If,after the Expiration
ofthe Term,Owner collects any accounts receivable to which Tenant is entitled,Owner shall promptly
remit such amounts to Tenant,subject to the rights of any Recognized Mortgagee.
Section 29.6 Personal Property.
Any personal property of Tenant or of any Master Subtenant which remains on the Premises
after the termination of this Lease or after the removal of Tenant or such Master Subtenant from the
Premises,may,at the option of Owner,be deemed to have been abandoned by Tenant or such Master
Subtenant, and either may be retained by Owner as its property or be disposed of, without
accountability, in such manner as Owner may see fit, in its absolute and sole discretion, but in
compliance with applicable Requirements. Owner shall not be responsible for any loss or damage
occurring to any such property owned by Tenant or any Master Subtenant.
Section 29.7 Survival Clause.
The provisions of this Article 29 shall survive the Expiration of the Term.
Article 30-Quiet Enjoyment
Section 30.1 Quiet Enjoyment.
Owner covenants that, as long as this Lease is in full force and effect without an Event of
Default existing hereunder,Tenant shall and may(subject to the exceptions,reservations,terms and
conditions of this Lease)peaceably and quietly have,hold and enjoy Tenant's Interest in the Premises
for the Term without molestation or disturbance by or from Owner(solely in its proprietary capacity)
or any Person claiming by,under or through Owner(solely in its proprietary capacity).
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Article 31-Reserved
Article 32-Administrative and Judicial Proceedings,Contests,Etc.
Section 32.1 Tax Contest Proceedings.
Tenant shall have the right(subject to the provisions of Section 32.2), at its sole cost and
expense,to seek reductions in the valuation of the Premises assessed for real property tax purposes and
to prosecute any action or proceeding in connection therewith by appropriate proceedings diligently
conducted in good faith and in accordance with applicable Requirements.
Section 32.2 Imposition Contest Proceedings.
Tenant shall have the right to contest,at its sole cost and expense,the amount or validity,in
whole or in part,of any Imposition by appropriate proceedings diligently conducted in good faith,in
which event payment of such Imposition may be postponed,subject to Requirements,if,and only as
long as:
(a) Neither the Premises nor any part thereof would, by reason of such
postponement or deferment,be,in the reasonable judgment of Owner,in danger of being forfeited to
a Governmental Authority and Owner is not in danger of being subjected to criminal liability or penalty
or civil liability or penalty in excess of the amount for which Tenant has furnished security as provided
in Section 32.2(b)by reason of nonpayment thereof.,and
(b) Tenant has deposited with a Recognized Mortgagee,ifany(or if not,with a third
party escrow agent proposed by Tenant,subject to Owner's consent,not to be unreasonably withheld
(failure to respond within fifteen(15)days after notice being conclusively deemed approval)),cash in
the amount so contested and unpaid or,alternatively,at Tenant's option,a surety company bond or an
irrevocable letter of credit issued by an Institutional Lender(in form reasonably satisfactory to Owner)
or other security(for example,a personal guaranty)reasonably satisfactory to Owner,in the amount
so contested and unpaid,together with all interest and penalties in connection therewith and all charges
relating to such contested Imposition that may or might,in Owner's reasonable judgment,be assessed
against,or become a charge on,the Premises or any part thereof in or during the pendency of such
proceedings; provided,however, any amount deposited with any governmental entity, the making
of which deposit is required by law in order for Tenant to contest such matters, shall be considered
part of the amount so required of Tenant by Owner (the intent being that Tenant shall not be
required to make duplicitous deposits under this Section 32.2(b)). Upon the termination of such
proceedings,Tenant shall pay the amount of such Imposition or part thereof as finally determined in
such proceedings,the payment of which was deferred during the prosecution of such proceedings,
together with any costs, fees (including, without limitation, reasonable attorneys' fees and
disbursements),interest,penalties or other liabilities in connection therewith,and,upon such payment,
any Recognized Mortgagee or escrow agent holding any amount or other security deposited with it
with respect to such Imposition shall(subject to the terms of any agreement between Tenant and any
Recognized Mortgagee or escrow agent)return the same,together with the interest, if any, earned
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thereon. However,if such Recognized Mortgagee or escrow agent is so requested by Tenant,such
Recognized Mortgagee or escrow agent shall disburse said moneys on deposit with it directly to the
Person to whom or to which such Imposition is payable. If at any time during the continuance of such
proceedings Owner,in its reasonable judgment,deems insufficient the amount or nature of the security
deposited,Tenant,within ten(10)days after Owner's demand,shall make an additional deposit of such
additional sums or other acceptable security as Owner may request,and upon failure of Tenant to so
do,the amount theretofore deposited,together with the interest,if any, earned thereon,shall,upon
demand by Owner,be applied by such Recognized Mortgagee or escrow agent to the payment,removal
and discharge of such Imposition and the interest and penalties in connection therewith and any costs,
fees (including,without limitation,reasonable attorneys' fees and disbursements)or other liability
accruing in any such proceedings and the balance, if any, remaining thereafter, together with the
interest,if any,earned thereon and remaining after application by Owner as aforesaid,shall be returned
to Tenant or to the Person entitled to receive it.If there is a deficiency,Tenant shall pay the deficiency
to Owner or the Person entitled to receive it,within ten(10)days after Owner's demand.
Section 32.3 Requirement Contest.
Tenant shall have the right to contest the validity of any Requirement or the applicati on thereof
During such contest, compliance with any such contested Requirement may be deferred by Tenant
provided that before instituting any such proceeding,Tenant shall furnish such Recognized Mortgagee,
if any(or if not,with a third party escrow agent proposed by Tenant,subject to Owner's consent,not
to be unreasonably withheld(failure to respond within fifteen(15)days after notice being conclusively
deemed approval)),with a surety company bond or,alternatively at Tenant's option,a cash deposit,an
irrevocable letter of credit issued by an Institutional Lender or other security(e.g.,a personal guaranty),
in form and amount reasonably satisfactory to Owner, securing compliance with the contested
Requirement and payment of all interest,penalties,fines,civil liabilities,fees and expenses in connection
therewith; provided, however,any amount deposited with any governmental entity, the making of
which deposit is required by law in order for Tenant to contest such matters,shall be considered part
of the amount so required of Tenant by Owner(the intent being that Tenant shall not be required to
make duplicitous deposits under this Section 32.3). Any such proceeding instituted by Tenant shall
be commenced as soon as possible after the issuance of any such contested Requirement and shall be
prosecuted with diligence to final adjudication,settlement,compliance or other mutually acceptable
disposition of the Requirement so contested. The furnishing of any bond,deposit,letter of credit or
other security notwithstanding,Tenant shall comply with any such Requirement in accordance with the
provisions of Section 15.1 if, in Owner's reasonable judgment, (i)noncompliance therewith would
create an emergency condition involving the health or safety of persons,(ii)the Premises,or any part
thereof,are in material danger of being forfeited to an authority(other than Owner when the Agency
or the City or an instrumentality thereof is Owner)or(iii)Owner is in danger of being subjected to
criminal liability or penalty, or civil liability in excess of the amount for which Tenant shall have
furnished security as hereinabove provided by reason of noncompliance therewith,and any security
posted by Tenant shall(subject to the terms of any agreement between Tenant and any Recognized
Mortgagee or escrow agent)be returned to Tenant with any interest accrued thereon.
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Section 32.4 Owner's Participation in Contest Proceedings.
Owner shall not be required to join in any action or proceeding referred to in this Article 32.4
unless the provisions of any law,rule or regulation at the time in effect require that such action or
proceeding be brought by and/or in the name of Owner. If so required,Owner shall join and cooperate
in such proceedings or permit them to be brought by Tenant in Owner's name,in which case Tenant
shall pay all reasonable costs and expenses (including, without limitation, attorneys' fees and
disbursements)incurred by Owner in connection therewith. Notwithstanding the foregoing,Owner's
joinder and cooperation shall be limited to actions necessary to enable Tenant to satisfy technical
requirements of any such action or proceeding and in no event shall Owner be required to join in any
such action or proceeding in any substantive capacity.
Section 32.5 Non applicability of this Article 32.
None of the rights granted to Tenant in this Article 32 shall apply to any matters covered by
Section 3.2(f). The provisions of Section 3.2(f)shall govern and control over the provisions of this
Article 32 when in conflict.
Article 33-Nondiscrimination
Section 33.1 Nondiscrimination.
Tenant shall be an equal opportunity employer, and shall not engage in any unlawful
discrimination against any Person because of race,religion,creed,national origin,sex,age,disability,
marital status or sexual orientation.
Article 34-Indictment,Investigations,Etc.
Section 34.1 Cooperation in Investigations.
To the extent required by Requirements,Tenant shall cooperate fully and faithfully with any
investigation,audit or inquiry conducted by any Governmental Authority that is empowered directly
or by designation to compel the attendance of witnesses and to examine witnesses under oath, or
conducted by a Governmental Authority that is a party in interest to the transaction,submitted bid,
submitted proposal,contract,lease,permit,or license that is the subject of the investigation,audit or
inquiry.In addition,Tenant shall promptly report in writing to the City Attorney of the City of Miami
Beach,Florida any solicitation,of which Tenant's officers or directors have knowledge,of money,
goods, requests for future employment or other benefit or thing of value, by or on behalf of any
employee of the City or other Person relating to the procurement or obtaining of this Lease by Tenant
or affecting the performance of this Lease.
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Article 35-Environmental Matters
Section 35.1 Definitions.
For the purposes of this Lease,the following terms shall have the following definitions:
(a) "Hazardous Materials"shall mean(i)petroleum and its constituents;(ii)radon
gas, asbestos in any form which is or could become friable, urea formaldehyde foam insulation,
transformers or other equipment which contain dielectric fluid containing levels of polychlorinated
biphenyls in excess of federal,state or local safety guidelines,whichever are more stringent;(iii)any
substance,gas,material or chemical which is or may hereafter be defined as or included in the definition
of "hazardous substances," "hazardous materials," "hazardous wastes," "pollutants or
contaminants," "solid wastes" or words of similar import under any Requirement including the
Comprehensive Environmental Response,Compensation and Liability Act,as amended,42 U.S.C.
§9061 et seq,;the Hazardous Materials Transportation Act,as amended,49 U.S.C. § 1801,et seq.:
the Resource Conservation and Recovery Act, as amended,42 U.S.C. § 6901, et seq,;the Federal
Water Pollution Control Act,as amended,33 U.S.C.§ 1251,et seq.;and Florida Statutes,Chapters
376 and 403;and(iv)any other chemical,material,gas or substance,the exposure to or release of
which is regulated by any governmental or quasi-governmental entity having jurisdiction over the
Premises or the operations thereon;
(b) "Environmental Laws"shall mean all Requirements relating to the protection
of human health or the Environment,including:
(1) all Requirements relating to reporting,licensing,permitting,
investigation and remediation of Releases or Threat of Release into the
Environment,or relating to the manufacture,processing,distribution,
use,treatment, storage, disposal, transport or handling of Hazardous
Materials;and
(ii) all Requirements pertaining to the protection of the health and safety of
employees or the public;
(c) "Environment" shall mean soil, surface waters, groundwaters, land,stream
sediments,surface or subsurface strata and ambient air;
(d) "Environmental Condition" shall mean any condition with respect to the
P,cinises,whether or not yet discovered,which could or does result in any Environmental Damages,
including any condition resulting from the operation of Tenant's business or the operation of the
business of any subtenant or occupant of the Premises or that of any other property owner or operator
in the vicinity of the Premises or any activity or operation formerly conducted by any Person on or off
the Premises;
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(e) "Environmental Damages" shall mean all claims, judgments,damages
(including punitive damages),losses,penalties,fines,liabilities(including strict liability),encumbrances,
liens,costs and expenses of investigation and defense of any claim,whether or not such is ultimately
defeated, and of any settlement or judgment, of whatever kind or nature, contingent or otherwise,
matured or=matured,foreseeable or unforeseeable,any of which are incurred at any time as a result
of the assessment,monitoring,remediation or mitigation of an Environmental Condition(and shall
include any damages for the failure to do so), including, without limitation, fees incurred for the
services of attorneys, consultants, contractors, experts, laboratories and all other costs incurred in
connection with investigation and remediation,including the preparation of any feasibility studies or
reports and the performance of any remedial, abatement, containment, closure, restoration or
monitoring work;
(f) "Permit"shall mean any environmental permit,license,approval,consent or
authorization issued by a federal,state or local governmental or quasi-governmental entity;
(g) "Release"shall mean any releasing,seeping,spilling,leaking,pumping,pouring,
emitting,emptying,discharging,injecting,escaping,leaching,disposing or dumping of a Hazardous
Material into the Environment;and
(h) "Threat of Release" shall mean a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the Environment which may result from such Release.
Section 35.2 Representations and Warranties of Tenant.
Tenant represents and warrants that it has made such physical inspection of the Land,and has
inspected such records of the City,Miami-Dade County,Florida,the State of Florida,and the United
States of America,as Tenant deemed necessary to make an informed business decision that it would
enter into this Lease with the knowledge that Tenant shall be solely responsible for the remediation and
abatement of any Environmental Condition existing as of the Commencement Date, including any
Environmental Condition caused by Owner or any prior owner of the Land,that must be remediated
and/or abated pursuant to any Environmental Laws. Tenant agrees to expeditiously undertake such
assessment, remediation,and monitoring of the soil and ground water as required under applicable
Environmental Laws;and to take such action as necessary to obtain a No Further Action determination
from DERM or DEP, if required under Environmental Laws as soon as may be practical after the
Possession Date,and,in any event,prior to the commencement of construction of the Project. Tenant
agrees that in connection with any remediation or abatement pursuant to this Section 35.2 it will
provide to Owner all correspondence,reports,studies and other documents exchanged between Owner,
its consultants,and DERM or DEP promptly after those documents are provided to or received from
DERM or DEP.
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Section 35.3 Use of Hazardous Materials.
Tenant shall not cause or permit any Hazardous Material to be brought on,kept or used in or
about the Premises except as necessary or useful to Tenant's business and in compliance with all
Environmental Laws.
Section 35.4 Tenant Indemnification of Owner.
Tenant hereby indemnifies and holds harmless the Owner Indemnified Parties from and against
any and all Environmental Damages to the Premises during the term of this Lease except for
Environmental Damages to the Premises caused by any of the Owner Indemnified Parties during the
Term. Such obligation ofTenant shall include the burden and expense of defending all claims,suits and
administrative proceedings(with counsel reasonably satisfactory to Owner),even if such claims,suits
or proceedings are groundless,false or fraudulent,and conducting all negotiations of any description,
and paying and discharging,when and as the same become due,any and all judgments,penalties or
other sums due against any of the Owner Indemnified Parties. Without limiting the foregoing,if the
presence or Release on or from the Premises caused or permitted by Tenant results in contamination
of the Premises,Tenant shall promptly take all actions at its sole cost and expense as are necessary to
remediate the Premises in compliance with Environmental Laws in effect from time to time and to
comply with any requirements imposed by any Governmental Authorities; provided that Owner's
approval of such actions shall first be obtained.
Section 35.5 Compliance.
Tenant,at its sole cost and expense(except as otherwise provided in this Lease),shall comply
and cause the Acceptable Operator, all Master Subtenants and all subtenants to comply with all
Environmental Laws with respect to the use and operation of the Premises.
Section 35.6 Notices.
If Tenant or Owner receives any notice of a Release, Threat of Release or Environmental
Condition or a notice with regard to air emissions, water discharges, noise emissions, recycling,
violation of any Environmental Law or any other environmental,health or safety matter affecting
Tenant or the Premises (an "Environmental Complaint") independently or by notice from any
Governmental Authority having jurisdiction over the Premises,including the EPA,or with respect to
any litigation regarding Environmental Conditions at or about the Premises,then such party shall give
prompt oral and written notice of same to the other party detailing all relevant facts and circumstances.
Section 35.7 Owner's Remedies.
Provided Tenant does not diligently commence to remediate the applicable Environmental
Conditions promptly after becoming aware of the same and thereafter diligently pursue the completion
thereof in a reasonable time(and in any event in accordance with Requirements),Owner shall have the
right,but not the obligation,to enter onto the Premises and remediate the Premises in compliance with
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Section 35.3 Use of Hazardous Materials. .0 U
Tenant shall not cause or permit any Hazardous Material to be ry ;i7
P111—
about the Premises except as necessary or useful to Tenant's busine &pais o� 1
Environmental Laws.
Section 35.4 Tenant Indemnification of Owner.
Tenant hereby indemnifies and holds harmless the Owner Indemnified Parties from and against
any and all Environmental Damages to the Premises during the term of this Lease except for
Environmental Damages to the Premises caused by any of the Owner Indemnified Parties during the
Term.Such obligation of Tenant shall include the burden and expense of defending all claims,suits and
administrative proceedings(with counsel reasonably satisfactory to Owner),even if such claims,suits
or proceedings are groundless,false or fraudulent,and conducting all negotiations of any description,
and paying and discharging,when and as the same become due,any and all judgments,penalties or
other sums due against any of the Owner Indemnified Parties. Without limiting the foregoing,if the
presence or Release on or from the Premises caused or permitted by Tenant results in contamination
of the Premises,Tenant shall promptly take all actions at its sole cost and expense as are necessary to
remediate the Premises in compliance with Environmental Laws in effect from time to time and to
comply with any requirements imposed by any Governmental Authorities; provided that Owner's
approval of such actions shall first be obtained.
Section 35.5 Compliance.
Tenant,at its sole cost and expense(except as otherwise provided in this Lease),shall comply
and cause the Acceptable Operator, all Master Subtenants and all subtenants to comply with all
Environmental Laws with respect to the use and operation of the Premises.
Section 35.6 Notices.
If Tenant or Owner receives any notice of a Release,Threat of Release or Environmental
Condition or a notice with regard to air emissions, water discharges, noise emissions, recycling,
violation of any Environmental Law or any other environmental,health or safety matter affecting
Tenant or the Premises (an "Environmental Complaint") independently or by notice from any
Governmental Authority having jurisdiction over the Premises,including the EPA,or with respect to
any litigation regarding Environmental Conditions at or about the Premises,then such party shall give
prompt oral and written notice of same to the other party detailing all relevant facts and circumstances.
Section 35.7 Owner's Remedies.
Provided Tenant does not diligently commence to remediate the applicable Environmental
Conditions promptly after becoming aware ofthe same and thereafter diligently pursue the completion
thereof in a reasonable time(and in any event in accordance with Requirements),Owner shall have the
right,but not the obligation,to enter onto the Premises and remediate the Premises in compliance with
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Environmental Laws in effect from time to time and to comply with any requirements imposed by any
Governmental Authorities,at Tenant's sole cost and expense, upon its obtaining knowledge of such
matters independently or by receipt of any notice from any Person,including the EPA.
Section 35.8 Defaults.
From and after the Possession Date, the occurrence of any of the following events shall
constitute an Event of Default under this Lease:
(a) if the EPA or any other federal,state or local body or agency creates a lien upon
the Premises which is notdischarged by payment or bonding within ninety(90)days except in the event
said lien is the result of Environmental Damages caused by any of the Owner Indemnified Parties during
the Term; or
(b) if the EPA or any other federal,state or local body or agency makes a claim
(which shall mean,for the purposes of this Section 35.8,issuance of a warning notice,citation,notice
of violation or administrative complaint)against Tenant(or any subtenant,licensee or other occupant
of the Premises),the Premises or Owner, for damages or cleanup costs related to a Release or an
Environmental Complaint on or pertaining to the Premises;provided however,such claim shall not
constitute an Event of Default if within thirty(30)days of the lien or claim:
(i) Tenant has commenced and is diligently pursuing either: (x) cure or
correction of the event which constitutes the basis for the lien or claim
and continues diligently to pursue the cure or correction to the
satisfaction of the Governmental Authority that asserted the lien or
claim and obtains the discharge of any lien,or(y)proceedings for an
injunction, restraining order, administrative or other appropriate
emergency relief contesting the validity of the claim and,if such relief
is granted,the emergency relief is not thereafter dissolved or reversed
on appeal;and
(ii) Tenant has posted a bond,letter of credit or other security satisfactory
in form and substance to Owner to secure the proper and complete cure
or correction of the event which constitutes the basis of the claim. The
amount of the bond,letter of credit or other security shall be determined
in the following manner: (A) Owner, Tenant and their respective
consultants shall use their best efforts to agree upon the most probable
cost to cure or correct the event which constitutes the basis of the claim;
(B)in the event Owner and Tenant are unable to agree despite their best
efforts,Owner's consultant and Tenant's consultant shall select a third
consultant who shall provide an estimate of the most probable cost of
curing or correcting the event which constitutes the basis of the claim.
Owner and Tenant shall each pay the cost of their own consultant under
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this 35.8(b)(ii)and shall share evenly the cost of the third consultant
should use of a third consultant become necessary.
Section 35.9 Owner Responsibility.
Owner(in its proprietary capacity)is responsible for all Environmental Damages resulting from
an Environmental Condition caused by any of the Owner Indemnified Parties during the Term.
Section 35.10 Survival.
The provisions of this Article 35 shall survive the Expiration of the Term.
Article 36-Reciprocal Rights of First Refusal
Section 36.1 Tenant's Reciprocal Right of First Offer.
(a) If, during the Term, Owner shall desire to sell,convey or otherwise transfer,
directly or indirectly, all of such Owner's estate in and to the Premises (a "Right of First Offer
Transaction"),such Owner shall first deliver to Tenant a Notice(an"Offer Notice")thereof setting
forth the material terms of such proposed Right of First Offer Transaction. For a period of forty-five
(45)days after Tenant's receipt of the Offer Notice,Tenant shall have the right to elect in writing to
consummate the Right of First Offer Transaction described therein at the price and upon such other
material terms set forth in the Offer Notice. As used in this Section 36.1,the material terms of a Right
of First Offer Transaction shall be the terms set forth in Exhibit 36.1(a) attached hereto and
incorporated by reference herein.
(b) If Tenant does not consummate a Right of First Offer Transaction pursuant to
this Section 36.1,Owner shall have the right to consummate the proposed transaction with any other
Person upon such terms and conditions as shall be no less favorable to Owner than those which are set
forth in the Offer Notice,within one hundred eighty(180)days following the earlier of(i)the expiration
of such forty-five (45)day period or(ii)the receipt by Owner of a notice from Tenant stating that
Tenant does not elect to consummate such Right of First Offer Transaction. If Owner shall fail to
consummate the Right of First Offer Transaction as set forth in such Offer Notice within such one
hundred eighty(180)dayperiod(subject to extensions not to exceed,in the aggregate,sixty(60)days),
the provisions of this Section 36.1 shall be applicable to any future Right of First Offer Transaction.
Notwithstanding anything to the contrary contained herein,Owner may,in good faith,negotiate with
any other Person the terms and conditions of a Right of First Offer Transaction that Tenant has elected
not to consummate; provided, however, that if the material terms of such Right of First Offer
Transaction are modified so that such terms,when so modified,are less favorable to Owner,then such
transaction shall be deemed a new Right of First Offer Transaction and the provisions of this Section
36.1(including,without limitation,Section 36.1(a)),shall be applicable with respect to such Right of
First Offer Transaction;provided,further,however,that such Owner may modify the material terms
of any such Right of First Offer Transaction and provide notice thereof to Tenant as provided herein,
only once. Owner shall give twenty(20)days'notice to Tenant of the terms of any Right of First Offer
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Transaction as so modified prior to consummating the same,so that Tenant may determine whether
such modifications are sufficiently material that Tenant now desires to consummate such Right ofFirst
Offer Transaction. If Tenant does not elect to consummate a Right of First Offer Transaction pursuant
to this Section 36.1, Owner shall provide Tenant with a true, complete and correct copy of the
executed purchase agreement for such Right ofFirst Offer Transaction not less than ten(10)days prior
to the closing of such Right of First Offer Transaction.
(c) Owner and Tenant shall diligently undertake to consummate any Right of First
Offer Transaction involving Tenant under this Section 36.1 as soon as practicable after Tenant's
election as hereinabove described. If Tenant defaults in its obligation to close the Right of First Offer
Transaction in accordance with the terms thereof(subject to reasonable extensions not to exceed,in
the aggregate,sixty(60)days),the foregoing right of first offer shall be null and void with respect to
any future Right of First Offer Transaction.
(d) In addition,Owner may not sell such interest in the Premises together with any
other interests or other assets. Any sale of the Premises together with any other interests or other
assets,shall be null and void and of no effect.
(e) If Tenant does not exercise its right of first offer and Owner consummates its
Right of First Offer Transaction,the purchaser shall be deemed to have acquired the Premises subject
to the provisions of this Lease and the purchaser shall be deemed to have assumed the obligations of
Owner hereunder accruing from and after the effective date of such consummation,and Owner shall
deliver to Tenant, or shall cause to be delivered to Tenant, within ten(10)business days after the
execution thereof,a true,complete and correct copy of an executed instrument of transfer and a true,
complete and correct copy of an instrument of assumption by the transferee of Owner's obligations
under this Lease accruing from and after the date of such transfer.
(f) If an owner does not comply with the terms of this Section 36.1,any Right of
First Offer Transaction entered into by such owner shall have no validity and shall be null and void and
without effect.
(g) Notwithstanding the foregoing provisions of this Section 36.1,Owner may not
institute the procedures set forth herein for a Right of First Offer Transaction more than once in any
fiscal year,except with respect to any modifications of the Right of First Offer Transaction as provided
in Section 36.1(b).
Section 36.2 Owner's Reciprocal Right of First Refusal.
(a) If,during the Term,Tenant shall desire to sell,convey or otherwise transfer,
directly or indirectly, all of such Tenant's estate in and to the Premises(a "Right of First Offer
Transaction"),such Tenant shall first deliver to Owner a Notice(an"Offer Notice")thereof setting
forth the material terms of such proposed Right of First Offer Transaction. For a period of forty-five
(45)days after Owner's receipt of the Offer Notice,Owner shall have the right to elect in writing to •
consummate the Right of First Offer Transaction describedtherein a
t the price and upon such other
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material terms set forth in the Offer Notice. As used in this Section 36.2,the material terms of a Right
of First Offer Transaction shall be the terms set forth in Exhibit 36.2(a) attached hereto and
incorporated by reference herein.
(b) If Owner does not consummate a Right of First Offer Transaction pursuant to
this Section 36.2,Tenant shall have the right to consummate the proposed transaction with any other
Person upon such terms and conditions as shall be no less favorable to Tenant than those which are set
forth in the Offer Notice,within one hundred eighty(180)days following the earlier of(i)the expiration
of such forty-five(45) day period or(ii) the receipt by Tenant of a notice from Owner stating that
Owner does not elect to consummate such Right of First Offer Transaction. If Tenant shall fail to
consummate the Right of First Offer Transaction as set forth in such Offer Notice within such one
hundred eighty(180)day period(subject to extensions not to exceed,in the aggregate,sixty(60)days),
the provisions of this Section 36.2 shall be applicable to any future Right of First Offer Transaction.
Notwithstanding anything to the contrary contained herein,Tenant may,in good faith,negotiate with
any other Person the terms and conditions of a Right of First Offer Transaction that Owner has elected
not to consummate; provided, however, that if the material terms of such Right of First Offer
Transaction are modified so that such terms,when so modified,are less favorable to Tenant,then such
transaction shall be deemed a new Right of First Offer Transaction and the provisions of this Section
36.2(including,without limitation,Section 36.2(a)),shall be applicable with respect to such Right of
First Offer Transaction;provided,further,however,that such Tenant may modify the material terms
of any such Right of First Offer Transaction,and provide notice thereof to Owner as provided herein,
only once. Tenant shall give twenty(20)days'notice to Owner of the terms of any Right of First Offer
Transaction as so modified prior to consummating the same, so that Owner may determine whether
such modifications are sufficiently material that Owner now desires to consummate such Right of First
Offer Transaction. If Owner does not elect to consummate a Right of First Offer Transaction pursuant
to Section 36.2,Tenant shall provide Owner with a true,complete and correct copy of the executed
purchase agreement for such Right of First Offer Transaction not less than ten(10)days prior to the
closing of such Right of First Offer Transaction.
(c) Tenant and Owner shall diligently undertake to consummate any Right of First
Offer Transaction involving Owner under this Section 36.2 as soon as practicable after Owner's
election as hereinabove described. If Owner defaults in its obligation to close the Right of First Offer
Transaction in accordance with the terms thereof(subject to reasonable extensions not to exceed,in
the aggregate,sixty(60)days),the foregoing right of first offer shall be null and void with respect to
any future Right of First Offer Transaction.
(d) In addition,Tenant may not sell such interest in the Premises together with any
other interests or other assets. Any sale of the Premises together with any other interests or other
assets,shall be null and void and of no effect.
(e) If Owner does not exercise its right of first offer and Tenant consummates its
Right of First Offer Transaction,the purchaser shall be deemed to have acquired the Premises subject
to the provisions of this Lease and the purchaser shall be deemed to have assumed the obligations of
Tenant hereunder accruing from and after the effective date of such consummation,and Tenant shall
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deliver to Owner, or shall cause to be delivered to Owner, within ten (10) business days after the
( execution thereof j a true,complete and correct copy of an executed instrument of transfer and a true,
complete and correct copy of an instrument of assumption by the transferee of Tenant's obligations
under this Lease accruing from and after the date of such transfer.
(f) If a tenant does not comply with the terms of this Section 36.2,any Right of
First Offer Transaction entered into by such tenant shall have no validity and shall be null and void and
without effect.
(g) Notwithstanding the foregoing provisions of this Section 36.2,Tenant may not
institute the procedures set forth herein for a Right of First Offer Transaction more than once in any
fiscal year,except with respect to any modifications of the Right of First Offer Transaction as provided
in Section 36.2(b).
Section 363 Assignment.
The rights of Tenant pursuant to Sections 36.1 and 36.2 above shall not be severed from
Tenant's Interest in the Premises and shall be assigned, transferred or otherwise conveyed to the
transferee only upon a Sale of the Project or a Foreclosure Transfer.
Section 36.4 No Merger.
Notwithstanding anything set forth to the contrary in Sections 36.1 through 36.3,under no
circumstances shall the fee estate of Owner and the leasehold estate created hereby merge,even though
owned by the same party,without the prior written consent of the holder of a Recognized Mortgage.
Article 37-Miscellaneous
Section 37.1 Governing Law.
This Lease shall be governed by, and construed in accordance with,the laws of the State of
Florida,both substantive and remedial,without regard to principles of conflict of laws. The exclusive
venue for any litigation arising out of this Lease shall be Miami-Dade County,Florida,if in state court,
and the U.S. District Court,Southern District of Florida,if in federal court.
Section 37.2 References and Interpretation of Lease.
(a) Captions. The captions of this Lease are for the purpose of convenience of
reference only,and in no way define,limit or describe the scope or intent of this Lease or in any way
affect this Lease. All captions,when referring to Articles or Sections,refer to Articles or Sections in
this Lease,unless specified otherwise.
(b) Table of Contents. The Table of Contents is for the purpose of convenience
of reference only,and is not to be deemed or construed in any way as part of this Lease.
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(c) Reference to Owner and Tenant. The use herein of the neuter pronoun in any
reference to Owner or Tenant shall be deemed to include any individual Owner or Tenant,and the use
herein of the words"successors and assigns"or"successors or assigns"of Owner or Tenant shall be
deemed to include the heirs,legal representatives and assigns of any individual Owner or Tenant.
(d) City's Governmental Capacity. Nothing in this Lease or in the parties'acts
or omissions in connection herewith shall be deemed in any manner to waive,impair,limit or otherwise
affect the authority of the City in the discharge of its police or governmental power.
(e) Reference to"herein","hereunder",etc. All references in this Lease to the
terms"herein", "hereunder"and words of similar import shall refer to this Lease,as distinguished
from the paragraph,Section or Article within which such term is located.
(f) Reference to"Approval"or"Consent",etc. All references in this Lease to
the terms"approval","consent"and words of similar import shall mean"reasonable written approval"
or"reasonable written consent"except where specifically provided otherwise.
(g) 'Singular and Plural,Gender,Etc. Words importing singular number shall
include the plural number in each case and vice versa,and words importing"persons" shall include
firms,associations,corporations,and other entities,including governments and governmental bodies,
as well as natural persons,unless the context shall otherwise indicate. Words of the masculine gender
shall be deemed and construed to include correlative words of the feminine and neuter genders,and vice
versa,as the context may require.
Section 373 Entire Agreement.
This Lease, together with the attachments hereto, contains all of the promises, agreements,
conditions,inducements and understandings between Owner and Tenant concerning the Premises and
there are no promises, agreements, conditions, understandings, inducements, warranties or
representations, oral or written, express or implied,between them other than as expressly set forth
herein and in such attachments hereto or as may be expressly contained in any enforceable written
agreements or instruments executed simultaneously herewith by the parties hereto. Notwithstanding
anything to the contrary set forth in this Lease,the terms of this Lease shall supersede the terms of the
RFP and Tenant's response thereto.
Section 37.4 Counterparts.
This Lease may be executed in counterparts,each of which shall be deemed an original but all
of which together shall represent one instrument.
Section 37.5 Waiver,Modification,Etc.
No covenant,agreement,term or condition of this Lease shall be changed,modified,altered,
waived or terminated except by a written instrument of change,modification, alteration, waiver or
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termination executed by Owner and Tenant. No waiver of any Default or default shall affect or alter
this Lease,but each and every covenant,agreement,term and condition of this Lease shall continue in
full force and effect with respect to any other then existing or subsequent Default or default thereof.
Section 37.6 Effect of Other Transactions.
No Master Sublease, Mortgage or other agreement of any kind, whether executed
simultaneously with this Lease or otherwise,and whether or not consented to by Owner, shall be
deemed to modify this Lease in any respect,and in the event of an inconsistency or conflict between
this Lease and any such instrument,this Lease shall control,except where specifically stated otherwise
herein.
Section 37.7 Severability.
If any provision of this Lease or the application thereof to any Person or circumstances is,to
any extent,finally determined by a court of competent jurisdiction to be invalid and unenforceable,the
remainder of this Lease,and the application of such provision to Persons or circumstances other than
those as to which it is held invalid and unenforceable,shall not be affected thereby and each term and
provision of this Lease shall be valid and enforceable to the fullest extent permitted by law,
Section 37.8 Merger.
