C7G-Execute Amendment 1 To Lease Agreement Improvements To 1663 Michigan AvenueCOMMISSION ITEM SUMMARY
Condensed Title:
Resolution authorizing the Mayor and City clerk to execute Amendment No. 1 to Ground Lease between the City and 1691 Michigan
Ave Investment LP ("Tenant"), dated September 1, 1999, involving the improvements to property located at 1663 Michigan Avenue,
Miami Beach, Florida ("Garage Facility") and 1691 Michigan Avenue, Miami Beach, Florida ("Office Space") (collectively the "Project"),
modifying the Scope of Use under the Ground Lease by reducing the minimum number of parking spaces required for the Garage
Facility, from 700 to 645 spaces; increasing the minimum number of parking spaces required to be maintained at all times for use by
the general public from 100 to 155 parking spaces; increasing the minimum number of monthly parking spaces for members of the
Qeneral public from 50 to 75, in connection with the develooment of a miniature aolf proiect at the sixth floor of the aaraae facilitv.
Key Intended Outcome SuoDorted:
Increase resident satisfaction with the level of services and facilities.
Supporting Data {Surveys, Environmental Scan, etc.):
Approximately 40% of retail businesses surveyed, rank Miami Beach as one of the best places to do business and 61 % of the same
Qroup would recommend Miami Beach as a place to do business.
Issue: I Shall the City commission authorize the execution of Amendment No. 1 to the Agreement of Lease.
Item Summa /Recommendation:
Tenant entered into a lease with City Middle, LLC rsubtenant"), dated as of July 1, 2012, involving the proposed development of a
miniature golf project on the sixth floor of the Parking Garage, which is the roof top level ("Miniature Golf Project"). The conceptual
plans were approved by the City's Design Review Board on March 5, 2013, subject to revisions referenced in the Order.
The use of the parking spaces as a Miniature Golf Project is not prohibited under Section 6.2 of the lease "Prohibited Uses". The
Tenant has represented that the cost of the Miniature Golf Project is between $500,000.00 and $1,000,000.00, which constitutes a
Major Alteration pursuant to Section 14.5 of the Ground Lease and requires Owner approval of the improvement. Pursuant to Section
26.2(1V) of the Ground Lease, the City Manager is authorized to approve in concept this Project, subject to the Tenant securing all
requisite governmental approvals for the construction of said Miniature Golf Project, as well as compliance with Section 14.5 of the
Lease, including construction insurance requirements.
Pursuant to Section 6.1(b) of the Lease "Scope of Use"; however, Tenant is required to " ... operate the Premises as an office, retail,
and commercial (excluding any apartments, hotels, apartment hotels or residential uses) project with a parking garage containing not
less than seven hundred (700) parking spaces. The Tenant has the right to sublease or license the parking spaces to its subtenants,
provided that not less than 100 parking spaces and not less than 50 monthly parking spaces shall be available for use by members of
the general public at all times. This garage currently has 729 spaces and the Miniature Golf Project will encompass a minimum of 84
of the spaces, which will reduce the total number of available spaces to at least 645. Tenant is requesting an amendment to the
Ground Lease, modifying Section 6.1(b) therein to reduce the minimum number of parking spaces at the Garage Facility from 700 to
645. Additionally, in order to compensate for the loss of parking spaces from this development, Tenant has agreed to increase the
minimum number of parking spaces required to be maintained at all times for use by the general public from 100 to 155 parking
spaces; and further, to increase the minimum number of monthly parking spaces for members of the general public from 50 to 75.
The parking requirements for this Miniature Golf Project will not have a material impact upon the current use of the Garage Facility.
Additionally, the Project already has a bowling alley called Lucky Strike at the ground level of the Parking Facility and would provide
additional family-style entertainment for the local residents and visitors. This Miniature Golf Project will net the City and its residents
approximately $95,000 per year in revenues, during the first ten year term of the lease between Tenant and Subtenant.
CONCLUSION
The Administration therefore recommends that the Mayor and City Commission approve A Resolution authorizing the Mayor and City
clerk to execute Amendment No. 1 to the Ground Lease, between the City and 1691 Michigan Ave Investment LP ("Tenant"), dated as
of September 1, 1999, involving the improvements to property located at 1663 Michigan Avenue, Miami Beach, Florida ("Garage
Facility") and 1691 Michigan Avenue, Miami Beach, Florida ("Office Space") (collectively the "Project"), modifying the Scope of Use
under the Ground Lease by reducing the minimum number of parking spaces required for the Garage Facility, from 700 to 635
spaces, increasing the minimum number of requisite parking spaces for use by the general public from 100 to 155 parking spaces;
and increasin the minimum number of monthl arkin s aces for the eneral ublic from 50 to 75.
