The URL can be used to link to this page

C4A-Ref- FCWPC - JCC�s Request For Reimbursement For Reconstructing The Seawall(9 MIAMI BEACH City of Miami Beach, 1700 Conve>1tion Center Drive, Miami Beach, Florida 33139, www.miomibeachfl.gov COMMISSION MEMORANDUM TO: FROM: DATE: SUBJECT: Mayor Matti Herrera Bower and Members of the City Commission Kathie G. Brooks. Interim City Manager?/.;4.1-. January 16, 2013 A REFERRAL TO THE FINANCE AND CITYWIDE PROJECTS COMMITTEE, A DISCUSSION REGARDING THE JEWISH COMMUNITY CENTER'S REQUEST FOR REIMBURSEMENT IN THE AMOUNT OF $241,000 FOR COSTS ASSOCIATED WITH RECONSTRUCTING THE SEAWALL ALONG THE CITY~ OWNED PROPERTY LOCATED AT 4221 PINE TREE DRIVE. ADMINISTRATION RECOMMENDATION Refer the item to the Finance and Citywide Projects Committee for discussion. BACKGROUND On June 3, 1981, the City first leased to the Jewish Community Centers of South Florida, Inc., City property located at 4221 Pine Tree Drive. The purpose of the lease was to allow JCC to use the Premises as a recreation center. The original Lease was amended and extended on three occasions, such that the lease term extended through to October 31, 2015, with two additional ten-year options, and was assigned to Miami Beach Jewish Community Center, Inc. (JCC or Tenant), a not-for-profit corporation (Resolutions 84~17863, 85-18280, and 88-19226). On July 12, 2000, the Mayor and City Commission adopted Resolution No. 2000-23994 approving an Amended and Restated/Consolidated Lease Agreement, subject to referendum (subsequently approved on November 7, 2000 in a Special Election under Miami-Dade County Charter §6.02, by a majority of voters residing in voting precincts located within one mile of the property}, generally incorporating, but not limited to, the following provisions: 1 . extending the term for 99 years, to 2099; 2. establishing rent at $10.00 per year; 3. defining "Permitted Uses" to include recreational, cultural, educational, social service and minor and incidental religious uses; 4. providing for payment of fair market rent (to be determined by market appraisal), in connection with any area/room, limited to 2,000 square feet in size, that may be used for religious services, limited to a maximum of 1 0 holidays per year; 5. setting forth construction parameters, specifically addressing review requirements (including Design Review Board review and approval), construction commencement and completion deadlines, and required a minimum investment of $2 million in improvements for which a building permit must be issued within five (5) years from the commencement of the Amended and Restated/Consolidated Lease, subject to reasonable extensions; and 6. extending the construction area, previously restricted to two (2) lots to all three (3) lots comprising the City's property, in accordance with the concept plan; 57 Agenda Item C ilfl Date /-/6-13 FCWPC Referral -JCC Request for Reimbursement for Seawall Repairs Commission Memorandum January 16, 2013 Page 2 of 2 ANALYSIS JCC's new 36,000 square foot facility received its Temporary Certificate of Occupancy (TCO) on September 25, 2012 and opened its doors on October 2. The $10.4 Million Project includes a 4,200 sq. ft. pool, cycling studio, art studio, racquetball court, sports field, gymnasium and a 3,100 sq.ft. fitness room. The JCC is currently working on remaining punch-list items to close out the Project and obtain its full Certificate of Occupancy (CO). On November 19, 2012, correspondence was received from JCC's President, Jerry Sokol, asking the City to reimburse the JCC for the unforeseen expense of having to rebuild the entire seawall of the City's property fronting Indian Creek, totaling $241 ,000 and exceeding JCC's available project contingency. A copy of this correspondence is included as Attachment A to this memorandum. Although the seawall is technically not within the JCC's leasehold boundary and consequently never contemplated as part of the project's scope or budget, according to the JCC, the re- construction of the seawall became a necessity in order to stabilize the property and more specifically, support the new swimming pool located on the east side of the Premises. The need to replace the aging seawall was determined during the initial engineering assessment of the Premises, which consequently resulted in having to obtain permitting approvals from Miami-Dade County, Florida Department of Environmental Protection (FDEP) and the US Army Corps of Engineers (ACOE). In order to avoid further delays to the Project, JCC proceeded in good faith to undertake the work, which was funded in part from available contingency funds. Consequently, JCC is now seeking reimbursement from the City, which based upon a review of the survey, is the defined upland owner of the seawalL CONCLUSION The Administration recommends that the Mayor and the City Commission refer the matter to the Finance and Citywide Projects Committee for discussion and further direction. KGB/UL!~KOW AttactWr: 7 T:IAGENDA\2013\01-16-13\Referral to FCWPC JCC Seawall Reimbursement.doc 58 Gafbut Farnify Ill y Miami Beach cc Simkins Family Campus PRESIDENT Jerry Sokol OFfiCERS Jennifer Bernstein Vice President David Filler Vice President Tara Katz Vice President Randi Lawrence Vice President Debbie Serbin Vice President Carrie Wiasenfeld Vice President Steven Klein Secretary Robert Glick Co-Treasurer Ricky Stokes Co-Treasurer Amson Sokol Member at Large Claudia Brod Immediate Past President Stacey Gumenick Immediate Past President BOARD OF DIRECTORS HindaAdler Alan Amdur Neal Berman Stuart Cohen Robert Daniai Ron Denman Joi Fiske Eric Gould Dan Hoffman Vanessa Kreistein Elisheva Levin Elise lipoff Mayer Brad Meltzer Robert Newman Allyson Papunen Linda Schechter Adam Sr:hfmel LenlSender Mike Simkins Andy Sklawer Joy Spill Aaron Tandy Leslie Tobin PAST PRESIDENTS Gerald K. Schwartz Dr. Ronald Shane Dr Doug Milier Peter Perkei Robert Goldstein David Smith Gary Epstein Robin Jacobs JoySp!li' Elise Lipoff Mayer Allison Sokol 'Served two terms as president Jay A. Roth Executive Director November 19,2012 Kathie Brooks City Manager City of Miami Beach 1700Convetion Center Drive Miami Beach, Florida 33139 Dear Madame Manager, ATTACHMENT A JCCs of North America www.mbjcc.org ! ._·. Since 1981, the Miami Beach Jewish Community Cente.r has occupied the City-owned property at 4221 Pine Tree Drive. In 2000, a new lease was crafted, subject to referendum, which extended the lease until2099 provided the JCC invest, at a minimum, $2,000,000 in upgrades to the facilities. The JCC embarked on an ambitious building program, culminating in the grand opening last month of the new Gal but Family JCC, located on the Simkins Campus. It was the commitment of these two families, along with the contributions of thousands of individual donors, as well as the unwavering support of the City that allowed this project to move forward. If you have not had the opportunity to visit the magnificent facility that is open to all, I hope that you will take an opportunity in the next few days to stop by. You will see for yourself that the building exceeds the minimum investment requirements. We strived to complete a f1rst class, family-friendly community center, and we believe we achieved that goal and more! However, there were many unexpected expenses with this project. One item we did not anticipate was the need to rebuild the entire seawall of the property. This was done not only to protect the new building, but to stabilize the navigable Indian Creek Waterway. The cost of this portion of our project exceeded our contingency budget and we are asking the City reimburse the JCC for this $241,000 cost. I have attathed a copy of the contract for the construction of the seawall as well as the plans so you can see, as we believe, this infrastructure should have been the responsibility of the City. If we are required to contain the cost of this seawall in our budget, scholarships and other specialty programs will have to be limited. We strongly believe that the resources of the JCC should be devoted to the child en of our community, not the infrastructure of Indian Creek. edures or additional documentation we need to follow to have I\ beneficiary agency oi l ' Cjrcnter f\Ainnlf J-c:vvisl'1 Federation 11221 Pine Tree Drive • Miami Beach. FL 33140 Olficc (30b) 5:34 3206 • Fax (305) Li31-7Gfl1 59 cc: Honorable Mayor Matti Herrera Bower City of Miami Beach Commissioners: Commissioner Jerry Libbin Commissioner Jorge Exposito Commissioner Michael Gongora Commissioner Jonah Wolfson Commissioner Edward Tobin Commissioner Deede Weithorn MBJCC Board of Directors: HindaAlder Alan Amdur Neal Berman Jennifer Bernstein Claudia Brod Stuart Cohen Robert Dania! Ron Denman David Filler Joi Fiske Robert Glick Eric Gould Stacey Gumenick Dan Hoffman Tara Katz Steven Klein Vanessa Krelstein Randi Lawrence Elisheva Levin Elise Lipoff Mayer Brad Meltzer Robert Newman Allyson Papunen Allison Sokol Linda Schechter Adam Schimel LeniSender Debbie Serbin Mike Simkins Andy Sklawer Ricky Stokes Joy Spill Aaron Tandy Leslie Tobin Carrie Wiesenfeld 60 KM·:PijAZA II IIIII SUBMmEDTo: SUSMffiEO BY: DATE~ THE GA!..IlUT fAMILY JEWISH COMMUNITY C£NTER 4221 PINHREE DRIVE MIAMI BEA<:B, FlORIDA 33140 TRADE SUBCONTRACT "SEAWALL CONSTI{UCTJON WORK" BK MARINE CONSTRUCTION, INC. 3500 S.W. 14m Snm:r DEERFIEI.D 8t:ACH, flORIDA 33442 BK MARINF. CONSlRUCTlON, INC, MATT WooNTON KM • PLAZA, A JOINT VENTURE MICHAEL METCAlFE SEPTEMBER 28, 2011 61 Vendor Code No.:~--------------- Projecl: ____ _ Permit No.:----~---------···--·-· SUBCONTRACT AGREEMENT Svbconlroctor license No.:_~f:'_c:__g_,I~J:.~;; 0 Expiration Dolo: THIS SUBCONTRACT AGREEMENT !lho "Agreo111cn!", is horoby made ~his ~-cloy of Mptember, 201] by and between KM/PlAlA, A JOINT VENTURF Of KATZ MELTZER CONSTRUCTION COMPANY ANO PLAIA CONTRACTING CoMPANY LLC, o Florida Corporolion d/b/o ho:reinofter called "Contr<>cfor" ond Jl!LMAJlJNe CONSTRVCTIQN. ~ "hereinofter caHed "Subconlraclcr". Recitals WHEREAS, the Cor.lroclor ls iho gorwrol conlraclor !he followl.~g prajecl: Ihe Galbut fgmil)! J~m ~tmuunity_.C..~Dl!ll (I he "Projed"), consisting of !he ~.2ID!ll!JM~!:.D.mr..J2~~..2LeinetreQ Driv!h Mimn.l Begch. Flori~AQ (:he "Ji)b~ile'') pursvonl !o Jho contract between the Conlractor and Miomi ltQ.QiliJ.ewi"~hh~Ji.QJl (lhG ''Ownor")i ond WHEREAS, tho Conlrodor desires to engage the Subcontractor !o perform Work for !he project, os set forth in the drawings and specifica!lons set f01!h in Exhibit A, otlochod hereto end incorporated herein by this reference (collecllvo!y, the "Drawings"}, and with 5vch ddilionol scope sel forth in Exhibit B, aftached hereto and incorporated herein by ihis reference; NOW, THEREFORE, !he Contractor and !he Subcontrc•cfor, for the coosideralions hereinafter specified, agree os follows; L The Work. 1.1. The Subconlraclor ogreos to furnish all of tho !abor, maleriols, superv1s1on, seiYices and equipment neceswry to paS$ final inspection for o!l work, set forth on or reasonably inferable from the Drawing~ idonlifiod in Exhibit A a$ wei! os such oddHionol scope identified in Exhibit B {General Requirements), hereinafter collecllvely called tho "Work"), all of which exhibits ore incorporated herein by this reference. This Agreement, together with the Drawings, and the Exhibits incorpor\lled into this AgreerriO!ll, shail be referred lo herein as the HConlracl Oocurnenlsn. fn !ho event ihol !here is a conflict bo!Woon tho !arms of this Agreement ond Exhibits A ond S, tho term~ of this Agreement ~hail govern first, then, the more strict requirement shall apply among the exhibits, The Drawing& ore port of !his Agreement, os well as being par! of the con!rocl between !hu Owner end the Contractor. The Svbconlroctor acknowledges and agrees that tha Work shall include all !obor, materials, supervision, services and equipment made necessary lc bring the Work, or any portion !hereof, in compliance with applicable lows, inclvding bvl not llrniled lo additional work rwcessory for the Work, or any porlion thereof, to poss inspoctlo') by building or zoning officiols making reasonable inlerpretotlon of applicable law. 1 .2. The Subr:cn!rodor ogree$ to be bound !o lhe Conlroctor for lhe Subconlroclor's Work lo the oxlonl thot !he Con!rctc!or is bound lo the Owner undor lho confrocl be!ween the Conlrodor and tho Ownor. Pngr 2-of !7 62 I .3. Subcontroc!or shall keep the premi;es c!eon frr;rn waste moleriols and rubbi~h. At the completion of tho Work, Subcon!roctor ~hall remove from the Job4ife c1ll rubbish and ony other surplus maleriols and ieove the prorr.isos broom cloan. 1.4. Ali labor employed by !he Svbconlraclor ol Jho Jobsite shall be subject to lha Conlroctor's approve! and in the even! lhe Conirccior finch foul! with ony employee or sub-&ubconlractaf for any reason whot~oover, said cmploye<e or sub·svbconlractor sho!l immediola!y be removed from the Jobsiie and replaced. />.ny sub·subconiract enfc,red into by the Subcontractor for the Work shoJI preserve and pra!eci tho righ!s of tho Conlroclor and the Owner under this Agreement, so that !he sub·subconlrocting !hereof will no! prejudice such rights, and shall require svfHcient insurance, ond lion releases fOI pwlio! ond finol payments on !he some terms se! forth in this Agr,;,emenl. 1.5. The Subcontractor agroes lo hove on <lcceptob!e reprcsentolivG (an officer, il reqvesled by !he Conlroctor) present a! all iob meelings and !o submit weekly progress reports in writing, if roquesfed by tho Conlwc!or, Any job progress schedules ore hereby mode port of lhis Agreement ar:d oro incorporo!cd herein by referonco. 1.6. Ill! ma!criol:, flxlur<l$, ond const~uclion ilems set in place and mode pori of the Work shall immediately bocon1o !he property of lhe Owner, excepi for tools and material$ nol incorporated !nlo or made port of !he Work. 1 .7. All Work shoH be done subjec! lo the final opprovol of Owner, Contractor end Architect, and their decisions O$ !o lhe whether or noi !he Work has been performed in accordance with the Drawing~ onJ Spoclficoilom and lho quoliiy of construclion, >hall be final. 1.8. Subconlraclor sholl comply wilh the provisions of !he florida Industria! Commission Safety Regvla!ions onJ ol! other oppliwble lows of lho Slate of florida, os well as the clty and county where the Projocl is located m well as !he Sc1fety and Health Guidelines aflached herein as Exhibit H. 1.9. Subconlroctor acknowledge• the! he is forniliar wilh the Willioms-Seiger Occupaliona! Safely and Heolth Act of 1970 and all amendments !horolo as woll m all other U.S., slate and local safely roqviroments. Accordingly, Subcontractor shall provldo oil necessary and required safely nwmvro~ for !his work and &holl ons\JfO that his personnel comply wi!h oil applicabfe lows, rules and regula!ions. I. 10. At !ha discretion of the Conlroclor tho SubconlrocJor will work on Saturdays ot no additional cost. 1. 11. The Subconlractor sholf Hro proof any penelrofions to a rated fire wall wllh an opproved Fire Rating SooiGnl. J. 12. Unless otherwise specified, the Subconlroc!or shall submit twelve ( 12) sets of blue line prints and one set of CAD drawings whew raquir<1d for !he work of various trades requiring Shop Drawings. The Shop Drawings shall be prepared by skilled draflsmen and presented in clear ond thorovgh manner. Where brochvros c1ro opplkablo, noi loss thon !wolve (12) &els of brochllres shall be wbrnillod, 1, 13. If Miomi·Dode County produd Control approval is required for any element of the Work, il shall be the Svbcoiliroclor sole ond exdusive responsibility !o svbmH and obtain the necessary approvol, permits, etc. 1. 14. lnduded ln the scope of Work is I he complete coordination of the Work with the work of other trades ond the complete ini<:r;Jmlion of !he various syste>ms fvrnished and installed a~ part of this Agreement with the systems provided by others. As port of the coordination procedvre this Subconlrodor shall ol!er1d meetings os required by !he Owner, Archftecl and Contractor and provide information for review by other !mdo subcontmclon;, as well os review information provided by others which cancelloilon shall be dono in such <I manner as lo be expeditious ond in no way cou>lng delay to oiher 1rc1des or the Pro{oct in gof1(\lro!. Coordination and inlegrolion of systems and/or equipment l'n~;r 3 nf 17 63 will also lndudo the devclopme!ll of composite drawings, ond includes but is not limited to, the following: 1 . 14 .1. Location ond/ or relowlion of equipment wilh tho confines of a given space or general area prior lo insk,liolion lo maximize occessibilify, sorviceobilify ond improve operation as well as rosoivo conflicl$ betweon trades. 14.2. Pwvido odequotc .. qualified personnel lo in1loil, chock out ond/or verify operation of equipment end/or systems which require lhG hwolvement of the Subcontractor as defined in the Conlmc! Documon11 This includes to~ling by representolives. of the engineers, Architects or Owner's (lfiCnls. 14.3. Provide di necessary pre pow lory work to per mil a!iochment, connection and/ or integration of any kind for ond/or with lhe work of olher twdes, No oddiHond cosls wiil be occopted for any relocations or ilqviprnenl or appurfononcos due !o conflids wilh exi$tlng or naw ~ys!ems. 1, 15. If any Work h(lS boon covorod conlroty to this Agroemont, or instructions of !he Controclor or 1\rchHed before it has boon observed by the Architect or Contractor, svch Work must, if required by the Conlwc!or or Archiled, be uncovered for il~ observation and replaced and recovered, ot the expense of !he Subconlrocfar ot foull and wiiiK>UI rolmbur>omonf under !he Subcontract. If any questioned Work hos bee.n coverod up which hos nol been specifically requited lo be obseiYed by the Architect or Ccnlrador prior !o being covered, ihe Archite.;:! or Contractor may request lo see the Work in que:;fion ond it shaH be uncovered by the Subcontrodor as direc!ed. If such Work is found to be in occordar.ce wi!h !he requiromeols of !he Contract Documents, the Contractor shall reimburse the Subcon!raclor for lhe cos! of such uncovering and rocovoring, when reimbursed by the Owner. If ~uch Work is found lo be no! in accordance with lhe Conlracl Documents, !he cosf of uncovering, replacement and recovering shall bG borne by the Subcon!roclor without reimbursement. 1. 16. If after the commP.ncemonl of !ho Work !he Corlroclor or lhe Archilecl determines that any Work requires special i11spoc!ion, testing or approval, he will, lns!rvcf the Subcon!raclor to order such spociof inspeclion, !e~ting or approval. If such specid inspaclion or les!lng reveals a failure of the Work lo comply I 1) with tho requirements of the Con!rac! Documonls, or (2} with respect lo the performance of the \A/ork, with lows, ordinances, rules, rcguloHons or orders of any public aulhority having jurisdiclion, thu Subcor>traclor ol fault ~hoi! bee~r ali cosis thereof, including the Architect's and Conlroctor's additional teryicos mode necessary by such foilvro; o!herwise !he Owner shall baor such cos!s end on t1pproprfo!o Change Order shoii be issued, l.17. Hozon.luus Ma!eriols. l . 17.1 . in the oven! !he Subcon!mcior encovnlors on the ~i!e material reasonably believed to be mbosfos, polychlorirwlod biphenyl !PCB), load or other hazardous substance (hereinafter coiled "Haza(dou~ Molerial'') which has not been renderod harmless, the Svbconlraclof sho!l immodio!ely slop Work in the awo affocled and report !he condition to lhe Contractor ond !he Owner !n wriling. The Wotk in tho offected oreo shall no! thereafter be resumed except al !he direclion of 1he Owner end when !he Hazardous Material has been rendered horm!ess. 17.2. Prior lo commencomen! of tho Work, the Svbconlwclor shall require manufoclurors of all materials ond equipm~>nl for !he Work to provide certificollons, warranties or slalemenls tho I such ;rKtlerials or fK1Uipmenl ll) ore free of Hazardous Materials, or {21 confoim specific omovn!> of Hawrdcv$ Moleriob ond rocornmendalions regarding handling such. Such c.:rtificalions, w<~rranlies or slotemenl$ shall be in writing in a form accoptoble to !he (Qntroctor ond Owner, ond shall be forwarded by tho Subconlroctor lo the Contractor and ArchihKL If lhe Monufociurer stotas tho! a moleriol or equipmoni conlains Hazardous Motcricb, !he Owner shoil be afforded adequate ond limely opportunity to order thai olher moleriols be subs!ilulod withovt cousir~g delay to lhe Project. 64 2, The Subcontract Sum. 2. L Tho Coniroclor ogr\J<)S !o poy ihe Subconl:oclor for !he Work provided for in Section 1 hereof, ihe sum of IWQJ:fYtiQ!!l!L..f.Ql!I'f._91':1~.JtlQY~NIL dollars ($2.4.1A:W..O...Q.Q) (the "Subcon!rocl Sum") in curran! funds, which includes ony opp!icab!e Ia xes, subjac! to additions and deductions for agreed upon chonges. 