Unless Owner,Tenant and all Mortgagees execute and record an agreement to the contrary,
there shall be no merger of this Lease or the leasehold estate created hereby with the fee estate in the
Premises or any part thereof by reason of the same Person acquiring or holding,directly or indirectly,
this Lease and the leasehold estate created hereby or any interest in this Lease or in such leasehold
estate as well as the fee estate in the Premises.
Section 37.9 Remedies Cumulative.
Each right and remedy of either party provided for in this Lease shall be cumulative and shall
be in addition to every other right or remedy provided for in this Lease,or now or hereafter existing
at law or in equity or by statute or otherwise(except as otherwise expressly limited by the terms of this
Lease), and the exercise or beginning of the exercise by a party of any one or more of the rights or
remedies provided for in this Lease,or now or hereafter existing at law or in equity or by statute or
otherwise, except as otherwise expressly limited by the terms of this Lease, shall not preclude the
simultaneous or later exercise by such party of any or all other rights or remedies provided for in this
Lease or now or hereafter existing at law or in equity or by statute or otherwise except as otherwise
expressly limited by the terms of this Lease.
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Section 37.10 Performance at Each Party's Sole Cost and Expense.
Unless otherwise expressly provided in this Lease,when either party exercises any of its rights,
or renders or performs any of its obligations hereunder, such party shall do so at its sole cost and
expense.
Section 37.11 Recognized Mortgagee Charges and Fees.
Tenant shall pay any and all fees,charges and expenses owing to a Recognized Mortgagee in
connection with any services rendered by it as a depositary pursuant to the provisions of this Lease.
Section 37.12 Successors and Assigns.
The agreements,terms,covenants and conditions herein shall be binding upon,and inure to the
benefit of, Owner and Tenant and,except as otherwise provided herein,their respective permitted
successors and permitted assigns and shall be construed as covenants running with the Land.
Section 37.13 Recording of Lease.
Tenant shall cause this Lease and any amendments hereto to be recorded in the Public Records
of Miami-Dade County, Florida promptly after the execution and delivery of this Lease or any such
amendments and shall pay and discharge all costs,fees and taxes in connection therewith.
Section 37.14 Notice of Defaults.
Notwithstanding anything to the contrary set forth in this Lease,under no circumstances shall
any party to this Lease lose any right or benefit granted under this Lease or suffer any harm as a result
of the occurrence of any Default or default of such party as to which Default or default such party has
not received notice thereof from the other party.
Section 37.15 No Liability of Officials and Employees of Owner or Tenant.
It is expressly understood that this Lease and obligations issued hereunder are solely corporate
obligations,and,except as otherwise provided in Article 19,that no personal liability will attach to,
or is or shall be incurred by,the incorporators,stockholders,officers,members,partners,holders of
other ownership interests,directors,elected or appointed officials(including,without limitation,the
Mayor and Commissioners of the City and the members of any other governing body of Owner)or
employees,as such,of Owner or Tenant,or of any successor corporation or other successor entity,or
any of them,under or by reason of the obligations,covenants or agreements contained in this Lease or
implied therefrom; and,except as otherwise provided in Article 19, that any and all such personal
liability,either at common law or in equity or by constitution or statute,of,and any and all such rights
and claims against, every such incorporator, stockholder,officer,member,partner,holder of other
ownership interest,director,elected or appointed official(including,without limitation,the Mayor and
Commissioners of the City and the members of any other governing body of Owner)or employee,as
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such,or under or by reason of the obligations,covenants or agreements contained in this Lease or
implied therefrom are expressly waived and released as a condition of,and as a consideration for,the
execution of this Lease.
Section 37.16 Conflict of Interest.
Tenant represents and warrants that,to the best of its actual knowledge,no member,official
or employee of the City has any direct or indirect financial interest in this Lease,nor has participated
in any decision relating to this Lease that is prohibited by law. Tenant represents and warrants that,to
the best of its knowledge,no officer,agent,employee or representative of the City has received any
payment or other consideration for the making of this Lease,directly or indirectly,from Tenant. Tenant
represents and warrants that it has not been paid or given,and will not pay or give,any third person
any money or other consideration for obtaining this Lease, other than normal costs of conducting
business and costs of professional services such as architects, engineers, and attorneys. Tenant
acknowledges that Owner is relying upon the foregoing representations and warranties in entering into
this Lease and would not enter into this Lease absent the same.
Section 37.17 No Partnership or Joint Venture.
The parties hereby acknowledge that it is not their intention under this Lease to create between
themselves a partnership,joint venture,tenancy-in-common,joint tenancy,co-ownership or agency
relationship for the purpose of developing the Project, or for any other purpose whatsoever.
Accordingly,notwithstanding any expressions or provisions contained herein,nothing in this Lease or
the other documents executed by the parties with respect to the Project, whether based on the
calculation of Rental or otherwise,shall be construed or deemed to create,or to express an intent to
create, a partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or agency
relationship of any kind or nature whatsoever between the parties hereto. The provisions of this
Section 37.17 shall survive Expiration of the Term.
Section 37.18 Time Periods.
Any time periods in this Lease of less than thirty(30)days shall be deemed to be computed
based on business days(regardless of whether any such time period is already designated as being
computed based on business days). In addition,any time period which shall end on a day other than
a Business Day shall be deemed to extend to the next Business Day.
Section 37.19 Time is of the Essence.
Time is of the essence with respect to all matters in,and requirements of,this Lease as to both
Owner and Tenant,including,but not limited to,the times within which Tenant must commence and
complete construction of the Project. f'
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Section 37.20 Radon Notice.
Chapter 88-285,Laws of Florida,requires the following notice to be provided with respect to
the contract for sale and purchase of any building,or a rental agreement for any building:
"RADON GAS: Radon is a naturally occurring radioactive gas that,when it has accumulated
in a building in sufficient quantities,may present health risks to persons who are exposed to it over
time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from your county public
health unit."
Section 37.21 No Third Party Beneficiaries.
Nothing in this Lease shall confer upon any Person, other than the parties hereto and their
respective successors and permitted assigns,any rights or remedies under or by reason of this Lease;
provided, however,that a Recognized Mortgagee or its Designee shall be an intended third party
beneficiary hereunder to the extent such Recognized Mortgagee or such Designee is granted rights
hereunder.
EXECUTION
IN WITNESS WHEREOF,Owner and Tenant,intending to be legally bound,have executed
this Lease as of the day and year first above written.
WITNESSES: CITY OF MIAMI BE CH,nnORIDA,
a municip cg ratioof the State of Florida
By• �W
" "
Print Name , ,p ei� ! �' Neisen .Kasdin,Mayor ;04
`+t
AllEST: n "• •
By: •
Pnn » :"Zo sz, yH 0,2S,kJ Robert Parc er,City CY . fit[` •,,
[SEAL]
APPROVED AS TO
FORM&LANGUAGE
&FOR EXECUTION
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STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DARE )
The foregoing instrument was acknowledged before me this /qday o y -',
1999,by Neisen O.Kasdin,as Mayor, and Robert Parcher,as City Clerk,of the C OF MIAMI
BEACH,FLORIDA,a municipal corporation of the State of Florida,on behalf of such municipal
corporation. They are personally known to me or
ride €isation.—
My commission expires: �}
is MIA. . AR 7Y. , (/
LILLIAN BEAUCF1AMP L L
NarARv PUISLK grail OF FLORIDANotary Public,State of Florida
COMMISSION Nn CC73s'172 Print Name:
MY cOM uSSLO E
X
P.APR_292002 Al 1�� !J den,or. +<�
LINCOLN PLAZA PARTNERS LLC,
1a Florida limited liability company
� / if
By: SRC Lincoln Plaza LW,a Florida
,t N : ) iie,� , -•:••ility company,as Managing Member
I
�• ' By: trAllPruy„:•�et;. NMiNikc5�. .. 0., :•:ging Member
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me th"• +• of V ,
1999,by Scott Robins,as Managing Member of SRC Lincoln P : : : lorida limited liability
company,the Managing Member of LINCOLN PLAZA PAR ' a Fl. '+: limited liability
company, on behalf of such limited liability company. He is .: . •:o • r me or produced a
valid Florida driver's license as identification. //
My commission expires: /'
•"otary Public,State o Florida •
.
Print Name:
f ale K.Hoffman
fv,i MY COMMON A 104242 EXPIRES
WOK 6,IDS
‘..16.1`'' BOSCO TM WIN ntim mama,W0.
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List of Exhibits
Exhibit"A" Legal Description of the Land
Exhibit 2.1 Title Matters
Exhibit 8.2 Article 2 of the Development Agreement
Exhibit 10.4 Ownership Interest in Tenant
Exhibit 14.1(a) Parking Garage Maintenance Manual
Exhibit 14.1(b) Parking Facility and Common Grounds Maintenance Schedule
Exhibit 14.1(c) Owner's Operating Standards
Exhibit 36.1(a) Terms of Tenant's Right of First Offer Transaction
Exhibit 36.2(a) Terms of Owner's Right of First Offer Transaction
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EXHIBIT"A"
LEGAL DESCRIPTION
PARCEL 1
Lots 7 through 10,and Lots 16 through 20,Block 37,PALM VIEW SUBDIVISION,
as recorded in Plat Book 6,Page 29 of the Public Records of Miami-Dade County,
Florida.
PARCEL 2
Lots 14 and 15,Block 37,PALM VIEW SUBDIVISION,according to the Plat thereof,
recorded in Plat Book 6,at Page 29,of the Public Records of Miami-Dade County,
Florida.
•
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TITLE MATTERS
As to Parcels 1 and 2
Taxes for the year 1999 and subsequent years.
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EXHIBIT 8.2
ARTICLE 2 OF DEVELOPMENT AGREEMENT
ARTICLE 2.
CONSTRUCTION
Section 2.1 Consistency with City's Comprehensive Plan and Zoning Regulations.
The City has adopted and implemented the Comprehensive Plan. The City hereby finds and
declares that the provisions of this Development Agreement dealing with the Land are consistent with
the City's adopted Comprehensive Plan and Land Development Regulations,subject to all applicable
Requirements, Permits and Approvals.
Section 2.2 Planning Board Approval.
(a) Developer has heretofore submitted an application to the Planning Board for its
review of the Project,and the Planning Board has reviewed the Project.
(b) If at any time in the future it shall be necessary in connection with the
construction,reconstruction or renovation of the Premises to apply to the Planning Board for its review
or approval of any changes or modifications to the Premises,Developer shall be solely responsible for
making such application.
Section 2.3 Design of the Project.
(a) The Developer shall be solely responsible for the design of the Project,and such
design shall be(l)substantially in accordance with the design shown in Developer's response to the
Request for Proposals (RFP No. 20-97/98 (Amended))issued by the City on December 30, 1997,
except to the extent that changes thereto have been negotiated with,and approved,by Owner,and(2)
at the sole cost and expense of Developer. Developer shall be solely responsible for obtaining the
approval of the City's Design Review Board,and the City's Historic Preservation Board or the Joint
Board,if applicable,and the City shall have no duty or obligation to approve any particular design.
Prior to submission of the Project design to the DRB and HPB or Joint Board,if applicable,Developer
shall submit to Owner(acting in its proprietary capacity as owner of the Land)all of the Preliminary
Plans and Specifications for the Project which shall include,but not be limited to,a detailed site plan,
elevation drawings of each facade, a detailed floor plan for each of the floors of the Project, a
calculation of the floor areas for each floor of the Project, and a calculation of the total floor area
dedicated to each use within the Project(the"Preliminary Plans and Specifications")which shall be
submitted to Owner's City Manager for approval within twenty-four(24)weeks of the Commencement
Date. The City Manager shall have twenty(20)Business Days to review the Preliminary Plans and
Specifications,and shall review the Preliminary Plans and Specifications solely for consistency with the
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Developer's response to the RFP. If Owner disapproves the Preliminary Plans and Specifications,then
Developer shall,at its election,either(x)submit Owner's disapproval to expedited arbitration pursuant
to Section 3.6 and Section 22.1 as to the reasonableness of the disapproval,or(y)submit a revised
modification to the Preliminary Plans and Specifications to meet Owner's objections,which revised
modification shall be submitted and reviewed as provided in Section 3.1(b). Failure of the Developer
to submit Preliminary Plans and Specifications by the date which is twenty-four(24)weeks from the
Commencement Date shall constitute a Default under this Development Agreement.
(b) Developer shall,within eight(8)weeks of Owner's approval of the Preliminary
Plans and Specifications,submit an application for approval of the Project design to the City's Design
Review Board and to the Historic Preservation Board or Joint Board, if applicable. Failure of the
Developer to submit its application,as provided in this Section,to the DRB and HPB or Joint Board,
if applicable, by the date which is eight(8) weeks from the receipt of Owners Approval as above
provided shall constitute a Default under this Development Agreement.
(c) Developer shall pursue approval of its application to the DRB,HPB or Joint
Board,if applicable,diligently and in good faith.
Section 2.4 Public Facilities and Concurrency.
(a) Owner and Developer anticipate that the Project will be served by those roadway
transportation facilities currently in existence as provided by state,county and local roadways. It is also
anticipated that the Project will be served by public transportation facilities currently in existence,
including those provided by Miami-Dade County,the City,and other governmental entities as may
presently operate public transportation services within the City. Sanitary sewer,solid waste,drainage,
and potable water services for the proposed Project are expected to be those services currently in
existence and owned or operated by Miami-Dade County,the Miami-Dade County Water and Sewer
Department,and the City. The Project will also be serviced by any and all public facilities,as such are
defined in Section 163.3221(12), Florida Statutes (1997), as such are described in the City's
Comprehensive Plan, specifically including, but not limited to, those facilities described in the
Infrastructure Element and Capital Improvements Element therein,a copy of which is available for
public inspection in the offices of the Planning,Design and Historic Preservation Department of the
City of Miami Beach. The foregoing,however,shall not be deemed to be an approval of,nor shall it
be deemed to relieve Developer of the obligation to comply with,Section 163.3180,Florida Statutes
(1997).
(b) Developer shall be solely responsible for obtaining all land use permits,including,
but not limited to,all permits and approvals required pursuant to Section 163.3180,Florida Statutes
(1997),with respect to concurrency requirements for roads,sanitary sewer, solid waste,drainage,
potable water,parks and recreation (the "Concurrency Requirements"). Developer shall,within
twenty-four (24) weeks of the Commencement Date, apply to the appropriate Governmental
Authorities for letters or other evidence that the Project is pursuing all applicable Concurrency
Requirements, and shall diligently and in good faith pursue such letters or other evidence that the
F\M1NSKER\C.M Bvvlichigan-t[n<roin Ptaa Linooldnazaorndiee8-174E )wpd
August 30,1999(2 49PM)
1'U a 5(1.
Project meets all applicable Concurrency Requirements, or 'hall attempt to negotiate agreements
acceptable to Tenant to mitigate the impacts of developing the Project.
Section 2.5 Plans and Specifications.
(a) Upon receipt of the DRB's approval of the Project, and the HPB's or Joint
Board's approval if applicable,Developer shall prepare Plans and Specifications for construction ofthe
Project,consistent with the Preliminary Plans and Specifications,as approved by the DRB,and the
HPB or Joint Board's, if applicable, for review by Owner. The Plans and Specifications shall be
submitted to the Owner within thirty-two(32)weeks from the date on which the DRB and the HPB
or Joint Board, as applicable, approves the Project. Failure of the Developer to submit Plans and
Specifications to the Owner within thirty-two(32)weeks from the date on which the DRB approves
the Project shall constitute a Delimit under this Development Agreement. The Plans and Specifications
shall be reviewed by the City Manager solely for consistency with the Preliminary Plans and
Specifications as the same have been modified by the DRB and HPB,or Joint Board,if applicable. If
Owner disapproves the Plans and Specifications,then Developer shall,at its election,either(x)submit
Owner's disapproval to expedited arbitration pursuant to Section 3.6 and Section 22.1 as to the
reasonableness of the disapproval,or(y)submit a revised modification to the Plans and Specifications
to meet Owner's objections,which revised modification shall be submitted and reviewed as provided
in Section 3.1(b).
(b) Developer shall pursue approval by the City of the Plans and Specifications
diligently and in good faith.
Section 2.6 Conditions Precedent to Developer's Commencement
of Construction of the Project.
(a) Developer shall obtain a Building Permit for the entire Project by not more than
twenty-four(24) months from the Commencement Date and failure to do so shall constitute a Default
under this Development Agreement. Subject to Section 2.6(c), Developer shall not Commence
Construction ofthe Project unless and until(i)Developer shall have obtained and delivered to Owner's
Consultant copies of all Permits and Approvals required to Commence Construction and(ii)Developer
shall have delivered to Owner original certificates of the policies of insurance required to be carried
pursuant to the provisions of Article 7 of this Agreement.
(b) Owner(solely in its capacity as the owner of the Project Site and not in its
governmental capacity) shall reasonably cooperate with Developer in obtaining the Permits and
Approvals required by Sections 2.2(a)and 2.10(a)and any necessary utility access agreements,shall
sign any application reasonably made by Developer which is required in order to obtain such Permits
and Approvals and utility access agreements and shall provide Developer with any information and/or
documentation not otherwise reasonably available to Developer (if available to Owner) which is
necessary to procure such Permits and Approvals and utility access agreements, Any such
accommodation by Owner shall be without prejudice to,and shall not constitute a waiver of,Owner's
rights to exercise its discretion in connection with its governmental functions. Developer shall
P Vr1rNSKP.R\C M B1Micfiiym-Lincoln Pfmn1l.mcoinPieudtodlaeB-17a(Ex)wpd
Augwt 30,1999(2 49PM)
'ice: I B'?'OK 5Z8
reimburse Owner,within ten(10)days after Owner's demand,for any reasonable out-of-pocket cost
or expense payable to Owner's technical consultants(other than Owner's Consultant and Owner's
employees), such as architects and engineers, so incurred by Owner in connection with Owner's
assistance in obtaining the Permits and Approvals and utility access agreements required by Sections
2.6(a)and 2.10(a).
(c) Developer shall not Commence Construction of the Project, or any portion
thereof, unless and until Owner shall have approved the Plans and Specifications, as provided in
Section 2.5. However, if Developer chooses to perform any Construction of the Project on a
"fast-track"basis,Developer may request the necessary approval of Owner in stages and perform that
portion of the Construction Work which has been approved(provided Developer shall comply with all
other requirements with respect to such portion of the Construction Work),even if progress plans and
specifications for other portions of the Construction Work have not yet been prepared.
(d) Payment and Performance Bond. Prior to Commencement of Construction of
the Project, Developer shall cause the General Contractor to furnish to Owner a payment and
performance bond (the "Payment and Performance Bond"), in a form reasonably acceptable to
Owner, issued by a surety listed in the most recent United States Department of Treasury listing of
approved sureties, guaranteeing the performance of the General Contractor under that certain
guaranteed maximum price contract for the Construction of the Project. Owner may accept,in its sole
and absolute discretion,for any reason and/or for no reason whatsoever,a completion guarantee from
the General Contractor in substitution for such Payment and Performance Bond. Owner shall be named
as a dual obligee under the Payment and Performance Bond;provided,however,Owner's rights under
the Payment and Performance Bond shall be subordinate to the Recognized Mortgagee's(as defined
in the Ground Lease)rights under the Payment and Performance Bond and Owner shall agree in writing
with such Recognized Mortgagee that Owner shall only seek to enforce its rights under the Payment
and Performance Bond if the Ground Lease is terminated and such Recognized Mortgagee fails to
exercise its rights under Section 11.6 of the Ground Lease for the execution of New Tenant's
Documents(as defined in the Ground Lease).
Section 2.7 Commencement and Completion of Construction of the Project.
Developer shall at its expense(a)Commence Construction on or before sixty(60)days after
all Permits and Approvals necessary for the Commencement of Construction are issued (the
"Construction Commencement Date")and(b)thereafter continue to prosecute Construction of the
Project with diligence and continuity to completion.If,after Developer has Commenced Construction, •
Developer fails to diligently prosecute Construction of the Project(subject to Unavoidable Delays),and
such failure continues (subject to Unavoidable Delays) for thirty (30) consecutive days after
Developer's receipt of notice of such failure,Owner shall,in addition to all of its other remedies under
this Agreement and the Ground Lease,have the right to seek such equitable relief(either mandatory
or injunctive in nature) as may be necessary to cause diligent and continuous prosecution of
Construction of the Project(subject to Unavoidable Delays) by Developer, it being understood that
Construction of the Project is a material inducement to Owner to enter into the Ground Lease and
monetary damages shall be inadequate to compensate Owner for harm resulting from such failure.
F 1MMSKER\C M Michigan-Lincoln Plaze\LincolnPlnaomdbes-174(&x)wpd
August 30,1999(2:49PM)
!YEE 1:87
Notwithstanding anything to the contrary contained herein,if Developer fails to Substantially Complete
Construction of the Project by the Default Date,then the same shall constitute a Default under this
Agreement and under the Ground Lease.
Section 2.8 Completion of Construction of the Project.
(a) Substantial Completion ofthe Project shall be accomplished in a diligent manner,
and in any event by the Completion Deadline,and final completion of the Construction of the Project,
including but not limited to completion of all punch-list items, shall be accomplished in a diligent
manner thereafter,in each case in a good and workerlike manner,in substantial accordance with the
Plans and Specifications (with no material deviations except as expressly permitted herein), in
accordance with all applicable Requirements and,except as provided in Article 6,at Developer's sole
cost and expense.
(b) Upon Substantial Completion of Construction of the Project,Developer shall
furnish Owner with the following:
(i) a certification of the Architect(certified to Owner on the standard AIA
certification form)that it has examined the Plans and Specifications and that,in its
professional judgment, after diligent inquiry, Construction of the Project has been
Substantially Completed in accordance with the Plans and Specifications applicable
thereto and,as constructed,the Improvements comply with all applicable Requirements;
(ii) if Requirements require the same,a copy or copies of the temporary
certificates of occupancy for the Project(or portion thereof,as applicable)issued by the
City of Miami Beach Building Department;
(iii) lien waivers in form and substance reasonably satisfactory to Owner
from each contractor,subcontractor,supplier or materialman retained by or on behalf
of Developer in connection with the Construction of the Project,evidencing that such
Persons have been paid in full for all work performed or materials supplied in
connection with the Construction of the Project;
(iv) a complete set of "as built" plans and a survey showing the
Improvement(s)(excluding personalty)for which the Construction of the Project has
been completed. Owner shall have an unrestricted license to use such"as built"plans
and survey for any purpose related to the Project Site without paying any additional
cost or compensation therefor,subject to copyright and similar rights of the Architect
to prohibit use of designs for purposes unrelated to the Project Site,as such rights exist
in law or may appear in the Architect's contract, and subject to applicable public
records laws. The foregoing requirement with respect to "as built" plans shall be
satisfied by Developer furnishing to Owner,at Developer's expense,a complete set of
Plans and Specifications,with all addenda thereto and change orders in respect thereof,
F 1MINSKERIC M B1Mkhlgan-Lincoln Plan\[.hu;oh+P1e*Gmdlse8-17413x)wpd
Augne[30,1999(2:49PM)
I �
rz. 8 7 LAZ 550
marked to show all changes,additions,deletions and selections made during the course
of the Construction of the Project;and
(v) a Contractor's Final Affidavit in form and substance reasonably
satisfactory to Owner executed by the General Contractor (i) evidencing that all
contractors, subcontractors, suppliers and materialmen retained by or on behalf of
Developer in connection with the Construction of the Project have been paid in full for
all work performed or materials supplied in connection with the Construction of the
Project and (ii)otherwise complying with all of the requirements under the Florida
Construction Lien Law,Chapter 713,Florida Statutes,as amended.
(c) In the event that Developer has not Substantially Completed construction of the
Improvements by the Completion Deadline,Developer shall forfeit the Security Deposit held pursuant
to Section 3.6 of the Lease to Owner as liquidated damages,and not as a penalty,the Parties agreeing
that it is impossible to ascertain actual damages to Owner in the event that Developer does not
Substantially Complete construction of the Improvements by the Completion Deadline.
Section 2.9 Confirmation of Land Development Regulations.
The City Commission held a duly noticed public hearing on July 7, 1999, after which it
determined,pursuant to Section 142-425 of the City Code,that the zoning district classification of the
Land under the Lease is CD-3,as defined in the Land Development Regulations.
Section 2.10 ,Required Development Permits.
(a) Developer shall be solely responsible for obtaining the Development Approvals
listed in Exhibit 2.10 attached hereto,if applicable.
(b) There are no reservations and/or dedications ofland for public purposes that are
proposed under the terms of this Development Agreement.
Section 2.11 Proposed Permitted Development.
The proposed permitted development on the Land shall not exceed a Floor Area Ratio (as
defined in the City's Land Use Regulations)of 2.75,and the height of the development on the Land
shall not exceed eighty(80)feet.
Section 2.12 Developer's Right of Terminative.
Notwithstanding anything to the contrary contained herein,Developer chatl have the right to
be released from its liability and obligations[except the obligation to pay Rental and/or Impositions
prior to the Possession Date pursuant to Section 3.2(a)of the Ground Lease] and to terminate this
Development Agreement and the Ground Lease prior to the Possession Date because(a)changes to
the Preliminary Plans and Specifications required by the DRB,Joint Board,or any other Governmental
P:.MINSKER\C M B\Michigan-Lincoln PIm1LnoolnPiszsOmdlseg-I7a(Ex)wpd
August 30,1999(2 49PM)
� I
°g: 187713i 5,
Authority(including the City),render the Project economically unfeasible in the reasonable business
judgment of Developer,(b)the Project cannot meet concurrency requirements under Section 163.3180,
Florida Statutes(1997),or the costs ofconcurrency mitigation are,in the reasonable business judgment
of Developer,economically unfeasible,or(c)Developer,after good faith efforts,has been unable to
obtain a full building permit for the Project pursuant to the Plans and Specifications submitted by
Developer. In the event of termination of this Development Agreement and the Ground Lease pursuant
to this Section 2.12,each Party shall bear its own costs and expenses incurred in connection with this
Development Agreement and the Ground Lease and neither Party shall have any further liability to the
other.
F'1MINSKERAC M.6VMichigan-Lincoln Pla:ntLiucoinPlezaandlaeg-I NEx)wpd
August 30,1999(2:49PM)
Kc. 1 8770P 582
ACC
p1UBIT 10.4
OWNERSHIP INTEREST IN TENANT
Member Percentage Membership
Interest Owned
SRC Lincoln Plaza LLC, a Florida limited 49
liability company
- owned by Scott Robins(100%)
RDP Lincoln Plaza LLC, a Florida limited 49
liability company
- owned by R Donahue Peebles(100%)
Michael Milberg 2
TOTAL
P 1MQdSKER\C M B1M1ciigan-L ncoln Plaza\LIncolnPlazaOrndlro8-17a(Bx)wpd •
Angml 30.1999(2:49PM)
4RK[NG GARAGE MAINTENAIM 'MANUAL
A Publication of the
National Parking AssociattonlParking Consultants Council
cc
ot,pgalUlla u
1� r.
et NPA s****41ftVissoN01" tC
CC
PARKING
GARAGE
MAINTEIVAIVCE
MAfJUAL
August 1996
I
a
NPA/PCC Maintenance Manual Committee
James E. Staif, Chadrman
Larry D. Church Mark Sof furan
Thomas J.D'Arcy Howard R. May
Abraham Gutman Stephen J. Shannon
Forrest N. Hibbard Ronald J. Van Der Meld
1996 National Parking Association
1112 16th Street, NW, Suite 300
Washington, DC 20036
. ..••-►�- --� Telephone 800/647-PARK or 202/296-4336
Fax 202/331-8523
: I Tian
PA;RKING--CON5[7LTA � --;COU CIC COMMIIT EE;MEMBE• ---
•.-..-..rJ.• iyw.:.,�..... .: ..✓In'Y'M'• :.C•i/..: ... �• -.. �a...a •-+F:.. .•.d'C.�._.•YL:�i'..w..':�.!' r. .�y
Richard S.Beebe Larry Donoghue Forrest Hibbard
Consulting Engineers Group Larry Donoghue &Associates Carl Walker,Inc.
Mt.Prospect,IL Park Ridge, IL Atlanta, GA
Richard N.Best Robert S.Engle Mark Homan
Richard N.Best Associates,Inc Oakland, CA THY Limited
Levittown,PA Cincinnati, OH
Thomas Feagins,Jr.
Charles kit Boldon Parking Pros Norman G.Jacobson, Jr.
International Parking Design Humble, TX N.G.Jacobson&Associates Inc
Sherman Oaks, CA Seattle, WA
John Fujiwara
George M.Burton Desman Associates Dan Jeremitsky
G.M.Burton Consulting. New York,NY Square Industries
Bondi,N.S.W.Australia Jersey City,NJ •
Neale D. George
J.Richard Choate Read.Jones Christoffersen,Ltd. Robert P.Jurasin,P.E.
Walker Parking Vancouver, British Columbia Wilbur Smith Associates
Consultants/Engineers,Inc- New Havoc, CT
Newport Beach, CA Norman L Goldman
Desmon Associates,Inc1PDI Jean 1VL Keneipp
Anthony P. Chrest Farmington, CT Barton_Asrbman Associates
Walker Parking Chicago, IL
Cansultants/Engineers,Inc. Abraham Gutman
Kalamazoo,Mi. Lev Zetlin Associates Kenneth Howall
New York,NY Consulting Engineers Group '
Larry Church Mt. Prospect,H,
Walker Parking Dewey Hemba
Consultants/Engineers,Inc. Graef,Anhalt,Schloemer& Robert A.Leisk,P.E.
Ems,b Associates,Inc. Torcon
Milwaukee, WI Radnor,PA
Thomas J.D'Arcy
Consulting Engineers Group Scott B.Herman L Paul Lew
San Antonio, TX HNA/Pacific Lev Zetlin Associates
Redondo Beach; CA New York,NY
ii
18TTOn 585
•ARKIN't ONSULTA;NT "OHMIC! OMMI - E:°MEMBERS:
Howard D.Linders Richard C.Rich William Surna
Walker Parking Rich and Associates, Inc. Graeiy Anhalt, Schloemer&
Consultants/Engineers,Inc. Southfield MI Associates,Inc.
Kalamazoo,MI Milwaukee, WI
Gerald Salzman
Rex B. Link Barton-Aschman Associates Keith C.Thornton
Rex B. Link&Associates Chicago,IL Thornton Engineering P.C.
Los Angeles, CA Hackensack,NJ
Richard Sawka
Christian Luz,P.E. Allright PIAnning Inc. Ronald Van Der Meld
}NI'B Corporation Houston, TX Sear Brown Group
Milwaukee, WI Rochester,NY
Michael P.Schaefer
Howard R May Springsted Incorporated Will Van Dyke
Desman Associates St Paul,MINT Barton-Ascii mr n Associates
Chicago,IL Chicago,IL
Harold J.Schulke
Donald Monahan Filey Horn and David Vogel •
Walker Parking Associates,Inc Allright Planning, Inc
Consultants/Engineers, Inc. Houston, TX Houston, TX
Englewood, CO
Stephen J.Shannon E Carl Walker
Dilip Nandwana Carl Watkpr,Inc. Carl Walker,Inc.
International Parking Design Turnersville,NJ Kalamazoo,MI
Oakland, CA.
Mary Smith Robert Weant
Bryan Redlin Walker Parking Milford, CT
GRAELIC Consultants/Engineers,Inc.
Cleveland, OH Indianapolis, IN Norman R Webster
Read Jones Christoffersen,Ltd
Richard A.Rich James E.Staff Calgrzry,Alberta
Rich and Associates, Inc. Carl Walker,Inc.
Southfield,MI Dallas, TX
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113MX 5137.
Introduction 2
Maintenance Program
1. Cleaning 5
2. Doors and Hardware 8
3. Electrical Systems 9
4. Elevators 12
5. Heating,Ventilation and Air Conditioning(HVAC) 14
6. Landscaping. 16
7, Painting 18
8. Parking Control Equipment .21
9. Plumbing Systems 27
10. Roofing and Waterproofing - 30
U. Safety Checks 37
12. Security Systems 39
13. Signs(Graphics) •• •441
14. Structural Systems 42
15. Snow and Ice Control -.• .62
Recommended Maintenance Program and Checklist 65
References 71
•
1
L 16703 533
w rjaW.' Jtnw:t+�:. .r�-cw+n+r^•r.•.•., ••�T•r,
�
This manual is intended to provide the owner and/or operator with guidelines for maintaining
a parking garage in a serviceable condition that minimizes safety hazards and maintains the
structural integrity of the facility. This manual includes practices and procedures considered
essential to the prevention of the deterioration of the concrete and steel structure and equip-
ment failures. These items are discussed along with other aspects of maintenance that involve
rleening or repairs.
Various geographic areas result in widely varying exposure conditions for parking garages such
as exposure to de-icing salts in northern climates or salt air in coastal regions.Thus, this man-
ual
anual can only point out the problem areas and present broad guideline recommendations. Use of
these guidelines must be tailored for each structure and its specific climate. It is recommended
that the owner/operator engage an engineer experienced in parking structure design and main-
tenance to assist in developing a specific maintenance program for each parking garage.
The service environment of a parking garage is more severe than most other buildings and is
more nearly like that of highway bridges. Li some areas of the country,extensive use of deicing
salt in winter often causes contamination of the concrete with chlorides, which can result in
corrosion of reinforcing steel, structural steel, and damage to the concrete. In all geographic
areas,exposure to temperature changes and moisture poses a more severe service environment
for parking garages than for other buildings.
This manual is intended to apply to parking garages of all types. This includes free-standing
parking garages, underground parking garages, and parking garages that are constructed
integrally with other facilities such as apartments and office buildings.
Many different terms are used to describe structured parking facilities. The reasons for the
different terms include building code definitions, local custom, and others. Common terms
include parking deck, parking ramp, parking structure, garage, parking garage, multi-level
parking deck, parking facility, and open parking structure. This manual will use the term
"parking garage"to apply to all situations. In many instances, the guidelines presented here-
in may also be applicable to surface parking lots.
While the maintenance requirements of many parking garage elements are similar to their
counterparts in other building types, the frequency of required attention may be different due
to more severe exposure conditions. Because very little has been written about the specific
maintenance required for the structural system of parking garages,this subject is discussed in
greater detail than other aspects of mainte Anne_
Theterms'housekeeping,"'preventive maintenance,"and"repairs"are used with the following
meaning in the manual:
`Housekeeping"is the general cleaning and maintaining of the facility.These are routine tasks
that have to be done in order for the parking garage to function safely such as sweeping,
emptying trash receptacles, mopping elevator floors, replacing lights, cleaning windows, and
periodic repainting.