Advisory Board Recommendation:
I n/a
Financial Information:
Source of Funds: I I Amount I
I 1 I I
Financial Impact Summary:
Cit Clerk's Office Le islative Trackin
Max Sklar, Ext. 6116
Si n-Offs:
Assistant Cit
KGB
MIAMI BEACH 259
Account
AGENDA ITEM __ C_7-,-G----r"T"T"""
DATE {f.-/J.-/4
(9 MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeac:hA.gov
COM ISSION MEMORANDUM
TO: Mayor Philip Levine and Member
DATE: February 12, 2014
SUBJECT: A RESOLUTION OF THE MA OR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE AMENDMENT NO. 1
TO AGREEMENT OF LEASE ("GROUND LEASE") BY AND
BETWEEN THE CITY OF MIAMI BEACH (u OWNER"), AND 1691
MICHIGAN AVE INVESTMENT LP ("TENANT"}, DATED AS OF
SEPTEMBER 1, 1999, INVOLVING THE IMPROVEMENTS TO
PROPERTY LOCATED AT 1663 MICHIGAN AVENUE, MIAMI BEACH,
FLORIDA ("GARAGE FACILITY") AND 1691 MICHIGAN AVENUE,
MIAMI BEACH, FLORIDA ("OFFICE SPACE") (COLLECTIVELY THE
"PROJECT"); MODIFYING THE SCOPE OF USE UNDER THE
GROUND LEASE BY REDUCING THE MINIMUM NUMBER OF
PARKING SPACES REQUIRED FOR THE GARAGE FACILITY, FROM
700 TO 645 SPACES; INCREASING THE MINIMUM NUMBER OF
PARKING SPACES REQUIRED TO BE MAINTAINED AT ALL TIMES
FOR USE BY THE GENERAL PUBLIC FROM 100 TO 155 PARKING
SPACES; AND FURTHER INCREASING THE MINIMUM NUMBER OF
MONTHLY PARKING SPACES FOR MEMBERS OF THE GENERAL
PUBLIC FROM 50 TO 75, IN CONNECTION WITH THE
DEVELOPMENT OF A MINIATURE GOLF PROJECT AT THE SIXTH
FLOOR OF THE GARAGE FACILITY.
Background
On January 5, 1998, the City of Miami Beach issued RFP 20-97/98, seeking proposals
for the development of Public-Private Parking facilities. On April 6, 1998, proposals from
five (5) different development teams were submitted and evaluated by an Evaluation
Committee and on July 15, 1998, the city commission authorized negotiations with four
(4) of the proposed development projects.
As a result of said negotiations, on July 7, 1999, the Mayor and City Commission adopted
Resolution No. 99-23236 approving the Agreement of Lease and the Development
Agreement between the City of Miami Beach and Lincoln Plaza Partners LLC, for
Development of a mix-use project located at Michigan and Jefferson Avenues between
Lincoln Lane and 17th Street ("Land").
An Agreement of Lease was executed between the City of Miami Beach and Lincoln
Plaza Partners LLC, dated as of September 1, 1999 ("Ground Lease"}, in connection
260
Commission Memo the Lincoln
1691 Michigan Avenue Ground Lease Agreement
February 12, 2014
Page 2of6
with the lease of the Land where Tenant agreed to develop an office, retail and
commercial project with a parking garage ("Garage Facility"), now located at 1663
Michigan Avenue, Miami Beach, Florida and an office building ("Office Space"), located
at 1691 Michigan Avenue, Miami Beach, Florida, both of which have ground retail space
(collectively the "Project"). The Garage Facility has 729 parking spaces and the Office
Space and retail space have approximately 161,824 square feet.