2.2, On or before !he l5'h day of oach month requlrod by the Controc!or, lhe Subcontractor shall wbmillo !ho Con!rcctor, in tho required sol forth herato o~ in Exhibit C, o written requisition for payment showing 1IH7 proportionate volue oi !he work instollod to dole, from which !he amount of ~oid requisl!ion is opprovvd by !he Conlraclor, !he Svbcontroc!or should be paid on or aboutlhe 30'' day afler the final occepiob!o submission of tho requisilion. AI !he lime of each progress payment mode by !he Conlraclor to !he Subcon!roc!or, lhe Subconlroclor shall produca and delivor Ia lho Contr<1c!or o full and comp!ale release to dolo from oil persons who have furnish materials or labor in connecHon with lht~ Wc1k cmd shall also execute any offldovil which the Conlrc~elor may require reiolino lo the right of ony par!y cr parties to hove or maintain o lien upon soid Work, or the land upon which the same is situated, in conneclion with any materiah or labor furnished during porforrnonco of !he Work. Rotoinogo wlll bo withheld from progress pc1ymorls in lho somo propor!ion !hoi il is withheld from paymen!s from the Owner to the Con!r<Kior, Reloinuga will be relcwseJ in o:nounls ond of limes dalerrninad by !he Controclor in if:. sole discretion. Paymcr.ls olherwisl' due moy be wilhheld on account of defective work which has nol be<ln remedied, Hens whkh havG been filed rmd nol discharged, unadjusted damage dono by Subcon!roc!or !o others, for failure lo make proper payments for materials, labor and/or olher subcontrodors, or for thos17 reasons set forlh in Soction 2. ll herefo. 2.3. Receipt of paymenl by the Conlrac!or from lhe Owner for tho Svbconlrador's Work is a condition precedent lo Con!rodor's obilgv!iom lo nwke payment lo the Subconrrac!or, regardless of the r0oscn for Owner's nonpc1ymcnl, whether ollribuloblo !o fm;ll of tho Owner, the Conlraclor, the Subcon!rodor, or any other cous<:l. Payment as V$ed in !his clause shall include retoinage, progrc:,s poymon!:;, paymenl for change orders and extm work, and final payment. 2.4, Any work which is not 0 part of ihe Drc:w1ngs ore nol C011!0ined in !he scope of this Svbconlracl AgreenHllll, must have wdllen approvd prior to !he work being storied. The Subconlrodor waives any odditionol compem(!lion for addillonol work perfocmed wilhoul on execuled change order, 2.5. Upon execution of lhis Subconlmcl Agreement, the Subconlraclor will deliver to the Contractor for the Conlroclor's upprovd, o schedule of vofues substanlloi!y in the form of AlA Document G702/G703, iisling the liPe ilem description of work and lheir corresponding labor and malarial cosls. In !he cvonl !hat the Conlrac!or disapproves ihe schedule of values, !he Subconlroctor lhaU (()Vise il until i! mcef5 tho approval of !he Conlroc!or. Proposed Reqvisi!ions wil! no! be accepted for processing wilhoul the opprovod schedule of values alfached theroto. 2.6. Tho Svbcontroclor agrees, in oddi!ion lo payment of oil wages to the Subcontractor's employees m provided heruir~, !hoi ihe Subconlroclor wiil promptly poy lo, for or on behalf of, the 5ubconlroctor's employees, all fringe benefit!, dues, assessments or other payments required to be paid by tho Subcon!ractor under the terms of any ogreernenls, oral or written, with any labor organizolion or person. F<!iluro on the part of lho Subconlwc!or to abide by and perform under tho forms of the Pmograph shall give the Cor1troctor the rlohtto terminate tha Subconlracl and lo wiihhold all further pc:yments frorn tho Subc.on!ractor. 2.7. In !he oveni ony employee of the Subcontractor files ony mechanic's lien or serves any Notice lo Ownor bocou~o ol tho Subconlr<tclor's fallura to promp!ly pay to, for or on behalf of, any ornpfoyoc ony wonos, frlnna benefits, duos or assos$manls, then, within tan 11 0) days, the Subcontraclor sholl obtain from iho person filing or salVing >uch notice or lien, a complete release ond woivor ol any nJ(ilchunic'~ lien and deliver wd1 releosa and waiver lo the Owner and Sub~on!mcl Agrevmcnt l'ng~ 5 of !7 65 Conkoc!or. If any >vch rGiemo of ;nechonic's lien is nol delivered lo !he Owner and Conlraclor shclil hove the right to lerrninc!c !he Subconlroct and to withhold oil further poymont$ from the Subconhoclor. 2.8. lhc S\lbconfroc!or hcm;by ochowiadges lh<1l H relies solely and exclusively on the credit of !he Owner, nol !!w Conlroclor, fot poymen! of iho W(>rk. 2.9. The Svbconlroctor shall be rosponsib!o for cornplianco with all Provoiling Wage Role Schedule and Equal Opportunliy of Employment requiromcnis, if they ora applicable to the Project. 2. l 0. Subconhoclor sho!l pay for clil applicoble lederol, siCI!e ond local taxes on o!l maleriob, robor Of services furnisheld by him, and ell! loxo5 mlsing out of hi5 operations under the Controcl Documents, which may be impos<~d upon or collectible from the Owner or Con!roclor or become o lien ogoind his propor!y. Such t0xos shall indudc,, but r.ot be limi!od to, occupational, soles, use, excise, old ago, employee, !ease, benefit and unernploymenl taxes, cu~toms duties and all incomo laxes ond other !oxos now in force or hereofler enocted prior to Flnol Acceptance of the Wo1k. 2.11 . Poymenl may be withheld if the Architect or lha Contractor declines Ia approve on Applicolion for Paymeflt, or if the Archilect wiihhokis his cer!lflcalion, in whole or in pori, for anyone or more of the following reason>, or if !he Ccn!wctor or tho Architect declines !o approve ony Application for Puymonl bocovse of subsoquenlly discovered evidonco of the following or for other good and St•fficienf reason: 2.11. 1. defoc1ivo work or mo!oriol not remedied; 2.11.2. doims filed or roosonablo evidence lndicoling probable filing of doims; 2.ll.3. failure of Subconlrador to make payments properly to sub-subconlmclor or for labor, HJivk.es, moloriols or equipment; 2.11.'1. roasonob!e doubt tho! lho Wo1k con be complctod for the unpaid bakmce of the Ccn!rt1CI Price or by !he CompleHon Dote; 2 .J\.5. domago !o onolhor svbconlrocloi; 2. ll .6. unso!isfoc!ory prosecution of lhe Work by I he Subcon!roclor; 2. ll .7. erroneou:. eslirnoles by the Svbconlracior of the vahJe of the Work performed; 2.ll.O. vnoulhorizt~d devio!ions from !he Cor.trocl Documents; or 2. 11.9, failure or rdvsolto pmvido ony documontolion required herein. 2, 12. finol poyrn<:lnls sho!i be due thirly (30) days oflor finol completion of the Work; provided, however, I hal sold Work mae! with Owner's approval. Tho Applkotion for Final Poymenl shall be accornponied by ihe some Jelail5 <IS sci forlh horeiiwbove for lhe opp!icotion of parliol payments except, howcvor, final paymenl :dwll fur!har be canlingont on the following: 2,12. L A full ond final woivor of all !ions in connection with fhe Work shall be svbmilted by Subcon!roclor and ils suh·subconlraclors, which waiver of lien shall ba in a form os approved by Conhoclor. in !he oven! !hoi ony such release or waiver of lien Is not or cannot be furnished, !hen !here shall be fvrnished lo Owner a bond or other security reasonably s'(,J!sfac!ory to Owr;er io indomnily him against ony $VCh lien, 2.12.2. Subconiraclor >ho!l hovo modo, or caused lo hove been made, all corrections In his porlion of lha Work which are required lo remedy any defects therein or violations lheroon or obJoin compliance wilh !he opplicob!e drawings ond specificolions Q( any requiremcc,ts of applkab!o codes ond ord!iJOt\Cos or !o fulfill any of the proper orders or direction$ of !ho Owner, Conlroclor or Architect required undur his Subcontract. Subcontract Agreement l'ug1: 6 of !7 66 2. 12.3. Subconlroctor, through Conltocior, shall hove assigned ond delivered to the Owner oil wrillon gc;arontees, worronlies, slc:!omenls of Appiicotion and bonds required by thii! Controc! Documents lor lha Work or any porlion thereof. 2.!2.4. Subconlraclor shall hove furnished lo the Conlroclor cmd Owner a detailed sworn S!oh:mwnl of all li<)ns, claims and demand~, just or unjust, of sub·subconlrodors, materialmen ond olhe>rs th0r1 outskmding or which the Subcontractor has reason lo beliGve mav horJ;Jafler be mode on account of the Subcontract Work or the performance lhoroof. , 2.12.5. SubcQnlroclor shnll hove delivered lo the Owner ond Conlmclor a general release of liem, doims and demands, and on nlfidavif to the effect tho! insofar as Subcontractor has knowledge or infamwiion such rdoasos and wcclp!s include all lhe Iober, material$, supplies, equipment and other services or Hems for which o lien, claim or demand could be filed or asserled. In lieu oi such olfidovit, the Subcontractor may, if the Owner consent~, furnish u bond so!isfoclory lo rhe Owno;;f indemnifying !he Owner ogainsl any $Uch lien or dernand, 2.12.6. Subconlroclor ~hall hove furnished !o Contractor any and all other documentation, approval~, sign·offs or records required herein. 2.12.7 Tho Archited sholl hove) iswed o linol cerHfkoto for payment. 3. Subcontract Timo. 3. L The Svbcontrador ogwos lo begin Work wilhin lhroo days of!er wrilfon notice to the Svbconlroclor by !ho Conlroc!or and shall adhere !o the proled schedule a!loched hereto and inccrporaled herein by thi$ rofGr<lnce as Exhibit 0 [the "Project Schedula"j, as amended from time Ia lime, and shall £ub~!anlially complo!e tho Work wilhin tho lime set forth ln the Project Schcdulo, or ol wch \)lher dale required by any omendrnenl lo the Contractor's schedule after the dolo horoof {the "Sobcontrocl Tirno"). Time is of 1he ossonco for the Subcon!roctor's obligations in this Agree~·lonl. 3.2, The Work sholl be considered ''subs'ontidly compk•te" when i! is comp!e!e (except for punch list Hem~l. con be V$Od for its intended purpose, cmd has pmsed ony required governmental !nspeclions, fhc Work shall be flnolly complele when !lw punch !isl items hove been completed Ia the Contractor's ~atisfactlon. 3.3. Tho Subcon!roc!or shall no! be onmiod to any additional Subcontract Time unless !hera ls on oxcusoble deloy, as set forth in this Section 3.3. An excusable delay is o delay for which the Svbconiroclor, in the exercise of reasonc:ble diligence, is unobfe to prevenl or provide against, such as war, riot, civil s1rifo, lcrrori~l atlock, natural or nuclear disasters, or other similar acls of God, or by the neglecl of tho Ow;,or or tho Controc!or, The Subcontractor shall noli!y !he Con!rac!or, in wririrlg, within fivo (5l days of thll even! giving rise to ihe eXCv$able deloy, or shall bG doomed to havo waived ony claim for oddi!ional Svbcontracl Time. The Subconlroclor's sole renwdy for an excusable delny sholl be on extension of the Subcon!roct Time. 3.4. The Subcon!mclor shall cmry on sold Work prornpily, effkienliy and speed that will no cause ddoy in the progress of C<mlrock;r's work <•r the work d olher svbcontrocfors. If, in the opinion of lhe Con!roctor, tho Svbc:ontroclor foils behind in the progress of the Work, the Contractor may direct tho Subcontractor to k1ke such ;;rGps 05 the Conlroc!or deems necessary to improve the role of progress, indudino, w\lhoul limi!Qtion, rGquifing the Subcon!roclor to increase the number of shifls, peisonnel, plant, or other remedies and lo &ubrnl! lo the Contractor for the Contractor's approval a schodvlc domonslw!ing the manner in which !he required rate of progress wiU be a!!oined, without <:Jddilionol cost to tho Ownor and/or !he Contractor. The Conrroc!or moy roqu!rc ihe Svbr;on!Joclor lo pelfonn in prefumnce to other paris of the Work, such port or parts of lhc VVork m noquircd by the i'rojacl Schedule prepored by the Contractor, as it may be Subc(mtmcl Agr~cnwnt i'>l;:c 7 of 17 L1i1in!Bdow: 67 3.5. 3.6. 4, Changes. 4.1. 4.2. 4.3. 4,4. amended frcrn tirne lo time. The prognm schedulo may be reviewed in the office oF !he Coniractor ond lhe soquenco of construc!ion will be as direcied by the Conlroclor. The Subconlrodor shctll schedule i!s Work, !he presence of its employees and its sub- subconlrodors ol the Jobsi!e and any of ils deliveril3s of supplies or materials to !he Jobsite, on lhoso doys and limos tho! tho Conlroc!or $pacifies. Unlo:;s o delay in !ho Work is on excusable doloy as &CI forth in Section 3.3 hereto, the Subconlrodor shol! be liable to lhe Conlroc!or for any damages for da!ay incurred by reason of the Svbconlroc!or's Work. In 1he event that the Conlroc!or's conlrac! with the Owner contains a liquida!ed domoges douso for dolcy, lhs Subconlraclor ~hall be liable as liquidated and agreed domogos, ond no! os a penohy, lor tho porlion of ihe liquidated damages a!lribuiable to the Subcontractor, Tho Conlrodor may, without invcdidc1Hng this Agreornanl, order clwnges lo I he 'Nork. Before any oddi!ionol Work ls performed, lhe Conlractor cmd ihe Svbcon!roclor sholl enler into a wri!lon chonge ordar, cmd provid<J o complele breakdown of lobor and molerials and adhere Ia the unit prices s<:l forth in Exhibit E !Unil Price~ and lc1bor Rotos), provided by the Subcontractor and opprovGd in writing by lho Conlrodor, and !he OwiHlr !I tho change constilutes o change In the Con!roclor's scope of work. A11y odfu>fmonllo the Subconlrod Sum ot !he Subconlrod Time shall be ogrosecl by !he !;arlies ln !he change order. If the Subconiraclor wishes lo wquost o change order, I he Subconlrodor shall give the Contractor wrilten nolicc !hereof, no! more !hon five (5) days offer lho occurrence of the evant-giving rise to such cbrn, or shall have woivod ony claim for oddi!iono! compemollon related to the change. This notica shall bo given by ihe Subconlroc!or before proceodir.g to execute any additional Work, e,.;,;epl in on emeroency endongaring lila or properly. The Subconlroctor hereby woives any en!iilemenf to addiHonol cornpensolion or oddillonai time for Work performed without an execu!ed change order. In lho oven! of ony dispute o& lo wholht<r or no! ony porlion of ihe Work is within the scope of the Work lo be oGrformod by Subconlroctor or cmy dispvlo w, !o whethor or not Subconfroctor is eniitled to on oxlra (.:omp<H1Setlion for afly Work requested of him, the Subconlroclor shall coniinuc to proceed diligently wilh the performance as required by !he Contractor and the resolution wi!h respect to whether or not lhe Svbconlroctor shell be poid therefor shall be d()termined by !he partie~ wilh reo$onable prompirHm, bvi in no event shall delay in such delf.>rmina!ion oxcuso prompl performonc<~ ollhe Work requested. An cxiro or cn:dil 1osvlting from o change in !he Work, if cmy, ~hall be de!ermined in one or more of lho following ways m Clpplicobk~ fo o 5pccific sltua!ion. 4 A. l . By muil;ol accop!onc!l of o lump ~lim properly ilemized; ll.4.2. By unit prices slated in !he Contract Docvmonls or subseguantly agreed upon (otl unit prietn sholl be deemed to include overhead and profit). !f a change based on tmll prices includes lhe JelEJiion and addition of like i!ern; of work {i.e, moving a door by the d<,lotion from one locolion ond !he addition in another !ocotion} before !he dele!ed item hos been im!alled, tho nol charge resul!ing directly from such change shall be zero. Ancillary Hums associc1!od wilh wch like chango which ore in addition to work previously required, and not themselves o like change, shaH be charged ct their unit price amounts; 4.4.3, By ucluol cosl t)lus a fixed or percentage !ce for overhead and profit, etc. [indvding both Subcontroclor aNl sub-:;ubcontractors), as so! forth 1n the Subcontract. The ocluol cos! i& dofinod as iho verified cos!s of any ood oil moleriols and equipmenl plus the bosa labor Wlll,J!' re11o wilh ony ond oil b::ne!ils, insurance, welfare or other fringe$ included; Subconlmct A&reemcnl l'ag~ 8 of !7 luili;•ltlclow: 68 4.5. If none of the mefhods sel forth in Section 4.4 above is agreed upon, !he Subc:o11!roctor shall promptly proceed wi!h the work involved. Tho prico to be paid or credit for such work shall then be determined on lhe basis of current merkel value bul in no event shall such value exceed the octuol cost of performing the Work, plus o fixed markup for overhead and profit In the amount sei forlh intha Subconlract, In such case, and also under Section 4.4.3 hereof, !he Subcontractor sholi keep and pro~onl in such form as the Contractor may prescribe, an itemized accounting togolhor wlih appropriate svppor!ing da!a, and Subconlraclor's costs shall be subject Ia audit by Owner or Contractor. Pending Hnol dcterminotion d cos!, paymenfs on account may be mode on the Archilecl's Cer!iilcote for Poymenl. The amount of credit to be allowed by the Subconlroclor to the Conlrodor for (my deletion or chonge which resulls in o net decrease in cost will be the amount of the acluol decrease. When boih extras and credits are involved in any one change, the allowance for ovorlwod and prolil shall be figured on the basis of !he net lncrease or decrease, if any. 4.6. The cost for Changes pertaining lo odd o!ternoles (those ilems that wHI be conslrucled if suffk!en! funds remain ofter oil olhor nece~wry Hems were completed) shall be of !he price sel forth here!o. Tho Subcontroclor bears tho risk for any flucluotions in I he cos! of odd alternates. 5. Insurance and Indemnity The parties hereby ogr<>e tho! the Project shall bo Insured os set forlh ln Exhibit G hereof, The Subconlroc!or, ol il~ own expense, sholl obloin and submi! !a lha Controdor, before underloking any pari of lha VVNk, policies ond cer!ilica!es wi!h receipts for the payment of premiums from lha Subconlrocior's imuwnco carriers indk:oling coverage from companies, in amounts and on such othor forms as provided for heroinoffor and in !he "lnsuronce Schedule" ottochod to lhis Agreement as Exhibit G. Any "doduc!ible" with respect !o such coverage shall be submitted !o, and approved in wriHng by, Contmctor, provided that any cosls or domogos not covered due Ia th~J approved dedvdibiv shell b(; bomo solely by Svbconlroclor. Ail such oddi!ionol insurance requirod to shall be maintained by Subcontractor, ot ils expense, ond listed in Exhibit G, ~hall rernain in full force and affecf until !he Work has been completed and all obligoliom of Subcontrac.tor under tho Conlroct Documonls hove been satisfied. Any policy of insurance covering the Subcon!roctor's loois, equipment or focililies against loss of phy~icol damage, ;hail provide for o complete waiver of svbrogoHon against !he Construction Monoger, the Owner, and their respective members, officers, directors, employees, ogenls and sorvants. A!l policios requirod of Subcon!roclor hereunder shall provide for notice to !he Contractor thirty (30) doy~ b<>fore any chango in or cuncollalion of such insurance, and shall otherwise be acceptable to !he Conlrccfor. Upon reque>l, lhe Subconiracfor shall furnish the Conlraclor with evidence of insurancu so!isfoctory lo the Conlrador for each subconlroclor employed by it. The insuronco required herein shaH in any event include blanket {brood form! confrac!uol llabilily insurancG, The existence of insurance shall not be con$lrued lo limit the Subcontractor's liability under this Canlrocl. 5, l. !n !hG even! iho! liHt S\lbcon!md Swn oxcaeds $l 00,000.00, the Subconlroc!or shoU provide 1 OO'Yo dual obligee poymenl cwd performance bonds, !o satisfy the requirements of Fforido S!otu!es, Section 713 .23(31, cmvring the performance of ond proper payments by the Subcon!roc!or is>ued by a 5Urofy occeptoble to tha Conlrac!or, tho Owner and its lender naming lho Con!rac!or, lha Owner and lis lender os obligees !hera under. 5.2. The Svbcontrador agrees that neither ho nor his insurance company will subrogate ony loss or claim to lha Subcor~traclor'$ oquipmonl or per~onn(ll against !he Owner and Contractor. it is the 5o!o responsibility of !he Subcon!rocfor to insure any material, loob, efc., stored on Jobsite and nol Y"l incorporated into !he work, Sube<l!llmcl Agreement l'a)l~ ')of 17 lniti.:-1IUdow: 69 5.3. The Svbcon!raclor ogreos to perform the Work in compHonco with all municipal, slate ond foderollows, ordinonces, and codes, and to indemnify and hold tlw Contractor harmless from all onnoyonces ond fines having roference lo tha Work, and lo give proper oufhorities all requisite nolices ra!oling lo lhe Work and lo produce ond pay for all nec(lssory !icf>nses, pf>rmits, and taxes. 5.4. To the extent perrni!led by low, including Sec. 725.06, Florida Stotules, Subcontractor shall indemnify, dokmd, ><NO ond hold tho Owner, Conlrac!or, and Archilad !excluding wilh respecl !o tho Architoc!, claims arising oul of {i) tho prepowlion or approval of mops, drawings, opinions, reports, survey, Chango Orders, designs or specifica!ions, or (iil !he giving of or the failure to give directions or im!ruc!ions by the Architect, his agent or employees, provided such giving or failure fo givl)' is the primary cause of rho injury or damage), and their respective partners, officers, director~, ompbyees and anyone eL1a acting for or on behalf of any of them {herein co!lec!ively called "lndemnitee$''j harmless from and against all hobllily, damage, loss, claims, demands and oclions o! any na!uro whatsoov<'lr (Including oilorney's fees and disbursements) which oriso tWI of o' nro conneclod wilh, or ore daimed lo arise out of or ba connected with 5.4.1, lho performance of the Work by ihe Subcontractor, or any ocl or omission of Subconlroc!or; 5.4.2. Any occident or occorrGnce which happens, or is aHeged to hove happened, in or aboul lim place whore the Work is being performed or in ihe vicinity thereof (aJ while the Svbconlraetor is podorming the Work, eHher directly or indirocily through o sub- svbcontroclor or moleriol agromnont, or (b) while any of !he Subcontractor's property, equipment or personnel me in or about such place or the vicinity thereof by reason of or <JS a rewil of !he performance of th~; Work; or 5.4.3 The use, .misuso, erection, 'J',ainlenance, operation of or failure of any machinery or eq\lipmonl [including, bu! no! limited Ia, scaffolds, derricks, ladders, hoists, rigging supports, ole.) whether or not such machinery or equipment was furnished, rented or looned by the OwMr 01 !he Contractor or thoir officers, employees, agents, servants or others, to the Subcon!rocior, 5.5, Witho~:l limiting ilw gcne!Oiily of lho foregoing, such defense and indemnily includes ail liability, dornogas, loss, claims, domcmds and oclions on account of persona! injury, death or properly loss (including loss of use) lo any !ndomnileo, any of lndemnilees' employees, agents, subconlwclors or sub.svbconlraclors, licensees or invitees, or other subcontractors or sub- subconlroctors, their omployees, CJgon!s, sub·subcontradors, licensees or invitees or to any other persons, whether based upon, or doirned to be based \!pon, s!a!vlory {including, withovt fimlling the genmoli!y of rhe foregoing, workmen's cornpensaHon), contractual, Iori or olh11r liability of any lndemniloG, subcontractor, sub-svbcon!roctor or any olher persons, In oddillon, tha liability, damages, bs, claims, dsmond$ and acJions indemnified against shall 1ndude all liability, domogG, loss, c'alms, derncmds and Clcllom for lrodemork, copyrigh! or patent infringement, for unfair compclilion or infringemM! of any olher so colfed "inlongible11 properly rights, for defarnalion, fCJlse ormsi, moliciotJs prmecu!lon or any other infringomenl of personal or property rights of cmy kind wh<Jiever or which arise out of any failvre of Subcontractor to discharge his duties spocifiod in the Conlracl Documonl5, including, wilhovl limitation, these General Conditions. 