� I
2
Oki; IOULA 30y
"Preventive Maintenance"are those tasks to prevent the need for major repairs at some futur
time such as sealing cracks,resealing floors, and washdowns.
A. 'Repairs'are those items done to restore or replace certain portions of the parking garage struc
tural elements on an ongoing basis to forestall the need for major repairs to the facility
An example would be the patching and sealing of a concrete spall (pothole) in the floor of the
parking garage.This repair procedure may be required on an ongoing basis to prevent the neer
for major repairs such as concrete slab overlays or even full-depth concrete slab replacement.
The amount of maintenance required for an individual parking garage will depend on the orig
final desiga detei)c, materials,and workinenship involved in original construction,as well as the
environmental exposure conditions. The details and materials for some parking garages mai
have been selected specifically with minimum maintenance and long-term performance in mind
while in others, less importance may have been placed on these items.
In the Appendix("Recommended Maintenance Program"), a checklist provides a recommender
frequency and minimum frequency for many maintenance items. The text indicates the amount
of effort typically associated with each item. Where appropriate, each chapter is divided into
three categories: housekeeping,preventive maintenance, and repairs.Many of the items on.the
checklist are simply condition inspections and performance testing. If abnormalities axe found
during the inspection, appropriate corrective action should be implemented.. Some of the items
are related to the appearance presented to the public, some are related to safety, while others
pertain to preventive maintenance that will help avoid costly future repairs. Preventive main-
tenance is usually more cost effective than repetitive repairs and certainly less disruptive to
operations.
Many parking garages are leased to a contract parking operator for day-to-day operation.
Although "maintenance" is often designated as the responsibility of the operator, the level of
maintenance desired or the need of regular preventive maintenance is often neglected in such
agreements_ It is essential that lease agreements clearly define the party responsible for main-
tenance and also the responsibility for identifying and informing that party of observed mainte-
nance or repair needs.
What are some of the consequences of deferred maintenance? Failures associated with some
operational features such as lighting, parking equipment, or security-monitoring devices are
relatively easy to correct and may only cause inconvenience or short-term Ioss of revenue.
Deferred structural maintenance can lead to deficiencies that, in extreme cases, may result in
partial collapse of the structure. Premature deterioration of concrete floors is costly—both for
the repairs and for the revenue loss while repairs are underway. In multi-purpose structures
where parking is integrated with other building uses,deterioration of parking floors could affect '
the integrity and use of the entire structure.
A comprehensive maintenance program requires that an adequate budget be established to sup-
port the maintenance program. This should be an annual budget,beginning with the first year
of operation.. Major items, such as the re-application of protective concrete sealers and sealing
of joints in the concrete,occur at intervals of several years and must be anticipated in the main- i
' r
f�
3
REC. 1 Ui TON 590
tanance budget Annual maintenance reserve funding should be included in the operating bud-
get when the facility opens to account for re-application at the end of useful life. This will help
eliminate the unexpected major costs when replacement and/or major repairs are necessary.
In summary,a comprehensive maintenance program of housekeeping,preventive maintenance,
and repairs is required and must be tailored to each individual parking garage. The specific
program for a given structure will depend on many factors including original design details,
quality of materials, construction quality, and exposure conditions. It may prove beneficial to
employ an engineer experienced in parking facility design, operation, and restoration to
develop a cost-effective maintenance program. To function at required performance levels, all
elements of a parking garage need periodic maintenance.
•
•
a
•
•
4
1 0g591.
NOTES
Ci:EA1VIN
� a
Included in this section are discussions of:
Sweeping floors
Washing floors •
?S-ash pick-up
Windows
Other cleaning:
Walls
Elevators
Public areas
Rest rooms
Parking control equipment
0 Housekeeping
Cleaning relates to the appearance of the.parking garage and the
resulting image that is portrayed to the public. Some items can
cause problems if neglected. For example, trash may clog drains
and result in ponding or flooding, and trash left on stairs or land-
ings may become haTards for pedestrians.
In part, the suggested frequencies of cleaning are based on the
concept that people have less tendency to litter in a clean, neat
environment than in an environment that is already messy.
A clean, well-kept parking garage promotes a good reputation and
invites people to return and use the facility again. Often the
increased revenue more than offsets the cost of keeping the facility
clean.
One of the most frequently overlooked aspects of parking garage
maintenance is proper floor cleaning. It is recommended that all
parking floor areas, including curbs, be swept weekly, but no less
often than monthly.Sweeping can be done either with hand brooms
or merhani7ed sweepers designed for use in parking garages.
Between sweepings it is desirable to pick up any litter daily.
Expansion joints should be cleaned of debris periodically.
Grease and oil dripping from vehicles can build up within parking
spaces and at entrance and exit lanes. These grease buildups and
oil deposits represent a potential safety hazard to pedestrians,and,
5
la: 18/708 08 592 3
NOTES therefore, should be removed with appropriate degreasers such as {
an industrial detergent. A mi-+i-num frequency of twice a year is
recommended for such cleaning. For garages with membrane 1
waterproofing, the degreaser should be tested to assure that it will
not harm the membrane. Membrane manufacturers should be
contacted for recommendations regarding clew.ing materials and 4
procedures. •
.;f 1 1 1 I i e
i 0 .71e.-:IL 7.
IISL ,7 z . �"— 'C. A `" "�
5 - -j 'I - -- . . _-;! ::-.;,-,-E- --.,.-_,.., ==.7----- -_,-5,4.:_::: -`•`_
ig,
y
Dirt and trash Worker cleaning trench drain
Some floor areas should have daily cleaning by sweeping or mop-
ping. These include lobbies or waiting areas, toilet rooms, cashier
booths, offices, elevators, elevator lobbies, and entrance and exit
lanes.Stairs should be cleaned with the same frequency as the park-
ing areas and more frequently if they are heavily used.Heavily used
stairs should be checked daily for trash and swept at least weekly.
Windows in cashier booths, lobbies, and elevator cabs should be
washed daily. Other windows such as those in office areas, lobbies,
stairways, elevator cabs, or elevator shafts, should be washed at a
frequency of once a month to once a quarter, depending on their
condition and accessibility.
Other areas that need to be cleaned on a regtilar basis include walls
in rest rooms, walls in elevator cabs, and walls in other areas used
by the public. Trash cans should be emptied regularly, preferably
daily. Stair handrails should also be cleaned, preferably each time
the stairs are swept.
6
REC. I ii ( 3Ji
Parking control equipment should be cleaned weekly. The control NOTES
equipment horsing should be waxed periodically to protect against
corrosion.
In many situations, the use of a Iarge trash receptacle (dumpster)
provided by a refuse harelinti service may prove desirable.
I Preventive Maintenance
In addition to sweeping, a semi-annual washdown of the parking
floors with a high-pressure, high-volume water hose (minimum
1-112 inch diameter) is recommended for all climates. In areas
where salt is used to melt snow and ice, it is especially important
to wash the floors in early spring. This recommendation is also
important in coastal salt water areas. Sweeping should precede the
washdown. More frequent washing of high-traffic areas such as
entrance lanes and.main driving aisles is desirable and in cold
climates may be performed during winter whenever moderate tem-
peratures occur. In cold climates, if moderate temperatures do not
occur, then squeegees or brooms should be used to remove salt
laden slush or water. Before and after washing floors, all drains
should be checked to see that they are functioning properly. Sand
washed off the floors can clog drains. Thmporary burlap or straw
filters may be used to prevent sand from getting into drains, but
those temporary filters must be removed immediately after washing.
High-pressure water may be used for removing grease spots on
the floor slab when care is taken to avoid damage to joint sealant
materials and membrane waterproofing.
Particular care should be given to frequent and regular cleaning of
the tracks and grooves in elevator sills.These tracks are in both the
elevator cab door sill and each landing door sill.Dirt in these tracks
can cause the elevator doors to malfunction.
A cleaning program should be established for the facility that
directs personnel to perform required cleaning tasks regularly.
NOTES -Wa-- ,,-.a � ..� 8•.•••64....111......, �
Z ` DOORS=:AND-HARDWAR
Included in this section are discussions of: •
Pedestrian access doors
Vehicle access doors 1 rolling gates
et Housekeeping
Many types of pedestrian and vehicle access doors are used in park-
ing garages. Their use is related primarily to safety; security, and
building code requirements. Doors are also used for temperature
control of heated or air conditioned spaces, and other occupied
areas. Vehicle access doors include sliding and roll-down security
grilles and overhead solid doors. It is recommended that all doors
• be checked daily to see that they operate properly. The check of
access doors and hardware should include latch sets, panic hard-
ware, door closers, door sweeps, hinges, locks, mechani,ed opening
and closing equipment, and tracks for sliding, rolling, or overhead
doors.
When a malfunction is noted, it should be corrected as soon as pos-
sible to maintain the safety and security of the parking garage.
Pedestrian doors that are propped open may reduce safety and/or
security functions of the parking garage. Propping open such doors
may violate fire or buildi g codes. Similarly, this breach of security
could lead to a negligence action if it is determined that this action
contributes to an assault or robbery.
E Preventive Maintenance
Doors and hardware require lubrication at reggllar intervals.
Lubrication should be scheduled in accordance with the manufac-
turer's recommendations but at least semi-annually. Painting also
should be a part of the preventive maintenance program —refer to
Section 7.
8
oaf. 18an 595
NOT ETEC7'RI AL95STEMY NOTES
Included in this section are discussions of:
General lighting
Exit lights
i
Emergency lighting
Distribution panels and conduit
Emergency power
Contactor switches
@ Housekeeping
Operating a parking garage properly requires sufficient lighting
and electrical power to ensure that users can move easily and
securely within the facility. The most common problem with light-
ing is dirty lenses, as well as burned-out lamps and ballasts.
Lamps should be replaced regularly, either when needed as shown
by regular inspections, or by scheduled replacement based on antic-
ipated lamp life. Lamps and ballasts should be stocked for prompt
replacement. Operating controls for lighting such as time clocks
and photocells should be checked monthly and maintained as
required. Time clocks that are not astronomically corrected may
require resetting periodically to compensate for daylight savings
and astronomical changes of time if they are not coupled with photo
electric cell operation.
Pedestrian "exit' lights should be visually checked frequently.
Battery-pack-powered emergency light units are generally located
close to `est" lights and may be checked at the same time. Most
battery-operated lighting packs have a visible status indicator light
that will indicate if the unit has power and is operative.All battery
packs have test buttons that should be activated at regular inter-
vals to verify working condition. Battery packs should be main-
tained according to manufacturer's recommendations.
Internally illuminated signs are covered in Section 1.3 - Signs
(Graphics) of this manuaL However,provisions for general lighting
system inspections in this section also apply to sign lamps.
Electrical metallic conduit (EMT) exposed to water leaks or the
elements should be protected from potential corrosion problems.
Proper repair or replacement procedures should be instituted
9
,
a. 1 8 7Oa
!
1
3
i
NOTES whenever any conduit (EMT or plastic) is damaged of
exposed wiring from improper installation and support, or
adverse conditions. Cover plates should be in place on junct.
boxes and outlets. Electrical outlets should be working.
.=_ � + .. w f.ir, .'::,,.. : -.- mac
.
` fti Ny,.1,,,, . 7 tr.P-• _;i" .. ys _ : _.: :. _ • •
441Niv,
."- t-•\J�Y. I� ---,...--.4--..--,----.4.- •.., ��r ma--7-. - '-
'•:- :.- -.---N.-:.:....-.... 1.7. .;;;,..:.-_,-_,...... r..oilie--;.-., . ..- .
r.V rd�i
/die _ -...')_jl1�:a• ��.t.';. �.- ..+ ' .c-„.:-,;'
gamer :..o.r�."4= V > ,-.i" -=';'-,,. .-----c ---1-- . _...
s�w ' -':J`: ,L fi. rs�:� -.`-':' -r�,;}�.'"*1'
Rusted conduit Rusted Light f xv..0-e
W Preventive Maintenance
Periodic inspection of the entire electrical system is a good practice.
Electrical equipment and conduits should be inspected for corrosion
and deterioration where exposed to moisture. If electrical equip-
ment exposed within the garage area proper is not designed to
withstand the rigors of weathering characteristics of open garage
environments, this equipment should be provided with a corrosion-
resistant treatment to prevent further deterioration. Periodic
painting of all exposed.electrical conduit and boxes should be imple-
mented as deemed necessary Electrical panels, if exposed within ,
the unprotected environs of the garage, should be provided with a
corrosion-protective coating.
Regular inspection and maintenance is required for battery-
powered emergency lighting. Some battery systems require replen-
ishment of the water/electrolyte. Electrical service for parking and
revenue control equipment is covered in Section 8 -Parking Control
Equipment.
. Regular inspection of lighting fixture interiors and plastic refrac-
tors is important. Many plastic refractors (light diffusers) tend to
yellow after five years, resulting in diminished light output These
discolored diffusers should be replaced and the insides of the
Matures should be cleaned.
10
1 X77{t Irl
'RSC.
Under a planned preventive maintenance program,a group relamping NOTES
program should be instituted when the lamp burn time rear•es
70 percent of its rated life to assure the reliability of adequate light-
ing at all times, particularly in high-security applications. Fixture
cleaning programs could be instituted at the same time.
Time clock control of exterior lighting systems should be checked
periodically to insure proper function of time-switch-controlled
applications. Photocell controls should also be calibrated and
adjusted
11
Wit. 1 X01 598
{
NOTES ELEVATOR5 zy Y ._ ��=�
- ;_—
'� _.- ~sur��
■ Housekeeping
In those instances where the operator is responsible for elevator
maintenance, all lamps, including ceiling and indicator lights, both
inside and outside the cab, should be checked daily and replaced as
required.. Emergency lighting, which is required by most codes,
should be checked daily.
The elevator cabs should be maintained in a clean, neat manner.
A discussion on cleaning is given in Section 1 - Cleaning_ Cleaning
of windows within the elevator shaft requires safety precautions,
and may require involvement of qualified elevator maintenance
personnel.
The overall performance of the elevator system should be reviewed
during peak usage times. Long waiting times may discourage parkers
from returning to the facility. A sudden change in the response
times could indicate an equipment problem.
M Preventive Maintenance
Preventive maintenance is essential for proper operation of eleva-
tors and their associated hardware. AdditionPlly, the American
National Standard Safety Code for Elevators requires periodic safety
checks and maintenance services for all elevators, shafts,and hard-
ware. Local building codes may have more stringent requirements.
The level and frequency of the inspection program will vary with
the type of equipment, its intended use, and the appropriate state
and local code provisions.
Water accumulation is the most frequent cause of elevator equip-
ment problems. Leakage into the elevator shaft or equipment room
should be corrected as soon as it is discovered. Elevator pit sump
pumps, if installed., should be checked periodically to ensure proper
operation. Pumps and elevator pits should be cleaned as required.
The equipment rooms should also be monitored to ensure the
heating and ventilation systems are operating properly. Allowing
the equipment to become too hot or too cold may result in improper
operation, or equipment damage if system components use
computer chips.
L
`RFC.
li3TTOU :599
It is often more practical for elevator equipment to be placed under NOTES
a service contract with a reputable elevator service company than
relying on having properly trained in-house staff.
® Repairs
Repairs to elevator equipment should be performed by an elevator
service company. Repairs to other elevator-related items such as
heating and ventilation and sump pumps can be handled in-house
(if properly trained staff is available) or contracted out as needed
Also refer to Sections 5-HVAC, and 9 -Plumbing Systems.
As building codes and other regulations have become more com-
plex, the older systems may need upgrades in the control panels
and door operation. Some enhancements may also improve safety
and performance of the elevator system.
13
600
brf. I won
He
NOTES —Zs •
5 HEATING;VENTILATION =_ ="�'_
AIR=CONDITIONIN6�-[H1fACI._�� � - � •
�:
Bi Housekeeping •
In underground or enclosed garages, ventilation equipment must
be checked daily for proper operation. The presence of ventilation
air may be checked manually or by automatic equipment. Carbon
monoxide sensors must be checked for proper operation as well.
Dangerous levels of carbon monoxide can build up quickly if sys-
tems fail to operate.
Noisy operation of HVAC equipment may be the result of dirty air
filters, inadequate lubrication, and/or bad bearings, and should be
reported immediately. Any water leaking into equipment rooms
' should also be reported and the cause corrected immediately, as
corrosion, freeze-ups, and electrical short-circuit grounding can
render equipment inoperable.
Self-contained parking control booths many times have self-
contained heating and cooling units. Filters on these units should
be cleaned and replaced periodically.
E Preventive Maintenance
Dirty filters increase fan operating costs. Filters should be replaced ,
or cleaned on a regular basis as required by local conditions. Like
filters, dirty heating and cooling coils increase operating costs and
reduce heat transfer. These coils should be checked at least annu-
ally for the build-up of foreign matter If filter failure is observed,
coils, dampers, and fans downstream should be checked and
cleaned as necessary. Motors, motor drives, and fan wheels should
be checked monthly and lubricated according to manufacturer's
instructions. Dampers and their actuators should be checked quar-
terly, at least for proper operation. This equipment may seize up,
resulting in improper ventilation and excessive energy use.
Service manuals provided by the manufacturers should be checked
for appropriate maintenance action. All required servicing should
be performed as specified by the manufacturer. Belt drives should
be checked for proper belt tension to prevent belt slippage.
Replacement belts and pulleys for fans should be kept in stock.
14
nfl: 18770E 69 i
NEMC.
Worn or damaged belts or other parts should be replaced to mini- NOTES
mize the chance of a breakdown..
It is recommended that the control systems be calibrated annually,
either by trained maintenance personnel or by a control system
contractor. All control system components should be checked for
proper operation in accordance with the manufacturer's specifica-
tions, including temperature and/or contain Pnt sensors, relays,
switches, actuators, etc.
E Repairs
Repairs to faulty HVAC equipment should be performed promptly
to ensure that adequate air quality is maintained, and to prevent
further damage from improper operation. Water leaks into the
equipment rooms should also be corrected immediately to protect
the equipment.
•
15
re 18non 6o,- •
NOTES _6. 1AND5LAPIN _ � � �
_ y
f
® Housekeeping
Daily removal of trash from landscaped areas is required to
maintain a pleasing appearance. Watering, cutting the grass, and
• weeding should be
r "L a Y ✓ performed regularly
=; .% •1r,, - Shrubs should be
.-.1 • T _ ... f ,':_,._r` 1 •',---t._,-..-:.,"'
'- - pruned annually.
. ,-- -� ='.=.-.-•;---..•-_ ,,,•-.7.'",_,..-:,I ,r� e %" Automatic sprinklers
• '-+. -X,'�'itic 1 •: ;.%- are an effective
s. '• �%`'- L•-- i 1 • - •_ method of watering
— - 4,=" -..z....,.....,:--,: but the system must
r'= `'-'•'P" be checked periodi-
`yj---y 1•+ i =, p' rally for proper oper-
• ,.--rs �..,.,�.... „ atr � ;t, ation and proper
; - -': _....... - _ 1,,. dr�age.Also ensure
that sprinkling or
4 v. ...v :-..-: .; planting drainage
c-=_ .=',7,Y.;.;:::-:3.:..,....":.t" :;;, .C -- "-zr.:+" ^r��,, , systems do not create
r_ _-.;'�_:rsr , ,ve"`?�a't,,i slippery surfaces.
„, ,_,...„,,,...„:„..„..c. ,..•.„..„........„.„.... .„-,,. Lawns should be
:�.�,�',-=; c .'y .__,Y edged and trees and
c="_ --,1.'-•i•w=. ..,-: ,. , zT " - shrubs pruned to
-., �„ -- ;'^: ...aw_ •nx1 4' =;.,. -
i -. ._- -''-:;''''... .F.:'_.-.1°.,..,. 1 prevent encroach-
^'` -Y:�:=-- .'w=-._'':�:'"=3;-.:.• "T:Z. ment onto sidewalk
__: ~ '-.- -. -,.,.;._ ';--7.‘--= areas and other '
�+= : =• =..' ` - `� ; pedestrian and vehic-
,;�,_ ,:, - n alar traffic paths.
.=;�' •:�. fir'°.
'_ -. _ - Pruning of trees and
shrubs should be performed to maintain adequate sightlines at
entrances and exits, and to eliminate hiding places for would-be
criminals.
In cold weather climates, irrigation systems must be shut down
during winter and properly drained. Each irrigation head should be
adjusted,if required.,at the time of the spring"start-up." This is an
excellent time to leach salts through the topsoil by extending the
daily operating times of the irrigation system
Frequencies for performing this work will vary depending on the
time of the year,the type and extent of plant material, and the part
of the country A landscaping specialist should be consulted when
16
ERE . I8T L 3
developing schedules for this work. These tasks can be contracted NOTES
out to a landscape service, or performed by in-house staff. •
Adequate on-site storage for supplies and equipment must be pro-
vided if the work is to be performed by in-house staff.
E Preventive Maintenance
Timely maintenance is a must to preserve landscaping. A mainte-
nance schedule should be developed and adhered to. Consulting
with a local landscaping specialist will aid in determining when
basic tasks, such as cultivation, fertilizing, reseeding, etc., should
be performed.A professional should also be consulted for insect and
disease control.
The type of landscaping used should be selected to minimise the
amount of maintenance required. Plants requiring minimum
watering should be used in dry areas; plants that can tolerate cold
should be used in northern states, etc. Care should be taken to
place plants in locations where they will not be damaged by salt
spray during the winter months. Use of salt-resistant plants offers
an alternative. Alternative landscaping, such as timbers, rock
gardens, etc., should also be considered for areas susceptible to
damage from salt spray, or in desert areas, as these require mini-
mal maintenance. Maintenance of automatic sprinkler systems
also should be part of any maintenance plan.
If possible, landscaping materials should not be placed on supported
structural members due to excessive loading requirements or
chemical attack to concrete members. An experienced engineer
should review landscape loading that is to be placed on supported
structural members.
II Repairs
Damaged or dying plants should be replaced each spring. Leaving
dead plants in place severely detracts from the appearance of the
facility.
17
• 18t7L•6114
NOTES ] P.AdMIN •w .- • -
..
-+.•c/�.r.•. • • •r;...d�-�..ie=.: r!Ca:�r'`::%yes7�w _.: 'e0.-.:�.rrc=..r.
Included in this section are discussions of
Inspection of painted surfaces
Metals
Stall striping
Concrete/masonry
Painted signs, symbols, and supergraphics
Touch up
Repainting
Painting serves several purposes:
• Protection of metals against corrosion and resulting loss of
structural capacity
• Enhancement of appearance
• Safety
• Information
• Housekeeping
Painted elements that are operations or safety related should be
inspected monthly to verify they are fulfilling their intended pur-
pose. This group of painted elements includes parking stall strip-
ing, curb delineations, and garage surface painted signs.When the
paint is faded, soiled, or becoming worn away, then cleaning or
repainting should be done promptly.
Parking space striping is a basic element of all parking garages.
Parking space stripes should be repainted whenever the paint
fades or deteriorates. With the increasing number of small cars on
the road, many parking facilities are being restriped to reflect
smaller vehicle sizes. The mix of vehicle sizes in the facility should
be carefully considered whenever restriping is considered. It is rec-
ommended that when changing the striping, the old stripes be
removed completely by shot blasting or water blasting rather than
being painted over. Painting over old stripes usually results in two
sets of stripes being visible, thereby confusing the user. A check
should also be made with state and local traffic departments for
preferred striping color and basic stall dimensions.White or yellow
18
Tf: I WOE OE I.o5
are typically used Gravity-fed paint for stall striping tends to last NOTES
longer than sprayed paint The type of striping paint must be cora-
patible with the parking surface. For example, a water-based paint
will not adhere to a concrete surface that has been treated with a
water repellent such as a silane or siloxane sealer.
Painting of curbs is usually safety related. Curbs should be
repainted more frequently than other elements. Semi-annual '.
painting is recommended.
Painted signs and symbols on walls, beams and floor should be
maintained in conjunction with illuminated and non-illuminated •
signs in Section 13 - Signs (Graphics).
t Preventive Maintenance
All painted metal surfaces should be inspected to determine their
condition, and small rust spots that are observed should be cleaned
and touched up. Complete repainting should be done whenever
required by the elements,type of paint,and/or exposure conditions.
Paint as a protective coating depends on its adherence to the under-
lying surface. Therefore, before painting any surface, it is extremely
important to properly clean and prepare that surface. Preparation
for painting may include removal of rust,removal of previous coats
of paint, application of caniking or sealant, waterproofing concrete
or masonry, or other preparation appropriate to the surface and
exposure conditions. If deterioration is observed on. structural
metal, an engineering evaluation is recommended.. Paints should
be carefully selected to be appropriate for each particular application.
Handrails and guardrails serve safety-related functions. They
should be inspected and painted at intervals as required to ensure
retention of their structural capacity.
Regular painting of exposed metals such as doors, door frames,
pipes, and pipe guards helps to prevent corrosion and provides an
attractive appearance. Metal pan stairs must be inspected and
painted on a regular basis.
The painting or staining of interior or exterior concrete and masonry
is usually done for appearance. Some masonry paints also serve as
waterproofing. At regular intervals, these elements should be
repainted.. Anti-graffiti paints are effective for that purpose and
should be considered where graffiti is a problem.
19
afF. 8tTf 611
`RfC.
NOTES Some metals such as anodized aluminum and stainless steel do not
require painting. Galvanized steel surfaces do not initially require
painting. However, because the galvanizing is sacrificial, under
some exposure conditions, ciPAning and painting may be required
to maintain the corrosion protection as the surfaces age.
20
re. I 8770n 6D1
_--M NOTES
-PARKINfi3CONTRO EQUIPJNE -
....::=ls. .. -_�..:... .:.r- i+o.,.•-, =c:.. mac. ,-r..._..,._.._y,._�:.r�.�.-::''L�t_e
Included in this section are discussions of.-
Operation checks
Preventive maintenance
Emergency service
Inventory of parts
6 Housekeeping
All parking control equipment should be checked at least once each
day to ensure proper function and to rninirni7e the down time
during peak activity periods. Ticket stocks in ticket dispensers
must be replenished as appropriate for each dispenser.
Cleaning of the exterior of the parking control equipment is dis-
cussed in Section 1 - Cleaning.
■ Preventive Maintenance
A preventive maintenance program should be implemented to min-
imize breakdowns. A service agreement with an authorized park-
ing equipment supplier is recommended_ This agreement should -
include regular preventive maintenance service, as well as emer-
gency repair service. Quick response to calls for emergency service,
as well as local availability of appropriate replacement parts,
should be considered when selecting a service firm. Consideration
also should be given to special training for in-house staff to take
care of preventive maintenance and most emergency situations.
Copies of operating and service manuals for all equipment in the
facility should be kept on hand for easy reference. It is desirable to
establish a log of maintenance and service work completed on each
piece of equipment It is also prudent to maintain an inventory of
critical replacement parts so that equipment can be repaired quickly.
21
a i8 711 508
NOTES A maintenance program should be based on the following key
items: s
1) Safety first F
2) Good,low-surge electrical power using CVTs•UPS systems,
lightning protection, etc., as appropriate
3) Installation per manufacturer's specifications
4) Operation, supervision, and maintenance training
5) Documentation
_•T-4.•'7.��j3 °sem--.,-•-'ri` .#�0.f.�r'i3"�r ttir.�.l. .' iS'' � �t�;}K+�"'ar..: y.:��.i 1.�-1 i%.�: .-r-�.,,,;-^i.
.,. .�:. r. .ri•.." ms_
-_ • -:_ MAINTENANCE.'SC_HEDULE FOR=:c:;t:—• •• �' -oF -
. ..-_'.: y;..•.V6a+•y."�.s+.�tS.:.o+c-r-¢vic�.•-t..s.-��-.-- •c.i^rn-.........r --..,4.`. •• ••• .:�,y'�, . .i..__
M: 2.1 ±.::-•=`�' • PARKING CONTROL'EOUIPMEIVT � -. = -.�: -_ ' ;.
./ ,yam.....,.-+T a"�'. `.: -
, r",,5..�t •= .•aim-..'_ � :r- •-• r.". T:a:' ''�V..%r �'.• 's''''...:..!..--
;••
'' ." +
� 2:'� T.�."i'+.- • ?-2._. �.i r2,':r'�'":x " 2 :1•• ._ -r..- ,�7
'_ -' n- ,,a Lr•� A, .. ACTIVITIES REQUIRED •.s,,_,..._,....�•:.
L -,--------"Clean.--s--L •a.;• --;,..7-_,:).5.1.. .•:::•.d • _
• "e ipe"'�-a .k ,.-? winter♦a rt i 3 •�1 est'A •
TIICQ1Ce T�*QC L t oc,r�- .� , - --.-.
� v.. --,, ^Y�"�'.`w'�"'�'""'^ti. .) ` .. fie• - --
30
_ -sc aF j..-Z �� _74 •.
C -''". '7'--r..r'y � ..-.:"--%.0_.........,.----:.•-. -
:.•-. - .•� Lc+ `..). te_. -^✓t ....�.
OW
•
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• .ra. •= ti. ._...r...,,,:, ti• ' �'...`
r. 80' t _s-r. � it �': j• x.. z [
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.. .
• OWtISl• ^ "'G- - .....40/7-... .- --.:.••••-•.;T•-r-,',,x�+•".s � y.. w ^
- . - . w-_•,_&-+ - •.�.r.` - : .
. . 7:
�.;•.-r t�� _, a;.3 .fit.-* _.. y:.wM:: • %•• f G.
.3"_S•.ljs. �' v. 1'80a8 ^i�c� ...:�, •
"ns:+„r:$..411 piny-! r - - - ,8•0 .Za._.
_• "S;`. c +-. _rte..- :, ,. ter, tom..
.��r,.- ,... •":fir- -' _S•ly �er.. t._.�'. ._ •="sem '-�"' -
mac: l8T7 609
As a general guideline, the chart (opposite page) outlines basic NOTES
maintenance activities that are to be performed. Below is a short
outline on those items. In all cases, however, it is always best to
follow the manufacturer's recommendations as to procedure, mate-
rials, intervals, test equipment, check-points, tools, consumable
items, replacement parts, etc..
■ Repairs
Repair of parking control equipment is best performed by in-house
staff or an outside organization specifically trained for that equipment.
Autogates
a. Vee-belt tension should be checked every 30 days; 10 days
after a new installation.
b. Vee-belts should be changed every six to nine months
depending on usage.
c. A coat of automotive-type wax will reduce corrosion and
prolong cabinet or post life.
d- Cam-operated switches should be mechanically and electrically
checked.
e. Gear reducers should be topped off with Mobil SEC 629 or an
equivalent synthetic gear lubricant to the sight glass level
f. Heaters and thermostats should be checked for proper
operation.
g. All nuts, bolts, flanges, screws,connecting rods, mounting
bolts, other miscellaneous hardware, etc., should be merhani-
cally sound and tight.
h. All sockets, cables, and connectors should be unplugged and
replugged several times per scheduled maintenance cycle to
clean corrosion and oxidation from contacts and to ensure
electrical and mechanical integrity.
L Inspect for vehicular damage.
23
mac: 1$77OR Cla
NOTES 71chet Dispenser
a. Dirt is the enemy! Using compressed air and a long-handled
artist paintbrush, keep the entire mechanism free of ticket
dust or other contaminants.
b. Degrease and re-lubricate sparingly the ticket cutter
assembly, type section bearing points, and the ribbon reverse
mechanism with light machine oil. Degrease and re-lubricate 1
sparingly the index cam with white grease. Do not lubricate
the clutch assembly.
c. Adjust cutter so the dispensed ticket has a short tab on the
back of the ticket. Don't cut on the perforation.
d. Adjust type section clock as necessary for accurate time
stamping.
e. All nuts, bolts, flanges, screws, mounting bolts, and other
miscellaneous hardware should be mechanically sound and
tight.
f. All sockets, cables, and connectors should be unplugged and
replugged several times per scheduled maintenance cycle to
clean corrosion and oxidation from contacts and to insure
electrical and merhanical integrity.
g. Inspect for vehicular dam ge.
h. Heaters and thermostats should be checked, particularly in
colder climates.
Fee Computer &Accessories
a. Exterior of all equipment should be kept clean.
b. Ensure all external displays, lights, etc., are clear, bright, and
functional.
c. Test all buttons on keypads for proper function_
d. Dirt is the enemy in the printer mecbanicm Using compressed
air and a long-handled artist paintbrush, keep the entire
printer mechanism free of ticket dust or other contaminants.
e. Lubricate printer mechanism drive cam and gears using
D #23 or equivalent grease.
24
tfC LTJ
f. Clean all vend relay contacts where appropriate. NOTES
g. Ensure coffee, soft drinks, other foodstuffs, paper clips,
eraser residue, staples, etc., are kept away from and out of
the equipment
•
h. Check cash drawer(s) interlock switch for proper operation.
i. Verify CVT, UPS system, lightning protection equipment, etc., •
are working properly.
j. All nuts, bolts, flanges, screws, mounting bolts, and other
miscellaneous hardware, etc., should be mechanically sound
and tight.
k. All sockets, cables, and connectors should be unplugged and
replugged several times per scheduled maintenance to clean
corrosion and gxidation from contacts and to ensure electrical
and mechanical integrity
Coin & Token
a. Clean all foreign material from rejector mechanism using
soap and water.
b. Ensure mechanism works freely without binding.
c. Verify that only proper coinage vends mechanisms.
d. Verify all enclosures and stands are securely mounted and
have not sustained damage.
Card Access
a. Clean all read heads using compressed air, brushes, or factory
supplied or recommended cleaning materials.
b. Ensure security cards can be inserted and removed smoothly
from the read head.
c. Verify all enclosures and stands are securely mounted and
have not sustained vehicular damage.
25
'REc. 18,rin 6 '�
NOTES Controllers
a. Clean the exterior surfaces of all gate and dispenser
controllers.
b. Using compressed air, clean the interior of all controllers.
c. Polish the contacts of all circuit breakers after power
is removed_
d. Polish the contacts of all accessible relay contacts.
e. Test for proper operation.