On December 20, 2000, the Mayor and City commission adopted Resolution No. 2000-
24220, modifying the terms of the Lease by waiving the provisions of Section 10.3(a)
and amending Section 10.4, approving the sale and Assignment and Assumption of the
Ground Lease from Lincoln Plaza Partners LLC to LNR Jefferson LLC before a
certificate of occupancy had been obtained. On October 5, 2005, LNR Jefferson LLC
changed its name to The Lincoln, LLC. On or about July 18, 2006, The Lincoln LLC sold
its interest in the Project and assigned its leasehold interest in the Land to Lincoln Miami
Beach Investment LLC, a Delaware limited liability company, pursuant to that certain
Assignment and Assumption of Ground Lease recorded in O.R. Book, 24738, Page
4073, of the Public Records of Miami-Dade County, Florida. On November 17, 2006,
Lincoln Miami Beach Investment LLC changed its name to OIK Lincoln Miami Beach
Investment LLC, and thereafter, on June 17, 2009, merged with 1691 Michigan Ave
Investment LP, a Delaware limited liability partnership ("Tenant").
Tenant entered into a lease with City Middle, LLC ("Subtenant"), dated as of July 1,
2012, involving the proposed development of a miniature golf project on the sixth floor of
the Garage Facility, which is the roof top level ("Miniature Golf Project"). A copy of said
lease is attached hereto as Exhibit "1 ". The conceptual plans were approved by the
City's Design Review Board on March 5, 2013, subject to revisions referenced in the
Design and Review Board Staff Report and Order, attached hereto and made a part
hereof as Exhibit "2". Additionally, a copy of the preliminary site plan for this Miniature
Golf Project is attached hereto as Exhibit "3".
Analysis
The use of the parking spaces as a Miniature Golf Project is not prohibited under Section
6.2 of the lease "Prohibited Uses". The Tenant has represented that the cost of the
Miniature Golf Project is between $500,000.00 and $1,000,000.00, which constitutes a
Major Alteration pursuant to Section 14.5 of the Ground Lease, which requires Owner
approval of the improvement. Pursuant to Section 26.2(c)(iv) of the Ground Lease, the
City Manager for the City of Miami Beach is authorized to approve this improvement,
subject to the Tenant securing all requisite governmental approvals for the construction
of said Miniature Golf Project, as well as compliance with Section 14.5 of the Lease,
including securing the requisite construction insurance requirements. Pursuant to
Section 6.1{b) of the Lease "Scope of Use"; however, Tenant is required to " ... operate
the Premises as an office, retail, and commercial (excluding any apartments, hotels,
apartment hotels or residential uses) project with a parking garage containing not less
than seven hundred (700) parking spaces. The Tenant has the right to sublease or
license the parking spaces to its subtenants, provided that not less than 100 parking
spaces shall be available for use by members of the general public. Additionally, this
section requires that Tenant provide not less than fifty (50) parking spaces for monthly
parking for members of the general public who are not subtenants of the Premises at
monthly parking rates established by Tenant, which rates shall not be higher than the
highest rate paid by any subtenant in the Premises.
261
Commission Memo the Lincoln
1691 Michigan Avenue Ground Lease Agreement
February 12, 2014
Page 3of6
This Garage Facility currently has 729 spaces and the Miniature Golf Project will
encompass 84 of the spaces ("Encompassed Spaces"} on the sixth floor of the Garage
Facility, which will reduce the total number of available parking spaces to 645, reducing
the minimum required number of parking spaces by 55 spaces. A copy of the site plan
evidencing the Encompassed Spaces is attached hereto as Exhibit "4". The current
monthly users for this Garage Facility ("Monthly Users") include Subtenants and Outside
Users ("General Public") and the degree of use differs on a monthly basis, but does not
differ materially. Based upon the information provided by Tenant's Garage Facility
operator ("Garage Operator"}, LAZ Parking, for the date of December 11, 2013, a copy
of which is attached hereto as Exhibit "5", the breakdown of the monthly use for reserved
and non-reserved passes For Subtenants (referred to as Tenant in Exhibit "5"} and for
the General Public (referred to as Non-Tenant in Exhibit "5"}, was as follows:
For Sub-Tenants
General Public
Valet Companies
31
12 586
54
The Monthly Users park intermittently during the day. In order to show the actual use of
the Garage Facility by Transient Users and Monthly Users, the Garage Operator
provided a print out of the number of cars parked at the Garage Facility every hour, from
February of 2013 through December of 2013, and provided Staff with the average daily
peak counts:
February
March 476.6
April 488.3
l\1~Y 474.S ..
June 458.3
July 440.2
Allgust 426.3
Septemb,er 417.3 .. .~,-~ .. ,. ·-~
October 464.5
November 455.4
December 494.8
c ••••••••••••• -•••• ,. ·''
* Showsthe average number of cars in the gara,ge at
highest occiipancy point for each day 9f the month~
Weekdays -'".