5.6, In !he even! rnore lhon one subcon!roclor is connected with an accidenl or occurrence covered by !hi~ indemnifica!ion, !hen all of such subcon!rodors shdl be ioin!!y <Jnd severally responsible to !ho lndcmnilocs for indcmnlficolion ond the u!lima!c ro:;pomibilify among svch indemnifying $Ubcontroclors for !h(l loss and expense of any such indernnificotion shall be satt!ad by separate pro.;;eGdings und without jeopardy lo any lndemni!ee, The provisions of lhe indemnity provided for herein shail nol be con~lq;cd to indemnify any !ndemni!oe for its own negligence if not per milled by low 01 It) olimlf'(ll(l or roduco any olher right ol ind(lrnnificotion right which Owner, Conlrocfor or hchilccl hos by iow. Subconlroc!or expn:mly understands and agrees that any Subcontract Agreement lnilin! Bduw~ 70 pvrfcrmonce bond or insurance protection required by any provision of !he Contract Documents, or otherwise provided by Subcontractor, shall in no woy limii tho responsibility lo indemnify, save ond hold hormiGss and defend ihe Indemnitee$ m heroin provided. 5] Tho Owner or Contmc!or shall hove ihe right lo require any Subconlroc!or to furnish bonds wvering tho foilhful porformonc<:l of !he Subcontrod and lhe poymon! of all obligations arising thcroundor if rnqt~imd in tho Contract Documenls or subsequent fo the execution of this SubcontracL Tho failure of the Subcontractor lo furnish a bond wiihin five {5} days offer having boon givun notice of such reqviromenl by either lhCJ Owner or Controdor shall comti!Ute $l!fficlanl cm;se fo1 lerminolion of fhis SubcunlrocL 5.8. Notwi!hslonding the above, wherever !hero is a provision in or change of the applicable law governing this Svbcontrod changing the scope of ony such indemnification of an lndamnilee horoundor, then ond in any oven! svch indomn1ficalion shall apply only lo the extent permiHed by wch existing or changed opplicoblo law. Nothing heroin sol forth shall be doomed to preclude tho indomniflcolior. of an lndernni!ee hereunder from any of !he foregoing damages caused by, arising oul of, rewliing from, or occvrrlng in connoctlon with the negligence or ony o!her fault of a party o!hor than the !ndmnnileo, whether or no! the lndemf\ilee is parHally negligent or at fault. Subccn!roc!or's oblig<:llon hcrounder shall nol be limited by the provisions of any workmen'$ compon;.o!ion or similar acl. 6. Warranties. 6.1. The Subconlrodor worronls lho! il is duly licensed to porform the Work, tho! it has reviewed the Drcwings and lh<ll they are complele and conslrucfible, ond that H has visited !he Jobsife and become familiar with ony conditions ihol rnoy affect the Work. 6.2. The Subconlroclor worwnls !hat lis Work wiil be free from defects, rnerchan!lble, fit for use for a porliculor purposo, will confonn wilh the Oruwings and ony applicable low, and that it will delivor good title !o !ho Work. In the evenllhot any Work foils to conform lo the requiremonls of this Agreement, soid Work shall bo corrected by Subcon1rac!or immediately upon discovery. Further, in !he event that defects due lo fauliy moterlois, or workmanship appear wilhin one (ll y,;or from dole of final completion of ihe Project, !he Subconl!odor, whether or nol Work was by, through, or under him, shall, a! his own expense, promptly correct the soma. 6.3, Unloss olhcrwi~e specified in the Contract DocvmGnls, ilw Subconlraclor warrants thai aU mo!erials and equipment lo be permanently installed in the Proroct shall bo new and shall be of such quoiHy os required to satisfy lhe standards of the Conlracl Documents, The Subcon!raclor shell, if rec1uired, furnish ;otisfoctory evidence os to kind and quality of all materiob and eqvipmenl. All k1bor shall be performed by workmen $kil!ed in their respective trades, and workmanship shall be of good qualify so thai firs! class work in accordance with the standards of cons!ruclion set for!~, in tho Conlroct Documents will resuit. 6.4. The Svbconlroclor worror.ls ond guarantee; !o Contractor and Owner all work performed and moleriob ond equipmen! furnished under his Svbconfroct agofnsl defecls in moleria[s and workmanship for o period of one ( 1) year from the dole of Final Acceptance by !he Owner of the completed Work, or for o longer poriod if so specified in the Contract Documents. 6.5. With respecllo cmy of the Subconlrador's worran!ios, if such ma!erials or equipment or portion of !he Work is found of!or such final Accop!anco not lo comply wilh the Conlracl Documents or otherwise in bwoch of worroniy, the warronry ond guarantee period thereon shall commence wilh Jhe dote it i& corrocted io comply with lhe Conlracl Documenls. Reference is made to other saclions of the spacificaHons for specific performance .:;md llme gvmonlees os may be required ihorein over ond above the one (1) year general gu(m:miea specified above. Delivery of Svbcon!raclor's guaranlee is on<3 of tho condi!ions lo Subconlwctor's final payment Subcol\lrncl ll!lrccment l'agc I I of 17 hut in I lk lnw: 71 6.6 Subcon!rac!or shoil, pro~1plly upon receipt of written notice thereof, make good o.ny defeds in mo!erials, eqvipmonl and workrncmship to its Work which moy develop wl!hin periods For which said moleriols, equiprnonl ood workmanship are guoronleed, and olso mok& good any damage lo other work cousod by !he repairing of such defects of his own expense, ond wi!houl reimbursement under the SubconlrocL ThfJ foregoing remedies shall not deprive the Owner or Con!ractor of any oclion, righ!, or remedy othorwise available to it for breach of any of the provisions of !he Con!rac! Oocumllnls by tho Subconlraclor and !ho periods referred !o above, or such !ongor time os moy bo specified elsewhere, sha!l not be construed as a limi!allon on the time in which t!w Owtwr or Conlrac!or moy pursue such other action, right or remedy against ony Subconlracior, 6.7. !f the Controctor, Archi!ecl CHld Owner deem il inexpedient to corred Work damaged or Work not p\lrformed in accordcmco wi!h !he Con!rocl Documenls, an equiJable deduction from the Subcontract Surn $hall be mode. 6.8, Subconfrodor sholi promo!ly r0movo from the premises oil ils maleriols, equipmenl (whether incarpc>roled in tho Work or notj and all Work corF:h•mned by !he Architect or Contractor as foiling to conform to tha Con!roc! Documents and each Subconlraclor ~hall promptly reploce and ro oxecvle o!l Work und~r Its Subcontract in accordance with the Contract Document~ ond wilhou! vxponst> lo !he Conlroclor or Owner. Subcon!roc!or shall bear the expense of making good oil work of olher ~ubcnnlraclor~ or sub-subconlroclors destroyed or damaged by such removnl or rHplocerncnl. 6.9. If iho Svbcontroclor do0s not romov0 ~uch non<onforming work, equipment and materials within a roozonab!e tim<' fixod by wriHon notice from Coniroclor, !he OwMr or Controdor moy, at lhe oxpense of the Subcontroclor, remove some and ~tore any such equipment or materials. If the Subcon!r<.1Cior doos no! poy the expense> of such Hlmovd and storage within three (3) days lhcr<)afier, the Con!rnc:tor may, upon three (3) days wrillcn notice, sell such moleriols at oucllon or of privo!c sde ond sholl account for !he nei proceed~ thereof only afler deducting all the costs and expenses !hot ~hould hove been borne by lho Svbconlrador. Wilhovt limitation of any other tight or romody avoilabiG to Owner or Con!wc!or under tho Conlrad Documents or at law, any coverage involved may be rolur ned lo !he Subcontractor and any shorlage shall be paid by the Subcon!roc!or io tho Contractor. 6.10. Noilhor tho issuance of tho find ccrfificofa or lint1l payment hereto, or any provisions in the Contract Documer.!s, shall re!iove the Subcontractor of responsibility for foully materials, eqvipment or workmanship, and the Subcontroctor shall remedy any defects doe thereto and pay fer ony dorn<1ge !o other work rf;lsuhing therefrom 1n accordance with the applicable guarantee or wmranty provisions of the Conlracl Documents. The Owner or Conlraclor shall give wri!len notice of svc:h obsa!Ved defecls wilh reasonable promptne:;s, 7. Default. 7.1. fn the event of Subconlroclor' s ddcvl!, the Conlroclor ~ho!l have the right, without ihe obligation, dler sevenly-lwo (72) hours wriilen nolice lo lhe Svbcon!roc!or, to provide, through itself or though others, any such labor, mqteriols ond/or supplie$, and lo deduct the cost thereof from any money due to or iheroaller to become dve !o lhe Subco11lrocior under !his Agreement The Conlrm;lor >holl ol;o hove !lw right lo lcrminolo lhis Agreomonl, lo enter on the pram!ses and toke possession, lor tlw purpose of complellng the Work, of mo!crials, supplies, equipment, tools and appliances locold thereon, ond employ ony person io finish the Work and to provide Hquipmenls, lools, applicm..:es, nwlcriab and supplies thereof. In the evenl that this Agreement is lerminaled, the Subcontraclor shall, if requested by !he Contraclor, assign, transfer and/or convey to !h<> Contractor ony all eqvipment, supplie$, materials, tools ond appliances which he hos ordered or procvrud in conn0ction with !ha Project. 7.2. In lhe <.won! !hoi lhis Agreement is terrninoled, !he Subcontraclor shall not be entided to receive any further paymenl undor this Agmement vniil !he Project is linolly completed. If upon final completion, the unpaid bolance dve under !his Agreement exceeds the expense incurred by the Subcontruct Ag<L'Cillcni l'ilgc 12 of I i ~ l!;itial !Jdow Ik"'-'("''"'""'"'-'""'".:..ti(fccn,_,-~-'-S-":""'c.;..;on;;;.!r'l'<::.;lo;;r t----. 72 Owner ond/or Conlrador in conneclkm wiih said delauh (lXcceds !he unpaid balance under this Agremnenl, the11 !he Subcon!roclor ~holl pay tho difference to lhe Owner and/or Contractor. 7.3. The expense incurred by ih<~ Owner and/or Conlfodor in coflnedion with said defoull shall include, without lirnilnlion, tho em! of all labor, tools, equipment, appliances and materials which ore neoded lo complete the work delay and olher consequon!iol damages which result from the ddau!t ond CJI!ornoy'5 or olhor h;gol lees and cosls, including oppeila!e fees and costs, which ore incurred in conn!lclion which soid default. 7.4. The following shall constitute an even! of default: 7.4 .1 The Subcon!rocfor ol ony time, refuses, foils or neg lee!; !o supply a sufficiency of skilled workers or moleriah of the prc:per quality and/ or quantity; 7.•t 2. The Svbconlroclor fall> in any resped !o perform the Work with promptness, diligence and in a workmanliko manner; 7.4.3. The Subconlmdor slops, doioys or in!crfen:s wilh rhe work of the Contractor or ony o!hcr subcontraclor or maiMidmon on !he Project; 7.4A. The SubconfrGctor, lhrough ony ad or omhslon, cause$ ony loss or damage to Owner or Con!rodor; 7.4.5. The Subcontrar.:ior, in loi!ing to complete the Work within !he Subconlrocl Time, causes cmy loss or dorrKr[JO to owner or Contractor; 7.4.6. A decree \X order by a couil hoving jurisdiction in the premise~, is entered adjudging tho Subconlroclor os bonkrupt or insolvenl, or approving, as properly filed, a petition seeking rcorganlzo!lon ()! the Subconlroctor under tha currant Bankrvplcy Act, or any sirnilar, opplicabie fedora! or slole low, ond such decree or order sho!l have continued undischarged ond un;loyed for a period of ninety (90) days; 7A.7. A decreo or order by o court having jurisdiction in ihe premises, is entered for the oppoiqtmenl of o receiver, liquidator or lrvsleo or assitJncc in bankruptcy or insolvency for the Svbco'!lroclor or Its property, or for wi11ding up or liquidation of its affairs, provided 1he decree or order con!lnues undischarged and unstayed for o period of ninely {90j doys; 7.4.8. Tho Subconlroctor in~ll!utes vo!vnlo;y bcmkruplcy proceedings or consents to the filing of o bonkrupky proleeding oguinst i!; 7.4.9. Tho Subco,ilrodor files o pelition, answer or o::onsen! seeking reorganization under the Fodera! Honkruplcy r'>.ci or any olher s\rnilor applicable federal or stole law, or consents lo the filling of such o pelilion; 7A. l 0. Tho Subcontrodor conl>::lll to ~he appoinlrnenl of o receiver, liquidator or trustee or assignoo in bankruptcy or insolvency lor it or ils property; 7.4.11. Tho Subconlrac!or makes on ossignrnanl for tho banafil of creditors; 7.4.12, The Subconlrodor (tdmlls, in wriling, its inobilily !o poys ils debts generally as they becorne dut<; 7.4 .13. The SiJbconlroctor toke> legal odion in furtherance of any of the aforesaid purposes; 7 .4, 14. The Subcon!roc!or foils !o so!isfy and discharge any final judgment within ten p OJ days of its <miry; 7.4. 15. The Subcon!ro;Jclor lcils lo perform any of the Subconlrac!or's obligations under the Contract Docvments; 7.4 .16. f oilvre !o pay lirnely cmy supplier, laborer, or sub·subconlraclor providing Work at the Project Subconlmct 1\grcemcnl l'nge !3 of 17 !nitiaJ lklnw-: 73 7.5. The Con!raclor mol' lerminc:le thi$ Agreement for conver\i()nce, for any reason whatsoever. In the <:lY<<nt tho! this Agroomont is kmninoted for convenience, tho Contractor shall pay for Work in place, plus o reoscnoble profit !hereon, less the cost to correc! any defective Work in place. Fino! poymenl undor lhis Secllon 7.5 shall be due when the Subcontractor has all remaining tools, equipmonl and rnoteriols from the Jobsi!e. !n the ever. I that !his Agreement is terminated for cause (tnd il i~ subscquenlly dolormined that there was no default, the termination shall be doomed for cor.venionco undor this Section 7.5. 7.6. If there shall be any lien, claim, suit, attochmen!, nollce or any other encumbrance filed against the Projed by tho Subconlrodor [collectively referred to os "Encumbrances"!, or presented to Con!roctor or Owner by any sub.subconlrador or svpplier, Contractor and Owner shall hove the right !o reloin out of any payments then due or which may thereafter become due lo Subconirocfor, on amount svfki<mt to protacl Contractor ond Owner against any loss, cost or expense arising oul of or in connection with any such Encumbrances. In the event any Encumbrances are assorted, Svbconlrodor shall, wllhin thirly (30) days of receipt of notice thereof, cause the Encumbrance io be discharged by payment, bonding, or o!herwise. In lhe oven! that Subconlrocfor fails lo di:icharge the Encumbrance, Con!rac!or, al lis option, may pay or cilwwise discharge lhe Encumbwnco and wi!hhold the costs ond expenses incurred from any amounls oweJ Subcon!raclor. Tho riehls of Contractor af!d Ownor under !his provision ore absolule, ond me not d0pendenl upon !he ever•lual vc1lidily ol !he Encumbrance. Any amounts reJoined by Conlroclor or Owner shall not bear interest and shall no! be released to Subconlractor vnlil tho invo!idity of tho Encumbrance has been finally determined by o r.;ovrl of cornpolenl jurisdiction or has be0n properly paid ond satisfied and documents evid&ndng such dlspos'lion hove been received by Contractor. 7I In addilion !o 1ho foregoing, if Con!roclor deh:nnlnos lhal Subcontrador i$ delinquent in !he payment of ony monie.1 due ond owlnEJ for labor, materials, supplies or equipment, Contractor ~hail !wve the right, upon lorry-eight (48) hours notice !a Subcontractor, to pay or satisfy any such amot!f'ls due and owning, and deduct ony such sum P"id from the proceeds of any payments then due or lo become due lo Subconlrac!or. Any wch pa)'menls made will be by joint check, payable lo tho Subconlroclor and tho person or eniily lo which the money is determined to be ow·:d ("Payc;8"), <md St•bconlroclor agrees lo execute such ioinl check for lhe benefit of the Poyee. !f Subcontraclor does nol flxecu!e !he joint check, !hen Contractor may pay such sum diroc!ly lo the Payee, Contractor will nol moke wch a pe~ymenl if, within lho forty-eight {481 hour nonce period, Subcontractor submits lo Contractor ovlder.co thai damonstrotas !o the sole satisfaction cf Contractor tho! a good foiih dispute exists concerning the alleged delinquency ond odoqvde ossuronces ore given by Subconlroch'r thot !he progress of the Work and the cosls of performance will not be adversely offecled. 8, Miscellaneou$, 8.1. This Agroomcnl represents the entire and integrated ogr&emoni bo!weon the Contractor and !he Subcontractor and ~vpcrsedos ali prior M~go!ialions, representations or agreements, either written or oral, whkh are hGmby merged info this Agreement This Agreemenl moy be amended only by wri!lon change order, or by a wrillen amendment, signed by bolh !he Contractor and lhe Svbconlractor. 8.2. The Subcontraclor shall nol sublel, assign, or transfer this Subcontract or MY portion thereof wilhou! !he wrillen consent of th0 Conlracior. The Conlraclor and the Svbconlractor, respectively, bind !hem selves, lhcir portnars, successors, assigns and legal representatives lo !he other party fo !his Agrevrnenl and to !ho> por!nor~, successors, <tssigns o11d !,;gal reproscn!olives of sur.;h other poily with respect lo oil covenonl;. of this Agreamen1. 8.3. The Subconlruclor $lw/1, wilhoul making any changes, sign and return one copy of this Ag•cemeni within seven !7) dGys from !he dole of roceipl, or Con!roclor moy dedare !his agreement to be nuli and void. Con!rnctor rEl5arves !he right to concel this controcl o! ony time with four!een { 14l days wri!ien nol!ce. SubCQntract Agrccnwm Png~ 14 uf 17 74 SUBCONTRACTOR: BK MARINE CONSTRUCTION, INC. ~AV.d ~~1,/'/_L~d/._ -- wf. &!d.~,Ffilifi -~l Subcnmmct 1\grccmml l'ngc l6 of 17 75 CONTRACTOR: OINT VENTURE 1:,-\ic;haol M~:lcg[F~...J:LQje<;t Execvliv9 (Print nome & title} j ! l I I I I ; i ! i I 1 ! Thll Gnl!but Family JCC ·· 'Miniulhc,irh, i11. · KM-Piaznl'mject 1115181 (l<:>linmling 1109-0139) COi\H'ANY NAMI~ (Stl£fi:ONTHACTOR) Contact Name 02800A -Senwnll Constl·uclion Td: l•'llx: Cell: Emnil: -·- BASE lliD AMOUNT Scope nfWork: I D~i.{;ln & Pcnnit i1 hase --~~ 2 3 Revise existing City of Min~1i BEnch permit with revised sen wall dc>i/.\!1 4 Assit Owner with aquirinj;j new Pcrmil .. s Include a pcrmilling fcc nlfowance of$2,500. Furnish detailed, signed & sealed drawings & ;;pccillcutinns fhr Miami-Dade County 6 DERM, Anuy Corps of Eng <l!ld Cily ofMimni 13cnch approvals including cross sccions, scawnll h1you1 !lnd clctnil$ 7 rum ish n survc:t und fts-buifls. 8 9 New Seawall Construction -10 Mobiliza!ion ll Subcontmctor shn!l relocate two cxi~tlng trees tHJ ~ite with their crnnc. Rigging to be dine in advancci!?l.~thcrs. -----·--~~~------- 12 Remove exl$\ing ~cawaH cap"' required to instoU new slwctpiling l3 Furnish3' Install uluminum :;hc:ctyi!osJ!.cJ.:[;!:]~~~ scawa!! ---· 14 Furnish & Install lie hack reds nnd tlcndmcn 15 Furnish & [n~all return W<tlls 11\ North nnd Sot!~.!_proporly liau$ (armrox tO' each). 16 Furnish & lil$lall concrete Eilcs. 17 Fomlsh & lnsh1ll clean cru.>hed gravel, sand <lr concret~: lu f!H ''oid be! ween new and cxisling seawalL Furnish & Ins! all new CnsHn -l'!r.oo, contfnous reinforced concrete ca11 wilh a tighl II! broom finish to iock the system loge! her. New Sen wnl! cnp lioish c!evnOon ro bent elevation? .75 NGVD. (brenko111 cost) This Subwnlmclor acknowledtcs lhM the Pool wiH be in dose proximity !n the 19 s~nwn!l .rnd ilas taken into nccoun! th<tllk:backs and dcndmcn may no! bo ubi<) lobe used in !hal area due to space llmi:ations and hos l!lcludcd plies or o!hccr uwthuds or rc:ainin!i the wall A~-~al ~31Hon. ~~~--.. --~~ 20 ··~· ·---------•-•n 21 General lt(\lllS --· ··-·-·~---·.,~--~ «<•····----- 22 l\·!obllizrrlion 23 General Rc~ircmeni~ I Cumli!inns 24 Bmfc ______ , __ - 25 Lund Based Cnmc 26 lJu:npslcn; l(lr Conslruclion U;c. Page 1 or 2 76 rc,ised RF 9/2&'11 IU( Mal'luc Man Woonlon 954-421-2321 954-427-5168 954-520-9519 ma\lmlQI.J.l¢n(d)omaa.rom ADI)ITIO~StDEDUCTfONS $ 241,000.00 INCLUDED INCLUDED INCLUDED INCLUDED NOT INCLUDED INCLUDED INCLUDED --INCLUDED INCLUDED INCLUDED 1NCLUD£D INCWDI1D INCLUDED $ 21,575.00 INCLUIJED INCLUDED INCLUDED EXCLUDED INCLUDED INCLUDED i ' I I I I < 27 ------28" 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 S2 53 54 Provide proricr (ifSiJO:_~I ol~:kmoH$hcd itctnS. _______ -~-~-~·-···-- Ocsigtl uud Efljtinccdt1g !'cos · Sales T<L~ Schedule of Construction H·om tla(c wlcoscd All Mule rials Shall Meet !he Minimum Rtqulrcmcnls of the Florida IJnlldlng Code 11r Um Project Dowmcnts, whichever RerJuircmcnls aro Grenier. Subcontm~tnr Slwli Comply w1!h u!l Local Building Codes, All Federnl, Shl!G mnl Municipal Luws, Codes, Ordlnnnccs, Rcgulnlion;; or any Local or Statu Codv$ having Jurisdiclion. Suhcontmc!or Shull Furnish Su111cicnt Malcr!nls, Eqtdpmenl nnd Ulbor so fl~ !0 Mnintain Schedule. !nc!