Detectors &Loop
a. Verify that all loop detectors are properly sealed using a good-
quality butyl-based caulk.
b. Test loops electrically, preferably using a megohm tester made
for this purpose.
c. Verify correct mode for specific lane operation.
d. Ensure sensitivity settings are proper.
26
REC. 18 MR -13
NOTES
Included in this section are discussions of
Water supply
Sanitary facilities
Washdown
Irrigation
Water heater
Sanitary plumbing
Stormwater drainage
Trench, roof and floor drains
Sediment basins
Grease traps
Sump pumps
Fire protection
Sprinklers
Standpipes
Fire pumps
Hose cabinets
Fire extinguisher
IN Housekeeping
Hose cabinets and hoses, while required by some local authorities,
are often targets for vandalicm. Consequently, they should be
checked often for damage and replaced if necessary. Many munici-
palities require that the local fire department furnish their own
hoses at times of fire. This requirement may Pliminate the necessity
of maintaining hose cabinets,thus preventing theft and vandalism as
the standpipe outlets will only be provided with a cap and chain
Portable fire extinguishers and their cabinets are also targets for
vandalism, and should be checked frequently to see that they are in
place, charged, and operable.Where theft or vandalism of fire extin-
guishers is a problem, a glass front cabinet with a lock and/or alarm,
where permitted by local code, can provide security while maintain-
ing access in the event of a fire.An extra fire extinguisher should be
kept in the parking garage office. See also Section 11-Safety Checks.
27
aye: 18fl0rt 614
NOTES The fire protection system should be inspected, maintained and
checked periodically in accordance with local Ere code requirements.
Sanitary and storm lines need to be maintained in working order.
Preventive Maintenance
The water supply piping for sanitary facilities (e.g., toilets, wash-
basins, mop sinks) is generally protected against freezing and
usually requires only a periodic check for leaks and working order.
The piping for washdown and irrigation, if exposed to freezing tem-
peratures in the winter, must be drained each fall, in addition to
periodic checks.
If there is a water heater, it should be checked and flushed annually.
A check of sanitary plumbing can be done at the same time the
water supply is checked. Regular inspection of heater components
such as relief valves, gas pilots, etc., is recommended.
The most extensive plumbing in a parking garage is the storm-water
collection and drainage piping system. Neglect of the system can
have expensive consequences. Floor drain inlets and basins must
be kept clear of rubbish and sediment to prevent clogging and pond-
ing. Drains at the lowest floor may have backwater valves that
should be checked for operation. When washing down the floors,
temporary filters of burlap may be put over the drain inlets to keep
them clear. Periodically, especially before and after washdowns,
sediment basins and traps must be checked to ensure continued
proper operation. Sump pumps, sand buckets in drains, pump
motors, and control switches should all be checked for proper oper-
ation. Inspection of drainage systems for leaks during rainstorms
and washdown operations is recommended_
Fire protection sprinklers used in parking garages are usually dry
systems. Equipment for the sprinklers include an air compressor,
dry pipe valve, alarm devices, tamper switches, and test drains.
Inspection and servicing should be performed only by qualified
personnel. Dry systems should be drained and left dry after each
use. If the system is wet, or always charged,similar checks must be
made. Sprinkler heads must be checked for operation and freedom
from corrosion.
28
••MRYlIITI:i..r-o rt..r•.rr:.rrs,n•-„ ...._ . .... _ _
REG.
1f377OPE b15
Fire standpipes in parking garages are usually dry. They may be NOTES
interconnected and are supplied through a siamese pumper
connection at street level. The connections should be checked
AP
periodically for lubrication and damaged threads. Check valves at
siamese inlets should be monitored for proper operation.Dry systems
should be left dry and unclogged after each use. Wet systems and
fire pumps must be checked and maintained by qualified people.
For all systems, the pipes, sleeves and pipehangers must be kept
free of rust. See Section 7- Painting.
Backflow prevention devices are an absolute necessity. These
require extensive use of hoses, and the possibility of contamination
of potable water supply exists. Periodic inspection and/or mainte-
nance of these devices is essential.
E Repairs
All plumbing and fire protection repairs should be performed by
qualified plumbers and fire systems installers in accordance with
local codes and ordinances.
If a sump pump is removed for maintenance, even if for"just a few
hours,"a working replacement should be installed.Just a few hours
could become several days,and rainwater runoff could flood an area
with no working pump.
29
411 18770K €1 f3
NOTES
X70 -r,:R0001%16 ANQLWATERPROOFIN
The comments and information in this section are intended to apply
to the many different types of waterproofing applications that may
occur in a parking garage. The common waterproofing applications
include:
• Joint sealant at construction joints, control joints, and cracks
in floors and walls
• Expansion joints in floors and walls
• Concrete sealers on floors
• Membrane waterproofing system on floors
• Membrane waterproofing system on basement walls
• Coating on basement walls and block walls
• Roofing
• Sealant at doors and windows
• Rubber window gaskets
Nearly all of these waterproofing systems have finite life spans.
The elastomeric materials used for joint sealant and some expan-
sion joints commonly have a life expectancy of eight to 10 years.
' Those materials in areas exposed to direct sunlight will often have
a shorter life than in areas not exposed to direct sunlight.
Background Information on Waterproofing Systems
A- Deck Sealers
A sealer is a liquid applied to protect and preserve concrete by fill-
ing the concrete pores or by sealing the concrete surface against
penetration by water-borne deicing salts and other deterioration-
causing contaminants. A quality material, properly applied and
renewed periodically, will provide supplemental protection against
freeze-thaw damage, corrosion, and wear. It is important to note
that sealers do not bridge moving cracks.
30
k-11 8i '(UC E l? •
Sealers are not cure-alis, however, and the concrete to which it is NOTES
applied must be sound for the sealer to be effective. Sealers do wear
under use and some are subject to ultraviolet light deterioration_
They must be reapplied at intervals ranging from one to 10 years,
depending on the product,rate of application,and conditions of expo-
sure and use.Life-cycle costs should be evaluated in making a choice
•
of sealers.
:..M. r..^a.;.%s� w^.c✓►' iii^ _ �,---- -_ ,
Worker spraying deck sealer
With many sealers on the market, and more coming, seek profes-
sional advice as to which is best suited for a particular use and expo-
sure. Some help in evaluating sealers may be obtained from a review
of American Society for Testing and Materials (ASTM) C672-76,
"Standard Test Method for Scaling Resistance of Concrete Surfaces
Exposed to De-Icing Chemicals' and the 1981 National Cooperative
Highway Research Program Report 244 "Concrete Sealers for
Protection of Bridge Structures." To date,no ASTM test exists that
satisfactorily measures penetrating sealers performance. NCHRP
Report 244 does describe a test program.Another publication by the
Ontario Ministry of Transportation and Communications(Report No.
M1-79,April 1985) provides additional guidance for sealer selection.
Once a sealer is selected, it should be applied by a manufacturer-
approved applicator in accordance with the manufacturer's instruc-
tions. Some coatings may produce a slippery glaze on the concrete
surface, reducing traction, and increasing the possibility of cars
skidding. The same caution applies to application of sealers on
stairs, landings, and lobby floors. A Small test application of the
sealer at proposed coverage rates should be applied and tested for
both wet and dry skid resistance before full-scale application.
31
104 I Ula Vi
NOTES B. Crack and Joint Sealants
Sealants are used to seal control and construction joints in floors to
protect against moisture inzusion. Caulk-;r? is normally used on
walls and architectural elements. The materials may be self-level-
ing or non-sag, depending on whether they are intended for use on
horizontal or vertical surfaces. Sealants are intended to remain rel-
atively soft and fie.::bie throughout their service lives and must be
designed for exterior use. They seal properly prepared joints
through adhesion to the surrounding concrete. Sealants for rela-
tively narrow joints are applied to joints in horizontal surfaces by
pouring or with a caulking gun,and are applied to vertical surfaces
by a caulking gun_ Sealants should meet or exceed the require-
ments of Federal Specification TT S-002270E, for Sealants, Class
A, Type 1. and 2, self-leveling and non-sag.
• cam —: '- �..�.�
•
\�•r�:: may .»�
- -J �•i `til- ;'t.< •� ��..�•+ •
-_. •__..^--•-__�.
r.
•
. ,.:
__ s:= .' r.-. J. .r{•r....:^:-.-.ski%+r��=::.r
,,�-r yam, ����\� ••. �,a - -h: Vis;.. - _.'+
�:^+.•"��.:.z;" - _c�-,s�L�r•--�� _1�7-3 y'�-�`-�.�-.�...:.mow`"_- :-li+` -
Routing crack Completed sealant joint
Expansion(isolation)joint waterproof glands and sealants function
similar to those for control and const:ucaon joints. Expansion
joints are more vulnerable to wear because they experience greater
lateral/transverse movement and are directly exposed to wheel
traffic. Prefabricated joint seals installed by experienced factory-
approved contractors tend to give better performance than poured
expansion joint sealants.
_ - —r '`'' _ -_•.,.-': yaw
~; :.�.
Installed expansion joint
W: 18?fit: 6
C. Traffic-Bearing Membranes NOTES i
Protective membrane systems are generally installed to eliminate s
leaks through a floor slab and reduce moisture ingress beyond the •
capabilities of concrete sealers.
Since sealerscannot bridge moving cracks and are sometimes not •
effective in slowing reinforcement corrosion to acceptable levels,
(depending on the amount of moisture and salt contamination),it may
be necessary to apply a membrane to eliminate moisture penetration.
111 M._ ..__. 1i .._�.. _ _ "2,, i'� •-�
21,1
- • � ,_....,„. :.---.2-.._:a ..'-X - ► 14....
, . . - :7.:.:-:-_-----... --
L:" .' --,.w 1 I-♦;'`j _ . -`fit- `4-.'"...--,,-
'". •-•:-;4'-
-:-
.v-2
Applying traffic-bearing membrane
Several types of membranes are available:
C.1 Thin Traffic-Bearing Membranes
These systems typically consist of a thin elastomeric base layer
(neoprene or urethane) covered by a thin wearing course usually
including grit (epoxy, modified epoxy, or urethane) with the total
system thickness in the order of 40 to 80 mils_ ASTM Standard
C957 outlines criteria for evaluating performance and properties of .
thin elastomeric membranes.
C2 Asphaltic or Rubberized Wear Course Systems
These systems typically consist of a hot-or cold-applied rubberized
asphalt membrane overlaid by either mastic or asphaltic concrete
pavements. Thicknesses of 5/8 inch for mastic wear courses and
about 1-1/2 inches for asphaltic concrete overlays are usuaL
It should be recognized that asphaltic concrete-wearing courses are
porous to some degree and may aLlow build-up of salts and moisture
at the level of the membrane. For this reason, they are not recom-
mended
econmended on elevated concrete slabs. Drains should have weepholes
at the level of the membrane to minimize build-up of moisture on
33
. , .,.R O 77 I' .E210ptk
NOTES the top of the membrane. If the membrane is damaged. contamina-
tion of the structure could occur at an accelerated rate. On roof
decks, black asphalt surfaces increase the heating and associated
thermal movement of the structure. This may present problems
with expansion joints or structural elements. Asphalt should be
well compacted with sufficient stability to avoid displacement in
drive aisles, ramps, or under vehicle wheels in stalls.
Asphaltic or rubberized membrane should be continuously bonded
to the substrate to prevent water from penetrating under the mem-
brane through breaks or pinholes. Flashing should be installed to
protect asphalt membranes applied to exposed vertical surfaces.
CI Housekeeping
Housekeeping requires observation of visible waterproofing elements,
looking for signs of failure such as leaks,stains, cracks,etc It is rec-
ommended that all areas of the parking garage be inspected for
water leakage monthly,and in no case less than semi-annually. Take
advantage of rain storms to Iocate leaks from the underside of parking
decks,roofs, and joints, then try to assess where any problems origi-
nate on the surface above.Inspection for leaks through parking decks
can also be performed during garage washing, hosing down of the
parking decks, or when snow accumulation melts. Check all visible
waterproofing elements for deterioration semi-annually, or at least
annua1ly. Remember to look at the stairwell roofs,sealant in exterior
wall surfaces,and any other waterproofing that is not normally seen.
Cf Preventive Maintenance
Inspection
The first step in maintaining a waterproofing system, whether for a
new or old garage, is a regularly scheduled visual inspection of the
entire facility:Items to be noted include visible wear of surface sealers
or membranes, cracking, bubbling, deboncling, discoloration, soften-
ing, tearing or displacement of membranes, sealants, and wear
course overlays.If possible,the visual inspection should be done during
and after a washdown of the decks in order to detect any leakage
through the structure indicating membrane or sealant failure, and to
ensure any damage does not go unnoticed under a layer of sand or
accumulated debris.
34
a 18770N 62i
■ Spot Repair NOTES
Thin Traffic-Bearing Membrane
Reapplication of wearing course layers in high-traffic areas such as
ramps and drive aisles is typically required at three- to five-year
intervals.
Particular care must be taken to ensure the membrane is not dam •
-
aged by snowplow blades.
Asphalt Membrane and Wear Course System
Maintenance of these systems consists of periodic replacement of
asphalt softened by vehicle oil drippings and an application, approx-
imately every two years, of seal coat emulsions to wear course
surfaces to offset oxidation and embrittlement of the asphalt.
Sealants/Repairs
Sealants, being soft and flexible, are susceptible to tire abrasion
and tearing by improperly used snowplows. Sealants that have
failed will allow leakage and, thus, possible deterioration of the
concrete substrate and reinforcing steeL
The manufacturer and/or installer of the sealant should be consulted
for proper materials and methods of repair. Also review sealant
warranties; some products come with warranties as long as five
years. Depending on the type and exposure conditions, most
sealants have a useful life of seven to 10 years and somewhat Iess
on roofs due to ultraviolet exposure. When old sealants are
removed, examine the underlying concrete for deterioration, make
necessary repairs, and apply a compatible primer to the concrete
before installing the new sealants. As a rule of thumb, when
30 percent of the sealant joints in the structure need repair or have
been repaired, it is time to start planning for replacement of the
sealant in all joints.
Traffic Deck Membranes/Repairs
Repairs to membranes, particularly the proprietary thin traffic-
bearing systems,involve specialized surface preparation and mate-
rial application procedures. Finding damage to traffic-bearing
systems and performing repairs is relatively straightforward.
However, failures in asphalt membrane and wear course systems
are detected indirectly through leaks on the underside of the struc-
ture. Finding and repairing such leaks may require tearing up the
35
orr. 622
ifakc
. 8 TY7N
NOTES wearing surface above the leak so that the membrane can be
patched.
Repair of rutting or displacement of asphalt wear courses in high_
traffic volume areas may involve removal of both the wear course
and membrane in affected areas as the membrane will likely be
damaged during topping removal,
Consult the membrane installer and/or manufacturer for proper
repair materials and methods. The membrane may have a warranty
that should be checked for applicability.
Foundation Wall Waterproofing Repairs
Damage to foundation waterproofing usually shows up after the
waterproofing has been made inaccessible by backnlling around the
garage walls. Sometimes leaks in basement or retaining walla
below ground Ievel may be sealed from the inside, using any of the
• number of available techniques including quick-setting grouts,
pressure-injected epoxies or other materials. If that fails, bentonite,
a clay that swells when wetted, may be injected into the outside
ground adjacent to the leak. Bentonite installers with speciaii7ed
equipment operate under a number of trade names and can be
found in most metropolitan phone books. Be sure to check the
installer's references.
If all other repairs fail, it may be necessary to eliminate the source
of groundwater or alternatively, the earth next to the foundation
wall may have to be excavated and the waterproofing repaired
directly. Other repair methods are possible, but are beyond the
scope of this manual Consultation with a qualified geotechnical or
structural engineer should be considered..
36
ifig: 18T7 ,623
[HE .�.
�•Yy�=. � . . ;�:�, �:r;�- w-c NOTES
AP
Included in this section are discussions of:
Carbon monoxide monitors
Guardrails and handrails
Pedestrian exit signs
Emergency Lights
Fire safety equipment
Tipping hazards
Air handling systems
@! Housekeeping
When an operator is responsible for maintaining the foregoing,
safety checks of the above items should be made daily or at least
weekly. There are some elements in a parking garage that merit
special safety checks.
Carbon monoxide monitors, noise alarm systems, and communica-
tion systems are often used in enclosed or undeig,ound parking
garages. These monitors and the ventilation systems should be
checked daily for proper performance. The instruction and opera-
tion manuals for this equipment should be consulted and followed.
Metal handrails and guardrails at the edges of parking floors are
subject to damage from impact and corrosion. It is recommended
that these handrails and guardrails be checked monthly to verify
that they are rigid, are not damaged, and can serve their intended
purpose. Less susceptible to damage,but equally deserving of peri-
odic safety checks,are concrete guard walls,stair handrails, railing
bases, and stair nosings.
Most building codes require illuminated exit signs to be placed by
each stairway on all floors and at other points of pedestrian ingress
or egress. Many times these signs are white with red letters.These
illuminated signs should be checked daily to see that the light bulbs
are working, and the sign faces are intact.
Special emergency lights and the total lighting system should be
checked regularly for proper operation. See Section 3 - Electrical
Systems.
37
REk
NOTES Fire safety equipment should be checked regularly. This includes
fire extinguishers, standpipes,hose cabinets,fire sprinkler systems,
and fire pumps, as well as fire safety informational si'iag. See
Section 9 -Plumbing Systems.
= fid- i:3�-•�iy '".e,�-_. .^_ �_ ._ - -
•
Above: Clean lobby = =
Right: Damaged fire hose cabinet
Preventive Maintenance
Due to deterioration, concrete floors, sidewalks, or other walkway
surfaces can develop holes or pockets that can cause tripping haz-
ards. These holes or pockets should be filled immediately, even if on
a temporary basis. See Section 14-Structural Systems, for causes of
deterioration and cautions about temporary patching.materials.
Repairs
Only experienced and qualified personnel should install and repair
carbon monoxide and air hanclling equipment.
33
SEC. 1 ' ! 'LA 623
12_ SECURITY SYSTEMS.-z:_.::::: - = "= NOTES
{
Included in this section are discussions of
Audio monitoring
Call for assistance buttons
Closed circuit television
Elevator cab communication
Alarms - Cashier booths
Doors
Elevators
■ Housekeeping
It is suggested that in those instances when the operator has the
responsibility to maintain the security system that the system be
checked daily as part of a walk-through inspection,but no less often
than weekly, to determine if the system appears to be functioning
properly.
Security systems that may be used in parking garages include the
following-
• Audio monitoring devices may be located in stairs, elevator
cabs, and/or parking areas. Both the monitoring devices and
the sequencer/listening stations should be checked-
• Two-way audio systems that may be incorporated with audio
monitoring system and/or activated by"call for assistance but-
tons"placed at elevator cabs, stairways, and/or other locations.
• Telephones in elevator cabs, cashier booths,or other locations.
• Alarms in elevator cabs, eaghior booths, and offices.
• Alarms or other warning devices on stairway doors to indicate
that they have been opened and/or are not closed properly.
• Closed-circuit television in special areas or throughout the
parking garage.
39
'REL. 171 1'1 N u 'LtL�
NOTES ■ Preventive Maintenance
Preventive maintenance and repair of security system equipment is
best left to those specially trained for the specific equipment
Elaborate systems may also merit a service contract to help assure
quick response of qualified repair personnel when needed.
40
#C. 184711T 11T '[ALF
-1� -p •
� , ; NOTES
• 4 ,..< ate:
Inclz,id in this section are discussions of:
Illuminated signs (internal and external)
Non-illuminated signs
Graphics on walls, beams, floors, etc. (not painted)
The signs inside and outside any parking garage play important
roles directing and informing the users. These signs may include
ill„minated graphics or other graphics mounted or painted on
walls, posts, floors, beams, columns, or suspended from ceilings.
For painted signs or supergraphics, see Section 7 -Painting.
... r�'.".-- ..gra x 1� _—.
121
Y
Easy-to-read signage
■ Housekeeping
It is recommended that all mounted signs be checked weekly to ver-
ify that they are in place and visible for proper functioning. Most
illuminated signs such as "full"signs,fee indicators, and exit signs
should be checked daily.
Replacement or c1PAning should be done as required to maintain all
signs and graphics in a clean and legible condition,at least quarterly.
■ Preventive Maintenance
Quarterly,the sign or facing material should be examined for dete-
rioration and dirt. See also Section 1 - Cleaning.
Graphics applied on floors should be carefully inspected twice
annually to determine their legibility to the motorist. Dirt,oil,etc.,
should be removed and the graphics replaced as needed_
41
REC. 181 ( 1J�L
NOTES 4 TREAlQURAL5Y5?E
Included in this section are discussions of:
Floors
Expansion joints
Control joints
Construction joints
Stair and elevator towers
Beams, columns and walls
Structural steel elements
The structural system is the main element of any parking garage and
usually represents the largest portion (up to two-thirds or more) of
the construction investment. Protection of that investment requires
an adequately budgeted program of regular inspection and preven-
tive maintenance. Deferred maintenance can lead to costly repairs.
Certain precautions during construction can also improve perfor-
mance of the structure. Adequate drainage, proper concrete quality
control, crack control, and proper sealant detailing are key items.
The garage structure support system may be one of many common
types of steel and/or concrete framing. Common to all systems is
steel, whether concrete reinforcement or structural steel shapes.
Unless protected, steel will corrode (rust). Corrosion of the steel
may weaken the garage structure. There have been cases where a
car has broken through a floor, or where part of a garage has col-
lapsed because of excessive corrosion.
In planning.new structures or repairing structures,one of the keys to
proper long-term performance of a parking structure is proper
concrete cover over the reinforcing steel. This is particularly impor-
tant for reinforcing steel located near the driving surface. Whether
the reinforcing steel is mild steel reinforcing bars or post-tensioned
tendons, it is recommended that a minimum clear concrete cover of
1-U4 inches be used in any area of the country, with the cover
increased to 2 inches for field-placed concrete where deicer salts or
airborne salts are present.
Equally important for new construction or repair is the quality of
the concrete. A minimum concrete strength of 4,000 psi is recom-
mended and 5,000 psi preferred.. Of primary importance is the
water-cement ratio. A ratio of no more than 0.40 is recommended_
42
RtEC. I BTTOPE ULA
This should provide high-quality, low-porosity concrete with NOTES
increased ability to resist the penetration of chloride ions.
In the typical garage, the floor surface is subject to the most severe
conditions of load, wear, and exposure. The floor (containing steel
reinforcement, construction joints, expansion joints,joint sealants,
electrical conduit, electrical junction boxes, and possible heating
cable or piping) may also have sprinklers, drain piping, and signs •
suspended from it. The above elements, plus the application of
deicing salts, combine to make the floor susceptible to premature
deterioration if not properly drained, sealed, and maintained.
Types of deterioration which tend to occur in a concrete floor are
spilling, cracking,leaching, scaling, and joint deterioration. Span-ins.,
leaching, and scaling may be controlled, or at least reduced by good
concrete quality control during construction and by the periodic
application of a highuality concrete sealer or membrane system.
Joint leaking also contributes to concrete deterioration and is the
cause of many durability problems experienced by parking stric-
tures today. The deterioration is especially prevalent in areas that
use deicer salts, and in areas adjacent to or near salt water.
Spalls or potholes in reinforced concrete surfaces caused by corrosion
are usually dish-shaped cavities. They can be up to several inches
deep and cover one to several square feet of surface area. Spalls can
occur individually or in groups covering several hundred square feet.
Horizontal fractures called"delamination"often develop parallel to
the exposed concrete surface when the reinforcement is closely
spaced Fractures originate where corrosion has damaged embedded
reinforcement or other embedded metal,especially ferrous electrical
conduit. Freeze-thaw cycles, vehicular traffic, and additional corro-
sion influence the rate of fracture migration and spall development.
Spalls can also develop from concentrated loads at edges or corners
of members or from a sharp blow from external sources.
■ Contamination
Concrete is a naturally porous materiaL During construction,
excess water not required for hydration eventually evaporates,
leaving behind an interconnected network of pores and capillaries.
Concrete capillaries have diameters ranging from 10 to 1,000
Angstroms in diameter.The chloride ions are less than 2 Angstroms
43
SEC. I al-Mt
NOTES in diameter. Penetration of chloride ions into concrete and subse- '
quent accumulation occurs readily on surfaces exposed to deicing
salts, wetting and drying, and freeze-thaw cycles.
Locations in coastal areas are also exposed to salts. Essentially; all
concrete is susceptible to chloride ion contamination by virtue of its
natural porosity
Concrete porosity can be reduced during construction by reducing
the amount of mizwater, and by additives. By removing excess mix-
water, permeability is reduced. Silica fume has been used success-
fully to lower the permeability of the concrete. Other admixtures
are generally called pore blockers and pore liners.
Reinforcement embedded in concrete is usually protected by a thin
Dude film remaini g after manufacturing and the passive effect of
highly alkaline concrete. Salts, either calcium or sodium chloride,
• can penetrate sound high-quality concrete and accumulate in suffi-
cient quantities to cause corrosion of embedded reinforcement
Research indicates that the corrosion threshold (when corrosion
can begin) is when chloride ion accumulation exceeds 1.1 to 1.6
pounds per cubic yard (300-400 ppm).
Metallic corrosion is an electro-chemical process that induces pro-
gressive deterioration. Corrosion by-products, `rust," develop at the
steel surface causing high stress in the surrounding concrete. Rust
expands to a volttmP of two to three times that of the parent metal.
The by-product accumulation creates internal pressure on the adja-
cent concrete,which results in cracks developing in the surrounding
concrete (see Figure 1). Initial cracking due to corrosion can occur ,
REINFORCc-D CHLORIDE ION
CONCRETE DECK MIGRATION INTO OECK
\181.57
1
C.1ACKp\
o
O.DEPTH OF CLEAR COVER OVER REBARS
E=DIFFERENTIAL POTENTIAL(GALVANIC) IN REBARS
Figure I - Rebar corrosion spoiling mechanism
44
18TTEft 531.
J,
tt
when the section loss of the parent metal is as low as 5 percent. NOTES
Cracks may appear vertically over the reinforcement nearest the
exposed surface. These cracks allow direct access of moisture and
additional chloride to the reinforcement This causes accelerated cor-
rosion and subsequent delamination. The problem may be further
accelerated when cracks form from a total horizontal delamination.
Once initiated, corrosion stops only when the supply of oxygen and
moisture is cut off completely, when an opposing electrical current }
is applied to the reinforcement network (cathodic protection), or if
the electrolyte(water)is removed, or if the parent metal is entirely
consumed by rusting. The corrosion process consists of microcell
and macrocell corrosion.. Microcell corrosion occurs when electrical
current discharges from reinforcement at the anode and returns to
the same reinforcement at a cathode. Macrocell corrosion occurs
between different areas of floor slab reinforcement, which has
different levels of-chloride contamination, different moisture
content, or for some other cause creates differential electrical poten-
tials.A battery effect occurs,which causes rapid corrosion and related
deterioration.
The corrosion process and its subsequent effect on a reinforced
member is progressive.The rate of corrosion is related to the chloride
content The rate of corrosion correlates directly with the occur-
rence of additional delam;nations and subsequent spoiling. The
corrosion rate is generally thought to be controlled primarily by the
availability of moisture, oxygen, and chlorides, and, secondly, by
the amount of surface area of the anode and cathode. Also, corro-
sion is accelerated by increased heat. Corrosion is basically
dormant below freezing; the rate of corrosion approximately
doubles for every 10 degrees Centrigrade above freezing. Corrosion
and subsequent deterioration can be slowed by reducing the avail-
ability of moisture and oxygen.
The effect that corrosion has on a structural member is variable.
Four things happen, all of which are detrimental to structural
integrity-
• Surface spilling occurs, causing a maintenance and
serviceability problem.
• The reinforcement loses cross-section and stress
redistribution throughout the remaining network occurs.
• The reinforcement loses its bond with the concrete.
45
,
OFF. 18T7DPC €''j,.
'REC. (�1 ( JJ�
NOTES • Concrete cross-section loss, in addition to reinforcement
cross-section loss and bond loss, impairs the load-carrying i
capacity of floor slabs and beams (see Figure 2)-
t
- 1
ROAD SALT
1. Moisture with chloride ion penetrates concrete and
reacnes steel in sufficient Quantity to
cause corrosion.Corrosion ' 1 i j • . i
proceeds at a rare controlled ; 1a ,^ ' ' j
by chloride concentration I L. , , 1
and availability of — — r' t
moisture and oxygen. „, V ;
MOISTURE An , �; Oa
CHLORIDE ION , al. REINFORCED .
,, 'a CONCRETE ,
FLOOR SLAB
\-REINFORC=MEM '
2. Rust builds up around steel musing high
stress or pressure.Cracking occurs I 4'.a
and migrates to surface under I
. influence of traffic action
and tree=thaw cycling. , y'
DELAMINATIONOA FRACTURE \s ,'t �j
�/� °
\--RUST BUILD-UP CAUSING?gESsuRE
3. Concrete breaks away leaving open spall �-OPEN SPALL
or pothole.Full circumference corrosi.
proceeds until complete debonding
of reinforcing occurs;section .
loss accelerated. _.
11)
SALT WATER / QO
' �.
'a
\._COMINUOUS CORROSION
Figure 2 - Corrosion-induced spelling process
One aspect of the corrosion phenomena that makes repairs difficult
is that multiple delamination may occur as the chlorides migrate
deeper into the floor slab. Where top surface spelling coincides with
full-depth floor slab cracks, it is common to find ceiling spalls directly
below floor spans.The bottom reinforcement corrodes similarly to the
top, thus causing a multiple effect of concrete and reinforcement
section loss. Surface spelling can reduce the concrete section_At the
same time, severe corrosion of tension-reinforcement (top reinforce-
ment at supports and bottom reinforcement at mid-span) can result
in over-stressing and possible reinforcement yielding or failure.
46
c: 1$ 7' 3
SpAlling can occur on all structural members. Floor slab systems NOTES
frequently experience the most extensive and widespread effect of
spelling. Beams,columns,and walls are also susceptible to corrosion-
induced spoiling when subject to chloride contamination from runoff
or spray (see Figure 3).
1.CHLORIDE 4r"
WADS=
EMBEDDED REINFORCEMENT
A)MILD STT&
PRESTRESSED STEEL
SEAM OR
COLUMN FACE
2 PRIMARY
FRACTURE
3.SECONDARY
FRACTURE
PROCESS DESCRIPTION
1. Chloride ion intrusion contaminates concrete—lowers pH and inducts corrosion of
embedded reinfoccecnent.
2. Corrosion by-product'rust"develop at bar surface and require expansion roerrL
3. Rust expansion causes pressures which crack surrounding concrete-
}
Figure 3 -Spall development in beam and column
■ Influence Factors
In the absence of a permanent protective barrier between the slab
surface and the reinforcement(such as a membrane or epoxy coat-
ing on the reinforcement), the depth of concrete cover over embed-
ded reinforcement and the permeability of the concrete are the
most important aspects of design and construction that can delay
the onset of spelling.Floor slabs with less than recommended cover
over the reinforcement, which are subject to intense deicing expo-
47
,ate ,I wig
NOTES sure, undergo rapid and severe corrosion-induced spoiling, Floor
slabs constructed with lower water-cement ratio concretes, addi-
tional concrete cover at top reinforcement and with protection from
intense deicing exposure will provide increased service life.
In preparing maintenance programs for parking facilities, consid-
eration should be given to the areas where concentrations of rein-
forcement occur near the surface. With flat slab design, this
involves areas adjacent to the column For one-way slab and beam
designs, the area above the beam typically has more top reinforce-
ment than at mid-span. Maintenance efforts directed at protecting
these areas from intense exposure will pay off in reduced spelling
and extensions of repair-free service life.
In order to properly prepare restoration construction documents, it
is first necessary to evaluate the effect spalling has had on the
carrying capacity of individual members and then to evaluate the
cost effectiveness of repair procedures with regard to the total
restoration program. A structural engineer experienced in parking
garage restoration should be retained to perform the required
investigation, analysis, and evaluations.
Cracking
Concrete cracki g is caused by tensile stress. This may be either
construction or service related. Cracking commonly attributed to
construction may be caused by improper concrete placement,
improper consolidation, improper curing of the concrete,premature ,
removal of form supports, or by plastic or drying shrinkage of the
concrete. Service-related cracking is usually due to temperature
changes, load., settlement, or internal stress. Corrosion of rein-
forcement and aggregate chemical reaction are common causes of
internal stress.
Not all cracking is detrimental to the concrete member. In many
cases, cracks are anticipated and reinforcement is provided to
transfer stress across the crack. Properly positioned reinforcement
arrests crack development by keeping cracks short and limiting
their width. Cracking can be detrimental when it occurs to an.
extent and frequency not expected- If this happens, steps are nec-
essary to minimize the effect cracking.has on long-term durability.
48
I8 ;s35
■ Leaching NOTES
A. Leaching is caused by frequent water migration through the floor
slab or cracks- As water migrates through the concrete, it takes
along a part of the cementing constituents, depositing them as a
white film, stain, or a stalactite on the ceiling below. This process
may weaken the concrete over a period of years. It is accelerated by
porous or perpetually moist concrete. Leaching frequently occurs at
cracks beneath gutterlines in the concrete surfaces above.
--- • -
`' o yam....
Com?
- . _ _
Leaking construction joint Reinforcing steel corrosion
O Scaling
Concrete scaling is a deterioration mechanism that attacks the mor-
tar fraction (cement paste) of the concrete mix. It is characterized
initially as a minor flaking and disintegration of the concrete surface.
With passing tune it progresses deeper into the concrete, eventually
exposing aggregate, which breaks away. This further contributes to
the process by exposing more paste to the elements.In extreme cases,
apparently sound concrete can be reduced to a gravel-like condition
in a short period of time(see Figure 4-following page).
Concrete scaling is generally caused by freeze-thaw action. When
dry concrete is frozen, there is little damage. If saturated concrete
is frozen, excess water freezing in the concrete causes high stress
and weakens the mortar. Exposure to cyclic freeze-thaw action is
very destructive to concrete in a saturated state if the original con-
crete is not of sufficient high quality. Concrete with a proper
amount and distribution of entrained air is resistant to scaling.