S~tll~~ays •
Sundays
3-4PM
.9-lOPM
4-SPM
262
Commission Memo the Lincoln
1691 Michigan Avenue Ground Lease Agreement
February 12, 2014
Page 4of6
As confirmed on page 9 of the Design Review Board Staff Report, the hours of operation
for the Miniature Golf Project are as follows:
Sunday -Thursday 11 :00 -Midnight
Friday -Saturday 10:00 AM - 1 :00 AM
For illustration purposes, Staff has reviewed the data from the month of November of
2013, a copy of which is attached as Exhibit "6" and provided a range of use, from the
lowest to the highest use. The following chart reflects the data which corresponds to the
times when the Miniature Golf Project will be open, showing the balance of the parking
spaces left, based upon the 645 spaces which would be left after the development of the
Miniature Golf Project and assuming the peak use for the given time:
Day Times :Range Balance Based on Peak Use
Mon. 7-12PM 58-186 459
·-~""' ,,, .... T~iis '''"'"""" .wo •.. ,,._. ,.
Tue. 7-12PM 467
~ ..
Wed. 7-12PM 48-230 415
Thur. 7-12PM :116-230 415
--.0.
Fri. 7-12PM 211-335 .; ...... 310
Sat. All day '38-416 229 -,.,_ < ""·"
Sun. All day :50-417 228
Staff has consulted with our Planning Department and the capacity for the Miniature Golf
Project is 298 people, which includes an eighteen-hole golf facility and a food and
beverage component. This Garage Facility is in district number 2 and there are no
parking requirements for retail or restaurants in this district. The Planning Department
has estimated the parking requirement at 36 spaces, based upon 1-2 parking spaces per
golf hole, which requirement could be easily met, even during peak times, while the
Miniature Golf Project is open for business.
The financial impact would also be positive for the City and its residents. Pursuant to the
Ground Lease, the City currently receives Base Rent in the total sum of $336,000.00 per
year plus 2.5% of the Project Revenue (based upon gross revenues for the year from
the Project). The City received a total sum of $166, 165.69 as percentage rent for the
2012 calendar year.
Based upon the lease terms and the projected gross income for this Subtenant, in the
amount of $4,000,000.00, which Subtenant has based upon data obtained from the local
businesses, the City would receive annual revenues approximating $95,000.00, during
the initial ten year lease term, as follows:
263
Commission Memo the Lincoln
1691 Michigan Avenue Ground Lease Agreement
February 12, 2014
Page 5 of6
Year2
Year3
Year4
Years
Year6
Year7
Years
Year9
Year 10
$75,000.00
$75,000.00
$11JO,()()() .. IJO ..
$100,000.00
.. --
.. $105,000.IJO ...
$110,250.00
$115, 7§_2:?9
$121,550.62 . . ...
... .. $127,628.15
$134,009.55
_$52?1 000.00 $15,()CXJ.OO
.... $525,()()().00 $15,000.00 ..
$500,000.00 $15,000.00
$500,000.00· sis,000.00
$4~5,CXXt()() $15,000.IJO ..
$489, 750.00 $15,000.00
.. $4f,4,23J.?9.: ~~5,Q<JO.()()
$478,449.38 $15,000.00 . ... .... ..... . . .. ........... .
$472,371.85 $15,000.00
$465,990.45 $15,000.00
Total Financial Impact to the City during initial lease term:
Additionally, the City would receive an additional 2.5% of any revenues which the Tenant
collects from the currently underutilized parking at the Garage Facility.
The Project already has a bowling alley called Lucky Strike at the ground level of the
Garage Facility and this Miniature Golf Project would provide additional family-style
entertainment for the local residents and visitors. Tenant is requesting an amendment to
the Ground Lease, modifying Section 6.1(b) therein to reduce the minimum number of
parking spaces at the Garage Facility from 700 to 645 ("New Minimum Operational
Requirement"), and is further agreeing to increase the minimum number of parking
spaces reserved for use by the general public at all times, f ram 100 to 155, in order to
compensate for the difference between the minimum amount required under the Ground
Lease, in the amount of 700 parking spaces, and the New Minimum Operational
Requirement of 645 parking spaces. A copy of Tenant's commitment to this modification
to the Ground Lease is attached hereto as Exhibit "7". Additionally, Tenant is already
providing, and will further agree to, increase the minimum number of monthly parking
spaces for members of the general public, from 50 to 75. A copy of the proposed
amendment is attached hereto and made a part hereof as Exhibit "8".