\!ding Overlhnc Work ifCnmraclor Fails to Meet the Schcduic Dnc 10 His Own Fault Include:; und will loll ow <~li OHHA r;;guloHons. S!lcciallyOSHt\ rcgula!ions which ~lo lh!s trades contract work unJcr lhe means and methods contract clause. This con!raz:!or to provide >ufllcicnr Wntcr Coolers for your work forces, n• per -OSI !A rC:lJI1iromcn!s. KM/I'lnzo will provide water n1 ground level. Wnrraotks Pcrmils !o b~ P:ilfe(f[,y this Subcontractor, lee's jXIICl by Own(;f- Wurk~r·s Compwoalinn nnd Genera! Liability Insurance -~-........---~--···-· I ,o,!gshor<: ~nd HariHlr Wor~'?rs Cotnpcn~rttlon {lfRctJ:!!!:cd) Jones 1\ct lnsuranct~ {!flleollircd) Paynwn! & l'crformancc Dond • Provide P<:n:cnl Tolnl Scope Adjusrmcnls (See Allul'c) IInse Hid -~-~-. l'nymcnt & l'crformnncc lloml T•1tal Bid ,\milunl f!lr 02ll00A • :'>cnwnl! Conslruclivn ~ CONTMCI'OWS SIGNATUHg DAn Al:r~;nN,\TVS To;~movc und dispt>SC or nil n'gclntion and o\'crgrowth rrom 11Hl existing properties li:nw !u the c.\i~ting scnwall Dcducl fi1r Owne-r llir\,c!l'ordms\l ofShecl Pilling (including sales lax)( Owner wo11l<l issue Pllrclu~>e onkr in the nm<Hint oi':!AS,9!i 1.76 to Sou!lw'rn Pine Ltunbcr2, Page 2 cf 2 77 INCLUDED INCLUDED-·~ INCLUDED 8 weeks INCLUDED !NCUJDED INCLUDED INCLUDED lNCLUDf,D INCLUDED INCLUDED INCLUDED INCLUDEJ) INCLUDED 2.8% s 241,000.00 Included $ 241,000.00 -~£#&: 9 /<s/ f<(}lt / $ 15,000.00 $ (S 1,!155.00) I I I I 8L ~~~-----.----·-~-~------~·----~~----------~--~. rl L.~~:·-~ I~ i [J ' 1' __ ,~_,, 111 I l . I l ( I~ I ~l ! / t~· .... --r~-/ ·.fll 11 (l ! r· I d I I ~I c:!Jj ! 0 t i i l ,. I! ~$ ~i l.,l ,J I '·: ~~ fllli ':1 . [J ,J li q ;, 1 1 I ' [_I l ' ' r' I ' l~i . .,, : [I 1 ~' 1 ,_· , I ! ' i I i L I 'fJ i L/ ~ I ) I I~ I 1.1 I 'l 1:~ l ~i I ' I'~ I \ ~ .J I I ------··~~-'1 l L=:-~:::::~~L ......... ~-~-----------------~ .,. r-::o oo -!;;:: :::j ~~--..') r'lC'i (fl r=~iil f ---ijl ~--~~I 1J =t= I 0 0_ r )> ;;u g; L __~ ??'? FROM BACK EDGE OF m EXISTING CAP I !I ~-!! I I i ! t§!Jfp1 ~ "'~ ""~{!"€~:~ l Mf,\i'/,! 8fiA'61~'Jbc;----~-~p>:if.:'IIRf.n '011' jJames Bushouse, Inc ~ I 'I~ ·1 1_.:; _ '"""'""' "--" 14221 PJNETRC:E DRiVE r:k. ,MAfmiE , ! coNsuLnNG ENGiNEERS •1 Q ~' j§!-----~·-------.. ----· MIAMI BEACH. FL CONSTEUL'riON, INC.! l.B. H27565 " ' ·~ .l;'T"Ill'~ U•!llhO'.l-A", P.L ' J5CC sw 1-1th 51H£ET i H)jt S•-..... ta.nl }!1.1 L ~AI'HJJ~ 1'1>10:.1 [ ; I i I] J rtdu1l""'·l1iJt/fr.uY I~?JlJl loEEHFif·:o ~lf.AC:H :l j)<\>!"" t•Jt<r .......... w,.,r.oro~.t.l>.H ,..I!.:<~Af\<)'II(U.l•~ J ~-~~'ll~ ~~ rwi"~---~L~~-~--~--~-__ -~--________ _____j.Q,~,_-~--.:~ ;}):: ;t~.:j'"L-.. ~ ~ __ S~;~Qr~ih'UL.L~~~l .. ::=~.:_ __ ~~~~.:__ 6L ·-------~ rre:IT[f==m1 ~1=-....::!IF:l--111"~1 ~1~::1i f:jft----~7-,_,I==I!I::::JI!~II==r II' :.qlw., I '.:::=1! J=l' ~-'-'-111'----j :::J I f~IT(1FI1~1Jl, :~~~-~=:. ::::1\1=-'''-~~ ··~·~lB. =·:'11-' 11 ".---1,~1-I · ~ -~ '";-·-~Ll .~:1 1::::: I • -··· --1 I 1-.w=:tu=L-1. ill:._!-, :W~::~~Hill;r-l 1·11·--~-111 11--w~·-...... ill-~-.. __ 1--~·.. ·: ~-~·U! ;\....'' __ , ALU-i1i= 'I =ill::.::~. \l=::l! .-II;·-~Alwi¥-1 "l.:l:-1 ll' . .::::ll ~~ r-:: ~~;;;; ---~F ---:d:!n::: I ~~1T..: :r'(.!c. .. , 1·___:--,-A.tll-,LU-, .. , I!--I TJU_.,. I~. I I i ·T·Iil !-II •···--11' I :=1 1 1 1 1~--11 .~ ll--.:..--·--____:.~_l~-... i--:-L. L_._.-T·~·,·~, J"~· i A-.--·-1'1-1 i 1--.--r II-· I -.··j,j-! I!~·-; I -11:-A, -,-.Lrr=ri==·J i .fiJ;·=fn'---1~'''-•~·-, , -"L1--11' ·-,,,__,_.r,r::: 1 ",:,=:=m~~J:rl t==! t 1 _, .. 1 .. ~ .. c--c .... lllu-1 "T'-L -II •--"· ~:~! I ·-::::ll=ili= I= ' i•l:= l=i \t--·~ l-· ,~ ~~=~ 11::::.:11 ~==i, ~=.: 1 =lll=::ll: \m,: 1 1 Tu-.:.1--~-, -~---~,·---,,,~ .. ( .. , ·~,.---,-~ -m-·--· . ~rrrJ ~~r,,-~~T,-i~ ~1T,·::~~-,-;..:jf i '-~, ~-ll c-·!L·,-,lli11 __ -1,-J...c-' .111m--Ll·-:~i --, !=I 11,rill~llt=;Jl--i ui-. .JlJ=lU? i ,~.:....Lil II =lil::::::i!l=::llr:::::lli:: =::,!1::.:::111-.fl\l· 1:= f n. llj ___ l '1-11 e~UJI _, '1'1-·-•11-·lll:::'i . ., 1 1~-· '1 · . .L.:=JJ:':;:::,_Ji-:;.::l_ 'J__t:-~l.c.=-= , ... f J 1.------.1 --111-e-! 1 1--, Il-l• 1~ "-11·-W--11 -·1 1 --·-' .-,,~, .. L,·cr! ... Jc,-llL.!..illci,-~ .ill--l·r~.J.illrl ....:J~Ill~··· \ ~~· .. I i 11 LU:::::l.JJ,-~ ::..:1 +' ;::: -:::.: ,:::::;~ 1-I 1 ==il' ID-1 i 1-UJi-11 F...._ -i ,jl--fii=lllt-! l'~-:1.~.~-~-~~ .-........ -~-rU.lij: ..----LL;~ 1 --~;L!.....:"""";"~ ~ --L!..4-t I i-1 ·W---' ....... ,! 1-! Il--l 11:-"-I;J-·-·III:::W -' I I~' --ii~ .. L--.,. ... -, ... ,,_1 ....J.,.....,J..LJ.-1.1-P111' ,~~~·. I ll' :=!11=11 =::111=1 :: =iii= I= '--·-'JJJ'='::1 'I_Jill--11!=1 I I'=; 'i=iii!N. ~;.--l_l . 11-,-LL . .,--C..mL--;.. c..J--;!.L.. -~' 1_ . ..:-1 r~\; I I ! . ..::::111=1 i 1=1.1=1 i 1::: =lit:::::: i ::..-:::!fn........,' == '.111 ........ , '·I~LL'l-~·,.~-.Ill-···' I ''''Ill E. I _.., < --• -:::1 Je·»! •-! l ---I 1 ~-'ill:~~~~~ '11---'fTI!:: ='jf!.·::::ru----r~~ 11 111, t;-j ~~= -, i-,~=-1 '1!:1-\11 :== -1 -, n!::':r,~rrT ---~~~ I ==I __ , ........ -I ·-1 --··· 1·-' ::;:r· _, ~L,-1-1--'-_1 .. 1-IJ . .~.-1' l----.~1·'.1··· ·-·l--1 ". LL.IJl!..L'/ --. 1ll '.1·'.---11 ;~-1 · 1-'1 , .. , ... -, 1 -111· -""1· · "t-1 ll, .. r_1 11 1 1-··--·w-! _, '··-· · ·-•I ~;i I Tf. l l __ ... ,u----l'l:±f"l' r11= i ·.::::-II ::::ql·,··l··~· Ill--' __ £ -1 -T I __ I -· ··--j __ II =l --' I j ,.J I r=-i I =u --..:_11 r=::l I Jii:=:• il==i j -·· l ~ ~:·J.TIF"11:[Uu'1~lll-1-1 J.IT=1-l ·~~~m-W: ... ~llih=f.l r"1-~Uf1·1·\lU ~·!ll~TL::::: 1:-;: _j:=::~ ! L ~, lj:r !·-t , , :1=: 1l::d 11=:1 i I=' ll:: ' =Ill=: ' _.L-.--' -s j' 1'.~'11-·-·1 ··--, ".---1 I 1·,--,, t -II ! ·-r-Ui-r:lt-U= _u:--~ I .c.L.,F· . ..J, _.....:::. i= --. . = ... :::u! 111--LLEl:t-=t.l ---~--·~ ~ .:: ~ l"' b ----------. ----~;;;; -· ------·---II I 1---~~-.....,~~·--~===--. -·-. j 0 L .••. ·•· .. ··•· .... ·. ·-~' ·-, ·-.'". Tr-'--. . __ ;,. --.. I_ ---. 0-lf~i " T ---~.-.-.1 -t··~i:.li I I ~ L,! I ,=jl I c.-+::' , lfl . i I i ;~ :-.1 I f....._. ...... t I 0 I f~jl' ~~> n· [1·-~-~ 1 I <> 0 i I i-><ttl i h_.;j I ~ fi: ~, ltj.:l' I i :r"l ;:t! i '0;) -,.-,; ~~I I I §b i .. ,. I . ' -.) I i-~ ·W 11 1%' ~~ I"' !:' -:1 I' l:ii ~~ ,a I 11 I?' o ::.. l\;1 1··-.1 " "' ,· •• ,. ~ ~ 0 8 ~ li ~ z z ,g ~I< Gl Gl o -~~ a a .§ (,.J H }i 0 <· !l 0 pi I · o z 0 Gl ...; , a ~ ;§ ~~ '~ jSl. ~~ :; Cl ., '0 II ;'J 8 z ~ a l l --v j ""~{~v~~m --T~~~1f;f~A'c~~~I;;-----·IPRfPr,nm·m, ~---~-r.IJame;suif,ouse, Inc I '""""w '"'' ! 4221 PINETREE DRIVE i BK MARlNt. CONSUU1NC l"NGINEms l ----~--.-.,..,.. .. 11 MIAMI BEACH, FL i cp_!'-1ETRUCTW.;"<, rNc.! ul 11zrsss i 1<1<-;-J,, .1'N 14th $lr!(E: 1110\.Pt•..,W.#If 1':-'L"~...,"J:~r i 1 ntrHnrLD BE:A .... JI 11. )J44~ l "rw.:}, tr,.,m. n~.-.j.HJl ~ ILO'IQ;\ >u-1 . ·-----·----.1-~ ..... -~----~-·-------·--~~~~~--_Ji~·i __ -l!jt.-:1.3_1L-.Ji~Sl~:.?.£ZP.._L __ "·-(.~~~ :~:~~---~~-_:::::.::_ ~~-J ~I I 80 CITY OF MIAMI BEACH a Florida municipal corporation Lessor and MIAMI BEACH JEWISH COMMUNITY CENTER, INC. a Florida corporation not-forMprofit Lessee AMENDED AND RESTATED/CONSOLIDATED LEASE ~· zz ( 81 TABLE OF CONTENTS ARTICLE PAGE I. DEMISE BY LESSOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Section 1.1 Lease of Property II. DURATION AND TERM ........................................... 3 Section 2.1 Commencement and Maturity Dates IlL AMOUNT OF RENT .............................................. 3 Section 3.1 Rent and payment schedule IV. USE AND POSSESSION OF DEMISED PREMISES .................... 3 Section 4.1 Permitted uses defined V. TERMINATION OF PRIOR AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Section 5.1 Effect on Prior Agreements VI. NET LEASE ........................................ :~···: ......... 5 Section 6.1 Net lease defined VII. PROVISIONS REGARDING PAYMENT OF TAXES ..................... 5 Section 7.1 Lessee Pays All Taxes Section 7.2 Contesting Tax Validity Section 7.3 Failure or Refusal to Pay Tax Section 7.4 Proration VIII. LESSOR'S INTEREST NOT SUBJECT TO MECHANIC'S OR MATERIALMEN'S LIENS ...................................... 7 Section 8.1 Notice to Third-Parties Regarding Liens Section 8.2 Releasing and Discharging Liens Section 8.3 Leasehold Mortgage IX. LESSOR'S RIGHTS AND REMEDIES .............................. 10 Section 9.1 Landlord-Tenant Relationship Section 9.2 All Rights and Remedies Section 9.3 Rights and Remedies Cumulative X. INDEMNIFICATION OF LESSOR AGAINST LIABILITY ................. 10 Section 10.1 Indemnification Clause Section 10.2 Commercial General Liability Policies Section 10.3 Indemnification Clause For Lease Challenges Section 10.4 Compliance With All Laws, Etc. 82 Section 1 0.4.1 Rules On Hazardous Materials Section 1 0.4.2 Hazardous Materials Defined Section 10.4.3 Further Disclosure of Hazardous Materials Section 1 0.4.4 Lessor's Right to Inspect Section 10.4.5 Default Section 10.4.6 Lessee Receives Property "As Is" XI. FIRE AND WINDSTORM, ETC. INSURANCE PROVISIONS ............. 14 Section 11.1 Property All Risk Coverage Policies Section 11.2 Builders' Risk Insurance Policies Section 11.3 Use Of Insurance Proceeds Section 11.4 Financing of Premiums Section 11.5 Default After Casualty Section 11.6 Excess Insurance Proceeds XIL LESSEE'S DUTY TO PAY INSURANCE PREMIUMS ................... 17 Section 12. 1 Obligation and Proof of Payment Section 12.2 Lessor's Option to Pay XIII. ASSIGNMENT ................................................. 18 Section 13.1 Right and Conditions of Assignments Section 13.2 Notice and Approval Section 13.3 Transfers or Assignment By Leasehold Mortgagee XIV. CONDEMNATION CLAUSE ...................................... 19 Section 14.1 Division of Condemnation Proceeds Section 14.2 Lessee's Improvements Section 14.3 Taking Rendering Premises Unsuitable for Permitted Uses XV. ADDITIONAL IMPROVEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 15.1 Proposed Improvements Defined; Consistency with Concept Plan Section 15.2 Lessee's Responsibility for Design and Approvals Section 15.3 Preliminary Plans and Specifications Section 15.4 Review of Preliminary Plans and Specifications Section 15.5 Design Review Board Approval Section 15.6 Public Facilities and Concurrency Section 15.7 Construction Plans and Specifications Section 15.8 Conditions Precedent to Construction Section 15.9 Lessor's Cooperation in Obtaining Approvals Section 15.10 Phasing Section 15.11 Commencement of Construction Section 15.11.1 Unavoidable Delays Section 15.12 Completion of Construction ii 83 Section 15.13 Land Development Regulations Section 15.14 Licensed Architects and Engineers Section 15.15 Construction Cost Certification Section 15.16 Completion Bond Section 15. 17 Diligence in Construction XVI. DEED RESTRICTIONS CONCERNING THE USE OF THE PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Section 16.1 Restrictions: (a) Lessee Remains a Not-For-Profit Corporation (b) Religious Services (c) Assignments Without Consent Require Fair Market Value (d) Lessee's Costs ( e} Security (f) Insurance obligation (g) Signs Section 16.2 Violation of Restriction is Event of Default XVII. DEFAULT CLAUSE ............................................. 30 Section 17.1 Event of Default Section 17.2 Statutory Landlord-Tenant Proceedings Apply Section 17.3 Thirty Day Cure Period Section 17.4 Lessor's Other Remedies Section 17.5 Liquidated Damages Section 17.6 Receiver XVIII. LESSEE'S DUTY TO KEEP PREMISES IN GOOD REPAIR ................................................ 33 Section 18.1 Lessee's Covenant Regarding Maintenance and Repair Section 18.2 Lessee's Covenant Regarding Utilities XIX. DEMOLITION CLAUSE .......................................... 33 Section 19.1 Lessee's Right to Demolish Conditioned Section 19.2 Value of Reconstruction Section 19.3 Expense of Demolition and Right to Salvage XX. ADDITIONAL COVENANTS OF THE LESSEE . . . . . . . . . . . . . . . . . . . . . . . . 34 Section 20.1 Destruction or Casualty No Entitlement to Termination Section 20.2 No Subordination of Lessor's Title Section 20.3 Covenant Regarding Surrender Section 20.4 Further Covenant Regarding Encumbrances Ill 84 XXI. COVENANT OF QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 21.1 Lessee's Right to Quiet Enjoyment XXII. LESSOR'S RIGHT OF ENTRY .................................... 35 Section 22.1 Lessor's Right of Entry XXIII. NO REPRESENTATIONS BY LESSOR ............................. 35 Section 23.1 Lessor's Absence of Warranties Regarding Property and Lessee's Acceptance of Premises XXIV. LESSEE TO COMPLY WITH ALL LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 24.1 Lessee's Compliance With All Laws Section 24.2 Lessee's Obligation to Pay Fines, Etc. Section 24.3 No Discrimination Clause XXV. SURRENDER OF THE PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 25.1 Surrender of the Premises Section 25.2 No Subleases, Etc. XXVI. FORCE MAJEURE ............................................. 37 Section 26.1 Force Majeure XXVII.MISCELLANEOUS PROVISIONS .................................. 37 Section 27.1 Grace Periods Run Concurrently Section 27.2 Arrearages Section 27.3 Landlord-Tenant Relationship Regarding Collections Section 27.4 Lessor's Remedies Not Otherwise Provided Section 27.5 Receivers Section 27.6 Cooperation Section 27.7 Captions Section 27.8 Index Section 27.9 Laws of Florida Apply Section 27.10 Covenants Running With the Land Section 27. 11 Time Is of The Essence Section 27.12 Notice Section 27.13 Attorneys' Fees Section 27.14 Venue Section 27.15 Lessor's Limitation on Liability Section 27.16 Mediation Section 27.17 Recording in the Public Records iv 85 AMENDED AND RESTATED/CONSOLIDATED LEASE THIS INDENTURE {the "Lease"), made and entered into at Miami Beach, Miami- Dade County, Florida, this /d..ftday of Jtl L-'( , 2000, by and between: CITY OF MIAMI BEACH, a Florida municipal corporation (hereinafter referred to as "Lessor") and MIAMI BEACH JEWISH COMMUNITY CENTER, INC. a Florida not-for-profit corporation (hereinafter referred to as "lessee") WI T N E S S E T H: WHEREAS, the lessor is the owner of the fee simple title in and to that certain property located at 4221 Pine Tree Drive, Miami Beach, Florida, hereinafter demised and described (the 11 Property"); and WHEREAS, the Lessor and the Lessee are parties to certain Prior Agreements, specifically the Lease Agreement dated June 3, 1981 (approved by Resolution 81-16678), the Amendments to Lease Agreement (approved by Resolution 84-17863), the Second Amendment to Lease Agreement dated November 21, 1985 (approved by Resolution 85- 18280), and the Assignment of Lease Agreement dated April 11, 1988 (approved by Resolution 88-19226), (collectively the "Prior Agreements") for the use of the Property for a recreational community center; and WHEREAS, the parties wish to amend the Prior Agreements to enter into this Amended and Restated/Consolidated Lease ("Lease") that will: (1) extend the lease term to commence upon the execution of this Lease for 99 years; (2) establish the permitted uses on the Property to coincide with the evolving character of the Jewish Community Center; (3) provide for a procedure to approve improvements to the property to permit the Lessee to invest funds for new facilities on the Property; and (4) provide for other 86 amendments to the Prior Agreements through this Lease, as agreed by the parties hereto, and WHEREAS, certain approvals are necessary before the City can enter into this Lease, including a determination of applicable development regulations and appropriate uses for this GU property (as provided in Miami Beach Code §§142-422, -423 & 425(a)); Planning Director analysis and City Commission determination of waivers of public bidding and appraisals under Miami Beach Code §82-38 & -39); and an approval in an election by a majority of residents residing in voting precincts located within one mile of the property (under Miami-Dade County Charter §6.02). NOW THEREFORE, the Lessor and the Lessee. for and in consideration of the mutual covenants, agreements and undertakings herein contained, and in further consideration of the payments herein mentioned, made and to be made, do by these presents mutually covenant and agree as follows: ARTICLE I DEMISE BY LESSOR 1.1 Upon the terms and conditions herein stated, and in consideration of the payment from time to time of the rents herein stated, and for and in consideration of the prompt performance by the Lessee of all of the covenants hereinafter contained by the Lessee to be kept and performed, the performance of which are declared to be an integral part of the consideration to be furnished by the Lessee, the Lessor does hereby lease, let and demise unto the Lessee, and the Lessee does hereby lease of and from the Lessor, the following described property situate, lying and being in Miami-Dade County, Florida, together with all buildings and other improvements located thereon, to-wit: Lots 5, 6 and 7 of Flamingo Bay Subdivision, as recorded in Plat Book 6 at Page 101 of the pub!ic records of Miami-Dade County, Florida. subject to the following: (a) Conditions, restrictions and limitations, now appearing of record; 2 87 -· (b) City and/or County Zoning Ordinances now existing, or which may hereafter exist during the life of this lease; (c) All matters shown on the Boundary Survey: (d) AU of the terms, covenants and conditions contained in this Lease. (e) The City Commission's determination by separate resolution of applicable development regulations and appropriate uses for this GU property (as provided ln Miami Beach Code §§142-422, -423 & 425(a)); Planning Director analysis and City Commission determination of waivers of public bidding and appraisals under Miami Beach Code §82-38 & -39); and an approval in an election by a majority of residents residing in voting precincts located within one mHe of the property (under Miami-Dade County Charter §6.02). The Property is hereinafter sometimes referred to as either the "Demised Premises," "Premises," or "Property." ARTICLE II ~ DURA TlON AND TERM 2.1 The duration and term of this Lease shaH be for a period of ninety-nine (99) years, commencing on the @~'day of Nov. , 2000 (the "Commencement Date") and expiring on the 7-1).. day of Nov. , 2099 (the HMaturity Date"). ARTICLE Ill -AMOUNT OF RENT 3.1 The Lessee covenants and agrees to pay to the lessor an annual rental of Ten Dollars ($10.00), payable annually in advance, the first such annual payment being due and payable on the ;a day of 0-t:L~. , 2000, and on the 1st day of D!:e. each and every year thereafter during the entire term of the Lease. ARTICLE IV -USE AND POSSESSION OF DEMISED PREMISES 4.1 The Demised Premises shall be used by the Lessee solely and exclusively as a Jewish Community Center and any and all activities related thereto. It is understood and agreed that the Premises shall be used by the Lessee during the entire term of this Lease only for the purposes described below and for no other purposes or uses 88 whatsoever. In the event that the Lessee uses the Premises for any purposes not expressly permitted herein, such use shall be considered an Event of Default and the Lessor shall be entitled to all the remedies set forth in Article XVII hereof, or without notice to Lessee, restrain such improper use by injunction or other legal action. The activities and uses permitted under this Lease shall be limited to and only include: A recreational center, including but not limited to the following uses; recreational activities including organized and informal athletic activities for adults and children, recreational activities for physical fitness programs for seniors, adults and children; children's day camp; cultural activities and events; informal adult education; social events for children. teens, families, adults and seniors; meeting space for civic, cultural, educational and religious purposes {including for religious prayer in specially designated areas as hereinafter provided); and social services necessary to support the functioning of the social, recreational and educational programs at the site, including, for example, nutritional meal programs for senior citizens. Other activities normally conducted by Jewish Community Centers sponsored by the Jewish Community Centers Association of North America, may be permitted on the Property if approved by the City Manager, or City Commission after a duly noticed public hearing. Additional uses not specifically enumerated above may be approved by the City Commission after a duly noticed public hearing. In the event uses are introduced to the Property that are deemed to be nonconforming because such uses do not fall within the above list of permitted uses, and were introduced by the Lessee without City Commission approval as provided for above, the Lessor may give Lessee notice default in accordance with Article XVII, unless the Lessee terminates such uses until it obtains City Commission approval. Failure of Lessee to terminate such nonconforming uses and request City Commission approval for such use within thirty days after notice as provided for herein, unless Lessee decides to abandon such nonconforming uses, shall entitle Lessor to pursue the termination of this Lease as provided for elsewhere in this Lease. 4 89 ARTICLE V -TERMINATION OF PRIOR AGREEMENTS 5.1 Upon execution of this Lease the Prior Agreements between the parties set forth above are hereby terminated and shall be of no further force or effect, except that liabilities or obligations arising under the Prior Agreements shall continue to be binding on the Lessee under this Lease. ARTICLE VI -NET LEASE 6. 