49
NOTES i—wAral
t. Concrete becomes saturated by water .
ir_
'.• penetrating through pores and - p r �A i
capillaries o :-
c a, •
in' • `'9 a'7
I - I
2. Concrete is frozen in a saturated state • •
causing high stress.Loose flakes appear cy'.a . €*..1
on the surface as the mortar breaks ��
away. .
•
o A. • o.
60. • -.0 0 'i
Ai
I
3. As flaking progresses,aggregate is _ {
exposed and eventually breaks away, - 1
thereby exposing mare paste to freeze- �'• • •o ;,
thaw damage.In extreme cases - poi
apparently sound concrete car be
reduced to a gravel-like state in a short .: St:p - 0 00 0
period of time. _
I 1 I
Figure 4 -Concrete surface scaling
® Joint Deterioration
The two most common provisions made for crack control or relief of
restraint in concrete slabs are control joints and isolation joints.
Such joints have long been a source of maintenance problems.
Joints on supported floor slabs must be sealed against water leak-
age and intrusion of incompressible materials. Both situations are
damaging to the joint system.
Construction joints deteriorate for several reasons, usually associ-
ated with failure of the sealant or failure of the adjacent concrete-
Joint sealants may not have the required degrees of flexibility,
bond,strength, or durability for a particular application.If concrete
adjacent to the joint is not sufficiently durable, then local scaling
will cause failure of the joint sealant by destroying its bond to the
concrete.
50
Isolation joints are also susceptible to premature deterioration.The NOTES
most common causes of early deterioration are improper joint
design or sealant material specifications, incorrect installation of
the expansion device, and in-service damage from traffic or snow
plows.
Cracks in concrete are common. The existence of a crack does not
necessarily mean that the structure is in structural danger. Cracks
are generally serious when they occur in a pattern or frequency
that is not considered typical for a particular structural member.
Cracks are also a problem when they allow water leakage and sub-
sequent contami„ation of the concrete and accelerated corrosion of
embedded reinforcement. Cracks also allow leaching and surface
staining, which can also cause visible deterioration of a structure,
and staining of parked vehicles from dripping water. The extent
and nature of cracking is influenced by design details, construction
methods, and quality. Cracking generally results from three basic
actions: restraint of volumetric movement; shrinkage of the con-
crete; or structural tension.
Methods of sealing a crack to prevent or limit moisture penetration
will depend on the cause of the crack and a prediction of what the
crack will do in the future. Some crack repairs require restoration
of the concrete into its original monolithic state; others can be
sealed and left free to move.
The restoration of cracked concrete to its original monolithic state
is typically accomplished with epoxy injection. For very shallow
fine cracks a low-viscosity epoxy may be poured into the joints until
it fills and seals the cracks. Larger and deeper cracks(> .003 inches
to .005 inches)may require the use of pressure epoxy injection.This
injection should proceed from the bottom of a crack and either be
considered filled when it emerges from the top surface of an
unsealed crack or from an upper access port for a sealed crack.
Manufacturers'recommendations should be followed regarding the
mixing, installation, application, temperature, and curing of such
epoxy applications.
Cracks that are to be left free to move and do not require structural
restoration should be sealed to avoid water penetration. Typically,
these cracks should be sealed from the top only. They may be sealed
by routing out the cracks and using an appropriate sealant. These
cracks are typically routed out using a grinder to achieve a uniform
width and depth to a sound surface prior to sealant application.
Typically a urethane sealant is then applied into the crack for its
length.Sealant size should be at least Ill-inch deep and 112-inch wide.
51.
18701 •
NOTES Some joints" are designed and built into the typical garage to
accommodate movement and shrinkageara
strains within the o bee
(expansion/isolation joints, const:ucaon joints, control joints, and
precast member joints).
^+%-_=`='-.+ ry = _
"�-�i.:e�G": �=� •''�x__��cC"mv �'�!- ��+.,� G..4�'=^ate►W+
"K..�� `_`_;.�•-. yl.`+ �%': � v
Failed joint sealant Failed expansion joint LL
Isolation (expansion) joints provide complete separation between
secons of a garage and accommodate movements associated with
temperature changes and long-term shrinkage and creep.They are
generally detailed with a flexible material as a seal. Other joint
designs provide a steel traffic plate to bridge the joint opening, or
may simply employ a flexible gland to seal the joint while allowing
for movement. Joints of all kinds must be checked regularly for
damage and deterioration. Isolation joints work best when differ-
ential deflection between the two sides of the joint is Jnini rri?ed by '
structural supports crossing the joint.
Construction joints are located at predetermined points. These
joints typically have a tooled groove tilled with a flexible sealant,or
may have cast-in-place water-stops to prevent leakage. Water-stops
are not good solutions in freezing climates because water can accu-
mulate at the stop in the joint and cause damage.
Control joints accommodate c'ark-ing by creating a series of weak-
ened planes at predetermined points in floors and walls. In precast
parking structures such joints are recommended at the junction
between all precast deck members. Control joints are groove-tooled
or formed in plastic concrete or sawcut in the hardened concrete
and then filled with a flexible sealant to prevent water penetration.
Sawcutting to form control joints in new construction is not recom-
mended because shrinkage in the concrete frequently develops a
S")
• REC. IODE E39
cracking pattern before the sawcutting can take place. Thus the NOTES
purpose of the sawcut is defeated.
For precast,pretopped parking structures,the joints between adja-
cent members become control joints and are sealed with a flexible
sealant to prevent leakage.
Floor slabs at entrance and exit lanes receive the most exposure to
deicing salts; next come gutter lines adjacent to walls and curbs.
Areas where cars turn corners or start/stop are subject to heavier
wear than other floor areas. Such areas should be more closely
monitored for deterioration and treated promptly.
Regardless of care taken during construction, garage floors often
have some areas where water collects into shallow ponds. Deicing
salts will collect with the water, making the floor in these pond
areas more susceptible to salt penetration. If ponds form over floor
joints, possibilities for deterioration are especially great. Areas
where ponds tend to form should be checked after each rain or
snow, and the ponds eliminated by sweeping, squeegeeing, or
adding a drain.
Z Housekeeping
Routine housekeeping generally consists of frequent sweeping of
the garage and periodic washdowns of the decks. Washdowas
should be with sufficient quantities of water to wash away
chlorides. Garden hoses are too small to do the job. For `cleAe ning
recommendations, see Section 1 - Cleaning.
Regular removal of sand and grit accumulations from drive aisles
will help to minimize the loss of slab surface through abrasion, as
well as help minimize damage to sealers, sealants, and expansion
joint systems.
It should,however, be noted that in certain cases, washdowns may
be detrimental to a structure if damage due to corrosion has
already begun, such as if extensive surface delamination have
begun to form(e.g., more than 1 percent of total surface area).
The advisability of washdowns for a particular structure should be
reviewed with a structural engineer who is knowledgeable in such
matters. The removal of loose concrete from delaminsited or spafed
surfaces should also be reviewed with a qualified engineer.The engi-
neer may recommend removal of damaged overhead concrete to pre-
53
REG. I6 1Oy 640
NOTES vent it from falling on a vehi-
_ `• cle or pedestrian.
• ;M'-! r , During washdowns, care
should be taken to remove
excess water from slab
-- - faces immediately after wash-
ing. In enclosed garages, the
-_ c '` -°� parking ventilation system
= should also be operating
. after
washdowns to eliminate
humidity buildup. Both•
mea-
- sures will reduce the amount
_ .
_ ._
- -- = : of potential moisture penetra-
_ _ Y `- tion into the deck or soffit
Spring washdown surfaces.
• Snow plowing and ice removal are discussed in Section 15 - Snow
and Ice ControL
® Preventive Maintenance
Inspection Program
The first step to any well-planned maintenance program, whether
for a new or old garage,is a regularly scheduled walk-through survey
— a visual inspection of the entire garage.An excellent reference
for such a survey is the "Guide for Making a Condition Survey of ,
Concrete in.Service,"published by the American Concrete Institute.
During the walk-through survey, observe the location and extent of
conditions that could cause, or have already caused, concrete or
steel deterioration_ Items to look for include surface deterioration
on top and bottom surfaces of the floor systems; evidence of water
leakage and/or staining through or an the floors, walls, or other
structural elements; cracks in floors, beams, columns, and walls;
and rusting of exposed steel. Leaking and staining are often early
indicators of future problems.A survey walk-through must be done
by a conscientious observer. If evidence of deterioration, scaling,
spalling, cracks,or leaks is observed, an engineer experienced with
parking garage restoration should be consulted. However, at least
every two years the inspection should be made by a qualified engi-
neer to help ensure that no potentially serious conditions have been
overlooked.
54
GAFF• ,
8rTHOTt D441.
Drainage NOTES
_ a
Drainage is one of the most important factors affecting the dura-
bility of all parking structures. The length of time moisture is
allowed to collect on concrete surfaces will have a profound impact
on salt contamination levels in the decks. Elimination of ponding
by providing additional drains and/or building up drainage slopes
is recommended as a first line of defense against corrosion.
Concrete surfaces protected with sealers and membranes also
require good drainage. These protection systems cannot protect
concrete under standing water unless special systems are used.
Water puddles should be eliminated where deicing salts are used.
Comments regarding maintenance of plumbing systems are pre-
sented in Section 9 - Plumbing Systems.
Corrosion Protection
Sealers and waterproof membranes are frequently used to reduce
moisture and salt penetration into parking garages, and thereby
delay or prevent the onset of corrosion activity in parking garages
exposed to salt.
Sealers may improve the abrasion resistance of the exposed con-
crete surfaces or retard the progression of surface flaking and scal-
ing where slabs may not have sufficient air entrainment to resist
freeze-thaw damage.
Membranes and sealants specifically reduce the rate of chloride
penetration into concrete. However, such systems are not com-
pletely impervious to chloride ions, and they do have a finite life-
time before degradation occurs. There are concrete additives that
inhibit corrosion of steel inside the concrete. These additives polar •
-
ize the steel anodically and/or cathodically, thus reducing the rate
of corrosion. It is quite effective to combine membrane or sealant
waterproofing with internal corrosion inhibitors.
Another way of reducing chloride penetration into concrete is to
reduce the permeability of the concrete. Silica fume is a concrete
admixture designed to increase compressive and flexural strengths,
increase durability, reduce permeability, and improve hydraulic
abrasions-erosion resistance.
55
°lc- 18170g 642
•
NOTES I Cathodic protection is gaining greater use in l nni.ng corrosion in
reinforced concrete parking structures. The principal behind
cathodic protection is the connection of reinforcing steel to a low
• voltage direct-current power source to produce an electrical charge
that electrically impedes the corrosion process.Recent development
of conductive coatings has produced a soEt-mounted cathodic pro-
tection system that may offer cost-effective protection for some
appllcations. The use of this system in parking garages is relatively
new and under continuing development; however, recent installa-
tions of cathodic protection in parking garages have generally been
successful. Advice of both an independent corrosion engineer and
structural engineer should be solicited when evaluating system
effectiveness, durability; operating costs, and overall feasibility of
cathodic protection.
t• V Ni-:-.;: !-7 'L--s.t
�."y -mss r
i
• A r•-
-L—. -.7 -_ . :IL1 • -r
? '± _ -
�. 1 .,s �4�_ - es; �` yam ' •�- - ' .� v�--.-71
- '.Y+'-1 --_ lrV srn:aA.IT.'.4.h ire:2`:r-ice' A' tr 1-,:-. •r"���•��'4.
Installing cathodic protection
Unbonded Post-Tensioned Structures
Current unbonded post-tensioned construction for state-of-the-art
parking garages use encapsulated tendon systems containing highly
stressed, high-strength steel cables protected by a grease coating
and plastic sheathing. It is important that the plastic sheathing,
anchorage, and other construction details exclude all water from
contact with the grease or the cable, as the grease itself does noc
, typically provide permanent corrosion protection from water.
IExtended contact with either water or salt water can cause breakage
56
1877 0; 1643
of the cables that often cannot be readily detected from a visual exam- NOTES
ination of the structure.
Investigation by a structural engineer experienced in such matters
may be warranted in cases where it is possible for water to gain
access into the post-tensioning tendons, either during construction
or through the anchorage areas or through discontinuities in the
plastic sheathing. Repair of post-tensioned structures can be very
complex;therefore, a second opinion(peer review)regarding proce-
dures is often warranted. Note that post-tensioned systems are
used in enclosed buildings without the encapsulated protection
used in parking garages.
E Repairs
Repairs may be classified as cosmetic (minor) or major. Minor
repairs are generally those that, if left undone, do not affect the
structural integrity of the garage.
An example of a minor cosmetic repair would be a repair required
to refinish the corner of a concrete column knocked off by a car
bumper. If there is no major damage,then the repair may be made
by cleaning and patching with new concrete or any of several com-
mercially available patching materials.
Major repairs to concrete include those for scaling, spoiling, and
cracking.
A good reference for evaluation and repair procedures is the
American Concrete Institute (ACI) Compilation No. 5, "Concrete
Repair and Restoration?It contains a broad range of articles on the
subject of concrete repairs.
All major repairs are developed through the evaluation of a protec-
tion system. Many protection systems are related to corrosion or
moisture protection. The expected life of repairs can vary from a
short one to three years to much longer depending on the repair
details and the protection system.
Evaluation of Repair Scope
The first step in repairing concrete damage of any kind is to deter-
mine the nature and extent of the problem. The walk-through survey
57
'Rf:C.
15 TOD :644
NOTES is a start, but it must be understood that a visual survey reviews
deterioration visible at the concrete surface. Most of the concrete
deterioration is related to problems 2 to 3 inches below the surface.
A review of the walk-through survey results may indicate need for
a more comprehensive survey that would include testing for sub-
surface fractures and delamination and/or salt cantsminatiom
Despite a most thorough investigation, some hidden deterioration
may be revealed only after excavating into the concrete member.
An experienced engineer may recommend exploratory excavations to
review internal structural conditions before the start of repair work..
Avoid Makeshift Repairs
Repairs to any damaged areas must be undertaken with care.
. Improper repairs hide, but do not cure, the problem. An example is
a temporary asphalt patch over a spall. Asphalt is porous and will
permit salt-laden water to collect unseen at the bottom of the spall,
which will often accelerate corrosion. If steel reinforcement is
exposed at the bottom of the spall, the continuous contact with salt
water will expedite the corrosion of the steel and weakening of the
floor.The improper repair will hide the problem until the corroding
steel has caused a larger spall.
Surface Repairs
Repairs to scaled or severely pitted areas may range in complexity
from simple cleaning and seali g, to isolated patching, to installer-
, tion of a concrete overlay or a protective membrane. Surface scal-
ing and pitting is usually caused by a deficiency in the concrete
properties. The deficiency can be evaluated by testing to determine
the depth and severity of the problem. Testing is recommended
before starting a complex and expensive repair. Cleaning has been
discussed in Section 1.
Spa11 Repairs
A concrete "patch repair" is generally an effective repair for isolated
spalls. Concrete "patch repairs" have different expected service
lives. The service life is affected by the repair materials, repair
details, protection systems, and the cause of the original damage.
Patching with "normal" 4,000 psi concrete can accelerate corrosion
58
�11CV. 11377011 x64
in surrounding chloride-contaminated concrete. It is, therefore, NOTES
important that repairs consider the specific details and requirements.
A good patch must be durable and must bond well to the concrete
substrate. Patch edges should not be feathered because the feath-
ered edge usually fails. The edge should be a minimum of 1/4-inch
thick. The patch must also react to temperature changes in the
same way concrete does, and be compatible with it. Early failure of
many polymeric patching materials is directly due to the difference
in coefficients of expansion between the patch material and the
underlying concrete.
While many patching materials have been tried, the most widely
used and effective are generally Portland cement-based materials.
Other successfully used patching materials are various epoxy and
polymer concretes, although these are used less extensively due to
their greater cost. Polymer concretes are classed as thermosetting
and hydrating. Examples of thermosetting polymer concrete are
those containing epoxy and those containing methyl methacrylate.
Examples of hydrating polymer concretes are those containing
styrene-butadene(latex") additives that enhance bond and reduce
permeability.
In all cases, installation of patching should be performed by a con-
tractor experienced in similar work and capable of maintaining an
acceptable standard of patch quality and installation suitability.
American Concrete Institute (ACI) Standard Specifications for
epoxy systems (ACI Standards 503.1 through 503.4)are good refer-
ences. The American Society for Testing Materials (ASTM) stan-
dard material specification "ASTM C 881 Epoxy Resin Based
Bonding Systems for Concrete"may also be helpful, but in all cases
check expansion coefficients for compatibility with conventional
concrete. If none are given, do not assume either compatibility or
satisfactory performance.
Overlay Repairs
When the total area to be patched is a significant part of the floor
area, an overlay may be more cost-effective than isolated patches.
An overlay can also be used to modify floor gradients to improve
drainage and eliminate ponding.
59
RfC. 18iTNIT €4b
NOTES Overlays will add thickness to the original floor system. Headroom
will then be less than was originally designed and the structure
weight (dead load) will be higher. These considerations must be
examined by a qualified engineer to ensure that the overlay does
not cause more problems than it solves.
Several types of concrete overlay have been used extensively and
have been found to be highly effective: low-slump, high-density
concrete (LSDC), latex-modified concrete (LMC), and microsilica
concrete. Conventional Portland cement concrete has also been
used, but less extensively.
LSDC (also called "the Iowa Method") overlay consists of a low
water-cement ratio, high cement content concrete that has reduced
permeability to water and deicing salts. Workability problems char-
acteristic of LSDC can be solved by using proper additives. This
overlay should not be considered if its weight will be a problem.
LMC overlays use a special admixture in the plastic concrete that
reduces permeability to water and deicing salts, and is more effective
with less thickness than LSDC.The reduced quantities required far
an LMC overlay may be offset by its higher unit costs compared to
LSDC, so cost comparisons should be made for the specific project.
Conventional concrete overlays consist of a cement-rich mix with
usual slump and water reducing admixtures to reduce permeability
to water and deicing salts. This overlay may be a somewhat less
durable overlay than either LSDC or LMC but at somewhat less
cost.
Polymer concrete overlays have been used only on a limited scale
and have not been fully evaluated. Such systems,whether referred
to as polymer or epoxy concrete, can offer, however, solutions to
surface deterioration problems, and should not be excluded from
consideration.
Recently, silica fume concrete overlays have been used successfully.
Silica fume concrete has low porosity and high strength. Proper
attention to placing and curing techniques is mandatory with silica
fume concrete.
Overlay cost comparisons should be made only for the specific use
intended. General cost comparisons tend to be misleading due to
the effects of specific quantities and construction constraints on in-
place costs.
60
RSC. 1' ! l UI c €41
Post Tensioning Repairs NOTES
Unbonded post-tensioned structures can sometimes be repaired by
removing the old post-tension strand or wires, cleaning the ducts
and threading in new strand coated with high-quality grease. In
some cases, epoxy-coated strands have been used to provide addi-
tional protection against future corrosion. Waterproofing is typically
included in the restoration scope to reduce future moisture ingress.
Alternatively, the post-tensioning tendons can be abandoned and
an alternate structural system provided, for example, by installing
new steel beams below a damaged slab or installing an external
post-tensioning system.
Many post-tensioned systems can be repaired by replacing the
damaged portion of the system-Damaged post-tensioned anchors or
spliced sections of the tendon are often replaced.
Crack Repairs
Isolated leaks may be eliminated by proper crack repairs. If there
are many leaks in the floor, installation of a protective membrane
may be the best solution.
Ongoing Monitoring and Maintenance
Since repair procedures are often undertaken after deterioration
has begun, and since the original construction may not have incor-
porated certain design features to reduce corrosion,some continued
deterioration must be expected. An evaluation procedure should be
repeated at regular intervals, preferably annually, to detect any
ongoing deterioration at an early stage. Should deterioration occur,
engage only qualified engineers and contractors with proven
records of expertise in parking garage maintenance and repair.
61
i groit ,,648
NOTES
15 551VOW :4ND ICE CONITROLs'
•=��'r—mgr-_, .s.,`�_..=�.,..rt,�._..--imr::.�...r "
Included in this section are discussions of:
Snow plowing and removal
Snow melting
Ice control
® Housekeeping
As a rule of thumb, snowplow vehicle axle weights should be kept
below 4,000 pounds to avoid over-stressing the parking garage's
structural system. Good practice dictates checking with the garage
designer to ensure that the intended vehicle is not too heavy
The snowplow blade must not be allowed to damage the concrete
floor, sealants, toppings, or expansion joints.A heavy rubber blade
edge may be fitted to the bottom of the plow's steel edge,with plow
shoes or casters adjusted to keep the steel plow edge at least one
half inch above the floor.
Snowfall sufficient to hamper parking operations should be
removed_When snow is packed down by car tires,it becomes slippery
and can become a hazard. Snow may be plowed to predetermined
locations in the garage, particularly on the top floor and simply left
to melt, or it may be removed from the structure by a small front-
end loader, such as a 'Bobcat," or by a heavy-duty snowthrower.
Provisions such as gates can be provided in the exterior spandrels
to make sure snow is dumped from the structure to a designated
area to facilitate removaL Snow should not be piled so high as to
overstress the structure.
If the snow is dumped over the side of the garage, care must be
taken to avoid damaging the walls,panels,connections,sealants,or
other elements. Reasonable and prudent measures should be used
to avoid personal injury or property damage during snow removal
operations.
Snow dumped over the side may be left on the ground to melt, if
space allows. Care must be exercised not to pile snow on or against
another structure or to obstruct sight distances or emergency
access or cause damage to existing Iandscaping.In congested areas,
or by local ordinance, removal of the snow away from the garage
may be required. Removal may have to occur during specific hours.
62
L: 87T3g 649
NOTES
.J •ter ••�._�
-r+�r.�'- _ __ .._ �.::Z�''a�-'R�"-o`er^•..'
Snowplow with rubber blade attachment
If the snow is left in piles on garage floors, avoid overloading the
floor slab beyond its design load. Piles should be located where
snow melt will not flow across driving aisles. Melted water may
refreeze at night, leaving ice patches in the aisle. Frozen chunks of
snow or ice that may have fallen from vehicles should be disposed
of daily.Melted snow from the roof may run into a shallow area and
freeze, causing slick areas.These areas should be treated with sand_
Ice buildup may be controlled by using heated sand or a mixture of
sand and salt. Do not apply deicing chemicals containing chloride
directly to concrete unless absolutely necessary. Small amounts of
salt (3 to 6 percent by weight) added to sand can be effective in
increasing traction and facilitating ice melt.
Apply the sand/salt mixture to concrete only as needed and flush
the deck with a high-power water wash as soon as weather permits.
A fire hose or a minimum 1-112 inch diameter hose is recommended;
garden hose volumes are insufficient. Drains should be protected
against runoff-related sand accumulation during ice control opera-
tions. Temporary burlap or straw filters may be used to prevent
drain and piping from clogging.
Recent technology has seen the development of new products that
rninfrni7e the effects of chloride damage from road salts. Calcium
magnesium acetate (CMA)is a promising alternative to salt. CMA
is a non-corrosive (non-chloride) deicer.
63
ittC. a1 r I
NOTES C Preventive Maintenance
Some parking garages contain gas-bred,electric-powered, or steam
snow melters. These units should be checked for proper operation
each fall, and periodically during the winter months. To operate
properly, some units may need to be turned on several hours before
the predicted snowfall- Some units have a"snow sensor"that turns
on the unit when it begins to snow. If the sensor is not effective, a
manual switch should be installed.
Some parking garages have a snow melting system embedded in
the floor of certain areas, such as outside stairs or heated drive-
ways. Such systems are generally one of two kinds: electrical cable
or ethylene glycol fluid. In either case, the system should be
checked for operation before the first snowfall of the season.
Maintenance should follow the appropriate system manual.
• Breaks in cables (the electrical system) or pipes (the fluid system
are difficult to trace. Consequently, the system installer should be
contacted if operational problems arise.
Another snow melting system consists of heat (infrared) lamps
mounted above the surface. Maintenance of these lamps is similar
to other types of lamps as noted in Section 3 - Electrical Systems.
Lamp operation should be checked daily during the snow season.
Installation of infrared lamps must account for vehicle queuing at
entry/exit points. Vehicles standing in the same position below
lamps for long periods of time can have their finishes damaged.
Qualified installers should be consulted when contemplating this
type of equipment.
Whatever the snow melting system, an indicator light should be
installed in a highly visible central location to indicate when the
system is in operation. Some operators have learned after they
have received their power bill, that their systems were still on in
the spring.
64
,Q7 (�
REG. 1 l TTLIK
rw.
The recommended maintenance program that is outlined in this manual is intended to cover the
•
most typical aspects of maintenance, including those related to cleaning, safety, equipment, and
structure. For convenience, the maintenance program is divided into 15 descriptive sections. These
sections are:
1. Cleaning
2. Doors and Hardware
3. Electrical Systems
4. Elevators
5. Heating, Ventilating,Air Conditioning(HVAC)
6. Landscaping
7. Painting
8. Parking Control Equipment
9. Plumbing Systems
10. Roofing and Waterproofing
11. Safety Checks
12. Security Systems
13. Signs (Graphics)
14. Structural Systems
15. Snow and Ice Control
It is recommended that for each parking garage, a facility-specific maintenance program be
developed. The specific maintenance program should include the following items:
A. A schedule of cleaning,inspection,lubrication, and other recurring maintenance activities.
B. A catalog of all equipment,including manufacturer's service manuals for the installed
equipment. Product warranties should be included.
C. Records of preventive maintenance performed on any element,and logs of both service cailc
and types of repairs made.
D. Establishing responsibility for implementing and carrying out all portions of the program
E. A management control system to verify that the maintenance program is being carried out
and is effective.
The checklist that follows is a guide to many of the items in a parking garage that should be
checked and maintained at regular intervals.A suggested frequency of observation or attention is
indicated.
65
t)f F.
C. 1 B77 65
Rt
PARKIN n- UQURe1VIa1 AN -
,,ice-=�.ia� _ :.._ .�r-....- _.—� •—.ti.'- .�_..a�c+« r
p
Daly Weekly Monthly Quarterly Semi- Annually I Other •
Annually (see notes}
1. CLEANING
a Sweeping - localized 1 • I
■ Sweeping - all areas •
(including curbs)
a Expansion joints f 1 • L
• Empty trash cans I •
• Toilets
—floors,firm. res •
—walls •
• Cashier booths •
—floors,fixtures •
—wane _ •
• Elevators
—floors,doors, tracks •
—windows, glacs backs •
• Stairs
—floors, handrails •
—windows •
• Lobby, office
—floors •
—windows •
o Wash down parking floors I •
(see note below) 1
• Parking control equipment I •
(
2. DOORS AND HARDWARE I
• Doors close and latch properly • I 1
• Mechanized doors I •
• Panic hardware at security doors •
• Lubricate mechanized doors •
*Spring and Fall
NOTE:Washdowns should be a minimum of two per year,although it is recommended that they occur quarterly.
This may vary due to regional location, however.Northern regions should be washed down more frequently.
66
11: I arigt b5
PA RK INELSTRUC.TURE MA1IV7.ENANCE
I Daily I Weekly I Monthly Quarterly I Si-eI Annually Other
I Annually (see notes)
3. ELECTRICAL SYSTEM
a Checkolight fixtures and + • •
C
sed conduit
• Relamp fixtures I i • I I
• Special units - inspect I I I I I I
• Distribution panels I I I I •
4. ELEVATORS
• Check for normal operation I • I I ! I I
• Check indicators and • I I
other lights II
• Preventive maintenance service I j • I 2
I I i I
5. HEATING,VENTILATION
AND AIR CONDITIONING
(HVAC)
• Check for proper operation I I •
• Check ventilation in enclosed • I I
or underground garage
• Preventive maintenance service I I I • 1
6. LANDSCAPING I I
• Remove trash I • I I I
• Gardening-mow,trim, weed I I • I I
67
�. I&T 54
;.�- - = _ PARKING-.STROCZURE MAINTENANC
p
Daily Weekly Monthly Quarteriy I Semi- Annually Other
Annually (see notes)
7. PAINTING 1 1
• Check for rust spots
—Doors and door frames -
-Handrails and guardrails •
—Pipe guards, exposed pipes •
and conduits
—Other metal •
• Check for appearance
—Striping •
—Signs •
—Walls •
—Curbs •
—Zouch-up paint •
• Repaint I I I I ) I 11
L I I I I i
8. PARKING CONTROL
EQUIPMENT
• Check for proper operation I • I I I I I
• Preventive maintenance I I I ( I 3
9- PLUMBING/DRALNAGE
SYSTEMS
• Check for proper operation
—Sanitary facilities -
-Irrigation •
—Floor drains •
—Sump pump •
—Fire protection system •
• Drain water systems for winter I I I I I • I
• Check foricy spots-- • I I
• Remove snow and ice I • I I
68
18773C '655
0A,
4
Daily Weekly I Monthly I Quarter*I Semi- I Annually I Other
1 (see notes)
10. ROOFING AND
WATERPROOFING
• Check for leaks
—Roofing •
—Joint sealant in floors •
—Expansion joints •
—Windows, doors and walls •
—Floor membrane areas •
• Check for wear and •
deterioration'
11. SAFETY CHECKS I • ( )
• Carbon monoxide monitor I •
• Handrails and guardrails
• Exit lights •
• Emergency lights •
• gipping hazards • I I I
12. SECURITY SYSTEM
• Check for proper operation
—Closed circuit TV •
—Audio surveillance •
—Panic buttons •
—Stair door locks and alarms •
•
13. SIGNS (GRAPHICS)
• Check signs for:
—In place •
—Clean •
—Legible •
—Illuminated •
69
- „,-g-5. •''-c..,-,,A.••.,,.....-• ....;.!‘-',•:,.;.....i7L' ..'17,' ;•,44...;,-..: • - ..„. •_ • .
•
.
On.• i griOtt 656
•
•
•
•
•
•
•
•
, •"•i»' '' ,i.• i1( 0.Q2f6.
< r •
'�r, •, 7 i RDr' (k�^r.�`',•'"'~ Vit. S•,?c :.....1i. �T'r'•r �••!',. . .. t�, i'G.y4r t y
REC. D1 , UI'1 UJi .
When coating, protection or r it is planned one 7. CONCLUS1O
must be absolutely clear about the of lectives and aware of
the strengths and weaknesses of the various products and • Develop a long term stategy for
procedures available. Purely cosmetic work may be of
ale in keeping the building welcoming to the user, but maintenance of the car park and its
don't fool yourself into thinking it will slow the barriers.
underlying deterioration.
Waterproofing without attention to falls to prevent • Have a full set of readily accessible as
ponding is not likely to be reliable. Repairs need to built drawings and maintenance records.
consider developing corrosion around a spall.Concrete is
not an easily repaired material and one cannot patch the • Have a survey to establish current trends
cover to reinforcement as simply as one can repaint
corroded steelwork. of deterioration and to predict long term
Repairs should either he considered as 'non trends.
structural' to patch a hole with no contribution to
strength or should be made 'structural'. Repairs always • Have a structural review carried out to
require further cutting out to prepare the surface. This identify the key areas of structural
may require temporary support and the repair may weakness and/or structural sensitivity to
deteriorate and lose its structural effectiveness. Specialist deterioration for regular inspection.
Structural Engineering advice should be obtained to
ensure that safety is maintained at all stages.
It is difficult to make repairs structurally effective • Identify where and when protection,
unless they are cut out deep enough to ensure that the strengthening or repair may become
repair is fully linked to the substrate concrete by the appropriate as part of the long term
three dimensional reinforcement cage. The dimensional maintenance programme.
incompatibilities between repairs and the substrate
concrete are such that adhesion at the interface cannot • Protection and local repair can prolong
he relied on structurally, even when the underlying active life, but won't achieve immortality,
concrete is not bruised by the cutting out. Often full so check the cost and benefit over the
•-•pth cutting out with high pressure water jetting and
,tasting with concrete is the only really effective method residual life of the structure as part of
of repair. your strategy.
In some instances 'belt and braces' repair, using
additional external strengthening, will be more cost • Before repairs are carried out ensure
effective than cutting out and recasting the original poor that a Structural Engineer has checked
detail,which can be left to harmlessly deteriorate the structure 'as built', 'as deteriorated',
If structural repair seems a daunting and expensive 'as cut out for repair', 'as repaired' and
business it helps emphasize the need for better initial
'with repair delaminated'.
construction and early action to slow deterioration before
structural damage occurs.
• Insist on a full recorded survey of
6. LESSONS FOR NEW DESIGN condition before problems are hidden_
An improved design basis for car parks should be below patch repairs, coatings or
developed by simplifying down from bridge design waterproofing.
standards, rather than by uprating building design
practice, • Ensure good falls, wash down regularly
Owners should ensure that an explicit'Durability and and keep the drains clear and have
Maintainability .Audit' is carried out on the design. the
regular specialist inspections carried out.
construction and site supervision procedures before
signing the contract.
Concrete is an essential material for many parts of • At some point, controlled decay until
a car park structure. There is a substantial potential reconstruction will become a better
for cost effectively creating more robust and durable strategy than endless repair.
concrete car parks by learning from the performance
of existing structures. This will require better • When you build a new car park ensure
:tailing, the use of higher quality concretes and
that durability, maintainability and
improvements to the construction practice and quality control during construction have
supervision. This cannot be achieved for car parks by
relying on traditional procedures covered in current proper priority.
building codes.