CONCLUSION
The Administration therefore recommends that the Mayor and City Commission approve
A Resolution authorizing the Mayor and City clerk to execute Amendment No. 1 to
Agreement of Lease ("Ground Lease") by and between the City of Miami Beach and
1691 Michigan Ave Investment LP ('Tenant"), dated as of September 1, 1999, involving
the improvements to property located at 1663 Michigan Avenue, Miami Beach, Florida
("Garage Facility") and 1691 Michigan Avenue, Miami Beach, Florida ("Office Space")
(collectively the "Project"), modifying the Scope of Use under the Ground Lease by
reducing the minimum number of parking spaces required for the Garage Facility, from
700 to 645 spaces; increasing the minimum number of parking spaces required to be
maintained at all times for use by the general public, from 100 to 155 parking spaces;
and further increasing the minimum number of monthly parking for members of the
general public, from 50 to 75, in connection with the development of a Miniature Golf
Project, at the sixth floor of the Garage Facility.
264
"1" -Lease between Tenant and subtenant
"2" -Design Review Board Staff Report and Order
"3" -Site Plan
"4" -Site Plan with 84 encompassed parking spaces
"5" -Monthly Use by Subtenant and General Public
"6" -Parking Date for November, 2013
"7" -Tenant's Confirmation of Proposed Amendment No. 1
·a· -Proposed Amendment No. 1
F:\ECON\$ALLIASSETIRESOLUTIONS\THE LINCOLN AMENDMENT NO. 1 MEMO 2-12-2014
265
LEASE AGREEMENT
THE LINCOLN
Dated as of j"~ ~ , 2012
between
1691 MICHIGAN A VE INVESTMENT LP
as Landlord
and
CITY MIDDLE, LIJC
as Tenant
Exhibit "1"
266
EXHIBIT "A"
EXHIBlT .. B"
EXHIBIT "C,.
EXHIBIT LIST
FLOOR PLAN OF PREMISES
CONSTRUCTION OF IMPROVEMENTS
RULES AND REGULATIONS
267
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease"), is made and entered into as ofthi6ay orjon~ ·
2012 (the "Effective Date). by a.nd between 1691 MICHIGAN AVE INVESTMENT LP, a Delaware
limited partnership ("Landlord''), and CI1Y MIDDLE, LLC, a Florida limited liability company ("Tenant'').
WITNESS ETH:
1. ~ic Le&Se Provisjons: Definitions.
(a) Basic Lease Pro~.
A. PREMISES: C. PLACE FOR PAYMENT OF RENT:
(I) Pitrldng Facility Name: The Lincoln Parking Payee: 1691 Michigan Ave Investment LP
Garage
(2) Parking Facility Premises: A portion of Level 6 of AddreM: c/o 1691 Michigan Ave Investment LP
the Parking Facility as P.O. Box 91n
depicted on Exhibit A I 150 South Avenue
Suite 201
Staten Island, NY 10314
(3) Parking Facili1y Address: 1663 Michigan A venue
Miami Beach, FL 33139
(4) Rentab1e Area of Premises Approximately 19,800
!;gUllTC feet
B. LEASE TERMS: D. NOTICES:
(l) Tenn: One hundred twenty (120) (I) Tenant: City Middle, LLC
full calendar months 200 I Meridian Ave., Suite 504
beginning on the Miami Beach, Florida 33130
Commenccmc:nt Date Attn: Glenn R. Boyer
Facsimile No. 305-67~-7662
Email: gboyerIOI@gmail.com
(2) Commencement Date: The earlier of (i) thirty (30) Copy of all Material Frank, Weinberg & Black, PL
days after Tenant opens for Notices to: 7805 SW Sixth Court
business, (ii) two (2) years Plantation, Florida 33324
after the Effective Date or (iii) Attn: Steven A. Weinberg
one himdn:d fifty (150) days Facsimile No. 954-474-9850
after obtaining the Approvals Email: sweinberg@fwblaw.net
(defined below)
{2) Landlord: 1691 Michigan A venue
Investment LP
cJo Jones Lang LaSalle
America.'1 (Florida), Inc.