1 Lessee shall pay to the Lessor absolutely net throughout the term of this Lease, the rent and other payments hereunder, free of any charge, assessments, impositions, expenses or deductions of any kind and without abatement, deduction or setoff, and under no circumstances or conditions, whether now existing or hereafter arising, or whether within or beyond the present contemplation of the parties, shall the Lessor be expected or required to make any payment of any kind whatsoever {unless reimbursed by Lessee) or be under any other obligation or liability as to the Premises, except as otherwise specifically stated in this Lease; and the Lessee agrees to pay all costs and expenses of every kind and nature whatsoever arising out of or in connection with the Premises that may arise or become due during the term of this Lease. ARTICLE VII-PROVISIONS REGARDING PAYMENT OF TAXES 7.1 Lessee covenants and agrees with Lessor that as a further consideration for the making of this Lease, the Lessee is obligated to and will pay all taxes levied or assessed at any or all times for and after the year in which the Commencement Date occurs, and during the term hereby demised, by any and all taxing authorities, and including not only ad valorem and personal property taxes, but also special assessments and liens for public improvements, and including in general all taxes, sales taxes, tax liens, or liens in the nature of taxes which may be assessed, levied or imposed against the Demised Premises or this Lease, including the land and all buildings, (and such personal property by way of furnishings or equipment which the Lessee has or may bring upon or be obligated to bring upon the Property), during the term of this Lease or any of the Prior Agreements; but in the event any of these taxes and assessments are payable according to their terms in installments, then the Lessee shall have the right to pay the same as such 5 90 installments fall due, provided that the Lessee must effect payment of these taxes not later than thirty (30) days before the time when the nonpayment thereof would render them delinquent. The parties agree that in the event any special assessments are payable in installments, the Lessee shall be responsible for such installments during the term of this Lease, and may pay such sums in installments, and the Lessor shall be responsible for any such assessments extending beyond the term of this Lease. 7.2 If Lessee desires to contest the validity of any tax or tax claim, Lessee may do so without being in default hereunder as to its obligation to pay taxes, provided Lessee gives Lessor written notice of its intention to do so and furnishes Lessor with a bond from a corporate surety qualified to do business in the State of Florida, in one and one-half times the amount of the tax item or items intended to be contested, conditioned to pay the tax or tax items when the validity thereof shall finally have been determined, which written notice and bond shall be given by Lessee to Lessor not later than a day which is thirty (30) days before the tax item or items proposed to be contested would otherwise become delinquent. If prior to the giving of such bond, Lessee shall have paid into the Registry of a court of competent jurisdiction a sum of money to pay or apply on the payment of such taxes, and if such money is so paid into the Registry of the Court that it may never be withdrawn excepting for its application upon the payment of the contested taxes without the consent in writing of the Lessor hereunder first had and obtained, then the amount of the bond required by the terms of this paragraph may be diminished by the amount so paid into the Registry of the Court. If there shall have been paid into the Registry of the Court in the manner prescribed hereinabove a sum equal to one and one-halftimes the amount of the tax being contested, then no bond, as otherwise provided for in this Article, need be given by Lessee to Lessor. None of the provisions of this Paragraph 7.2 shall be available to Lessee unless and until the enforcement of the contested tax, whether by way of issuance of Tax Certificates, Tax Deed, reversion to the taxing authority, or otherwise, is fully enjoined by a court of competent jurisdiction or is otherwise effectively stayed not later than a day which is thirty (30) days before the particular tax item or items proposed to be contested shall become delinquent; if such injunction or other stay is not secured by 6 91 Lessee within that time, then the Lessor is authorized as provided for in Paragraph 7.3 of this Article VII, to pay such taxes as then assessed and levied, notwithstanding any pending or proposed suit to contest those taxes. 7.3 In the event the Lessee shall for any reason fail, refuse or neglect to pay any taxes referred to in Paragraph 7.1 of this Article VII within the time specified therein, or if the Lessee desires to contest, or by suit contests any such tax, but for any reason fails, refuses or neglects to comply with the provisions of Paragraph 7.2 of this Article VII within the time therein specified, then and in any such event, the Lessor may at its option pay such taxes as then assessed and levied and the amount or amounts of money so paid, including reasonable attorneys' fees and expenses which may have been reasonably incurred in connection with such payments or by reason of the nonpayment thereof by the Lessee, together with interest on all such amounts at the rate of ten per cent (1 0%) per annum from the date of payment, shall be repaid by the Lessee to the Lessor and the payment thereof may be collected or enforced by Lessor in the same manner as though such amounts were an installment of rent specifically required by the terms of this Lease to be paid by Lessee unto Lessor; but the payment of any such taxes by the Lessor shall not waive the default thus committed by the Lessee. 7.4 Notwithstanding the foregoing, taxes (after deducting all available discounts if utilized) for the last year of the term of this Lease occurs, will be prorated as of the Termination Date of the term of this Lease, Lessee paying such taxes for that portion of the termination year preceding the date oftermination ofthis Lease, and Lessor paying the balance of such taxes for such year, if any. ARTICLE VIII -LESSOR'S INTEREST NOT SUBJECT TO MECHANICS' OR MATERIALMEN'S LIENS 8.1 All persons and parties, corporate and otherwise, are hereby notified of the fact that the Lessee does not and shall never under any circumstances have the power, right or authority to subject any interest of the Lessor in the Demised Premises to any mechanics' or materialmen's liens or liens of any other kind or nature; and all persons dealing with the Lessee are hereby notified of the fact that they must look only to the 7 92 interest of the Lessee in the Demised Premises and not to any interest of the Lessor. 8.2 Lessee covenants and agrees with Lessor that Lessee will not permit or suffer to be filed or claimed against the interest of the Lessor or the Lessee in the Demised Premises during the continuance of this Lease any lien or claim of any kind, and if any such lien is claimed or filed it shall be the obligation of the Lessee, within thirty (30) days after the Hen or claim shall have been filed among the Public Records of Miami-Dade County, Florida, or within thirty (30) days after the Lessor shall have been given notice of any such lien or claim and shall have transmitted written notice of the receipt of notice of such lien or claim unto the Lessee (whichever thirty (30) day period expires earlier), to cause the Demised Premises to be released and discharged from such lien or claim, either by payment into court of the amount necessary to relieve, release and discharge the Demised Premises from such lien or claim, or in any other manner that as a matter of law will result, within the period of thirty (30) days, in releasing and discharging the Lessor and the title of the Lessor from such lien or claim; and Lessee covenants and agrees, within the period of thirty (30) days, so to cause the Demised Premises and the Lessor's interests therein to be released from the legal effect of every such lien or claim. 8.3 Notwithstanding the foregoing paragraph 8.2, Lessee may encumber the Property with a leasehold mortgage as follows. Lessor agrees to execute a non- distrubance agreement (containing language reasonably acceptable to the Lessor) for the benefit of Lessee and the holder of any leasehold mortgage (the "Leasehold Mortgage") and to cooperate with Lessee's efforts to obtain financing, including the execution of any necessary documents, so tong as such documents are subject to the reasonable approval of the Lessor's attorney. No leasehold mortgage shall be valid or of any force or effect unless and until Lessor has consented thereto in writing (which consent shall be conditioned upon Lessee's compliance with this Section 8.3) and a true copy ofthe original of each Instrument creating and effecting such mortgage, certified by Lessee to be a true copy of such instrument, together with written notice containing the name and post office address of the Leasehold Mortgagee, has been delivered to the Lessee. Further, the Leasehold Mortgage shall specifically provide: 8 93 (a) That the Leasehold Mortgage is subject to all of the terms, covenants and conditions of this Lease; (b) That the Leasehold Mortgage encumbers only the Lessee's interest created by this Lease in the Property and the Building; (c) That the rights of the Lessor pursuant to this Lease will not be affected by the terms of the Leasehold Mortgage; (d) That the holder of the Leasehold Mortgage shall waive all right and option to obtain and apply proceeds of any insurance or the proceeds of any condemnation award toward payment of the sums secured by the Leasehold Mortgage to the extent such proceeds are required by the terms of this Lease for the demolition, repair or restoration of the Property; (e) That the holder of the Leasehold Mortgage shalf agree to send Lessor copies of all notices to Lessee in which such mortgagee claims that there exists one or more uncured defaults under the terms and provisions of the Leasehold Mortgage, such notices to be sent simultaneously to Lessor and Lessee; (f) That the Leasehold Mortgage is a leasehold mortgage only and that such mortgage has obtained no interest whatsoever in the underlying fee of the Land as a result of the execution of the Leasehold Mortgage by Lessee; (g) Only the Leasehold Mortgagee may acquire any right, title or interest in or to this Lease, by acceptance of a deed or other instrument of conveyance thereof, by purchase at a foreclosure sale or by transfer in lieu of foreclosure, and will conclusively be deemed to have accepted such right, title or interest subject to all of the terms, covenants and conditions of this Lease; it being the specific intent of Lessee and the Leasehold Mortgagee that the Leasehold Mortgage encumber only Lessee's leasehold interest created by this Lease in the Property, and that except as specifically set forth in this Lease, the rights of Lessor shall not be affected by the terms of the Leasehold Mortgage; and (h) That the Leasehold Mortgage and all rights thereunder shall be subject and subordinate to Lessor's interest in the Property. The Leasehold Mortgagee shall upon demand, at any time, execute, acknowledge and deliver to Lessor, without expense to 9 94 Lessor, any instrument that may be necessary or proper to confirm the subordination of the Leasehold Mortgage to the Lessor's interests in the Property. ARTICLE IX-LESSOR•s RIGHTS AND REMEDIES 9.1 Although this is a long term Lease, all of the rights and remedies of the respective parties shall be governed by the provisions of this instrument and by the laws of the State of Florida as they exist from time to time. as such law relates to the respective rights and duties of landlord and tenant. 9.2 During the continuance of this Lease, the Lessor shall have afl rights and remedies which this Lease and the law of the State of Florida assures to it. 9.3 All rights and remedies accruing to the Lessor shall be cumulative; that is to say, the Lessor may pursue such rights as the law and this Lease afford to it in whatever order the Lessor desire and the law permits, without being compelled to resort to any one remedy in advance of any other. ARTICLE X -INDEMNIFICATION OF LESSOR AGAINST LIABILITY 10.1 Lessee covenants and agrees with Lessor that during the entire term of the Lease the Lessee will indemnify and save harmless the Lessor against any and all claims, debts, demands or obligations that may be made against or upon the Lessor, arising by reason of or in connection with this Lease, or any alleged act or omission of the Lessee or any person claiming by, through or under the Lessee; and if it becomes necessary for the Lessor to defend any action seeking to impose any such liability, the Lessee will pay the Lessor all costs of court and reasonable attorneys' fees incurred by the Lessor in effecting such defense, including appeals, as and when such fees and expenses become due and payable, in addition to any other sums which the Lessor may be called upon to pay by reason of the entry of a judgment against the Lessor or any of them in the litigation in which such claim is asserted. 10.2 From the time of the commencement of this Lease, the Lessee will cause to be written and pay all premiums on a policy or policies of insurance in the form generally known as Commercial General Liability policies, insuring the Lessee, and naming the Lessor as an additional insured, against any and all claims and demands made by any lO 95 person or persons whomsoever for injuries received in connection with the operation and maintenance of the Demised Premises, including improvements and buildings located thereon, or for any other reason whatsoever, or for any other risk insured against by such policies, each class of which policies shall have been written with limits of not less than One Million ($1,000,000.00) Dollars for damages incurred or claimed by any one (1) person, and for not less than Three Million ($3,000,000.00) Dollars for damages incurred or claimed by more than one person. All such policies shall name the Lessee and the Lessor as the[r respective interests may appear, as the persons insured by such policies. The original or a true copy of each of such policies shall be delivered by the Lessee to the Lessor promptly upon the writing of such policies, together with adequate evidence of the fact that the premiums are paid, and such insurance shall be kept continuously in full force and effect by the Lessee at Lessee's sole cost and expense. The insurance shall be placed with an insurance company having a Best Company rating of "A" or better, if such insurance is available from such company(ies). If such insurance is not available on the private market, Lessee may obtain insurance through alternate providers, after approval in writing from Lessor. Lessor may review insurance coverages and require increased coverage consistent with the value of improvements to the Property as improvements to the Property are made. 10.3 Lessee shall also protect, defend, indemnify and hold Lessor harmless against any loss or damage, including attorneys' fees and costs, arising out of or resulting from any claim, action or law suit brought by a third party to (i) challenge the validity or enforceability of this Lease, or any City action relating to this Lease, including challenges to the referendum approval contemplated of this Lease; (ii) challenge the Lessor's title to the Demised Premises; or (iii) enjoin this Lease. If any litigation is instituted against the Lessor and/or the Lessee as a result of the approval of this Lease, then the Lessee shall defend the Lessor and save the Lessor harmless from any and all reasonable attorneys' fees and court costs that may be incurred, both at the trial and appellate level. Counsel in such actions shall be selected by Lessee, subject to approval of Lessor, which approval shall not be unreasonably withheld or delayed. 1 l 96 10.4 Lessee, at Lessee's expense, shall comply with all laws, rules, orders, ordinances, directions, regulations and requirements offederal, state, county and municipal authorities pertaining to Lessee's use of the Premises and with the recorded covenants, conditions and restrictions, regardless of when they become effective, including, without limitation, all applicable federal, state and local laws, regulations or ordinances pertaining to air and water quality, Hazardous Materials (as hereinafter defined), waste disposal, air emissions and other environmental matters, all zoning and other land use matters, and utility availability, and with any direction of any public officer or officers, pursuant to law, which shall impose any duty upon Lessor or Lessee with respect to the use or occupation of the Premises. 1 0.4.1 Lessee shall {i) not cause or permit any Hazardous Material to be brought upon, kept or used in or about the Premises by Lessee, its agents, employees, contractors or invitees without the prior written notice to Lessor, demonstrating to Lessor that such Hazardous Material is necessary or useful to Lessee's use of the Premises and will be used, kept and stored in a manner that complies with all laws regulating any such Hazardous Material so brought upon or used or kept in or about the Premises. If Lessee breaches the obligations stated in the preceding sentence, or if the presence of Hazardous Material on the Premises results in contamination of the Premises, or if contamination of the Premises by Hazardous Material otherwise occurs, then Lessee shall indemnify, defend and hold Lessor harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Premises, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Premises, damages arising from any adverse impact on markettng of space, and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees) which arise as a result of such contamination. This indemnification of Lessor by Lessee includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil or ground water on or under the Premises. Without limiting the 12 97 foregoing, if the presence of any Hazardous Material on the Premises results in any contamination of the Premises, Lessee shall promptly take all reasonable actions at its sole expense as are necessary to return the Premises to the condition existing prior to the introduction of any such Hazardous Material to the Premises; provided that Lessor's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld. The foregoing indemnity shall survive the expiration or earlier termination of this Lease. 10.4.2 "Hazardous materials" mean (a) pesticides and insecticides; (b) petroleum and its constituents; (c) any substance 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 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., Chapters 376 and 403, Florida Statutes; Chapter 24 of the Code of Metropolitan Dade County; (d) any other substance, the exposure to or release of which is regulated by any governmental entity having jurisdiction over the Premises or the operations thereon; and (e) any substance that does or may pose a hazard to the health or safety of the persons employed at or invitees on the Premises. 1 0.4.3 At the commencement of this Lease, and on January 1 of each year thereafter (each such date being hereafter called 11 Disclosure Date"), including January 1 of the year after the termination of this Lease, Lessee shall disclose to Lessor the names and amounts of all Hazardous Materials, or any combination thereof, which were stored, used or disposed of on the Premises, or which Lessee intends to store, use or dispose of on the Premises. Notice of Lessee's use of Hazardous Materials on the Property shaH not be a waiver of any of Lessor's claims, defenses or rights related to Lessee's use of such materials. 1 0.4.4 Lessor and its agents shall have the right, but not the duty, to inspect the 13 98 Premises at any reasonable time to determine whether Lessee is complying with the terms of this Lease. If Lessee is not in compliance with this Lease, Lessor shall have the right to immediately enter upon the Premises to remedy any contamination caused by Lessee's failure to comply notwithstanding any other provision of this Lease. Lessor shalf use its best efforts to minimize interference with Lessee's business but shall not be Hable for any interference caused thereby. 1 0.4.5 Any default under this Paragraph shall be a material default enabling Lessor to exercise any of the remedies set forth in this Lease. 1 0.4.6 Lessee acknowledges it has occupied the Property under the Prior Agreements since June 3, 1981, is receiving the property in "as is" condition, and Lessor is not responsible for the existing condition of the Property. ARTICLE XI -FIRE AND WINDSTORM, ETC. INSURANCE PROVISIONS 11.1 Lessee covenants and agrees with Lessor that Lessee will insure and keep insured any and all buildings and improvements now upon and hereafter placed upon the Demised Premises and any and all personal property which Lessee brings, or has brought, or which under the terms of this Lease, the Lessee may be obligated to bring upon the Demised Premises, all of which insurance shall be written through insurance companies authorized to do business in the State of Florida, for Property All Risk Coverage, including protection against all loss or damage by fire, windstorm and flood, and what is generally termed in the insurance field as "extended coverage," which insurance will be maintained in an amount that will be sufficient to prevent any party in interest from being or becoming a co-insurer of any part of the risk, and all of such policies of insurance shall bear a "Loss payable clause" in which there shall be included the names of the Lessor as parties insured thereby, as their interests may appear. . 