23 fn,,rn.,f"f Park,,,
L: 18770PC 658
EXHIBIT 14.1(b)
PARKING FACILITY AND COMMON GROUNDS MAINTENANCE SCHEDULE
DAILY TASKS:
A. General Cleaning:
1. Trash pick up: all ramps, stairwells,elevators,common areas and landscaped areas
2. Empty trash receptacles: in facility and on-site replace trash bag and secure same
3. Clean restrooms: sweep and mop floors,clean toilet basin and sink with disinfectant
cleanser,clean mirrors stock all paper goods,empty trash receptacles
4. Stairs and Stairwells: stairs swept,handrails dusted,signage and lighting checked,doors to
stairs dusted/cleaned if needed
5. Clean all glass: office and/or booth windows, elevators(as applicable)
6. Office area: work areas dusted(cleaned if necessary), floors mopped,rugs vacuumed,
bathrooms cleaned and supplies in bathrooms checked and replenished as needed
7. Sweep and hose off sidewalks,loading dock, trash room
8. Sweep and mop all lobby areas
B. Lighting,Fire Extinguishers and Fire Protection System,Signage and Security,
System(s):
1. Check all light fixtures: in facility and on-site(replace bulbs as needed)
2. Inventory all fire extinguishers: report any vandalism or missing fire extinguishers
3. Check all signage: both informational and illuminated
4. Check security system:test all radio control boxes, call boxes and speaker horns
5. Check placement of all cameras and reception of camera shots in security office(as
applicable)
6. Check elevator cab communication devices and alarms(as applicable)
7. Check elevator lights and replace bulbs as needed
C. Parking Control Equipment and Attendant Booths:
1. Check for proper operation of gate arms,ticket spitters,power pads and proximity readers
2. Dust all booth equipment(power pad, verifier,cash drawer and other,as applicable)
3. Sweep all booths and shake out floor mats
D. Elevators:
1. Mop floors,clean walls and panels with polish,clean or replace ceiling tiles
2. Dust doorframe and sweep door tracks clear of debris
F\MINSKER\C M B\Michigan-Lincoln Plaza\LincolnPlazaGrndlse8-I7a(Ex)wpd
August 30,1999(2 49PM)
•
1i1. 18TT01I 659
WEEKLY TASKS:
A. General Cleaning:
1. Wash trash receptacles: in facility and on-site
2. Pressure wash stairwells and landings
3. Mop and sanitize attendant booths and/or cashier office
4. Removal of infestations:cobwebs,nests,etc.as applicable
B. Lighting,Fire Extinguishers and Fire Protection System.Signage and Security
System(s):
1. Assure replacement/repair of all lighting: in facility and on-site
2. Assure replacement of all fire extinguishers: in facility and on-site
3. Assure replacement/repair of all emergency fire protection and security system components
4. Repair or replace any broken ballasts
5. Check that all illuminated directional signage is in working order
C. Parkins Control Equipment:
1. Repair any needs reported re: proper operation of gate arms,ticket spitters,power pads and
proximity readers,verifier,cash drawer and other,as applicable
2. Clean and dust all ticket spitters and check for moisture intrusion
D. Elevators:
1. Perform any necessary maintenance for optimum performance of each unit
2. Check all panels for vandalism and repair as needed
3. Dust bulbs,fixtures and diffusers
4. Polish metal work throughout
E. Doors and Hardware:
1. Check all door components for proper closure,locking and latching
2. Re-calibrate door components as needed
3. Lubricate overhead door devices
F. Painted surfaces and signage:
1. Inspect the condition of all painted surfaces and facility signage(interior and exterior)and
remove any stickers,gum or other foreign objects
2. Prepare work order for areas needing painting or signs that need replacement
F:\MINSKER\C M B\Mtch,gan-Lincoln Plaza\LincolnPlazaGrndlse8.17e(Ex)wpd
August 30,1999(2 49PM)
18770N 660
MONTHLY TASKS:
General Cleaning:
1. Power sweep all ramps and common concrete slab areas
2. Inspect all joints and condition of sealants,prepare work order to address needed
deficiencies
3. Hose down all ramps(if using pressure,adhere to PSI recommended by builder)
4. Pressure clean stairwells and landings and all sidewalks
5. Seal and wax all tile floors in facility and common areas
6. Clean or replace all air conditioning filters in facility and common areas
7. Check all drains and remove any foreign objects in facility and common areas
8. Check for any leaks in facility or common areas,offices or booths and repair as needed
9. Check condition of stucco in facility and common areas and repair as needed
10. Remove carbon build up from all exposed surfaces in facility and common areas
B. Lighting.Fire Extinguishers and Fire Protection System.Signage and Security
System(s):
1. Replace all missing signage in facility and common areas
2. Inspect all fire extinguisher housings in facility and common areas,and repair or replace as
needed
3. Test security system as per manufacturers' specifications and report any variances or need
for repair
4. Check fire protection,standpipes and smoke detectors in facility and common areas,repair
and replace components as needed to assure optimum performance
C. Parking Control Equipment:
1. Monthly maintenance of all gate arms,ticket spitters,power pads and proximity readers
2. Repair or replace components as needed
D. Painted surfaces and signage:
1. Prepare surfaces of handrails and apply a fresh coat of paint
2. Inspect all painted surfaces in facility and common area, and prepare and paint, or touch-
up surfaces as needed
3. Replace all missing signage and order back up inventory
QUARTERLY TASKS:
A. General Cleaning:
1. Degrease all floors and ramps and clean all expansion joints
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187701C 661.
2. Power scrub or power wash all ramps and concrete slab surfaces(use PSI recommended by
builder)
B. Lighting.Fire Extinguishers and Fire Protection Systems Signage and Security
System(s):
1. Check all light fixtures and exposed conduit. Repair and replace as needed.
2. Check distribution and switchgear
3. Check that all timers and photocells are working properly. Repair or replace as needed.
C. Landscape Maintenance:
1. Trim shrubs and prune all planted materials in facility and on-site
2. Test all irrigation systems in facility and common areas, and repair as needed
3. Replace flowering plants in facility and common areas seasonally as needed
4. Inspect all landscape lighting and uplighting and repair or replace bulbs,photocells or other
components as needed
D. Checklist for leaks and water intrusion:
1. Check for leaks at drain basins,inlet grates,leaders,downspouts,floor sleeves,stairwells,
elevator roofs,expansion joints,floor joints and cracks,and check basin for buildup
2. Inspect the ceiling below for signs of active leaks
3. Repair and address as required
E. Checklist for structural inspections:
1. Check for cracks and spalls at beams,columns,brick and or block work
2. Check floors and ceilings for cracks,spalls,abrasion and stalling
3. Check expansion joints for deterioration, failed or splitting rubber glands and failed nosing
materials
4. Check for roofmg material deterioration
5. Check and repair all sealants and caulking
6. Check any waterproofing membrane(if applicable)
7. Repair and replace materials as required
ANNUAL TASKS:
1. Test fire protection systems and complete annual inspection with City
2. Test all elevator system operations and complete annual inspection with City
3. Perform annual inspections by maintenance/supply contractors of:
a. Revenue control equipment
b. Air conditioning equipment
c. All maintenance vehicles/equipment
F:\MINSKER\C M Michigan-Lincoln Plaza\LincolnPlazaGmdlse8-17a(Ex)wpd
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Kr. 8770PC 662
REC.
BI-ANNUAL TASKS
1. Check floor striping for signs of wear and fading and if warranted, restripe all painted
surfaces(stalls, floor directional painting etc.)
2. Inspection of facility for structural integrity by a qualified engineering firm. Firm shall
prepare a condition survey which shall at a minimum contain information on:
a. Deterioration of concrete(spalling,corrosion etc.)
b. Longevity of concrete sealer
c. Water leakage
d. Condition of precast connections
e. Cracking of concrete
f. Rusting of steel
g. Condition of waterproofing membrane
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RfG. 'Erc. 18773C 663
EXHIBIT 14.1(c)
OWNER'S OPERATING STANDARDS
1. GENERAL PERSONNEL REGULATIONS AND STANDARDS:
Parking Attendants,Cashiers,Supervisors and Management
a. All personnel shall present a positive and professional appearance and demeanor when
conducting the business of the Garage.
b. All personnel shall maintain good grooming standards.
c. All personnel shall wear uniforms which display the name of the parking operator.
Uniforms shall be clean and pressed.
d. All personnel shall wear name tags.
e. All personnel shall be responsible for the neat and orderly upkeep of their workstation
or attendant booth.
f. All personnel shall be trained in the use of revenue control equipment and proper
maintenance of same.
g- All personnel shall be trained in customer service.
h. All personnel shall be able to effectively converse, read and write in English.
i. All personnel shall be able to complete daily cash reports,inspection reports and related
management reports(as applicable to individual responsibility levels).
j. All personnel shall understand their role as an ambassador of,and partner to the City
of Miami Beach. The City shall provide"in-service"training opportunities for Garage
personnel. The City shall also provide collateral printed materials to the Garage
Operator, to assist the parking public and visitors.
k. All personnel of the Garage Operator shall be bonded and insured.
Contract Labor: Housekeeping/Janitorial Services, Security Personnel, Landscape
Maintenance Personnel
a. All contracted personnel shall present a positive and professional appearance and
demeanor when conducting their business in the Garage and on the common areas.
b. All contracted personnel shall maintain good grooming standards.
c. All contracted personnel shall wear uniforms which display the name of their company.
Uniforms shall be clean and pressed.
d. All contracted personnel shall wear name tags.
e. All contracted personnel shall be trained in customer service.
f. All contracted personnel shall be able to effectively converse in English.
g. All contracted personnel shall understand their role as an ambassador of, and partner
to the City of Miami Beach.
h. All contracted personnel shall fully understand their contractural responsibilities and
scope of work assigned, and shall effectively perform said duties.
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REC: 1877OP1 554
2. PARKING OPERATION STANDARDS:
a. The Garage shall be attended and secured 24-hours per day,seven days per week.
b. All personnel shall be professional and courteous in the performance of their duties.
c. The Garage shall be sufficiently staffed at all times.At a minimum one cashier/attendant;
one manager or supervisor;and one security guard, shall be present and working in the
Garage at all times.
d. Housekeeping and janitorial services shall be performed a minimum of eight(8)hours
per day. The Garage and common areas shall be kept free of litter at all times.
e. Security services shall be provided continuously, 24-hours per day. Security personnel
shall be licensed and insured.Security services shall provide for continuous "roaming"
guard patrol throughout the Garage.
f. Landscape maintenance shall be performed on a weekly basis. All landscape
maintenance shall be in accordance to the specifications of the Landscape Architect on
the Project. Furthermore, all landscape maintenance shall be performed in accordance
with "Facility and Garage Maintenance Standards"contained herein and described as
Exhibit 14.1(b).
g. Garage Operator shall assure that maintenance contracts are continuously in effect for
elevators, parking revenue control systems and security systems, and that said
maintenance contracts, at a minimum, shall adhere to the provisions set forth in the
"Facility and Garage Maintenance Standards" contained herein and described as
Exhibit 14.1(b).
h. Garage Operator shall be responsible for assuring that all contractors(security,
houskeeping/janitorial and landscape maintenance) adhere to "Facility and Garage
Maintenance Standards" contained herein and described as Exhibit 14.1(b).
3. REPORTING STANDARDS:
a. Garage Operator shall maintain daily records of the Garage operation (cash receipts,
usage logs, maintenance records,staffing levels,contractural service levels).
b. Garage Operator shall report the following to the City on a monthly basis:
1. Daily cash receipts
2. Daily usage log which includes:
a. Number of hourly(transient)parkers
b. Number of flat rate parkers:both daily and special flat rate
parkers
c. Number of monthly parkers
d. Number of valet parkers (if applicable)
3. Daily log of contractural security staff hours
4. Daily log of contractural janitorial/housekeeping staff hours
5. Copies of monthly landscape maintenance invoices
6. Copies of monthly maintenance service invoices, and/or receipts for
(elevator,security system, parking control equipment)
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11. &TOPS 6E5
c. Garage Operator shall report all instances logged on facility security reports,or incidents
reported to the City of Miami Beach Police Department.
d. The City reserves the right to inspect all Garage operation records,and audit same.
e. The Garage Operator shall provide annually to the City, a certified audit of Garage
operations and revenues.
4. COMPLIANCE WITH OPERATIONAL AND MAINTENANCE STANDARDS:
INSPECTION OF PREMISES,CORRECTION OF DEFICIENCIES, AND DISPUTE
RESOLUTION
a. Garage Operator shall make Garage and common areas available to the City for
inspection at any time. These areas include,but are not limited to: Garage ramp areas,
stairwells,elevators,security system,common areas,garage office and attendant booths.
b. Garage Operator shall correct, replace, repair or attend to, any maintenance or
operational deficiency identified by the City of Miami Beach as a result of any inspection
of the Garage, its common areas, and/or its operation. Notice of deficiency by City to
Garage Operator may be verbal,but shall be followed up in written form. Correction of
said deficiency shall be handled within seventy-two(72) hours of notice.
c. Garage Operator shall address all operational complaints by the public in a professional,
courteous and timely manner. Written complaints which are copied to the City shall be
responded to in writing,with copies to the City's Parking Director.
d. The City reserves the right to arbitrate any Garage operation complaint that has not
been resolved to the satisfaction of the customer or the City. The City's Parking Director
shall act as the liaison in such matters.
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4 : 18TTDPC 666
EXHIBIT 36.1(a)
TERMS OF'TENANT'S RIGHT OF FIRST OFFER TRANSACTION
1. Purchase Price.
The Purchase Price shall be as set forth by Owner in the Offer Notice and shall be payable
at the closing of the purchase by wire transfer of immediately available funds to an account
designated in writing by Owner. The Purchase Price may not include seller-financing unless
Owner is an Institutional Lender or an Affiliate of an Institutional Lender. The purchaser
shall not be permitted to make its obligation to close contingent on obtaining third-party
financing.
2. Closing Date.
The closing of the purchase shall take place on a date designated by Owner, but in any event
not less than sixty(60)days nor more than ninety (90)days following the date such Owner
executes a purchase agreement with the purchaser.
3. Deed; Title.
At the closing of the purchase, Owner shall convey to the purchaser(i)all of Owner's right,
title and interest in and to the Premises by a special warranty deed and (ii) all of Owner's
right, title and interest in and to this Lease by an assignment of lease. The form of such
deed and assignment of lease shall be mutually acceptable to Owner and Tenant but shall not
in any event provide for any representations by Owner other than a representation that
Owner has not theretofore transferred or assigned the items being transferred or conveyed
thereby and the representations and warranties customarily contained in a special warranty
deed. Owner's Interest in the Premises and the Lease shall be conveyed to Tenant subject
to all liens, encumbrances and other matters then affecting the title thereto and any state of
facts a survey may reveal (but in all cases subject to Owner's obligations under Section 2.2
of the Lease). Owner shall also execute all other documents customarily used in real estate
transactions in Miami-Dade County, Florida; provided, however, that if Owner is a
Governmental Authority, (x)such documents shall not include those documents from which
Governmental Authorities are exempt pursuant to applicable Requirements and (y) with
respect to any title affidavit required of Owner, (i)Owner shall not be required to make any
statement or certification regarding parties-in-possession and (ii) any statement or
certification regarding mechanics' or materialmen's liens shall cover only work or materials
directly contracted for by Owner in writing.
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OFf. 1&77CIQG 667_
REC. .
4. Rent: Prorations.
At the closing of the purchase, all Rental and/or Impositions shall be prorated through the
date of closing and paid to the party entitled thereto. No other prorations shall be made.
5. Expenses.
Each party shall pay its own attorneys' fees. All transfer taxes, title charges, recording fees,
survey charges and other expenses incurred in connection with the purchase shall be paid by
Tenant; provided, however, that Owner shall pay all documentary stamp taxes and surtax,
if any, payable in connection with the purchase.
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iC 558
EXHIBIT 36.2(a)
TERMS OF OWNER'S RIGHT OF FIRST OFFER TRANSACTION
1. Purchase Price.
The Purchase Price shall be as set forth by Tenant in the Offer Notice and shall be payable at
the closing of the purchase by wire transfer of immediately available funds to an account
designated in writing by Tenant. The Purchase Price may not include seller-financing unless
Tenant is an Institutional Lender or an Affiliate of an Institutional Lender. The purchaser shall
not be permitted to make its obligation to close contingent on obtaining third-party financing.
2. Closing Date.
The closing of the purchase shall take place on a date designated by Tenant,but in any event
not less than sixty(60)days nor more than ninety(90)days following the date such Tenant
executes a purchase agreement with the purchaser.
3. Deed:Title.
At the closing of the purchase,Tenant shall convey to the purchaser(i)all of Tenant's right,
title and interest in and to the Premises by a special warranty deed and(ii)all of Tenant's right,
title and interest in and to this Lease by an assignment of lease. The form of such deed and
assignment of lease shall be mutually acceptable to Tenant and Owner but shall not in any event
provide for any representations by Tenant other than a representation that Tenant has not
theretofore transferred or assigned the items being transferred or conveyed thereby and the
representations and warranties customarily contained in a special warranty deed. Tenant's
Interest in the Premises and the Lease shall be conveyed to Owner subject to all liens,
encumbrances and other matters then affecting the title thereto and any state of facts a survey
may reveal (but in all cases subject to Tenant's obligations under Section 2.2 of the Lease).
Tenant shall also execute all other documents customarily used in real estate transactions in
Miami-Dade County,Florida;provided,however,that if Tenant is a Governmental Authority,
(x)such documents shall not include those documents from which Governmental Authorities
are exempt pursuant to applicable Requirements and (y) with respect to any title affidavit
required of Tenant, (i) Tenant shall not be required to make any statement or certification
regarding parties-in-possession and(ii)any statement or certification regarding mechanics'or
materialmen's liens shall cover only work or materials directly contracted for by Tenant in
writing.
4. Rent:Prorations.
At the closing of the purchase,all Rental and/or Impositions shall be prorated through the date
of closing and paid to the party entitled thereto. No other prorations shall be made.
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otF. l67rOPG 669
itEt
5. Expenses.
Each party shall pay its own attorneys' fees. All transfer taxes,title charges,recording fees,
survey charges and other expenses incurred in connection with the purchase shall be paid by
Owner;provided,however,that Tenant shall pay all documentary stamp taxes and surtax, if
any,payable in connection with the purchase.
RECORDERS NOTE:
The legibility of writing,typing or printing unsatis-
factory In this document when received.
RECORDED IN OFF:CW.RECORDS BOOK
OF RADE COUNTY,FLORfQt
RECORD VER(F)EO
HARVEY RUVIN
CLERK CIRCUIT COURT
F:AMINSKERK;M Michigan-Lincoln Plaza\LatcolnPlazaGmdlscg-17a(Exl wpd
August 30,1999(2 49PM)
EXHIBIT D
First Leasehold Mortgage
[See attached]
ACTIVE 697064945v2
PREPARED BY,
RECORDING REQUESTED
BY, AND WHEN
RECORDED RETURN TO:
Steven E. Goldman, Esq.
Greenberg Traurig, P.A.
333 S.E. 2t Avenue, Suite 4400
Miami,Florida 33131
LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT,
by
RK RIVANI LLC
as MORTGAGOR
TO
AMERANT BANK,N.A.,
as MORTGAGEE
As of April 10, 2024
ACTIVE 697188286v2
Prepared by and after
recording return to:
Steven E. Goldman, Esq.
Greenberg Traurig, P.A.
333 S.E. 2nd Avenue, Suite 4400
Miami,Florida 33131
LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
This LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT, dated April 10, 2024 (together with any amendments or modifications hereto in
effect from time to time,the"Mortgage"), is made by and between RK RIVANI LLC,a Florida
limited liability company (the"Mortgagor"), having an office at 1691 Michigan Avenue,Miami
Beach, Florida, 33140 and AMERANT BANK, N.A., having an office at 220 Alhambra Circle,
Coral Gables, Florida 33134("Mortgagee").
RECITALS:
WHEREAS, Mortgagor is indebted to Mortgagee in the principal sum of Fifty-Two
Million Five Hundred Thousand and No/100 Dollars ($52,500,000.00) (the "Loan"), together
with interest thereon, as evidenced by a Promissory Note of even date herewith from Mortgagor
to Mortgagee in the original principal amount of Fifty-Two Million Five Hundred Thousand and
No/100 Dollars ($44,187,500.00) and a Promissory Note of even date herewith from Mortgagor
to Mortgagee in the original principal amount of Eight Million Three Hundred Twelve Thousand
Five Hundred and No/100 Dollars ($8,312,500.00) (together with any and all replacements and
modifications thereof, collectively, the "Note"). The Loan is governed by a Loan Agreement of
even date herewith executed by Mortgagor and Mortgagee (the"Loan Agreement");
WHEREAS,Mortgagor is the owner of the leasehold estate(the"Leasehold") under that
certain Agreement of Lease described in Schedule"A"attached hereto and made a part hereof(the
"Ground Lease"), which pertains to the lots, pieces, or parcels of land lying and being in said
County and State described in Schedule "A" attached hereto (the "Real Estate"); and
WHEREAS, to induce Mortgagee to make the Loan and to secure payment of the Note
and the other obligations described below, Mortgagor has agreed to execute and deliver this
Mortgage.
GRANTING CLAUSES
NOW, THEREFORE, to secure to Mortgagee (i) the repayment of all sums due under
this Mortgage, the Loan Agreement, the Note (and all extensions, renewals, replacements and
amendments thereof) and the other Loan Documents (as such term is defined in the Note, the
"Loan Documents"); (ii) the performance of all terms, conditions and covenants set forth in the
Loan Documents; (iii) the repayment of all sums due or that may become due under or in
connection with any present or future swap agreements (as defined in 11 U.S.C. §101) between
Mortgagor and Mortgagee, including without limitation Mortgagor's obligations to pay any
ACTIVE 697188286v2 2
applicable swap breakage fee;(iv)the repayment of all reimbursement obligations due or that may
become due under or in connection with any present or future letters of credit issued by Mortgagee
for the account of Mortgagor; and (v) all other obligations or indebtedness of Mortgagor to
Mortgagee of whatever kind or character and whenever borrowed or incurred, including without
limitation, principal, interest, fees, late charges and expenses, including attorneys' fees
(subsections (i), (ii),(iii), (iv)and (v) collectively, the "Liabilities"), Mortgagor has mortgaged,
granted and conveyed and by these presents DOES HEREBY MORTGAGE, GRANT AND
CONVEY TO MORTGAGEE,ITS SUCCESSORS AND ASSIGNS,all of Mortgagor's right,
title and interest now owned or hereafter acquired in and to each of the following(collectively,the
"Property"):
(A) The Leasehold;
(B) Any and all buildings and improvements now or hereafter erected on, under or over
the Real Estate (collectively, the"Improvements");
(C) All materials, supplies,goods,tools, furniture, fixtures, equipment,and machinery
which in all cases is affixed or attached, or to be affixed or attached, in any manner on the Land or
the Improvements;
(D) Any and all leases, subleases, tenancies, licenses, occupancy agreements or
agreements to lease (other than the Ground Lease) all or any portion of the Real Estate,
Improvements, Equipment(as defined in the Code (as defined below) or all or any other portion
of the Property and all extensions,renewals,amendments,modifications and replacements thereof,
and any options, rights of first refusal or guarantees relating thereto (collectively, the "Leases");
all rents, income, receipts, revenues, security deposits, escrow accounts, reserves, issues, profits,
awards and payments of any kind payable under the Leases or otherwise arising from Mortgagor's
right, title and interest in the Real Estate, Improvements, Equipment or all or any other portion of
the Property including, without limitation, minimum rents, additional rents, percentage rents,
parking, maintenance and deficiency rents (collectively, the "Rents"); all of the following
personal property (collectively referred to as the "Contracts"): all accounts, general intangibles
and contract rights (including any right to payment thereunder, whether or not earned by
performance) of any nature relating to Mortgagor's right, title and interest in the Real Estate,
Improvements, Equipment or all or any other portion of the Property or the use, occupancy,
maintenance, construction, repair or operation thereof; all management agreements, franchise
agreements, utility agreements and deposits, building service contracts, maintenance contracts,
construction contracts and architect's agreements; all maps, plans, surveys and specifications; all
warranties and guaranties; all permits, licenses and approvals;and all insurance policies,books of
account and other documents,of whatever kind or character,relating to the use,construction upon,
occupancy, leasing, sale or operation of the Real Estate, Improvements, Equipment or all or any
other portion of the Property;
(E) (i) Any and all estates, rights, tenements, hereditaments, privileges, easements,
reversions, remainders and appurtenances of any kind benefiting or appurtenant to the Leasehold,
Improvements or all or any other portion of the Property;all means of access to and from the Real
Estate, Improvements or all or any other portion of the Property, whether public or private; all
ACTIVE 697188286v2 3
streets, alleys, passages, ways, water courses, water and mineral rights relating to the Leasehold,
Improvements or all or any other portion of the Property; and all other claims or demands of
Mortgagor, either at law or in equity, in possession or expectancy of, in, or to the Leasehold,
Improvements or all or any other portion of the Property,(ii) any right of Mortgagor to agree to or
acquiesce in any rejection or termination of the Ground Lease, whether made with respect to any
election under section 365(h)of the federal Bankruptcy Code of 1978(or any successor provision)
or under any similar law or right of any nature,or otherwise, (iii)all rights of Mortgagor in,to and
under any present or future leases and subleases of all or any portion of the Property or any
improvements thereon, including without limitation any rents, profits or other sums payable to
Mortgagor thereunder, any landlord's lien rights of Mortgagor as provided by law, any guaranties
or other security provided for such subleases,and all proceeds of any of the foregoing, and (iv)all
of Mortgagor's privileges and rights as lessee under the Ground Lease, and all rights, privileges
and prerogatives of Mortgagor to terminate, cancel, modify, change, supplement, alter, amend or
renew the Ground Lease (all of the foregoing described in this subsection E herein called the
"Appurtenances");
(F) Any and all "proceeds"of any of the above-described Real Estate, Improvements,
Equipment, Leases, Rents, Contracts and Appurtenances, which term "proceeds" shall have the
meaning given to it in the Uniform Commercial Code, as amended, (the "Code") of the State in
which the Property is located (collectively, the "Proceeds") and shall additionally include
whatever is received upon the use, lease, sale, exchange,transfer, collection or other utilization or
any disposition or conversion of any of Mortgagor's right, title and interest in the Real Estate,
Improvements,Equipment, Leases, Rents,Contracts and Appurtenances,voluntary or involuntary,
whether cash or non-cash, including proceeds of insurance and condemnation awards, rental or
lease payments, accounts, chattel paper, instruments, documents, contract rights, general
intangibles, equipment and inventory; and
(G) All of Mortgagor's right,title and interest,now or hereafter acquired,to the payment
of money from Mortgagee to Mortgagor under any Swap Agreement (as defined in the Loan
Agreement)
TO HAVE AND TO HOLD the above granted and conveyed Property unto and to the
proper use and benefit of Mortgagee and its successors and assigns, forever.
PROVIDED ALWAYS, and these presents are upon the express condition, that if(i) all
the Liabilities, including without limitation, all termination payments and any other amounts due
under or in connection with any swap agreements secured hereunder, are paid in full, and (ii) any
swap agreements secured hereunder have matured or been terminated, then this Mortgage and the
estate hereby created shall cease and be null and void and canceled of record.
PROVIDED FURTHER, notwithstanding anything to the contrary set forth herein or in
the other Loan Documents, in no event does or shall the "Property" include all or any portion of
the interest of the City of Miami Beach(the"Lessor")in the Land(as defined in the Ground Lease)
or the Ground Lease.
ACTIVE 697188286x2 4
The terms of the Loan Documents are hereby made a part of this Mortgage to the same
extent and with the same effect as if fully set forth herein. All capitalized terms not otherwise
defined herein shall have the meaning ascribed to them in the Loan Documents.
AND Mortgagor covenants and agrees with and represents to Mortgagee as follows:
1. FUTURE ADVANCES; PROTECTION OF PROPERTY. This Mortgage shall secure
any additional loans as well as any and all present or future advances and readvances under the
Liabilities made by Mortgagee to or for the benefit of or the Property within twenty (20) years
from the date hereof(whether such advances are obligatory or are made at the option of Mortgagee
or otherwise), including, without limitation: (i) principal, interest, late charges, fees and other
amounts due under the Liabilities or this Mortgage; (ii) all advances by Mortgagee to Mortgagor
or any other person to pay costs of erection, construction, alteration, repair, restoration,
maintenance and completion of any improvements on the Property;(iii)all advances made or out-
of-pocket costs reasonably incurred by Mortgagee for the payment of real estate taxes,assessments
or other governmental charges, maintenance charges, insurance premiums, appraisal charges,
environmental inspection, audit, testing or compliance costs, and costs incurred by Mortgagee for
the enforcement and protection of the Property or the lien of this Mortgage;and(iv)all reasonable
legal fees, costs and other expenses incurred by Mortgagee by reason of any Event of Default (as
hereinafter defined). The total amount of the Liabilities that may be so secured may decrease to a
zero amount from time to time, or may increase from time to time, but the total unpaid balance
secured at any one time shall not exceed Eighty-Four Million and No/100 Dollars
($84,000,000.00).
Mortgagor agrees that if, at any time during the term of this Mortgage or following the
commencement of a foreclosure action hereunder(whether before or after the entry of a judgment
of foreclosure), Mortgagor fails to perform or observe any covenant or obligation under this
Mortgage including, without limitation, payment of any of the foregoing, and subject to the
expiration of any applicable grace period (except in the case of an emergency), Mortgagee may
(but shall not be obligated to) take such steps as are reasonably necessary to remedy any such
nonperformance or nonobservance and provide payment thereof. All amounts advanced by
Mortgagee shall be added to the amount secured by this Mortgage and the other Loan Documents
(and, if advanced after the entry of a judgment of foreclosure, by such judgment of foreclosure),
and shall be due and payable on demand, together with interest at the Default Rate set forth in the
Note,such interest to be calculated from the date of such advance to the date of repayment thereof.
2. REPRESENTATIONS,WARRANTIES AND COVENANTS.
2.1. Payment and Performance. Mortgagor shall (a) pay to Mortgagee all sums
required to be paid by Mortgagor under the Loan Documents, in accordance with their stated terms
and conditions; (b)perform and comply with all terms, conditions and covenants set forth in each
of the Loan Documents by which Mortgagor is bound; and (c) perform and comply with all of
Mortgagor's obligations and duties as landlord under any Leases.
2.2. Seisin and Warranty. Mortgagor hereby warrants that(a)Mortgagor is seized of
an indefeasible leasehold estate in, and warrants the title to,the Real Estate,and a fee simple estate
ACTIVE 697188286v2 5
in the Improvements and the Property;(b)Mortgagor has the right,full power and lawful authority
to mortgage, grant, convey and assign the same to Mortgagee in the manner and form set forth
herein; and (c) this Mortgage is a valid and enforceable first lien on the Property. Mortgagor
hereby covenants that Mortgagor shall (a) preserve such title and the validity and priority of the
lien of this Mortgage and shall forever warrant and defend the same to Mortgagee against all lawful
claims whatsoever; and (b) execute, acknowledge and deliver all such further documents or
assurances as may at any time hereafter be reasonably required by Mortgagee to protect fully the
lien of this Mortgage.
2.3 Tax and Insurance Escrow Account. In the event that Mortgagor fails to pay
Real Estate Taxes or insurance premiums as required by this Mortgage, then Mortgagee may
require that, as additional security for the Loan and in order to secure the performance and
discharge of Mortgagor's Liabilities, but not in lieu of such Liabilities, Mortgagor shall establish
and maintain at all times during the term of the Loan an impound account ("Tax and Insurance
Escrow Account") with Mortgagee for payment of Real Estate Taxes (as defined below) and, if
requested by Bank, insurance on the Property. In such event, Mortgagor will deposit with
Mortgagee a sum equal to ad valorem taxes, annual assessments and charges (collectively, the
"Real Estate Taxes") against the Property plus an amount that approximates two (2) months' of
additional escrow payments, all as reasonably estimated by Mortgagee, less the escrow payments
to be made under the next sentence, before the Real Estate Taxes and, if then in effect, insurance
premiums, respectively, next become due. Thereafter, commencing with the payment of the first
monthly installment under the Note and continuing thereafter on each and every monthly payment
date under the Note until the Liabilities are fully paid and performed, Mortgagor will deposit with
Mortgagee one-twelfth of the amount(as estimated from time to time by Mortgagee)of Real Estate
Taxes and, if applicable, insurance policy premiums to permit Mortgagee to pay, at least thirty
(30)days prior to the due date thereof, the next maturing Real Estate Taxes and premiums for such
policies of insurance. Mortgagor shall be responsible for ensuring the receipt by Mortgagee, at
least thirty(30)days prior to the respective due date for payment thereof,of all bills, invoices and
statements for all Real Estate Taxes and, if applicable, insurance premiums to be paid from the
Tax and Insurance Escrow Account, and so long as no Event of Default has occurred and is
continuing, Mortgagee shall pay (or shall permit Mortgagor to make withdrawals from the Tax
and Insurance Escrow Account to pay) at the maximum available discount the Governmental
Authority or other party entitled thereto directly to the extent funds are available for such purpose
in the Tax and Insurance Escrow Account. Mortgagee shall have the right to rely upon tax
information furnished by applicable taxing authorities in the payment of such Real Estate Taxes
and shall have no obligation to make any protest of any Real Estate Taxes. Any excess over the
amounts required for such purposes shall be held by Mortgagee for future use, applied to any
Liabilities or refunded to Mortgagor, at Mortgagee's option, and any deficiency in such funds so
deposited shall be made up by Mortgagor on demand of Mortgagee. The Tax and Insurance
Escrow Account shall not,unless otherwise explicitly required by applicable law,be or be deemed
to be escrow or trust funds. All such funds so deposited shall bear no interest whatsoever, may be
mingled with the general funds of Mortgagee and shall be applied by Mortgagee toward the
payment of Real Estate Taxes and premiums when statements therefor are presented to Mortgagee
by Mortgagor; provided, however, that following an Event of Default and during the continuance
thereof, such funds may at Mortgagee's option be applied to the payment of the Liabilities in the
order determined by Mortgagee in its sole discretion (such application to be deemed a voluntary
ACTIVE 697188286v2 6
prepayment and subject to any prepayment penalties set forth in the Note, if applicable), and that
Mortgagee may at any time,in its discretion,apply all or any part of such funds toward the payment
of any Real Estate Taxes or premiums which are past due, together with any penalties or late
charges with respect thereto. The conveyance or transfer of Mortgagor's interest in the Property
for any reason (including without limitation the foreclosure of a subordinate lien or security
interest or a transfer by operation of law)shall constitute an assignment or transfer of Mortgagor's
interest in and rights to such funds held by Mortgagee under this Section but subject to the rights
of Mortgagee hereunder.]
2.4. No Encumbrances. Except in connection with the Loan, Mortgagor shall not
create or permit to exist any mortgage,pledge, lien,security interest(including,without limitation,
a purchase money security interest or a Property-Assessed Clean Energy loan ("PACE Loan")),
encumbrance,attachment,levy,distraint or other judicial process on or against the Property or any
part thereof(including, without limitation, fixtures and other personalty), whether superior or
inferior to the lien of this Mortgage,without the prior written consent of Mortgagee,other than the
Permitted Encumbrances (as defined in the Loan Agreement). For the avoidance of doubt,
Mortgagor shall not obtain any PACE Loan against the Property without prior written consent of
Mortgagee, and any PACE Loan incurred without the Mortgagee's consent shall cause a default
hereunder. With respect to encumbrances not constituting liens(e.g.,utility easements,covenants,
etc.),Mortgagee's consent shall not be unreasonably withheld or delayed. Neither Mortgagor nor
its constituents shall obtain any mezzanine or other secondary financing that is secured by an
interest in Mortgagor. Any loans between members of Mortgagor and Mortgagor shall be
subordinate in all respects to the repayment of the Loan.