11.2 From the inception of any construction which Lessee may effect on the Demised Premises, the Lessee will cause Builders' Risk insurance policies to be written and maintained throughout such construction in compHance with the provisions of the foregoing paragraph. 11.3 In the event of the destruction of or damage to the buildings, or of any of the l4 99 improvements, by fire, windstorm or other casualty for which insurance shall be payable, and as often as such insurance money shall have been paid to the Lessor and the Lessee, sums so paid shall be deposited in a joint account of the Lessor and Lessee in a bank in Miami-Dade County, Florida designated by the Lessor, and shaH be available to the Lessee for the reconstruction or repair, as the case may be, of any building or buildings, damaged or destroyed by fire, windstorm or other casualty for which insurance money shall be payable, and shall be paid out by the Lessor and the Lessee from the joint account from time to time on the estimate of any architect licensed in the State of Florida having supervision of such reconstruction and/or repair, certifying that the amount of such estimate is being applied to the payment of the reconstruction and/or repair and at a reasonable cost therefor; provided, however, that it first be made to appear to the satisfaction of the Lessor that the amount of money necessary to provide for the complete reconstruction and/or repair of any, building or buildings destroyed or damaged as aforesaid, according to the plans adopted therefor and approved by the Lessor, has been provided by the Lessee for such purpose and its application for such purpose assured. The proceeds of the Personal Property Insurance covering personal property belonging to the Lessee shall likewise be deposited in a joint bank account to the credit of the Lessor and the Lessee, and shall be paid out for the replacement or repair, as the case may require, of destroyed or damaged personal property. The Lessee covenants and agrees that in the event of the destruction of or damage to the buildings and/or improvements or any part thereof, and as often as any buildings or improvements on the Premises shall be destroyed or damaged by fire, windstorm, or other casualty, the Lessee shall rebuild or repair (as the case may require), the same in such manner that the building or improvement so rebuilt and/or repaired shall be of the same or greater value as the building and the improvements upon the Demised Premises were immediately prior to such damage or destruction, and shall have the same rebuilt and/or repaired and ready for occupancy and have received the appropriate certificate of occupancy and/or completion from the City's Building Department within two years from the time when the damage or destruction occurred, and shall within that period replace and repair as the case may 15 100 require, personal property destroyed or damaged; this obligation of the Lessee to rebuild and repair the buildings and improvements, and to replace and repair the personal property, shaH exist and be enforceable irrespective of the availability of any insurance funds for any of these purposes. With Lessor's prior written consent, the two-year period for reconstruction or repair shall be enlarged and extended by delays caused without fault or neglect on the part of the Lessee, by act of God, strikes, lockouts or other conditions beyond the Lessee's controL 11.4 Nothing herein contained shall be construed as prohibiting the Lessee from financing the premiums on such policies, or from such payments having a deductible amount not exceeding five percent (5%) of the insurable value of the improvements. 11.5 If at any time any such insurance money comes into the possession of the Lessor and the Lessee after destruction or damage by fire or windstorm or other casualty and the Lessee is in default in the payment of rent, taxes, assessments, Hens or other charges which by the terms of this Lease the Lessee is obligated to pay or pay for, or if such default should occur during the time such insurance money or any part thereof is in the joint bank account, as aforesaid, then the Lessor shall be paid so much of the insurance money as may be necessary fully to pay or discharge any such sum of money in the payment of which the Lessee is in default, as aforesaid, and this shaH be done whenever and as often as any such default shall occur on the part of the Lessee. Nothing contained herein, however, shall be construed as permitting the Lessee to default in the payment of rent or other charges herein stipulated to be paid or in the performance of the other covenants in this Lease. The Lessor may, at its option, in case of default in the payment of such rent or other charges or default in the performance of any other covenant in this Lease, proceed against the Lessee for the collection of such rental and charges, and recover and take possession of the Premises herein described, and without prejudice to their rights to the benefit of such insurance money as payment of such rental and other charges. 11 .6 It is agreed by and between the Lessor and Lessee that any excess of money received from insurance or other sources remaining in the joint bank account after the completion of the reconstruction, replacement or repair of such building or buildings and 16 101 personal property, and if there is no default on the part of the Lessee in the performance of any of the covenants of this Lease, shall be paid to Lessee; but In the event the Lessee fails for any reason to commence the reconstruction or repair of such building or buildings within six (6) months after the date of the damage or destruction occasioned by fire, windstorm or other cause for which insurance money shall be payable, or the Lessee for any reason fails within that six (6) month period to provide in the manner required by Paragraph 11.3 of this Article XI, a sufficient sum of money to prosecute the reconstruction and repair work with such dispatch as may be necessary to complete the same within eighteen (18) months after the occurrence of such damage or destruction occasioned as aforesaid, except in the case of Force Majeure, as provided in Article XXVI, or Unavoidable Delays under paragraph 15.11.1, then and in every such event, the lessee shall be deemed to have refused to carry out its obligation to reconstruct, replace and repair, and the amount so collected or the balance thereof remaining in the joint account, as the case may be, shall be paid to the Lessor as liquidated and agreed upon damages resulting from the failure of the Lessee to reconstruct, replace and repair, and the lessor shall have the option, notwithstanding its retention of such sum, to terminate this lease. ARTICLE XII -LESSEE'S DUTY TO PAY INSURANCE PREMIUMS 12.1 lessee covenants and agrees with lessor that Lessee will pay the premiums for all of the insurance policies which lessee is obligated to carry under the terms of this Lease, and will deliver to the Lessor evidence that all such premiums have been paid on or before the effective date of each such policy or proper evidence of extended credit and/or evidence of financing the payment of such premiums, and Lessee will cause renewals of all expiring policies to be written, and the policies or copies thereof, as the Lease may require, to be delivered to the Lessor at least ten (10) days before the expiration date of such expiring policies. The parties note that in 1{10.2, Lessor may review insurance coverages and require increased coverage consistent with the value of improvements to the Property as improvements to the Property are made. 12.2 Nothing herein contained shall ever be construed as rendering the Lessor personally liable for the payment of any such insurance premiums, but if at any time during 17 102 the continuance of this Lease the Lessee shall fail, refuse or neglect to procure any of the policies of insurance required in and by this instrument to be procured by the Lessee, or to keep and maintain the same in full force and effect. or to pay the premium therefore promptly when due, the Lessor may, at its option, procure or renew such insurance, and thereupon the amount or amounts of money paid as the premium or premiums thereon plus interest at the rate often percent (1 0%) per annum from date of payment thereof shall be collectible as though it were rent then matured hereunder, and shall be due and payable forthwith, or in lieu thereof and notwithstanding the procurement and renewal of such policies by the Lessor, this Indenture and the terms created hereby may, at the option of the Lessor, be terminated and declared at an end and all of the right. estate and interest of the Lessee in such event hereunder shall immediately cease and become null and void. ARTICLE XIII -ASSIGNMENT 13.1 This Lease is not freely assignable, and no assignment, transfer, sublease, subconcession or license agreement shall be valid unless there is a prior written consent by the Lessor, which consent shall be within the sole discretion of the Lessor, and such instrument of assignment (the "Assignment") that has been consented to is in writing, which Assignment must contain an assumption agreement. duly executed by the Assignee of this Lease and in recordable form, wherein and whereby the Assignee accepts the assignment and assumes and agrees to timely and fully perform and comply with all ofthe Lessee's covenants and agreements contained in this Lease, and unless and until written notice (the "Notice") shall have been given to the Lessor by the Assignor and Assignee, (the Notice to be given in the manner hereinafter prescribed as the manner and method for giving Notice), enclosing a duplicate-original or photostat of the original instrument of Assignment and the address at which Notice may thenceforth be given to the Assignee. Approval of any assignment or transfer to an entity other than a not-for-profit corporation shall be conditioned upon the renegotiation of the rent to be paid under this Lease to reflect a fair market value of the demised premises. Subleases, subconcessions, or license agreements consistent with the uses set forth in paragraph 4.1 are subject to the approval of Lessor, which approval shall not be unreasonably withheld. 18 103 13.2 The lessor covenants and agrees that it will within sixty (60) days after service of Notice upon it of a proposed assignment of this Lease, giving the name and post office address of the proposed Assignee, advise the lessee in writing as to whether the Lessor will consent to the assignment of the Lease and further advise the Lessee in writing of the existence or nonexistence of any default on the part of the Lessee under the terms of this Lease, and If there is any default or defaults, a statement setting forth such default or defaults. Lessor's failure to give such advice in writing within the time required shall not constitute either notice of the absence of any default, or consent to the proposed assignment. Only Lessor's response in writing of the existence or not of a default and permission or not of an assignment shall be effective with respect to each such item. 13.3 Any transfer or assignment of this lease, as a result of the Leasehold Mortgagee having acquired title to the leasehold estate of lessee by foreclosure of the Leasehold Mortgage, or transfer in lieu of foreclosure, shall require prior written consent of the Lessor predicated upon the transferee or assignee being a not-for-profit corporation that will solely conduct activities on the Property that are sponsored by the Jewish Community Centers Association of North America, as provided in section 4.1. ARTICLE XIV -CONDEMNATION CLAUSE 14.1 It is further understood and agreed that if at any time during the continuance of this Lease the Demised Premises or the improvements and buildings located thereon or any portion thereof be taken, appropriated or condemned by reason of eminent domain, there shall be such division of the proceeds and awards in such condemnation proceedings, and such abatement of rent and other adjustments made, as shall be just and equitable under the circumstances. If the Lessor and the Lessee are unable to agree upon what division, annual abatement of rent or other adjustments are just and equitable within thirty (30) days after such award shall have been made, then the matters in dispute shall by appropriate proceedings, be submitted to a court having jurisdiction of the subject matter of such controversy in Miami-Dade County, Florida, for its decision and the determination of the matters in dispute. If the legal title to the entire Demised Premises is wholly taken by condemnation, the Lease shall automatically and without notice be 19 104 canceled. No allocation of condemnation proceeds between Lessor and Lessee shall be based upon Lessee's interest in the land; notwithstanding, the Lessee shall be compensated for Lessee's interest in the improvements under this Lease in accordance with the condemnation award. 14.2 Although the title to the buildings and improvements placed by the Lessee upon the Demised Premises will pass to the Lessor upon the termination of this Lease, nevertheless, for purposes of condemnation only, the fact that the Lessee ptaced such buildings and improvements on the Demised Premises, at Lessee's cost and expense, shall be taken into account in determining the portion of the condemnation award to which the Lessee is entitled. In general, it is the intent ofthis Article that upon condemnation, the parties shall share in their awards to the extent that their interests respectively are depreciated, damaged or destroyed by the exercise of the right of eminent domain. 14.3 If a partial taking or a total taking renders the Premises unsuited for the permitted uses as provided for herein, Lessee, may at its sole option and expense, remove all of its personal property from the portion of the property taken, however, Lessee shall continue to be liable under this Lease and continue its rights and obligations as to the remainder of the Property not so taken, unless released in writing by Lessor. ARTICLE XV -ADDITIONAL IMPROVEMENTS 15.1 This Lease is made with the understanding and agreement that Lessee will construct additional improvements, valued at no less than two million dollars ($2,000,000.00) to the buildings and improvements presently located on the Demised Premises upon the prior written consent of the Lessor (the "Proposed lmprovements 11 ). The Proposed Improvements may be placed on the three platted lots comprising the Property, and shall not be inconsistent with the conceptual plan presented by Lessee to Lessor, attached as Exhibit "A" to this Lease ("Concept Plan"), subject to prior approval in writing by Lessor as provided in this Article. Any and all improvements, shall be at the sole cost and expense of the Lessee. 15.2 Lessee is solely responsible for the design of any improvements to the Property, and obtaining all approvals from City and other applicable regulatory agencies 20 105 therefor, including approvals by City as Lessor, and approvals by City in its regulatory capacity under the City Code and other applicable laws. Pursuant to Miami Beach City Code §142-423, Lessee has submitted its proposed uses and the Concept Plan to the Planning Board for its review. The Planning Board has recommended approval of the uses and supports the concept of the Concept Plan. 15.3 Lessee shall submit to Lessor (acting in its proprietary capacity as owner of the Property) Preliminary Plans and Specifications for the Proposed Improvements, which shall include, but not be limited to, a detailed site plan, a landscape plan, elevation drawings of each facade, a detailed floor plan for each of the floors of the Proposed Improvements, a calculation of the floor areas for each floor, and a calculation of the total floor area dedicated to each use within the Proposed Improvements (the "Preliminary Plans and Specifications"). 15.4 Lessee shall submit its Preliminary Plans and Specifications to Lessor's City Manager for approval within three years of the Commencement Date. The City Manager shall have twenty (20) Business Days to review the Preliminary Plans and Specifications. If the City Manager concludes that the Preliminary Plans and Specifications are materially inconsistent with the Concept Plan, the City Manager shall, and in any event the City Manager may, submit the Preliminary Plans and Specifications to the City Commission for its review and approval as Lessor (acting in its proprietary capacity as owner of the Property), at the next City Commission meeting, along with a written report of the Administration's review and recommendations, including a review and recommendation from the City's Planning Director. The City Commission may refer the matter to the City's Planning Board for its review and recommendations before acting thereon. If Lessor disapproves the Preliminary Plans and Specifications, then Lessee shall, at its election, either (a) submit Lessor's disapproval to mediation as provided in this Lease, as to the reasonableness of the disapproval, or (b) submit a revised modification to the Preliminary Plans and Specifications to meet Lessor's objections, which revised modification shall be submitted and reviewed as provided above. Failure of the Lessee to seek mediation or submit revised Preliminary Plans and Specifications within sixty days from the date of 21 106 Lessor's disapproval, but no later than three years from the Commencement Date, shall constitute a Default under this Lease. 15.5 Lessee shall, within two months of Lessor's approval of the Preliminary Plans and Specifications, but no later than three years from the Commencement Date, submit an application for approval of the design for the Proposed Improvements to the City's Design Review Board and to other City boards, as applicable. Failure of the Lessee to submit its application, as provided in this Section, to the ORB, by the date which is two months from the receipt of Lessor's final approval as above provided shall constitute a Default under this Lease. Lessee shall pursue approval of its applications to the City boards, as applicable, diligently and in good faith. 15.6 Public Facilities and Concurrency. Lessee shall be solely responsible for obtaining all land use permits, including, but not limited to, all permits and approvals required pursuant to Chapter 122, Miami Beach City Code, with respect to concurrency requirements for roads, sanitary sewer, solid waste, drainage, potable water, parks and recreation (the "Concurrency Requirements"). 15.7 Plans and Specifications. Upon receipt of the ORB's approval of the Proposed lmprov:ements, and all other City boards' approvals, as applicable, Lessee shall prepare for review by Lessor construction Plans and Specifications for construction of the Proposed Improvements, consistent with the Preliminary Plans and Specifications, as approved by the Lessee, the ORB, and other City boards, as applicable. The Plans and Specifications shall be submitted to the Lessor {acting in its proprietary capacity as owner of the Property) within twelve months from the date on which the ORB approves the Proposed Improvements, but no later than five years from the Commencement Date (if appealed, the time shall run from the issuance of a final nonappealable order). The Plans and Specifications, or modifications thereto, shall be reviewed by the City Manager, within twenty (20) business days, except for modifications thereto, which shall be reviewed within ten ( 1 0) business days, solely for consistency with the Preliminary P Jans and Specifications as the same may have been modified by the ORB or other City boards, as applicable. If Lessor disapproves the Plans and Specifications, then Lessee shall, at its election, either 22 107 (a) submit Lessor's disapproval to mediation as provided for in this Lease, as to the reasonableness of the disapproval, or (b) submit a revised modification to the Plans and Specifications to meet Lessor's objections, which revised modification shall be submitted and reviewed as provided above. Lessee shall pursue approval by the City of the Plans and Specifications diligently and in good faith. 15.8 Conditions Precedent to Lessee's Commencement of Construction of the Proposed Improvements. Lessee shall obtain a final Building Permit for the Proposed Improvements by not more than five years from the Commencement Date and failure to do so shall constitute a Default under this Lease. Lessor's remedy for this Default, and for all defaults under this Article 15 for failure to follow the time schedule under this Article related to the Proposed Improvements, shall be limited to a reversion of the duration of the Lease term to that last provided in the Prior Agreements, to a termination date of October 31, 2015, with two tenwyear lease options by Lessee. In such event, all other remaining provisions of this Lease shall remain in full force and effect. Lessee shall not commence construction of the Proposed Improvements unless and until (a) Lessee shall have obtained and delivered to Lessor copies of all final Permits and Approvals required to commence construction and (b) Lessee shall have delivered to Lessor original certificates of the policies of insurance required to be carried pursuant to this Lease. 15.9 Lessor (solely in its capacity as the owner of the Property and not in its regulatory capacity) shall reasonably cooperate with Lessee in obtaining the Permits and Approvals required to construct the Proposed Improvements, shall sign any application reasonably made by Lessee that is required in order to obtain such permits and approvals and shall provide Lessee with any information and/or documentation not otherwise reasonably available to Lessee (if available to Lessor) that is necessary to procure such permits and approvals. Any such accommodation by Lessor shall be without prejudice to, and shall not constitute a waiver of, Lessor's rights to exercise its discretion in connection with its regulatory functions. Lessee shall reimburse Lessor, within ten (1 0) days after Lessor's demand, for any reasonable out-of-pocket cost or expense payable to Lessor's technical consultants (other than Lessor's employees), such as architects and engineers, 23 108 so incurred by Lessor In connection with Lessor's assistance in obtaining the permits and approvals required by the Proposed Improvements. 15.10 Lessee shall not commence construction of the Proposed Improvements, or any portion thereof, unless and until Lessor shall have approved the Plans and Specifications, as provided in this Lease. However, if Lessee chooses to perform any construction ofthe Proposed Improvements beyond the initial two million dollar investment on a phased basis, Lessee may request the necessary approval of Lessor in stages and perform that portion of the Proposed Improvements that has been approved (provided Lessee shall comply with all other requirements with respect to such portion of the Proposed Improvements), even if progress plans and specifications for other portions of the improvements have not yet been prepared. 15.11 Commencement and Completion of Construction of the Proposed Improvements. Lessee 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, but no later than five years from the Commencement Date (the "Construction Commencement Date") and (b) thereafter continue to prosecute construction of the Proposed Improvements with diligence and continuity to completion. ~~commence Construction" or "Commencement of Construction" means the commencement of major work (such as pilings or foundations) for construction of the Proposed Improvements. Promptly after Commencement of Construction, Lessee shall notify Lessor in writing of the date of such commencement. Any and all preliminary site work (including, without limitation, any environmental remediation and ancillary demolition) shall not be deemed to be Commencement of Construction. If, after Lessee has commenced construction, Lessee fails to diligently prosecute construction of the Proposed Improvements (subject to unavoidable delays), and such failure continues (subject to unavoidable delays) for thirty (30) consecutive days after Lessee's receipt of notice of such failure, Lessor shall, in addition to all of its other remedies under this 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 Proposed Improvements (subject to 24 109 unavoidable delays) by Lessee, it being understood that construction of the Proposed Improvements is a material inducement to Lessor to enter into the Lease and monetary damages shall be inadequate to compensate Lessor for harm resulting from such failure. Notwithstanding anything to the contrary contained herein, if Lessee fails to substantially complete construction of the Proposed Improvements by the date provided for in this Lease, then the same shall constitute a default under this Lease. 15.11. 1. "Unavoidable delays" shall mean 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 that actually causes a delay (unless resulting from disputes between or among the party alleging an unavoidable delay, present or former employees, officers, members, partners or shareholders of such alleging party or of affiliates of such alleging party), in the application of any requirement The party alleging unavoidable delay shall notify the other within twenty days of such occurrence, however, failure to do so shall not waive any rights caused by such delay. The times for performance related to the Proposed Improvements set forth in this Lease shall be extended to the extent performance is delayed by unavoidable delays. 15.12 Completion of Construction of the Proposed Improvements. Substantial completion of the Proposed Improvements shall be accomplished in a diligent manner, and in any event no later than two years from the issuance of a full building permit. "Substantial completion" as used herein shall require the issuance of a temporary or final certificate of occupancy by City's building department. Such date may be extended for good cause shown upon request in writing to Lessor's City Manager, which extension by the City Manager shall not be unreasonably withheld. Final completion of the construction of the Proposed Improvements, shall be accomplished in a diligent manner, in each case in a good and workmanlike manner, in substantial accordance with the Plans and Specifications (with no material deviations except as expressly permitted herein), at Lessee's sole cost and expense. Upon Substantial Completion of Construction of the Proposed Improvements, Lessee shall furnish Lessor with the following: 25 110 {a) a certification of the Architect {certified to Lessor on the standard AlA certification form) that it has examined the Plans and Specifications and that, in its professional judgment, after diligent inquiry, construction of the Proposed Improvements has been Substantially Completed in accordance with the Plans and Specifications applicable thereto and, as constructed, the Improvements comply with all applicable codes and laws; (b) a copy or copies of the temporary and final certificates of occupancy for the Proposed Improvements (or portion thereof, as applicable) issued by the City of Miami Beach Building Department; (c) lien waivers in form and substance reasonably satisfactory to Lessor from each contractor, subcontractor, supplier or materialman retained by or on behalf of Lessee in connection with the construction of the Proposed Improvements, evidencing that such persons have been paid in full for all work performed or materials supplied in connection with the construction of the Proposed Improvements; (d) a complete set of "as built" plans and a survey showing the lmprovement(s) (excluding personalty} for which the construction of the Proposed Improvements has been completed. Lessor shall have an unrestricted license to use such "as built .. plans and survey for any purpose related to the Property 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 Property, 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 Lessee furnishing to Lessor, at Lessee's expense, a complete set of Plans and Specifications, with all addenda thereto and change orders in respect thereof, marked to show all changes, additions, deletions and selections made during the course of the construction of the Proposed Improvements; and (e) a Contractor's Final Affidavit in form and substance reasonably satisfactory to Lessor executed by the General Contractor {i) evidencing that all contractors, subcontractors, suppliers and materialmen retained by or on behalf of Lessee in 26 111 connection with the Construction of the Proposed Improvements have been paid in full for all work performed or materials supplied in connection with the Construction of the Proposed Improvements and (ii) otherwise complying with all of the requirements under the Florida Construction Lien Law, Chapter 713, Florida Statutes, as amended. 15.13 Land Development Regulations. The provisions ofCityCode section 142-425 apply to the Property. As provided therein, Lessor adopts the land development regulations applicable to the Property as set forth in the memorandum of the Planning Director, dated May 23, 2000, attached hereto as Exhibit "B." 15.14 Construction of the Proposed Improvements shall be carried out pursuant to Plans and Specifications prepared by licensed architects and engineers, with controlled inspections conducted by a licensed architect or professional engineer as required by applicable requirements. 15. 15 Upon Substantial Completion of the project, Lessee shall certify to Lessor that it has, in fact, expended not less than said amounts for total construction costs. 15.16 Lessee shall deliver to the Lessor a Completion Bond with corporate surety authorized to do business as such in Miami-Dade County, Florida, and satisfactory to the Lessor as to the form and surety, guaranteeing the completion of the Proposed Improvements in accordance with the approved Plans and Specifications, and have received the appropriate certificate of occupancy and/or completion from the City's Building Department, and indemnifying and saving harmless the Lessor and the title of the Lessor against the claims of all parties who furnish work, labor, services and/or materials to the premises. 15.17 Any building operation, once commenced, must be carried through continuously to completion, but any interruption or delay in the doing and completion of the work which shall have been caused by act of God, or the public enemy, or strike, or natural casualty, or other circumstances not occasioned by or attributable to the fault, default or neglect of the Lessee shall not be deemed to cause the Lessee to be in default under this paragraph, so long as the Lessee exercises due diligence to cause the work of construction to be carried through to completion as promptly and expeditiously after the 27 112 commencement thereof as possible. ARTICLE XVI-DEED RESTRICTIONS CONCERNING THE USE OF THE PROPERTY 16.1 The Demised Premises shall hereby contain the following restrictions, covenants and limitations: (a) That the Lessee shall at all times remain a not-for-profit corporation; (b) The lessee has requested that the Lessor accommodate the religious needs of the community on the Property. If religious services are conducted upon the Property that they be limited to a multipurpose room no larger than 2,000 sq. ft., specified on plans to be provided Lessor, for which Lessee shall pay Fair Market Value. Such use shall be minor and incidental. Lessee may charge any user of the multi-purpose space designated for religious services Lessee's maintenance and overhead costs over and above the Fair Market Value Lessee is obligated to pay Lessor for such space under this Lease. The Fair Market Value Lessee shall pay Lessor shall be based upon a square footage rate for the proportionate use of such room determined by an appraisal of comparable commercial space in the City, prepared by a Florida licensed professional appraiser selected by Lessee from the Lessor's list of approved appraisers, who shall certify his or her objective and professional work thereon. The Lessor has the right to review the Lessee's appraisal, and to obtain its own appraisal. If the Lessor decides to exercise such right, at Lessor's sole cost and expense, it shall notify Lessee, and the Fair Market Value shall be the average of the two appraisals. Fair Market Value shall be reappraised every five years during the Lease term, which reappraisal shall be conducted within the six months prior to the commencement of the next five~year period. If Lessee desires to redesignate the room assigned for this purpose, Lessee shall give written notice to Lessor designating the new space on a floor plan sufficient to identify the location and dimensions of the room selected. The last determined Fair Market Value shall apply to the new room based on its square footage. The religious use allowed in this Lease shall not result in the full-time exclusive use of the designated multi-purpose room. In the event Lessee wishes to use, or permit another user to use, a larger space such as a gymnasium or auditorium on the Property for other holiday services, not exceeding ten holidays per 28 113 year, then Lessor shall determine a reasonable rate for such use payable to Lessor comparable to the rates charged for other special events within the City at the time, such as the rates charged at the 21st Street Recreation Center. The following additional restrictions shall be applicable to the Property: (i) No permanent displays or religious symbols or other indications of religious purpose shall be visible to passersby, except that the words ~~Jewish Community Center," and the flag of the State of Israel, may be used. This shall not prohibit the temporary use of religious displays during holiday periods, or signs announcing such holiday periods or events, if otherwise permitted by applicable regulations. This shaH also not prohibit the use of mezuzahs on the Property; (ii) Displays or symbols, and any tabernacle or arc in the multi-purpose room also designated for religious services shall be easily removable or screened off from view to accommodate other religious organizations and individuals desiring to use such room; (iii) The multi-purpose room also designated for religious services shall be made available to other religious groups and individuals regardless of the religious content of their worship activities, subject to payment by such other religious groups and individuals of the same rate of Fair Market Value then payable by Lessee, to Lessor, and subject to reasonable use restrictions by the Lessee so as not to interfere with other scheduled activities in the room and on the Property; (iv) The Lessee shall affirmatively make the Property, its facilities, and the Lessee's programs and activities open to persons of all races, colors, creeds or national origins, and take reasonable steps to publicize the availabiHty thereof. (c) That the Property shall at no time during the term of the Lease be assigned, sublet, or in any way shall the dominion and control over the Property be in any person or entity other than the Lessee, without the prior written consent of the Lessor, and if such consent is given, Fair Market Value shall be paid by Lessee or its successor to Lessor for such space assigned or sublet, unless this provision is waived by action of the City Commission; 29 114 (d) That all fire and extended coverage and flood insurance, maintenance, and other costs for the improvements and the general upkeep of the Property, and all replacements necessary in connection therewith. shall be the sole cost and expense of the Lessee; (e) That the Lessee shall provide personnel on the Premises during operating hours and either a security service or electronic security service during non- operating hours during the entire term of the Lease, proof of which shall be provided to Lessor via copy of security agreement and receipts therefor. (f) That the Lessee shall be obligated to provide public liability insurance and property damage insurance at its cost and expense to the Demised Premises during the terms of this Lease. (g) Exterior signs, if any, will be of a design and form approved by the Lessor. and in accordance with the Miami Beach City Code and other applicable laws and codes. Lessee shall assume the cost of any such signs. Lessee shall remove all signs upon the termination of this Lease and any damage or unsightly condition caused to the Property because of or due to such signs shall be corrected or repaired by Lessee to the satisfaction of Lessor. 16.2 The violation by the Lessee of any of the covenants, restrictions and undertakings as set forth in Paragraph 16.1 above, shall be considered an Event of Default and the Lessor shall be entitled to all of the remedies as set forth in Article XVII hereof. ARTICLE XVII-DEFAULT CLAUSE 17.1 It is further covenanted and agreed by and between the parties hereto that in case at any time default shall be made by the Lessee with regard to any of its obligations as provided in this Lease, except as specifically elsewhere provided, each of which shall be an "Event of Default," then, in any of such events, following notice in writing by certified mail, return receipt requested, or by hand delivery, or such other conveyance then permitted by law, and an opportunity to cure within the thirty~day period following delivery of such notice, and Lessee after such notice and opportunity to cure has failed to cure, as provided for in section 17.3, it shall and may be the Lessor's right to declare such demised 30 115 term ended and to re-enter upon the Premises and the building or buildings and improvements situate thereon or any part thereof, either with or without process of law, the Lessee hereby waiving any demand for possession of the Premises and any and all buildings and improvements then situate thereon; and the Lessee covenants and agrees that upon the termination of the demised term, the Lessee will surrender and deliver up the Premises peaceably to the Lessor, its agents and attorneys, immediately upon the termination of the demised term; and if the Lessee, its agents, attorneys or other persons or entities claiming by or through Lessee, shall hold the Premises or any part thereof one (1) day after the same should be surrendered according to the terms of this Lease, they shall be deemed guilty offorcible detainer of the Premises under the Statute and shall be subject to eviction or removal, forcibly or otherwise, with or without process of law. 17.2 Although this is a ninety-nine {99) year lease, the parties understand and agree that the relationship between them is that of landlord and tenant, and the Lessee specifically acknowledges that the statutory proceedings in the State of Florida relating to the recovery of possession of the Premises accrues to the landlord hereunder. 17.3 Nothing herein contained shall be construed as authorizing the Lessor to declare this Lease in default until thirty {30) days after the Lessor shall have given the Lessee written notice of a violation of this Lease, and Lessee has failed to cure such violation within such time period. If the default complained of is of such a nature that it cannot be cured within thirty {30) days, and if the Lessee has commenced taking all reasonable steps to cure such default and is in the process of eliminating the facts which are the basis for the declaration of a default, then the Lessee shall not be deemed to be in default and the Lessor shall not be entitled to cancel or otherwise enforce the termination of this Lease. Nothing herein contained shall be construed as precluding the Lessor from having such remedy as may be and become necessary in order to preserve the rights and the interests of the Lessor in the Premises and in this Lease even before the expiration of the grace or notice periods provided for in this paragraph if, under particular circumstances then existing, the allowance of such grace or the giving of such notice would prejudice or endanger the rights and estate of the Lessor in this Lease and in the Demised 31 116 Premises, or the public health, safety and welfare. 17.4 In addition to the rights set forth elsewhere in this Lease, Lessor shall have the right to pursue any or all of the following: (a) the right to injunction or other similar relief available to it under Florida law against Lessee; and/or (b) the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from Lessee's default. 17.5 It is further covenanted and agreed by and between the parties hereto, in the event of the termination of this Lease at any time before the expiration of the term hereby created, for the breach by the Lessee of any of the covenants herein contained, that in such case all of the right, estate and interest of the Lessee in and under this indenture and in the Demised Premises hereinabove described, and all improvements and buildings then situate on the Demised Premises, together with all rents, issues and profits of the Premises and the improvements thereon, whether then accrued or to accrue, and all insurance policies and all insurance monies paid or payable thereunder, and all of them, shall without any compensation made therefore unto the .Lessee, at once pass to and become the property of the Lessor, not as a penalty or forfeiture, but as liquidated damages to the Lessor because of such default by the lessee and the consequent cancellation of the Lease, each of the parties acknowledging it to be the fact that for breach and consequent cancellation of a long-term lease of this character, the Lessor will sustain substantial damage, being damage of such character as to make it most burdensome and tedious, if not actually impossible, to ascertain with mathematical precision, and each of the parties therefore having agreed upon this provision for liquidated damages in the interests of obviating what would otherwise be burdensome and difficult litigation to maintain or to defend, as the case may be; and this provision for liquidated damages has been taken into account by both parties in fixing the term of and the consideration for the making of this lease. 