2.5. No Sale/Transfer. Mortgagor shall not transfer the Leasehold, the Improvements or
other portion of the Property or any part thereof or any direct or indirect interest therein,or permit
or suffer the Property or any part thereof or any direct or indirect interest therein to be transferred,
other than as expressly permitted pursuant to the terms of the Loan Agreement
2.6. Removal of Fixtures. Mortgagor shall not (except (i) in the ordinary course of
business, and (ii)_except in connection with the Cap/Ex Improvements and the TI Work (as
defined in the Loan Agreement)or other alterations permitted by the Loan Agreement("Permitted
Alterations")) remove or permit to be removed from the Property any fixtures presently or in the
future owned by Mortgagor and located on the Real Estate and necessary for Mortgagor's
operation thereof, as the term "fixtures" is defined by the law of the state where the Property is
located(unless such fixtures have been replaced with similar fixtures of equal or greater utility and
value).
2.7. Maintenance and Repair; Alterations. (a) Mortgagor shall (i)abstain from and
not knowingly permit the commission of waste in or about the Real Estate;(ii)keep the Real Estate
at Mortgagor's own cost and expense,in good and substantial repair,working order and condition;
(iii) make or cause to be made, as and when necessary, all repairs and replacements with respect
to the Real Estate required under Section 4.1.19 of the Loan Agreement; and (iv) except in
connection with the making of Permitted Alterations, remove, demolish, materially alter,
discontinue the use of, permit to become deserted, or otherwise dispose of all or any material part
ACTIVE 697188286v2 7
of the Real Estate. All alterations,replacements, renewals or additions made pursuant hereto shall
automatically become a part of the Property and shall be covered by the lien of this Mortgage.
2.8. Compliance with Applicable Laws. Mortgagor agrees to observe, conform and
comply, and to take commercially reasonable efforts to cause its tenants to observe, conform and
comply in all material respects with all federal, state, county, municipal and other governmental
or quasi-governmental laws, rules, regulations, ordinances, codes, requirements, covenants,
conditions, orders, licenses, permits, approvals and restrictions, including without limitation,
Environmental Laws (as defined below) and the Americans with Disabilities Act of 1990
(collectively, the "Legal Requirements"), now or hereafter affecting all or any part of the
Property,within such time as required by such Legal Requirements;provided,however,Mortgagor
shall be permitted to contest the application of any Legal Requirement so long as such contest
operates to prevent enforcement of such Legal Requirement, and is prosecuted with due diligence
and continuity and could not reasonably be determined to have a material adverse effect on the
Property. Upon termination of any proceeding or contest, Mortgagor shall immediately comply
with such Legal Requirement as finally determined in the proceeding or contest. Mortgagor
represents and warrants that, to the best of Mortgagor's knowledge, the Real Estate is currently in
material compliance with all material Legal Requirements applicable to the Property.
2.9. Required Notices. Mortgagor shall notify Mortgagee within five(5)business days
of: (a) receipt of any written notice from any governmental or quasi-governmental authority
relating to the structure, use or occupancy of the Property or alleging a violation of any Legal
Requirement;(b) a material change of the use of all or any part of the Property by Mortgagor; (c)
receipt of any notice from the holder of any lien or security interest in all or any part of the Property
alleging any default on the part of Mortgagor; (d) commencement of any litigation which, if
adversely determined, would materially adversely affect the financial ability of Mortgagor or the
value of the Property; (e)a pending or threatened condemnation of all or any part of the Property;
(f) a fire or other casualty causing damage to all or any part of the Property the cost of repair of
which could reasonably be expected to exceed $50,000; (g) receipt of any notice with regard to
any Release of Hazardous Substances (as such terms are defined below) or any other
environmental matter adversely affecting the Property or Mortgagor's interest therein; (h) receipt
of any request for information, demand letter or notification of potential liability from any entity
relating to potential responsibility for investigation or clean-up of Hazardous Substances on the
Property;(i)receipt of any written notice from any tenant at the Property alleging a default,failure
to perform or any right to terminate its lease or to set-off rents which materially adversely affects
the Property; or (j) receipt of any written notice of the imposition of, or of threatened or actual
execution on, any lien on or security interest in all or any part of the Property.
2.10 Insurance. Mortgagor shall maintain insurance with respect to the Property as
required by the Loan Agreement.
2.11 Performance of Other Agreements Mortgagor shall observe and perform each
and every term,covenant and provision to be observed or performed by Mortgagor pursuant to the
Loan Agreement, any other Loan Document and in all material respects, each and every term,
covenant and provision to be observed or performed by Mortgagor pursuant to any other agreement
or recorded instrument affecting or pertaining to the Property and any amendments,modifications
ACTIVE 697188286v2 8
or changes thereto, provided, however, that, except as otherwise set forth herein or in the Loan
Agreement, any failure to so perform or comply shall not constitute a Default so long as such
failure does not have any material adverse effect on the Mortgagor or the Property.
3. SECURITY AGREEMENT. This Mortgage constitutes a security agreement under the
Code and shall be deemed to constitute a fixture financing statement. Mortgagor hereby grants to
Mortgagee a security interest in all of Mortgagor's right,title and interest in the personal and other
property (other than real property) included in the Property (the " Personal Property"), and all
replacements of, substitutions for, and additions to, such property, and the proceeds thereof.
Mortgagor shall, at Mortgagor's own expense, execute, deliver, file and refile any financing or
continuation statements or other security agreements Mortgagee may require from time to time to
perfect, confirm or maintain the lien of this Mortgage with respect to such property. Without
limiting the foregoing, Mortgagor hereby irrevocably appoints Mortgagee attorney-in-fact for
Mortgagor to execute, deliver and file such instruments for or on behalf of Mortgagor at
Mortgagor's expense, which appointment,being for security, is coupled with an interest and shall
be irrevocable. If an Event of Default shall occur and be continuing, Lender, in addition to any
other rights and remedies which it may have,shall have and may exercise immediately and without
demand, any and all rights and remedies granted to a secured party upon default under the Code,
including, without limiting the generality of the foregoing, the right to take possession of the
Personal Property or any part thereof, and to take such other measures as Lender may deem
necessary for the care, protection and preservation of the Personal Property. Upon request or
demand of Lender after the occurrence and during the continuance of an Event of Default,
Mortgagor shall,at its expense, assemble the Personal Property and make it available to Lender at
a convenient place (at the Real Estate if tangible property) reasonably acceptable to Lender.
Mortgagor shall pay to Lender, within ten (10)Business Days following written demand, any and
all expenses, including reasonable legal expenses and attorneys' fees and costs, incurred or paid
by Lender in protecting its interest in the Personal Property and in enforcing its rights hereunder
with respect to the Personal Property after the occurrence and during the continuance of an Event
of Default. .
4. ASSIGNMENT OF LEASES.
4.1. Mortgagor hereby absolutely, presently and unconditionally conveys,transfers and
assigns to Mortgagee all of Mortgagor's right, title and interest, now existing or hereafter arising,
in and to the Leases and Rents. Notwithstanding that this assignment is effective immediately, so
long as no Event of Default exists, Mortgagor shall have the privilege under a revocable license
granted hereby to operate and manage the Property and to collect, as they become due, but not
prior to accrual, the Rents. Mortgagor shall receive and hold such Rents in trust as a fund to be
applied, and Mortgagor hereby covenants and agrees that such Rents shall be so applied, first to
the operation, maintenance and repair of the Property and the payment of interest, principal and
other sums becoming due under the Liabilities, before retaining and/or disbursing any part of the
Rents for any other purpose. The license herein granted to Mortgagor shall automatically,without
notice or any other action by Mortgagee,terminate upon the occurrence of an Event of Default and
during the continuance thereof, and all Rents collected or received by Mortgagor during such
period shall be held in trust by Mortgagor for the sole and exclusive benefit of Mortgagee,subject
to Mortgagor's right to use same for the operation, maintenance and repair of the Property.
ACTIVE 697188286v2 9
Nothing contained in this Section 4.1,and no collection by Mortgagee of Rents,shall be construed
as imposing on Mortgagee any of the obligations of the lessor under the Leases.
4.2. Mortgagor shall timely perform all of its material obligations under the Leases.
Mortgagor represents and warrants that: (a)Mortgagor has title to and full right to assign presently,
absolutely and unconditionally the Leases and Rents associated with their respective Property; (b)
from and after the date of this Mortgage, no other assignment of any interest in any of the Leases
or Rents shall exist; (c) to Mortgagor's actual knowledge, there are no leases or agreements to
lease all or any portion of the Property now in effect except the Leases disclosed in the rent roll
provided by Mortgagor to Mortgagee at the closing of the Loan,true and complete copies of which
have been furnished to Mortgagee, and no written or oral modifications have been made thereto,
except as has been furnished to Mortgagee; (d) To Mortgagor's knowledge, except as set forth in
the aforedescribed rent roll, there is no existing default by Mortgagor or by any tenant under any
of the Leases, nor has any event occurred which due to the passage of time, the giving or failure
to give notice, or both, would constitute a default under any of the Leases; (e) to Mortgagor's
knowledge, the Leases are in full force and effect; and (f)Mortgagor has not accepted Rent under
any Lease more than thirty(30)days in advance of its due date.
5. DECLARATION OF NO OFFSET. Mortgagor represents to Mortgagee that Borrower
has no offsets, counterclaims or defenses to the Liabilities either at law or in equity. Mortgagor
shall,within three(3)days upon written request delivered in person or within seven(7)days upon
request by mail, furnish to Mortgagee or Mortgagee's designee a written statement in form
satisfactory to Mortgagee stating the amount due under the Liabilities and whether there are offsets
or defenses against the same, and if so, the nature and extent thereof.
6. (INTENTIONALLY OMITTED)
7. EVENTS OF DEFAULT. An Event of Default under the Loan Agreement shall
constitute an Event of Default under this Mortgage.
S. REMEDIES. If an Event of Default shall have occurred and be continuing, Mortgagee
may take any of the following actions:
8.1. Acceleration. Mortgagee may declare the entire amount of the Liabilities
immediately due and payable, without presentment, demand, notice of any kind, protest or notice
of protest, all of which are expressly waived, notwithstanding anything to the contrary contained
in any of the Loan Documents. Mortgagee may charge and collect interest from the date of default
on the unpaid balance of the Liabilities, at the Default Rate set forth in the Note.
8.2. Possession. Mortgagee may enter upon and take possession of the Property, with
or without legal action, lease the Property, collect therefrom all rentals and, after deducting all
costs of collection and administration expense, apply the net rentals to any one or more of the
following items in such manner and in such order of priority as Mortgagee, in Mortgagee's sole
discretion, may elect: the payment of any sums due under any prior lien, taxes, water and sewer
rents,charges and claims, insurance premiums and all other carrying charges,to the maintenance,
repair or restoration of the Property, or on account of the Liabilities. Mortgagee is given full
authority to do any act which Mortgagor could do in connection with the management and
ACTIVE 697188286v2 10
operation of the Property. This covenant is effective either with or without any action brought to
foreclose this Mortgage and without applying for a receiver of such rents. In addition to the
foregoing, upon the occurrence of an Event of Default, Mortgagor shall pay monthly in advance
to Mortgagee or to any receiver appointed to collect said rents the fair and reasonable rental value
for Mortgagor's use and occupation of the Property, and upon default in any such payment
Mortgagor shall vacate and surrender the possession of the Property to Mortgagee or to such
receiver. If Mortgagor does not vacate and surrender the Property then Mortgagor may be evicted
by summary proceedings.
8.3. Foreclosure. Mortgagee may institute any one or more actions of mortgage
foreclosure against all or any part of the Property, or take such other action at law, equity or by
contract for the enforcement of this Mortgage and realization on the security herein or elsewhere
provided for, as the law may allow, and may proceed therein to final judgment and execution for
the entire unpaid balance of the Liabilities. The unpaid balance of any judgment shall bear interest
at the greater of(a) the statutory rate provided for judgments, or (b) the Default Rate. Without
limiting the foregoing,Mortgagee may foreclose this Mortgage and exercise its rights as a secured
party for all or any portion of the Liabilities which are then due and payable, subject to the
continuing lien of this Mortgage for the balance not then due and payable. In case of any sale of
the Property by judicial proceedings, the Property may be sold in one parcel or in such parcels,
manner or order as Mortgagee in its sole discretion may elect. Mortgagor, for itself and anyone
claiming by, through or under it, hereby agrees that Mortgagee shall in no manner, in law or in
equity, be limited, except as herein provided, in the exercise of its rights in the Property or in any
other security hereunder or otherwise appertaining to the Liabilities or any other obligation secured
by this Mortgage, whether by any statute, rule or precedent which may otherwise require said
security to be marshalled in any manner and Mortgagor, for itself and others as aforesaid, hereby
expressly waives and releases any right to or benefit thereof. The failure to make any tenant a
defendant to a foreclosure proceeding shall not be asserted by Mortgagor as a defense in any
proceeding instituted by Mortgagee to collect the Liabilities or any deficiency remaining unpaid
after the foreclosure sale of the Property.
8.4. Appointment of Receiver. Mortgagee may petition a court of competent
jurisdiction to appoint a receiver of the Property. Such appointment may be made either before or
after sale, without notice, without regard to the solvency or insolvency of Mortgagor at the time
of application for such receiver, without regard to the then value of the Property or whether the
Property shall be then occupied as a homestead or not, and without regard to whether Mortgagor
has committed waste or allowed deterioration of the Property, and Mortgagee or any agent of
Mortgagee may be appointed as such receiver. Mortgagor hereby agrees that Mortgagee has a
special interest in the Property and absent the appointment of such receiver the Property shall
suffer waste and deterioration and Mortgagor further agrees that it shall not contest the
appointment of a receiver and hereby so stipulates to such appointment pursuant to this paragraph.
Such receiver shall have the power to perform all of the acts permitted Mortgagee pursuant to
Section 8.2 above and such other powers which may be necessary or customary in such cases for
the protection,possession,control,management and operation of the Property during such period.
8.5. Rights as a Secured Party. Mortgagee shall have, in addition to other rights and
remedies available at law or in equity, the rights and remedies of a secured party under the Code.
ACTIVE 697188286v2
Mortgagee may elect to foreclose such of the Property as then comprise fixtures pursuant either to
the law applicable to foreclosure of an interest in real estate or to that applicable to personal
property under the Code. To the extent permitted by law, Mortgagor waives the right to any stay
of execution and the benefit of all exemption laws now or hereafter in effect.
8.6. Excess Monies. Mortgagee may apply on account of the Liabilities any
unexpended monies still retained by Mortgagee that were paid by Mortgagor to Mortgagee: (a)
for the payment of, or as security for the payment of Real Estate Taxes, insurance premiums, or
any other charges;or(b)to secure the performance of Mortgagor of its obligations hereunder.
8.7. Other Remedies. Mortgagee shall have the right, from time to time, to bring an
appropriate action to recover any sums required to be paid by Mortgagor under the terms of this
Mortgage,as they become due,without regard to whether or not any other Liabilities shall be due,
and without prejudice to the right of Mortgagee thereafter to bring an action of mortgage
foreclosure,or any other action, for any default by Mortgagor existing at the time the earlier action
was commenced. In addition, Mortgagee shall have the right to set-off all or any part of any
amount due by Mortgagor to Mortgagee under any of the Liabilities, against any indebtedness,
liabilities or obligations owing by Mortgagee in any capacity to Mortgagor, including any
obligation to disburse to Mortgagor any funds or other property on deposit with or otherwise in
the possession, control or custody of Mortgagee.
9. MISCELLANEOUS.
9.1. Notices. All notices and communications under this Mortgage shall be in writing
and shall be given by either (a) hand-delivery, or (b) reliable overnight commercial courier
(charges prepaid), to the addresses listed in this Mortgage. Notice shall be deemed to have been
given and received: (a) if by hand delivery, upon delivery; and(b) if by overnight courier, on the
date scheduled for delivery. A party may change its address by giving written notice to the other
party as specified herein.
9.2. Remedies Cumulative. The rights and remedies of Mortgagee as provided in this
Mortgage or in any other Loan Document shall be cumulative and concurrent, may be pursued
separately,successively or together,may be exercised as often as occasion therefor shall arise,and
shall be in addition to any other rights or remedies conferred upon Mortgagee at law or in equity.
The failure, at any one or more times, of Mortgagee to assert the right to declare the Liabilities
due,grant any extension of time for payment of the Liabilities,take other or additional security for
the payment thereof, release any security, change any of the terms of the Loan Documents, or
waive or fail to exercise any right or remedy under any Loan Document shall not in any way affect
this Mortgage or the rights of Mortgagee.
9.3. No Implied Waiver. Mortgagee shall not be deemed to have modified or waived
any of its rights or remedies hereunder unless such modification or waiver is in writing and signed
by Mortgagee, and then only to the extent specifically set forth therein. A waiver in one event
shall not be construed as continuing or as a waiver of or bar to such right or remedy on a subsequent
event.
ACTIVE 697188286v2 12
9.4. Partial Invalidity. The invalidity or unenforceability of any one or more
provisions of this Mortgage shall not render any other provision invalid or unenforceable. In lieu
of any invalid or unenforceable provision, there shall be added automatically a valid and
enforceable provision as similar in terms to such invalid or unenforceable provision as may be
possible.
9.5. Binding Effect. The covenants, conditions, waivers, releases and agreements
contained in this Mortgage shall bind, and the benefits thereof shall inure to,the parties hereto and
their respective heirs, executors, administrators, successors and assigns and are intended and shall
be held to be real covenants running with the land; provided, however, that this Mortgage cannot
be assigned by Mortgagor without the prior written consent of Mortgagee, and any such
assignment or attempted assignment by Mortgagor shall be void and of no effect with respect to
Mortgagee.
9.6. Modifications. This Mortgage may not be supplemented, extended, modified or
terminated except by an agreement in writing signed by the party against whom enforcement of
any waiver,change, modification or discharge is sought.
9.7. Commercial Loan. Mortgagor represents and warrants that the loans or other
financial accommodations included as Liabilities secured by this Mortgage were obtained solely
for the purpose of carrying on or acquiring a business or commercial investment and not for
residential, consumer or household purposes.
9.8. Governing Law. This Mortgage shall be governed by and construed in accordance
with the substantive laws of the State of Florida without reference to conflict of laws principles.
9.9. Joint and Several Liability. If Mortgagor consists of more than one person or
entity, the word"Mortgagor"shall mean each of them and their liability shall be joint and several.
9.10. Non-Merger. In the event Mortgagee shall acquire title to the Leasehold, the
Improvements or the Property by conveyance from Mortgagor or as a result of foreclosure, this
Mortgage shall not merge in the leasehold estate of the Property but shall remain and continue as
an existing and enforceable lien for the Liabilities secured hereby until the same shall be released
of record by Mortgagee in writing.
9.11. Ground Lease/ No Lien against Fee Interest. This Mortgage is subject and
subordinate to the terms of the Ground Lease and, except as expressly set forth in the Ground
Lease regarding Lessor's subordination in certain circumstances of its right to Percentage Rent(as
defined in the Ground Lease), to Lessor's interest in the Real Estate and the Ground Lease
(collectively defined as "Owner's Interest in the Premises" in the Ground Lease). As such,
pursuant to Section 11.3 of the Ground Lease, the Mortgage is not and shall not at any time be a
lien or encumbrance upon all or any portion of Owner's Interest in the Premises, and pursuant to
Section 12.2 of the Ground Lease, Owner's Interest in the Premises is not and shall not at any time
be subject or subordinate to the Mortgage. In the event that Mortgagor shall obtain title to the Real
Estate,this Mortgage shall encumber the Real Estate and Mortgagor shall execute and deliver such
ACTIVE 697188286v2 13
documents as Mortgagee shall reasonably require to further evidence and confirm such
encumbrance.
9.12 Notices to Lessor and Performance by Lessor. Pursuant to Section 11.13(a) of
the Ground Lease,Mortgagee shall send to Lessor,simultaneously with the sending of such default
notices to Mortgagor, copies of all default notices or other notices relating to the failure of
Mortgagor to comply with the terms of this Mortgage or any other Loan Document,which notices
are sent pursuant to the Loan Agreement or any other Loan Document related to the Loan to
Mortgagor. All notices shall be sent to Lessor to the following address:
City of Miami Beach, Florida
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
With a copy to:
City of Miami Beach, Florida
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Attorney
9.13 Acceptance of Performance. Pursuant to Section 11.4(f) of the Ground Lease,
Mortgagee shall accept performance by Lessor, at Lessor's option, within the applicable grace
periods available to Mortgagor, to cure defaults under any covenant, condition or agreement on
Mortgagor's part to be performed under the Mortgage with the same force and effect as though
performed by Mortgagor.
9.1 Estoppel Requests. Pursuant to Section 11.13(b)of the Ground Lease, Mortgagee
shall comply with all reasonable estoppel requests of Lessor. Lessor shall also comply with all
reasonable estoppel requests of the Mortgagee.
9.15 Proceeds from Insurance or Condemnation Awards. Mortgagee acknowledges
Section 11.7 of the Ground Lease which states"To the extent that this Lease requires that insurance
proceeds paid in connection with any damage or destruction to the Premises or the proceeds of an
award paid in connection with a taking referred to Article 9 be applied to restore any portion of
the Premises, no Mortgagee shall have the right to apply the proceeds of insurance or awards
toward the payment of the sum secured by its Mortgage, except for the reasonable costs of
collection thereof."
10. LEASEHOLD
(a) Mortgagor shall promptly pay all rent, additional rent, taxes and all other sums and
charges when due and payable under the terms of the Ground Lease, shall fully and promptly
perform and observe all of the agreements, terms, covenants and conditions required to be
ACTIVE 697188286v2 14
performed and observed by Mortgagor under the Ground Lease within the grace periods provided
therein for Mortgagor's performance (in contrast to any additional grace periods provided in the
Ground Lease for curative action by Mortgagee), and shall do all things necessary to preserve and
keep unimpaired Mortgagor's rights under the Ground Lease. Upon demand Mortgagor shall
furnish to Mortgagee proof of payment of all sums which the Ground Lease requires Mortgagor to
pay and to provide proof of such payment to the Lessor. (b) If Mortgagor fails to observe or
perform any covenant or agreement on the part of the lessee to be observed or performed under
the Ground Lease or if Mortgagee receives from the Lessor any notice of any default by the lessee
thereunder,then Mortgagee may rely on such notice and may take any action that Mortgagee in its
sole discretion deems necessary or advisable to cure such default, even though the existence of
such default or the nature thereof be questioned or denied by Mortgagor or by any person on behalf
of Mortgagor. Mortgagor hereby expressly grants to Mortgagee the absolute and immediate right
to enter in and upon the Property or any part thereof to such extent and as often as Mortgagee in
its sole discretion deems necessary or desirable to prevent or cure any default by Mortgagor under
the Ground Lease or under any Loan Document. Mortgagee may pay and expend such sums of
money as Mortgagee in its sole discretion deems necessary for any such purpose and upon so doing
shall be subrogated to any and all rights of Mortgagor as lessee, and all such sums shall bear
interest, shall be paid and shall be secured as provided in paragraph 14. (c) Unless Mortgagee
shall otherwise consent in writing, the fee title to the Land and the Leasehold under the Ground
Lease shall not merge for so long as the Loan remains unpaid, but shall always remain separate
and distinct estates, notwithstanding the union thereof in the Lessor, in Mortgagor or in any third
person whomsoever, whether by purchase or otherwise. (d) if the Ground Lease is terminated
before the natural expiration of its term for any reason whatsoever and if Mortgagee or its designee
shall acquire from the Lessor a new lease of the Property or any portion thereof(whether pursuant
to any provision of the Ground Lease or otherwise), then Mortgagor shall have no right, title or
interest whatsoever in or to such new lease or the leasehold estate created thereby. (e)Mortgagor
shall promptly notify Mortgagee in writing of any request for arbitration proceedings made by any
party to the Ground Lease, as well as provide notice to Mortgagee of the institution of such
arbitration and the progress thereof and any determination made by the arbitrators thereunder.
Mortgagee shall have the right to participate in any such arbitration proceedings in association
with Mortgagor or on Mortgagee's own behalf as an interested party. (f) The generality of the
provisions of this paragraph or any other provision contained in this Mortgage relating to the
Ground Lease or the Leasehold shall not be limited by other more particular provisions of this
Mortgage or any other Document setting forth obligations of Mortgagor which are also required
of Mortgagor as the lessee under the Ground Lease.
11. Swap Transaction. Mortgagor hereby acknowledges and agrees that: (1) the
Mortgagor's obligations under any swap transaction entered into between Mortgagor and
Mortgagee in connection with the Note pursuant to the Swap Agreement, are and shall be
expressly included within the obligations hereunder; and (2) the documents applicable to such
swap transaction shall be cross-collateralized and cross-defaulted, pari passu, with this
Mortgage and the other Loan Documents.
[Remainder of page intentionally left blank;signature page to follow.]
ACTIVE 697188286v2 15
IN WITNESS WHEREOF, Mortgagor, intending to be legally bound, has duly executed
and delivered this Mortgage as of the day and year first above written.
WITNESS: MORTGAGOR:
RK RIVANI LLC
a Florida limited liability company
By:
Name: Name:
Title:
Address:
Name:
Address:
STATE OF FLORIDA )
) ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by means of❑physical presence
or❑ online notarization, this_day of , 2024, by ROBERT RIVANI as Manager of RK
RIVANI LLC, a Florida limited liability company, on behalf of the limited liability company,
who is personally known to me or who has produced
as identification.
[NOTARIAL SEAL] Print Name:
Notary Public, State of Florida
Commission#:
My Commission Expires:
(Notary Acknowledgment Signature Page to Mortgage)
ACTIVE 697188286v2
Schedule A
LEASE AND REAL ESTATE DESCRIPTION
That certain Lease Agreement by and between the City of Miami Beach, Florida, a
municipal corporation, as Owner/Landlord, and Lincoln Plaza Partners, LLC, a Florida
limited liability company, as Tenant, dated September 1, 1999, and recorded September
3, 1999, in Official Records Book 18770, Page 447; as assigned to LNR Jefferson, LLC,
a Florida limited liability company, by that certain Assignment and Assumption
Agreement recorded June 5, 2001, in Official Records Book 19700, Page 3095; together
with Consent to Assignment and Assumption by the City of Miami Beach Florida,
recorded May 17, 2001, in Official Records Book 19669, Page 1035, as further assigned
to Lincoln Miami Beach Investments, LLC, a Delaware limited liability company, by
Assignment and Assumption of Ground Lease,recorded July 20,2006,in Official Records
Book 24738, Page 4073, as further assigned to CLPF-Lincoln, LLC, by Assignment and
Assumption of Ground Lease recorded April 15, 2016, in Official Records Book 30039,
Page 4656,as further assigned to RK Rivani LLC,a Florida limited liability company, by
that certain assignment and Assumption Agreement of Ground Lease recorded in Official
Records Book , Page , all of the
Public Records of Miami-Dade County, Florida, demising the following described land
(the"Real Estate"):
Lots 7 through 10, inclusive, and Lots 14 through 20, inclusive, in Block 37, PALM
VIEW SUBDIVISION, according to the plat thereof, as recorded in Plat Book 6,
Page 29,of the Public Records of Miami-Dade County, Florida
Schedule A
ACTIVE 697188286v2
EXHIBIT E
Recognized Mortgagee Address
Notice address for Recognized Mortgage:
Amerant Bank
220 Alhambra Circle
Coral Gables, Florida 33134
Attention: Kevin Miliffe, Executive Vice President
ACTIVE 697064945v2
RESOLUTION NO! 2024-32875
A RESOLUTION OF THE MAYOR AND'CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AUTHORIZING THE CITY MANAGER TO DECLINE,
IN WRITING, THE RIGHT OF FIRST OFFER TENDERED TO THE CITY BY
CLPF— LINCOLN, LLC (CLPF)WITH REGARD TO THE PROPOSED SALE TO
A QUALIFIED BUYER OF CLPF'S LEASEHOLD INTEREST IN THE PROJECT
LOCATED AT 1691 MICHIGAN AVENUE (THE PROPERTY) FOR THE TOTAL
PURCHASE PRICE OF $62,500,000.00, SUCH RIGHT OF FIRST
OFFER BEING REQUIRED PURSUANT TO SECTION 36.2 OF THE
AGREEMENT OF LEASE BETWEEN THE CITY (OWNER) AND CLPF IN
RESPECT OF THE PROPERTY.
WHEREAS, on January 5, 1998, the City issued RFP No. 20-97/98, seeking proposals for
the development of Public-Private Parking Facilities. On July 7, 1999, the Mayor and City
Commission adopted Resolution No. 99-23236, approving the Agreement of Lease and the
Development Agreement between the City and Lincoln Plaza Partners, LLC, for the development
of a mixed-use project, located at Michigan and Jefferson Avenue, between Lincoln Lane and 17th
Street(the "Land"); and
WHEREAS, an Agreement of Lease dated September 1, 1999 was executed between the
City, as Owner/Ground Lessor, and Lincoln Plaza Partners LLC, a Florida limited liability company,
as Tenant/Ground Lessee (the "Ground Lease"), under which Ground Lease Tenant agreed to
develop a commercial project, consisting of an office building, a parking garage, and ground floor
retail space (collectively the "Project"), which Project is currently located at 1691 Michigan Avenue,
and commonly referred to as"The Lincoln" (the Land and Project will be collectively referred herein
to as the "Premises"); and
WHEREAS, pursuant to the Ground Lease,Tenant leases the land from the City and Tenant
holds ownership and title to the Project, and upon the expiration of the Ground Lease, ownership
of, and title to, the Project automatically vests in the City, without the payment of consideration; and
WHEREAS, the Ground Lease has an initial term of 50 years, expiring September 30,
2052, plus two automatic renewal options for 20 years each, unless the Tenant is in default or
notifies the City within the last twenty-four(24) months of the end of the term in question that it will
not exercise its option; and
WHEREAS, on December 20, 2000, the Mayor and City Commission adopted Resolution
No. 2000-24220, approving the Sale and Assignment and Assumption of the Ground Lease from
Lincoln Plaza Partners, LLC to LNR Jefferson, LLC. On October 5, 2005, LNR Jefferson, LLC
changed its name to The Lincoln, LLC; and
WHEREAS, on or about July 18, 2006, The Lincoln LLC sold the Project and assigned its
leasehold interest in the Land to Lincoln Miami Beach Investments, LLC, a Delaware limited liability
company; and
WHEREAS, on November 17, 2006, Lincoln Miami Beach Investment, LLC changed its
name to 01K Lincoln Miami Beach Investment, LLC, and thereafter, on June 17, 2009, merged with
1691 Michigan Ave Investment LP, a Delaware limited liability partnership; and
WHEREAS, on February 12, 2014, the Mayor and City Commission approved Resolution
No. 2014-28486, authorizing the Mayor and City Clerk to execute Amendment No. 1 to the Ground
Lease, modifying the Scope of Use under the Ground Lease by reducing the minimum number of
parking spaces required for the parking garage facility, from 700 to 645 spaces; increasing the
minimum number of parking spaces required to be maintained at all times for use by the general
public from 100 to 155 parking spaces; and further increasing the monthly parking spaces for
members of the general public from 50 to 75, in connection with the development of a miniature
golf project at the sixth floor of the garage with the subtenant, City Middle, LLC; and
WHEREAS, City Middle, LLC never developed the miniature golf project; therefore,
Amendment No. 1 was never executed; and
WHEREAS, on January 13, 2016, the Mayor and City Commission adopted Resolution
No. 2016-29268, declining the Owner's Reciprocal Right of First Refusal and approving the sale of
the Project to CLPF-Lincoln, LLC, a Delaware limited liability company ("Tenant"), subject to the
Administration's successful completion of its evaluation of the proposed purchaser; and
WHEREAS, the Ground Lease was further assigned to Tenant by an Assignment and
Assumption of Ground Lease dated April 8, 2016; and
WHEREAS, on May 4, 2022, the Mayor and City Commission adopted Resolution No.
2022-32136 declining the Owner's Reciprocal Right of First Refusal in connection with a proposed
sale to 1691 Property Owner, L.O., a Delaware limited partnership that was to be owned by a fund
managed by Starwood Capital Group ("Starwood Affiliate"), and rescinding Resolution No. 2014-
28486 which had authorized the execution of Amendment No. 1; and
WHEREAS, on July 20, 2022, the Mayor and City Commission adopted Resolution No.
2022-32217 authorizing a new Amendment No. 1 ("New Amendment No. 1") that included the
modification of certain terms requested by Starwood Affiliate as well as revisions favorable to the
City; and
WHEREAS, the New Amendment No. 1 was executed by the Parties on July 22, 2022, but
became null and void and of no further force or effect on December 31, 2022 because the
contemplated sale by Tenant to Starwood Affiliate was not consummated; and
WHEREAS, on December 28, 2023, the Tenant provided notice to the City ("Offer Notice")
of its desire to sell its leasehold interest in the Premises to a third party and offering the City, as
required by Section 36.2(a) of the Ground Lease, the right to purchase the Tenant's leasehold
interest for the sum of$62,500,00.00 and upon other terms specified in the notice(the"Right of First
Offer Transaction")(a copy of the Offer Notice is attached to the Memorandum accompanying this
Resolution as Exhibit A); and
WHEREAS, the City has a period of forty-five (45)days to elect to consummate or reject the
Right of First Offer Transaction; and
WHEREAS, if the City fails to respond within such forty-five (45) day period, the City will be
deemed to have rejected the Right of First Offer Transaction, provided, as this matter requires
consideration by the City Commission, pursuant to Section 26.2(c)(iii) of the Ground Lease, the
period for responding is extended to the date that is fifteen (15) days after the first regular meeting
of the City Commission that is no earlier than ten (10) days following receipt of the request that
requires consideration, so the City has until February 15, 2024 to respond to the Offer Notice; and
WHEREAS, pursuant to Section 36.2(b) of the Ground Lease, if the City rejects (or is
deemed to have rejected by failing to respond to the Offer Notice within the designated period) the
Right of First Offer Transaction, Tenant may consummate the proposed transaction with any other
permitted buyer, on terms and conditions that are no less favorable to Tenant than those included
in the Offer Notice,within one hundred eighty(180)days following the earlier to occur of(i) February
15, 2024 or(ii) receipt by Tenant of a notice by the City declining to consummate the Right of First
Offer Transaction; and
WHEREAS, the Offer Notice contained the following terms:
Owner of Ground Lease: City of Miami Beach
Seller: CLPF- Lincoln, LLC, a Delaware limited liability company
Purchase Price: $62,500,000.00
Buyer: Black Lion Investment Group, Inc., a California corporation ("Black
Lion); and
WHEREAS, the City's capital budget for the 2024 fiscal year is already fully committed to
projects that are priorities for the City; and
WHEREAS, the current five-year Capital Improvement Plan (CIP) for the City totals
approximately$1.1 billion, of which$115.7 million was appropriated in FY 2024 as part of the capital
budget adopted by the City Commission on September 27, 2023, resulting in a $1.0 billion unfunded
CIP for FY 2025—FY 2028; and
WHEREAS, in view of the as yet substantial amount remaining unfunded for CIP projects in
the pipeline (FY 2025 — FY 2028), and because there are other important projects that have been
deferred due to lack of funding, the City Manager recommends that the City decline the Right of
First Offer Transaction; and
WHEREAS, concurrently with the Offer Notice, on December 28, 2024, Tenant provided a
second written notice to the City ("Notice of Sale") requesting the City's approval of Black Lion
Investment Group, Inc. ("Black Lion") as a buyer of the Lincoln (a copy of the Notice of Sale is
attached to the Memorandum accompanying this Resolution as Exhibit B); and
WHEREAS, the City has sixty(60)days from receipt of the Notice of Sale to consent to the
sale; and
WHEREAS,the City Administration has commenced conducting its due diligence, at the sole
expense of Black Lion,to determine whether or not Black Lion qualifies as a "Permitted Buyer" under
Section 10.3 of the Ground Lease; and
WHEREAS, if Black Lion satisfies the criteria to be a Permitted Buyer, the City will consent
to the sale transaction subject to execution by Tenant and Black Lion of appropriate documentation;
and
WHEREAS, based upon the foregoing, the City Manager recommends that the Mayor and
City Commission authorize the City Manager to decline the Right of First Offer Transaction in relation
to the contemplated sale of the Tenant's leasehold interest in The Lincoln for the total purchase
price of$62,500,000.
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission authorize the City
Manager to decline, in writing, the Right of First Offer tendered by Tenant to the City by CLPF —
Lincoln, LLC (CLPF) with regard to the proposed sale to a qualified buyer of CLPF's leasehold
interest in the project located at 1691 Michigan Avenue (the Property)for the total purchase price of
$62,500,000.00, such right of first offer being required pursuant to Section 36.2 of the Ground Lease
between the City and CLPF in respect of the Property.
PASSED AND ADOPTED this ?1 day of -7"(4 r1 2024.
teven Meiner, Mayor
ATTEST:
FEB 0 6 2024
APPROVED AS TO
Rafael . Granada, City Clerk FORM &LANGUAGE
` &FOR EXECUTION
94
=41 f is"--L44
1'Z --L44
k
I .INOAT:MEDI City Attorney ,7fej9 Dote
A.01
Resolutions -C7 E
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Aline T. Hudak, City Manager
DATE: January 31, 2024
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AUTHORIZING THE CITY MANAGER TO
DECLINE, IN WRITING, THE RIGHT OF FIRST OFFER TENDERED TO
THE CITY BY CLPF — LINCOLN, LLC (CLPF) WITH REGARD TO THE
PROPOSED SALE TO A QUALIFIED BUYER OF CLPF'S LEASEHOLD
INTEREST IN THE PROJECT LOCATED AT 1691 MICHIGAN AVENUE (THE
PROPERTY) FOR THE TOTAL PURCHASE PRICE OF $62,500,000.00,
SUCH RIGHT OF FIRST OFFER BEING REQUIRED PURSUANT TO
SECTION 36.2 OF THE AGREEMENT OF LEASE BETWEEN THE CITY
(OWNER)AND CLPF IN RESPECT OF THE PROPERTY.
BACKGROUND/HISTORY
On January 5, 1998, the City issued RFP No. 20-97/98, seeking proposals for the development
of Public-Private Parking Facilities. On July 7, 1999, the Mayor and City Commission adopted
Resolution No. 99-23236, approving the Agreement of Lease and the Development Agreement
between the City and Lincoln Plaza Partners, LLC, for the development of a mixed-use project,
located at Michigan and Jefferson Avenue, between Lincoln Lane and 17th Street(the "Land").
An Agreement of Lease dated September 1, 1999 was executed between the City, as
Owner/Ground Lessor, and Lincoln Plaza Partners LLC, a Florida limited liability company, as
Tenant/Ground Lessee (the "Ground Lease"), under which Ground Lease Tenant agreed to
develop a commercial project, consisting of an office building, a parking garage, and ground floor
retail space (collectively the "Project"), which Project is currently located at 1691 Michigan
Avenue, and commonly referred to as "The Lincoln" (the Land and Project will be collectively
referred herein to as the "Premises"). Pursuant to the Ground Lease, Tenant leases the land
from the City and Tenant holds ownership and title to the Project, and upon the expiration of the
Ground Lease, ownership of, and title to, the Project automatically vests in the City, without the
payment of consideration.
The Ground Lease has an initial term of 50 years, expiring September 30, 2052, plus two
automatic renewal options for 20 years each, unless the Tenant is in default or notifies the City
within the last twenty-four(24) months of the end of the term in question that it will not exercise
its option.
On December 20, 2000, the Mayor and City Commission adopted Resolution No. 2000-24220,
approving the Sale and Assignment and Assumption of the Ground Lease from Lincoln Plaza
Partners, LLC to LNR Jefferson, LLC. On October 5, 2005, LNR Jefferson, LLC changed its
Page 538 of 2002
name to The Lincoln, LLC.
On or about July 18, 2006, The Lincoln LLC sold the Project and assigned its leasehold
interest in the Land to Lincoln Miami Beach Investments, LLC, a Delaware limited liability
company.
On November 17, 2006, Lincoln Miami Beach Investment, LLC changed its name to 01K
Lincoln Miami Beach Investment, LLC, and thereafter, on June 17, 2009, merged with 1691
Michigan Ave Investment LP, a Delaware limited liability partnership.
On February 12, 2014, the Mayor and City Commission approved Resolution No. 2014-28486,
authorizing the Mayor and City Clerk to execute Amendment No. 1 to the Ground Lease,
modifying the Scope of Use under the Ground Lease by reducing the minimum number of
parking spaces required for the parking garage facility, from 700 to 645 spaces; increasing the
minimum number of parking spaces required to be maintained at all times for use by the general
public from 100 to 155 parking spaces; and further increasing the monthly parking spaces for
members of the general public from 50 to 75, in connection with the development of a miniature
golf project at the sixth floor of the garage with the subtenant, City Middle, LLC. City Middle,
LLC never developed the miniature golf project; therefore, Amendment No. 1 was never
executed.
On January 13, 2016, the Mayor and City Commission adopted Resolution No. 2016-29268,
declining the Owner's Reciprocal Right of First Refusal and approving the sale of the Project to
CLPF-Lincoln, LLC, a Delaware limited liability company ("Tenant"), subject to the
Administration's successful completion of its evaluation of the proposed purchaser. The Ground
Lease was further assigned to Tenant by an Assignment and Assumption of Ground Lease
dated April 8, 2016.
On May 4, 2022, the Mayor and City Commission adopted Resolution No. 2022-32136
declining the Owner's Reciprocal Right of First Refusal in connection with a proposed sale to
1691 Property Owner, L.O., a Delaware limited partnership that was to be owned by a fund
managed by Starwood Capital Group ("Starwood Affiliate"), and rescinding Resolution No.
2014-28486 which had authorized the execution of Amendment No. 1.
On July 20, 2022, the Mayor and City Commission adopted Resolution No. 2022-32217
authorizing a new Amendment No. 1 ("New Amendment No. 1")that included the modification of
certain terms requested by Starwood Affiliate as well as revisions favorable to the City.
The New Amendment No. 1 was executed by the Parties on July 22, 2022, but became null and
void and of no further force or effect on December 31, 2022 because the contemplated sale by
Tenant to Starwood Affiliate was not consummated.
ANALYSIS
On December 28, 2023, the Tenant provided notice to the City("Offer Notice") of its desire to
sell its leasehold interest in the Premises to a third party and offering the City, as required by
Section 36.2(a) of the Ground Lease, the right to purchase the Tenant's leasehold interest for
the sum of$62,500,00.00 and upon other terms specified in the notice (the "Right of First Offer
Transaction"). A copy of the Offer Notice is attached hereto as Exhibit A. The City has a period
of forty-five (45) days to elect to consummate or reject the Right of First Offer Transaction. If
the City fails to respond within such forty-five (45) day period, the City will be deemed to have
rejected the Right of First Offer Transaction[1].
Pursuant to Section 36.2(b) of the Ground Lease, if the City rejects (or is deemed to have
rejected by failing to respond to the Offer Notice within the designated period)the Right of First
Offer Transaction, Tenant may consummate the proposed transaction with any other permitted
buyer, on terms and conditions that are no less favorable to Tenant than those included in the
Offer Notice, within one hundred eighty (180) days following the earlier to occur of (i) the
Page 539 of 2002
expiration of forty-five (45) days following the City's receipt of the Offer Notice, or (ii) receipt by
Tenant of a notice by the City declining to consummate the Right of First Offer Transaction
The Offer Notice contained the following information:
Owner of Ground Lease: City of Miami Beach
Seller: CLPF- Lincoln, LLC. a Delaware limited liability company
Purchase Price: $62,500,000.00
Buyer: Black Lion Investment Group, Inc., a California corporation ("Black Lion),
The City's capital budget for the 2024 fiscal year is already fully committed to projects that are
priorities for the City. The current five-year Capital Improvement Plan (CI P) for the City totals
approximately $1.1 billion, of which $115.7 million was appropriated in FY 2024 as part of the
capital budget adopted by the City Commission on September 27, 2023, resulting in a $1.0
billion unfunded CI P for FY 2025- FY 2028. Since there are other important projects that have
been deferred due to lack of funding, the City Manager recommends that the City decline the
Right of First Offer Transaction.
Concurrently with the Offer Notice, on December 28, 2024, Tenant provided a second written
notice to the City ("Notice of Sale") requesting the City's approval of Black Lion Investment
Group, Inc. ("Black Lion") as a buyer of the Lincoln. A copy of the Notice of Sale is attached
hereto as Exhibit B. The City has sixty(60)days from receipt of the Notice of Sale to consent to
the sale. The City Administration has commenced conducting its due diligence, at the sole
expense of Black Lion, to determine whether or not Black Lion qualifies as a "Permitted Buyer'
under Section 10.3 of the Ground Lease. If Black Lion satisfies the criteria to be a Permitted
Buyer, the City will consent to the sale transaction subject to execution by Tenant and Black Lion
of appropriate documentation.
[1] Pursuant to Section 26.2(c)(iii) of the Ground Lease, for matters requiring consideration by
the City Commission approval, time periods that trigger deemed automatic approvals are
extended to the date that is fifteen (15) days after the first regular meeting of the City
Commission that is no earlier than ten (10) days following receipt of the request that requires
consideration. In this case, as the item is being presented for consideration at the January 31,
2024 City Commission meeting. the City has until February 15, 2024 to respond to the Offer
Notice.
SUPPORTING SURVEY DATA
n/a
FINANCIAL INFORMATION
n/a
CONCLUSION
Based upon the foregoing, the City Manager recommends that the Mayor and City Commission
adopt the Resolution authorizing the City Manager to decline, in writing, the Right of First Offer
tendered by Tenant to the City in relation to the contemplated sale of Tenant's leasehold interest
in The Lincoln for the total purchase price of$62,500,000.00 to Black Lion.
Applicable Area
South Beach
Page 540 of 2002
Is this a"Residents Right Does this item utilize C.O.
to Know" item3 pursuant to Bond Funds?
City Code Section 2-14?
No No
Legislative Tracking
Facilities and Fleet Management
ATTACHMENTS:
Description
❑ Exhibit A
Page 541 of 2002
Exhibit A
FAILURE TO RESPOND TO THIS REQUEST WITHIN THE TIME PERIOD PROVIDED IN
THE LEASE AGREEMENT BETWEEN CITY OF MIAMI BEACH, FLORIDA AND CLPF -
LINCOLN, LLC SHALL CONSTITUTE AUTOMATIC APPROVAL OF THE MATTERS
DESCRIBED HEREIN WITH RESPECT TO SECTION 10.3, 10.5 AND 10.6 OF SUCH LEASE
AGREEMENT.
December 26, 2023
VIA UPS OVERNIGHT
City of Miami Beach City of Miami Reach
City Manager City Attorney
1700 Convention Center Drive 1700 Convention Center Drive
Miami Beach, Florida 33139 Miami Beach,Florida 33139
Bloom&Minsker
1401 Brickell Avenue, Suite 700
Miami, Florida 33131
Attention: Joel N. Minsker, P.A.
Re: Lease Agreement (as previously assigned, the "Lease") between CITY OF MIAMI BEACH,
FLORIDA, a municipal corporation duly organized and existing under the laws of the State of
Florida ("Landlord"), and CLPF - LINCOLN, LLC, a Delaware limited liability company
(successor in interest to 1691 Michigan Ave Investment LP)("Tenant"), dated September I, 1999,
with respect to the property located at 1691 Michigan Avenue, Miami Beach, Florida (the
"Premises");capitalized terms used but not otherwise defined herein have the meanings given such
terms in the Lease. For reference a copy of the Offer Notice is attached hereto as Exhibit A.
Dear Sir or Madam:
If Landlord declines to accept that certain Offer Notice sent by Tenant on December 26, 2023 pursuant
to Section 36.2(a)of the Lease, then Tenant hereby requests Landlord's consent to a proposed Sale of
Tenant's interest in the Lease pursuant to Sections 10.3(c) and 10.5(a) of the Lease. Please note the
following information about the potential third-party purchaser of Tenant's interest in the Lease: (i) the
name of the proposed purchaser is Black Lion Investment Group, Inc., a California corporation("Black
Lion"), or its affiliated designee, and the proposed purchaser's address is 2U1 S. Biscayne Blvd., Suite
1440, Miami, Florida 33131, (ii) the Tenant's name is CLPF - Lincoln, LLC, and Tenant's address is
c/o Clarion Partners, 230 Park Avenue, 12th Floor, New York, New York 10169, and (iii) the
contemplated Sale is for one hundred percent(100%)of the leasehold interest under the Lease.
The proposed purchaser hereby certifies that it is a Permitted Buyer pursuant to Section 10.3(c) of the
Lease.
Please note that, per Black Lion, to facilitate Landlord's evaluation of the proposed purchaser, Black
Lion intends to disclose to Landlord's independent certified public accounting firm PAAST such records
supporting the satisfaction of the net worth requirement of the proposed purchaser and affiliated entities
in accordance with procedures established by Landlord, PAAST and the purchaser's independent
certified public account Kaufman Rossin,as previously discussed between Landlord and Black Lion.
760532907 4
Page 542 of 2002
Pursuant to Section 10.6(b) of the Lease, attached as Exhibit B hereto please find a proposed form of
Assignment and Assumption of Ground Lease (the "Assumption of Lease"). Please confirm the
Assumption of Lease is acceptable for the consummation of the Sale to the proposed purchaser.
In the event that Landlord consents to the proposed Sale of Tenant's interest in the Lease as described
above and approves the Assumption of Lease attached hereto, Tenant kindly requests that Landlord
promptly provide a written statement to Tenant of such consent and approval by countersigning in the
applicable signature block below.
If you have any questions or need additional information, please contact David Saye at(704)444-3526
or dsaye@mayerbrown.com.
[Signature Page Attached/
76os324o7 1
Page 543 of 2002
Sincerely,
CLPF LINCOLN. LLC.
J Dela%Jrf lut»ted liability contpan
By C lartun Lum Properties,Fund Molding... L.P..
a Delaware limited partnership
Its Sok Mkitibcr
By CLPF-Iiukitrtga. LLC.
J Delaware limited Liability company
lar.Gcncr 1 Panner
By Clarion Lion Properties Fund Ilokltng.REIT, LLC.
J Dela%are hunted liability company
Its. Sole Member
By. Clarion Lion Properties Fund- LP.
J Delaware Limited partnership
Its. \tariagutg Member
B' . Clarion Partners LPF GP. LLC.
J Dela%Jfe limited liability company
Ib. Gcncwl Panner
B� Clarion Partner.,LLC.
a New York limited liability company
Ib.
Sole Member
Nai ne Katie Vre
Title .1u t hunted S i gnator
3
7605329014
Page 544 of 2002
WITH COPIES TO:
City of Miami Beach
City Manager
1 700 Convention Center Drive
Miami Beach, Honda 33139
City of Miami Beach
City Attorney
1700 Convention Center Drive
Miami Beach, Florida 33139
Bloom & Minsker
1401 Brickell Avenue, Suite 700
Miami, Florida 33131
Attn: Joel N. Minsker, P.A.
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Ricardo J. Dopico, Esq., Deputy City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Ms. Rickelle Williams, Assistant City Manager
Black Lion Investment Group, Inc. (Via email)
201 S. Biscayne Blvd., Suite 1440
Miami, Florida 33131
Attn: Marc Shandler, Esq.
Email: marc@blacklionig.com
4
76053290,4
Page 545 of 2002
The undersigned hereby certifies to Landlord that it is a Permitted Buyer pursuant to Section 10.3(c)of
the Lease.
BLACK LION INVESTMENT GROUP,INC..
a California corporation
D«uained by
� ct
By: ia...e+..co..00
Name: Patrick Khoury
Title: COO
5
760532907.4
Page 546 of 2002
The City of Miami Beach. Florida does hereby consent to the proposed Sale of Tenant's interest in the
Lease as described above and approves the form of Assumption of Lease attached hereto
CITY OF MIAMI BEACH,FLORIDA,
a municipal corporation of the State of Florida
By:
Name:
Title:
6
760532907 4
Page 547 of 2002
EXHIBIT .
Offer Notice
[See attached.]
760532907 4
Page 548 of 2002
FAILURE TO RESPOND TO THIS REQUEST WITHIN THE TIME PERIOD
PROVIDED IN THE LEASE AGREEMENT BETWEEN CITY OF MIAMI BEACH,
FLORIDA AND CLPF — LINCOLN, LLC SHALL CONSTITUTE AUTOMATIC
APPROVAL OF THE MATTERS DESCRIBED HEREIN WITH RESPECT TO SECTION
36.2 OF SUCH LEASE AGREEMENT.
December 26,2023
VIA UPS OVERNIGHT
City of Miami Beach City of Miami Beach
City Manager City Attorney
1700 Convention Center Drive 1700 Convention Center Drive
Miami Beach, Florida 33139 Miami Beach, Florida 33139
Bloom& Minsker
1401 Brickell Avenue, Suite 700
Miami, Florida 3313I
Attention: Joel N. Minsker, P.A.
Re: Lease Agreement (as amended and assigned, the "Lease") between CITY OF MIAMI
BEACH, FLORIDA, a municipal corporation duly organized and existing under the laws of
the State of Florida ("Owner"), and CLPF — LINCOLN, LLC, a Delaware limited liability
company (successor in interest to 1691 Michigan Ave Investment LP) ("Tenant"), dated
September I, 1999, with respect to the property located at 1691 Michigan Avenue, Miami
Beach,Florida(the"Premises");capitalized terms used but not otherwise defined herein have
the meanings given such terms in the Lease.
Dear Sir or Madam:
Pursuant to Article 36.2(a)of the Lease, Tenant hereby notifies Owner that Tenant desires to sell
its leasehold interest in the Premises. This notice constitutes an Offer Notice described in Article
36.2(a)of the Lease. Pursuant to Article 36.2(b) of the Lease, Tenant will not consummate any
offer from a third party to purchase the Premises until the earlier to occur of(i) the expiration of
45 days following Owner's receipt of this Offer Notice, or (ii) receipt by Tenant of a notice by
Owner declining to consummate the Right of First Offer Transaction. If Owner elects not to
consummate the Right of First Offer Transaction, Tenant kindly requests that Owner promptly
provide a written statement to Tenant of such intention by countersigning in the applicable
signature block below.
Pursuant to Section 36.2(a)and Exhibit 36.2(a)of the Lease, the terms of this Offer Notice are as
follows:
1. Purchase Price - $62,500,000
760531105 3
Page 549 of 2002
2. Closing Date The closing of the purchase shall take place on a date designated by Tenant,
but in any event not less than sixty(60)days nor more than ninety (90)days following the
date such Tenant executes a purchase agreement with Owner.
3. Deed; Title At the closing, Tenant shall convey to Owner (i) all of Tenant's right, title
and interest in and to the Premises by special warranty deed and (ii)all of Tenant's right,
title and interest in and to the Lease by an assignment of lease. The form of such deed and
assignment of lease shall be mutually acceptable to Tenant and Owner but shall not in any
event provide for any representations by Tenant other than a representation that Tenant has
not theretofore transferred or assigned the items being transferred or conveyed thereby and
representations and warranties customarily contained in a special warranty deed. Tenant's
Interest in the Premises and the Lease shall be conveyed to Owner subject to all liens
encumbrances and other matters then affecting the title thereto and any state of facts a
survey may reveal (but in all cases subject to Tenant's obligations under Section 2.2 of the
Lease). Tenant shall also execute all other documents customarily used in real estate
transactions in Miami-Dade County, Florida.
4. Rent; Prorations - At the closing of the purchase, all Rental and/or Impositions shall be
prorated through the date of closing and paid by the party entitled thereto. If Owner
declines to be the purchaser of this Right of First Offer Transaction, the expenses will be
customarily prorated as in other real estate transactions in Miami-Dade County, Florida,
including buyer receiving a credit with respect to Owner's post-closing obligations under
existing space leases for tenant inducement costs.
5. Expenses Each party shall pay its own attorneys' fees. All title charges, recording fees,
survey charges and other expenses incurred in connection with the purchase shall be paid
by Owner. Tenant shall pay transfer taxes(including documentary stamp taxes and M iami-
Dade County surtax)payable in connection with the purchase. If Owner declines to be the
purchaser of this Right of First Offer Transaction,then in a sale transaction to a third-party
purchaser,(i)Tenant shall pay transfer tax(including documentary stamp taxes and Miami-
Dade County surtax),fees and premium for basic title insurance,the recording fees relating
to any title clearing documents necessary to consummate the sale,Tenant's attorneys' fees,
any fees and expenses required to be paid to Owner for its consent and any brokerage
commission due to the broker used in the transaction and 50%of escrow fees and (ii) the
third-party purchaser shall pay fees and premiums for extended title insurance coverage
and endorsements, survey charges and 500/0 of escrow fees.
If you have any questions or need additional information, feel free to contact David Saye at(704)
444-3526 or dsaye@mayerbrown.com.
[Signature Page Follows.]
2
7605317053
Page 550 of 2002
Sincerely,
CLPF LINCOLN. LLC.
a Dela%arc limited Irabilrtcompany
B). Clarion Lion Properties Fund llok1tn.. L.P .
a Delaware limited partnership
Its. Sok Member
S.:
PF-Ifindings. LLC.
a Delaware limited liability compan
Inc.General Partner
Bs: Clarion Lion Properties Fund Holdings REIT. LLC.
a Delaware limited habil it) company
Its. Sok Member
By Clarion Lion Propertter Fund.LP.
a Delaware limited partnership
Its. Managing Akrnlxr
Bp: Clarion Partners LPF(GP.LLC.
J De11a%arc ti and cd habil :ompemy
Its. Gerrcwl Partner
B4: Clarion Partners.LLC.
a Ness York!united liability axnpany
Its Sok Member
By: 141—
Nam:
(JNaak: Katie Viz
Tit k: Authorized S r teutury
3
Page 551 of 2002
WITH COPIES TO:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach. Florida 33139
City of Miami Beach
City Attorney
1700 Convention Center Drive
Miami Beach,Florida 33139
Bloom & Minsker
I401 Brickell Avenue,Suite 700
Miami, Florida 33131
Attn: Joel N. Minsker, P.A.
City of Miami Beach
1700 Convention Center Drive
Miami Beach,Florida 33139
Attn: Ricardo J. Dopico. Esq., Deputy City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach,Florida 33139
Attn: Ms. Rickelle Williams, Assistant City Manager
Black Lion Investment Group, Inc. (Via email)
201 S. Biscayne Blvd.. Suite 1440
Miami, Florida 33131
Attn: Marc Shandler, Esq.
Email: marcGblacklionig.com
4
760531'05 3
Page 552 of 2002
The City of Miami Beach, Florida does hereby elect NOT to consummate the Right of First Offer
Transaction set forth in this Offer Notice.
CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation of the State of Florida
By:
Name:
Title:
5
7605317053
Page 553 of 2002
EXHIBIT B
FORM OF ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
RECORDING REQUESTED BY:
Mayer Brown LLP
300 South Tryon Street, Suite 1800
Charlotte,North Carolina 28202
Attn: David B. H. Saye, Esq
WHEN RECORDED
RETURN TO:
[Space Above for Recorder]
ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
(1691 MICHIGAN AVENUE)
THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE (this "Agreement") is made
and entered into as of , 2024 (the "Effective Date"), by and between CLPF — LINCOLN,
LLC,a Delaware limited liability company("Assignor"),whose address is eio Clarion Partners, LLC,230
Park Avenue, New York, NY 10169 and , a
("Assignee"), whose address is c/o . All initial capitalized terms used
but not otherwise defined herein shall have the respective meanings given to them in the Purchase
Agreement(as hereinafter defined).
RECITALS
A. Assignor and Assignee have entered into that certain Purchase and Sale Agreement dated
as of (as amended, the"Purchase Agreement"), pursuant to which,among other
things, Assignor has agreed to sell, assign, transfer, convey and deliver to Assignee, and Assignee has
agreed to purchase and accept from Assignor,all right,title and interest of Assignor in that certain Ground
Lease(as defined below)with respect to the real property located at 1691 Michigan Avenue,Miami Beach,
Florida, as legally described on Exhibit A attached hereto and by this reference made a part hereof(the
"Property").
B. Pursuant to the Purchase Agreement, Assignor has agreed to assign to Assignee all of
Assignor's right,title and interest in and to ail of the Assignor's leasehold estate under that certain Lease
by and between City of Miami Beach, Florida a municipal corporation, as Owner'Landlord,and Lincoln
Plaza Partners, LLC, a Florida limited liability company, as Tenant, dated September I, 1999; as
memorialized by that certain Agreement of Lease dated September 1, 1999 and recorded September 3, 1999
in the Public Records of Miami-Dade County, Florida(the"Official Records") Book 18770, Page 447; as
Exhibit B - Page 1
7605329073
Page 554 of 2002
assigned by Tenant to LNR Jefferson, LLC, a Florida limited liability company ("LNR"), in that certain
Assignment and Assumption Agreement recorded June 5,2001 in Official Records Book 19700,Page 3095;
as consented to in that certain Consent to Assignment and Assumption by City of Miami Beach Florida
recorded May 17.2001 in Official Records Book 19669,Page 1035;as assigned by LNR to 1691 Michigan
Ave Investments LP,a Delaware limited partnership("1691 Michigan Ave")(formerly known as Lincoln
Miami Beach investments, LLC, a Delaware limited liability company) in that certain Assignment and
Assumption of Ground Lease recorded July 20,2006 in Official Records Book 24738,Page 4073;as further
assigned by 1691 Michigan Ave to Assignor in that certain Assignment and Assumption of Ground Lease
recorded April 15, 2016 in Official Records Book 30039, Page 4656 (collectively, and as heretofore
modified,extended,renewed or replaced,the "Ground Lease"), in each case with respect to the Property,
and Assignee has agreed to assume such Ground Lease,as more particularly set forth below.
NOW,THEREFORE,in consideration of the mutual covenants and agreements hereinafter set forth and
set forth in the Purchase Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged,the parties hereto, intending to be legally bound,subject to
the terms and conditions set forth herein and in the Purchase Agreement,hereby agree as follows:
1. Assignment. Upon the terms and subject to the conditions of the Purchase Agreement, and in
reliance upon the representations, warranties, covenants and agreements set forth therein, effective as of
the Effective Date,Assignor hereby sells,assigns,transfers,sets over and delivers unto Assignee,as lessee,
• all of Assignor's right, title and interest in and to all of the Assignor's leasehold estate and interest under
the Ground Lease,together with all the right,title,interest and estate of Assignor in and to the Property and
premises demised by and described in the Ground Lease,and all improvements and appurtenances situated
on or used,occupied and enjoyed in connection with the Ground Lease and the land thereby demised,and
all other rights of the Assignor under the Ground Lease("Sale").
2. Representations, Warranties and Covenants. Assignor represents and warrants to Assignee that
Assignor is the owner of the leasehold estate under the Ground Lease (the"Leasehold Estate")and other
interests being assigned hereby,and that such Leasehold Estate and other interests are free and clear of all
liens, charges and encumbrances other than the Ground Lease, the Leases (as defined in the Purchase
Agreement)and those items listed in Exhibit B attached hereto and incorporated herein by this reference
(the "Permitted Exceptions"), and subject to the Permitted Exceptions, Assignor will warrant and defend
title to the Leasehold Estate unto Assignee,its successors and assigns,against any person or entity asserting
any adverse claim by,through or under Assignor,but against none other.
3. Assumption. Assignee hereby accepts the assignment of the Ground Lease,and hereby assumes
and agrees to perform all of the duties and obligations of Assignor under the Ground Lease, and further
agrees to be liable and subject to all conditions and restrictions to which Assignor is subject to under said
Ground Lease.
4. Survival. The provisions of this Agreement shall survive the Closing.
5. Further Assurances. Assignor and Assignee hereby agree and covenant that they will,at any time
and from time to time after the date hereof, upon the reasonable request of the other party hereto.execute
and deliver such further instruments or documents of assignment, conveyance and transfer as may be
reasonably necessary to implement and effect the assignment and assumption of the Ground Lease
contemplated by this Agreement and the Purchase Agreement.
Exhibit B - Page 2
7603%2907 4
Page 555 of 2002
6. City's Required Consents.
(a) Rejection of Right of First Offer. On _ . the Mayor and City Commission
adopted City Resolution No. ,attached hereto and made a part hereof as Exhibit
C, whereby the Mayor and City Commission authorized the City Manager to decline, in writing,
the Right of First Offer Transaction,as required pursuant to Section 36.2 of the Ground Lease,and
as further evidenced by the City Manager's letter,attached hereto and made a part hereof as Exhibit
D.
(b) Consent to Sale to Assignee. Additionally, on , pursuant to Resolution No.
, the Mayor and City Commission also approved the Sale, subject to and
conditioned upon the City's successful completion of its evaluation of Assignee, in accordance
with Article 10 of the Ground Lease(the"City's Due Diligence"); and payment to the City of its
reasonable costs incurred in connection with the Sale including,without limitation,reimbursement
of the City's Due Diligence costs. The City's consent to the Sale shall not be deemed a consent to
any subsequent assignment or subletting,nor shall it be deemed or construed to be a waiver of any
of the restrictions or limitations on assignment and subletting set forth in the Ground Lease.
7. Miscellaneous.
(a) This Agreement may not be amended or modified other than by an instrument in writing signed by
Assignor and Assignee and only if consented to by Owner.
(b) This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their
respective successors and permitted assigns, and nothing herein, expressed or implied, shall give
or be construed to give any person or entity,other than the parties hereto and such successors and
assigns,any legal or equitable rights hereunder.
(c) This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Florida without giving effect to the choice of law principles thereof, including all matters of
construction, validity and performance.
(d) For the convenience of the parties hereto, this Agreement may be executed in any number of
counterparts, each such counterpart being deemed an original, and all such counterparts shall
together constitute the same agreement.
(RFMAINIIFR OF THIS PAGF IS INTFNTIONAI I V I.FFT RI ANKH
Exhibit B - Page 3
760512907 4
Page 556 of 2002
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed
effective as of the date first above written.
Signed,sealed and delivered ASSIGNEE:
in the presence of:
Name[Print]:
Name [Print]:
STATE OF
)ss:
COUNTY OF
The foregoing instrument was acknowledged before me this _ day of , 2024 by
, as of He/She is
personally known to mc or has produced_ as identification.
Print Name:
[NOTARIAL SEAL]
Notary Public,State of
My commission expires:
Serial No.,if any:
[Assignment and Assumption of Ground Lease]
Exhibit B - Page 4
760 532907 4
Page 557 of 2002
Signed,sealed and deli'ered ASSIGNOR:
in the presence of
CLPF—LINCOLN, LLC,
a Delaware limited liability company
Name [Print]:
By:
Name:
Name[Print]:
Title:
STATE OF_ )
)ss:
COUNTY OF
The foregoing instrument was acknowledged before me this _ day of , 2024, by
as of CLPF — Lincoln, LLC, a Delaware limited liability
company,on behalf of such limited liability company. He/She is personally known to me or has produced
as identification.
Print Name:
[NOTARIAL SEAL]
Notary Public,State of
My commission expires:
Serial No.,if any:
[.Assignment and Assumption of Ground Lease]
Exhibit B - Page 5
760532907 4
Page 558 of 2002
Exhibit A to Assignment and Assumption of Ground Lease
Legal Description of the Property
Exhibit B - Page 6
760532007.4
Page 559 of 2002
Exhibit B to Assignment and Assumption of Ground Lease
Permitted Exceptions
Exhibit B - Page 7
760532907 4
Page 560 of 2002
Exhibit C to Assigtunent and Assumption of Ground Lease
City Resolution No.
[See attached)
Exhibit B - Page 8
7bk532 o7 4
Page 561 of 2002
Exhibit D to Assignment and Assumption of Ground Lease
City Manager's Letter Declining the Right of First Offer under the Ground Lease
[See attached]
Exhibit B - Page 9
7605329074
Page 562 of 2002