17.6 The Lessee pledges with and assigns unto the Lessor all of the rents, issues · and profits which might otherwise accrue to the lessee for the use, enjoyment and operation of the Demised Premises, and in connection with such pledging of the rents, the 32 117 Lessee covenants and agrees with the Lessor that if the Lessor, upon the default of the Lessee, elects to file a suit to enforce the Lease and protect the Lessor's rights thereunder, then the Lessor may, as ancillary to such suit, apply to any court having jurisdiction thereof for the appointment of a Receiver of all and singular the Demised Premises, and the improvements and buildings located thereon; and thereupon, it is expressly covenanted and agreed that the court shall forthwith appoint a Receiver with the usual powers and duties of Receivers in like cases, and such appointment shall be made by such court as a matter of strict right to the Lessor, and without reference to the adequacy or inadequacy of the value of the property which is subject to the landlord's lien or to the solvency or insolvency of the Lessee, and without reference to the commissions of waste. ARTICLE XVUI -LESSEE'S DUTY TO KEEP PREMISES IN GOOD REPAIR 18.1 Lessee covenants and agrees with the Lessor that during the Lease term the Lessee will keep in good state of maintenance and repair any and all buildings and other improvements constructed upon the Demised Premises; nor will the Lessee suffer or permit any strip, waste or neglect of any building to be committed; and the Lessee will repair, replace and renovate the real property, and improvements located thereon, as often as it may be necessary to keep the building and improvements on the Property in a good state of repair and condition. 18.2 Lessee covenants and agrees with the Lessor that Lessee shall be obligated for all utilities utilized on the Demised Premises for the entire term of this Lease. ARTICLE XIX -DEMOLITION CLAUSE 19.1 Although it is the Lessee's duty under the terms hereof to keep and maintain any buildings and improvements on the Demised Premises in good repair, this shall not be construed as empowering the Lessee to at any time tear down and destroy any buildings or improvements, on the Demised Premises, or any part thereof, unless and until the Lessee: (a) Follows all procedures necessary for development approval as provided for in this Lease, and causes construction plans and specifications for the new building or the new construction to be prepared in full accordance with all applicable laws, 33 118 { building codes, zoning ordinances, statutes and regulations, and delivers the plans to the Lessor at least ninety (90} days before the work proposed to be done pursuant thereto is actually commenced; and (b) Obtains the written approval of the construction plans and specifications by the Lessor, which shall in writing approve or disapprove such plans and specifications within twenty {20) days after their delivery to the Lessor, which approval shall not be unreasonably withheld {It shall not be unreasonable to disapprove plans not in compliance with the Preliminary or construction Plans and Specifications, last approved by Lessor); and (c) Furnishes the Lessor with what is generally known as a Completion Bond with corporation surety, guaranteeing the doing and completion of the work. 19.2 In any event, the work of reconstruction, repair and replacement must have a value of not less than the current market value of the buildings or improvements or the portion thereof then being demolished and replaced and repaired. 19.3 The expense of demolition shall be no part of the cost of any subsequent replacement or rebuilding or addition; but by the same token, any salvage resulting from the demolition shall belong to the Lessee. ARTICLE XX -ADDITIONAL COVENANTS OF THE LESSEE 20.1 Lessee covenants and agrees with Lessor that no de~truction to any building or improvement by fire, windstorm or any other casualty shall be deemed to entitle the Lessee to surrender possession of the Premises or to terminate this Lease or to violate any of its provisions or to cause any abatement or rebate in the rent then due or thereafter becoming due under the terms hereof. If the Lease is canceled as the result of Lessee's default at any time while there remains outstanding any obligation from any insurance company to pay for the damage or any part thereof, then the claim against the insurance company shall, upon the cancellation of the within Lease, be deemed immediately to become the absolute and unconditional property of the Lessor. 20.2 Lessee covenants and agrees with Lessor that nothing in this Lease contained shall ever be construed as empowering the Lessee to encumber or cause the 34 119 Lessor to encumber or subordinate the title or interest of the Lessor. 20.3 Lessee covenants and agrees with Lessor that at the termination of this Lease the Lessee will peaceably and quietly deliver possession of the Premises and all improvements thereon unto the Lessor. 20.4 Lessee shall not mortgage, pledge, hypothecate or otherwise encumber its leasehold interest without the prior written consent of Lessor, as provided for in this Lease. ARTICLE XXI -COVENANT OF QUIET ENJOYMENT 21.1 Lessor covenants and agrees with Lessee that as long as the Lessee keeps and performs all of the covenants and conditions by the Lessee to be kept and performed, the Lessee shall have quiet and undisturbed and continuous possession ofthe premises, free from any claims against the Lessor and all persons claiming under, by or through the Lessor. ARTICLE XXII -LESSOR'S RIGHT OF ENTRY 22.1 The Lessor or its agents shall have the right to enter upon the Premises at all reasonable times to examine the condition and use thereof, provided, only, that such right shall be exercised in such manner so as not to interfere with the Lessee in the conduct of the Lessee's business on the Premises; and if the Premises are damaged by fire, windstorm or by other casualty that causes the Premises to be exposed to the elements, then the Lessor may enter upon the Premises to make emergency repairs; but if the Lessor exercises its option to make emergency repairs, such act or acts shall not be deemed to excuse the Lessee from his obligation to keep the Premises in repair. If Lessor makes any emergency repairs pursuant to the terms hereof, Lessee shall reimburse Lessor for aH such repairs upon receipt by Lessee of Lessor's notice of repairs made and statement and proof of costs incurred. ARTICLE XXIII-NO REPRESENTATIONS BY LESSOR 23.1 Lessee acknowledges that it has examined the Premises and knows the condition thereof and accepts the Premises in its present condition, ••as is," and without any representations or warranties of any kind or nature whatsoever by Lessor as to its condition or as to the use or occupancy which may be made thereof. The Lessee assumes, in 35 120 accordance with provisions of this Lease, the sole responsibility for the condition, operation, maintenance and management of the Premises and all improvements now or hereafter situated thereon, and the Lessor shall not be required to furnish any facilities or services or make any repairs or structural changes, additions or alterations thereto. ARTICLE XXIV-LESSEE TO COMPLY WITH ALL LAWS 24.1 Lessee shall at all times comply with all laws, ordinances, regulations and orders of Federal, State, County and municipal authorities pertaining to the Premises and Lessee's improvements and operations thereon. 24.2 Lessee shall pay all costs, expenses, fines, penalties and/or damages which may be imposed because of the failure of Lessee to comply with this Article, and Lessee shalf indemnify Lessor from any and all liability arising from such noncompliance. 24.3 Lessee covenants and agrees that there will be no discrimination as to race, color, creed or national origin in its use of the Premises. ARTICLE XXV -SURRENDER OF THE PREMISES 25. 1 The Lessee shall, on or before the last day of the term herein demised, or the sooner termination thereof, peaceably and quietly leave, surrender and yield upon to the Lessor the Premises, together with any and all equipment, fixtures, furnishings, appliances or other personal property located at or on the Premises and used by Lessee in the maintenance, management or operation of the Premises, excluding any trade fixtures or personal property which can be removed without material injury to the Premises, free of all liens, claims and encumbrances and rights of others and broom-dean, together with all structural changes, alterations, additions, and improvements which may have been made upon the Premises, in good order, condition and repair, reasonable wear and tear excepted, subject, however, to the subsequent provisions of this Article. Any property which pursuant to the provisions of this Article is removable by Lessee on or at the Premises upon the termination of this Lease and is not so removed may, at the option of the Lessor, be deemed abandoned by the Lessee, and either may be retained by the Lessor as its property or may be removed and disposed of by Lessor at the sole cost of the Lessee in such manner as the Lessor may see fit. If the Premises and personal property 36 121 are not surrendered at the end of the term as provided in this Article XXV, the Lessee shall make good to the Lessor all damages which the Lessor shall suffer by reason thereof, and shall indemnify, the Lessor against all claims made by any succeeding tenant, or purchaser, so far as such delay is occasioned by the failure of the Lessee to surrender the Premises as and when herein required, 25.2 The Lessee covenants and agrees that it will not enter into any subleases, subtenancies, licenses or concession agreements relating to the Premises for a period of time beyond the stated expiration date of this Lease ARTICLE XXVI -FORCE MAJEURE 26.1 Either party hereto shall be excused from performing any of its respective obligations or undertakings provided in this Lease, except as provided in Article XXV hereof, "Surrender of the Premises," and excepting any of its respective obligations or undertakings to pay any sums of money under the applicable provisions hereof, for so long as the performance of such obligations are prevented or delayed, retarded or hindered (plus such additional time mutually consented to by the parties) by act of God, weather or unusual severity, fire, earthquake, flood, hurricane, explosion, action of the elements, war (declared or undeclared), invasion, insurrection, riot, mob violence, sabotage, malicious mischief, inability to produce or general shortage of labor, equipment, facHities, materials or supplies in the open market, failure of transportation, strikes, lockouts, action of labor unions, condemnation, public requisition, laws, order of government or any other cause, whether similar or dissimilar to the foregoing, not within the reasonable control of the respective party if such party hereto gives notice of such delay to the other party within twenty {20) days of the occurrence of such event. ARTICLE XXVII-MISCELLANEOUS PROVISIONS 27.1 All periods of notice and/or grace, including any periods of notice which the law may require as conditions precedent to the exercise of any rights by the Lessor against the Lessee shall, at the option of the Lessor, run concurrently and not successively. 272 All arrearages in the payment of rent shall bear interest at the rate of ten percent (1 0%) per annum from the date when they became due and payable hereunder 37 122 until the date when they are actually paid. 27.3 Although this is a long-term Lease, the relationship between the parties is that of landlord and tenant, and all statutory provisions in the State of Florida regulating the relationship of landlord and tenant, respecting the collection of rent and other charges, or the repossession of the Demised Premises, shall accrue to the Lessor hereunder. 27.4 In the event of a breach or threatened breach by the Lessee of any of the agreements, conditions, covenants or terms hereof, the Lessor shall have the right of injunction to restrain the same, and the right to invoke any remedy allowed by law or in equity as if specific remedies, indemnity or reimbursement were not herein provided for. 27.5 In the event of any default on the part of the Lessee in the performance of or compliance with any ofthe terms, covenants, provisions or conditions of this Lease, and the Lessor is required to bring any action or proceedings as a result thereof, then it is agreed that the Lessor shall have the right to apply to any court having jurisdiction for the appointment of a Receiver of all and singular the Demised Premises, buildings, fixtures, furnishings and improvements located thereon, together with the rents, issues and profits therefrom, and the Lessee does hereby expressly consent to the appointment of such Receiver by the court with the usual powers and duties of Receivers in such cases, and that such appointment be made by the court as a matter of strict right to the Lessor and without reference to the adequacy or inadequacy of the value of the property which is subject to the Lessor's liens, or to the solvency or insolvency of the Lessee, and without reference to the commissions of waste. 27.6 The Lessor and Lessee hereby agree to cooperate fully with each other at all times, and in addition to those matters hereinabove speciflcally referred to, to perform such other and further acts, and sign and deliver such papers and documents, as may be necessary in the circumstances from time to time during the term of this Lease to give full effect to all of the terms, covenants, conditions and provisions of this Lease. 27.7 The captions of this Lease are for convenience and reference only and in no way define, limit, or describe the scope or intent of this Lease nor in any way affect this Lease. 38 123 27.8 The index preceding this Lease, but under the same cover, is for the purpose of convenience and reference only and is not to be deemed or construed in any way as part of this Lease, nor as supplemental thereto or amendatory thereof. 27.9 This Agreement shall be governed by the laws of the State of Florida regardless of the diversity of citizenship of the parties in interest or the place of execution of this Lease. 27.10 That all covenants, promises, conditions and obligations herein contained or implied by law are covenants running with the land and shall attach to and be binding upon the heirs, executors, administrators, successors, legal representatives and assigns of each of the parties to this Lease. 27.11 Time is of the essence in every particular and particularly where the obligation to pay money is involved. 27.12 When the parties desire to give notice unto the other or others in connection with and according to the terms of this Lease, such notice shall be given by Registered or Certified Mail, Return Receipt Requested, and shall be deemed given when it shall have been deposited in the United States Mails with sufficient postage prepaid thereon to carry it to its addressed destination, or by such conveyance then permitted by law, and the notice shall be addressed as follows: To the Lessor: City Manager, City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139 and with a copy to: City Attorney, City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139 To the Lessee: Miami Beach Jewish Community Center, Inc., attn: Director, 4221 Pine Tree Drive, Miami Beach, Florida 33140 and with a copy to: Harry B. Smith, Esq., Ruden, McClosky, Smith, Schuster & Russell, P.A., 701 Brickell Avenue, Suite 1900, Miami, Florida 33131; or such other party as may be appointed in the event of the resignation or death of Harry B. Smith, Esq. 39 124 Where the parties on either side, Lessor or Lessee, consist of more than one person. notice unto or default by one of the persons on that side shall constitute notice unto or default by all of the persons on that side. 27.13 If, in connection with the enforcement of this Lease and by reason of the Lessee's failure to keep and observe all of the covenants and conditions herein contained by the Lessee to be kept and performed, it shall be necessary for the Lessor to employ an attorney, then the Lessee shall pay the Lessor all reasonable attorneys' fees and court costs incurred and/or expended by the Lessor, including all appellate fees and costs. And conversely, if, in connection with the enforcement of this Lease and by reason of the Lessor's failure to keep and observe all of the terms, covenants and conditions herein contained by the Lessor to be kept and performed, it becomes necessary for the Lessee to employ an attorney, then the Lessor shall pay the Lessee for all reasonable attorneys' fees and court costs incurred and/or expended by the Lessee, including all appellate fees and costs. Such fees and costs shall be awarded only to the prevailing party. 27.14 This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein exclusive venue for the enforcement of same shall lie in Miami- Dade County, Florida. 27.15 The Lessor desires to enter into this Agreement only if in so doing the Lessor can place a limit on Lessor's liability for any cause of action for money damages due to an alleged breach by the Lessor of this Agreement, so that its liability for any such breach never exceeds the sum of Ten Thousand ($1 0,000.00) Dollars. Lessee hereby expresses its willingness to enter into this Agreement with the Lessee's recovery from the Lessor for any damage action for breach of contract, or any other cause of action for money damages, to be limited to a maximum amount of Ten Thousand ($10,000.00) Dollars. Accordingly, and notwithstanding any other term or condition of this Agreement, Lessee hereby agrees that the Lessor shall not be liable to Lessee for damages in an amount in excess ofTen Thousand ($1 0,000.00) Dollars for any action or claim for breach of contract, or any other cause of action for money damages, arising out of the performance or 40 125 nonperformance of any obligations imposed upon the Lessor by this Agreement. Nothing contained in this subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon Lessor's liability as set forth in Florida Statutes, Section 768.28. 27.16 If a dispute arises out of or relates to this Lease, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association, or other similar alternative dispute resolution organization, person or source agreeable to the parties, before resorting to litigation or other dispute resolution procedure. 27.17 A memorandum of agreement reflecting the execution hereof, and any modifications, assignments or transfers of this Lease, shall be recorded in the public records of Miami-Dade County, Florida, at Lessee's cost 41 126 IN WITNESS WHEREOF, the Lessor and Lessee have hereunto affixed their respective hands and seals at the place, and on the day and date first hereinabove written. Signed, sealed and delivered in the presence of: Attest: {2&«~~~ C1ty Clerk Witnesses: Print Name APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION ~ City Attorney 7/t'Y/crU ( i Date CITY OF MIAMI BEACH Neisen Kasdin, ayor MIAMI BEACH JEWISH COMMUNITY 42 127 STATE OF FLORIDA COUNTY OF MIAMI-DADE ) ) ) SS: The for going instrument was acknowledged before me this ~~day of ~=.;:;~._z.... ___ , 2000, by Mayor Neisen Kasdin and Robert Parcher, City Clerk, or their desi nees respectively, on behalf of the CITY OF MIAMI BEACH, known to me to be the persons described in and who executed the foregoing instrument, and acknowledged to and before me that they executed the instrument for.the purr~s ther~~ expressed. WITNESS my hand and official sea!, thi~,.2;?J'ft7day o~ , 2000. STATE OF FLORIDA COUNTY OF MIAMI~DADE Notary Public, Commission No.: My Commission Expires: ) ) ) SS: The foregoing instrument was 9-9knowledged before me this 0? Z day of ~-, 2000, by b.rft,?ih .J./y/ ac , on behalf of the MIAMI BE H ISH COMMUNITY CENTER, INC. a Florida corporation not-for-profit, known to me to be the persons described in and who executed the foregoing instrument, and acknowledged to and before me that they executed the instrument for the purposes therein expressed. WITNESS my hand and official seal, this .21 day of ~/ , 2000. '< ~ N . ary Pubr , State of Florida at Large Commission No.: My Commission Expires: NOTARY PUBUC ·STATE OF FL.ORJOA LINDA J. MARTIN COMMISSION NUMBER CC579444 EXPIRES 10•6•2000 AMERiCAN SURE;.TY ASSOCIATES 1-888-NOTARY-1 F:\ATTO\HELG\Projects2\JCC\JCC99yearlease5.wpd-July 12, 2000 43 128 :;; Exhibit •• A" r-------·-----!7 > > lr: I I j i : : ' I '- 1 I i i ! :-.. ; Exhibit "B" CITY OF MIAMI BEACH PLANNING DEPARTMENT To: From: Date: Christina M. Cuervo Assistant City Manager Jorge G. Gomez j:!Jf- Pianning and zonfri9Director July 12, 2000 -- Subject: Development Regulations for the proposed expansion of the Jewish Community Center, located on City Owned Property at 4221·4229 Pinetree Drive {Wofford Park). Section 142-425 of the Land Development Regulations of the City Code requires that for proposed developments in the GU government use district, the development regulations shall be the average of the requirements contained in the surrounding zoning districts as determined by the Planning and Zoning Director, which shall be approved by the City Commission. What follows, herein, are the development regulations (setbacks, floor area ratio, height) as prescribed in said section of the Code: Setbacks (from the RM-3 Zoning District/RS-1 Zoning District}: Front: 20 feet; Side: South side yard-8% of lot width: 24 feet {RM-3) North side yard-12.5% of lot width: 37.5 feet (RS-1) Rear: 12.5% of lot depth, up to a maximum of 50 feet (average of RS-1/RM-3) Floor Area Ratio (FAR) (from the ROS land use designation}: Maximum FAR: 0.5 Building Height (from the RS-1 Zoning District): Maximum Height 25 feet, or 50% of lot width, whichever is greater, up to a maximum of 33 feet. JGG/RGL/rgl F:\PLliN\$PLa\APRIL\JCC144!;l\DEVREGS.REV 130