1691 Michigan Ave. Suitc420
MiamL Florida 33 I40
Attn: Karina Del Junco
(3) Jnirial Annual Fixed $75,000.00
Rent
Copy of all Material King&. Spalding LLP
Notices to: I 00 North Tryon Street
(.5) Initial Annual Sales Tax: S5,2.50.00 Suite 3900
268
(6) Initial Annual Total
(7) Tenant's Proportionate
Share
8 Base Year
(being 7% of$75,000.00)
$80,250.00
I 1.5°/~ [approximately !19th
of the space in the Parking
facility]
2012
Copy of all Material
Notices to:
Charlotte, NC 28202
Ann: Mark V. Thigpen
Fax No. 704-503-2622
Real Estate Capital Partners, LP
tJ24 I Woodland Park Rd.,
Suite 600
Herndon, Virginia 20170
Attention: J8SQn Winans
Facsimile No.: 703-481-710 I
2. Description of Premises/Construction of Improvements. Landlord hereby leases to Tenant,
and Tenant hereby accepts and rents from Landlord, that certain portion of the parking facility (the "Parking
Facility") located at 1663 Michigan Avenue, Miami Beach, Florida, which portion is located on the 6th level
of the Parking Facility and is shown es hatched on Exhibit A attached hereto and incorporated herein (the
"Premises").
Landlord hereby reserves from such lease of the Premises the right to install, construct, reconstruct,
use, operate, repair, replace, maintain, relocate and remove any utility lines and/or facilities or conduits over
under or across any portion of the Premises and to grant utility and/or other easements over, under and across
the Premises to the applicable private, public or governmental authorities for purposes of installing,
constructing, reconstructing, using, operating, repairing, replacing, maintaining, relocating and removing any
utility lines and/or facilities. Tenant agrees, from time to time upon the request of Landlord, to execute and
deliver to Landlord (at no cost, however, to Tenant) any reasonable instruments presented to Tenant by
Landlord which grant utility easements over, across and under the Premises to Landlord or to any applicable
private, public or governmental authorities for the purposes described hereinabove in this grammatical
paragraph within ten (I 0) days of the presentation of such instrument to Tenant by Landlord.
Any improvements or modifications to the Premises shall be constructed by Tenant (""Tenanr's
Improvements"), at Tenant's sole cost and expense, in accordance with the terms and provisions of Exbibit B
attached hereto and incorporated herein by reference.
Notwithstanding anything contained in this Lease to the contnuy, provided this Lease is still in full
force and efTect and no Event of Default by Tenant remains uncured after expiration of all applicable cure
periods and subject to the Laws (defined below}, Landlord shall not materially interfere with Tenant's use of
the Premises for the Pennitted Use.
3. Tenn. The tenn of this Lease shall commence on the date {the "Commencement Dare")
which is the earlier to occur of (i) thirty (30) days after Tenant opens for business, (ii) two (2) years after the
Effective Date or (iii) one hundred fifty (150) days after obtaining the Approvals (defined below), and shall
end at midnight on the date {the "Expiration Date") which is one hundred twenty ( 120) full months from the
Commencement Date (the "Term"). As used herein. the tenn "Lease Year" shall mean each consecutive
twelve-month period of the Tenn, beginning with the Commencement Date (as same may be adjusted as
hereinhelow provided) or any anniversary thereof.
4. Extension Options.
(a) Provided this Lease is still in full force and effect and no Event of Default by Tenant remains
uncured after expiration of all applicable cure periods, then Tenant shall have the option to extend the Tenn
for a period of five (5) yearg next succeeding the Tenn. Such period shall be sometimes referred to
hereinoft'er as the °Fir.r;t Option Period." Such option to renew shall be exercised by written notice delivered
to I .and lord not less than 270 days prior to the end of the then current Tenn. The First Option Period, if
exercised by Tenant, shall be on the same terms and conditions as provided in this Lease except for the
1
269
..) -,
Uini1ofP C
option to extend described in this Section 4(a) shall not be applicable and Base Rent (defined below) for the '161
First Option Period shall be as set forth in Section S(b).
(b) Provided (i) this Lease is still in full force and effect, (ii) no Event of Default by Tenant
remains uncured after expiration of all applicable cure periods, and (iii) Tenant shall have properly exereised
its right to extend the Term for the First Option Period (as described in Section 4(a)), Tenant shall have the
option to extend the Tenn for a period of five (5) years next succeeding the First Option Period. Such period
shall be sometimes referred to hereinafter as the .. Second Option Period." Such option to renew shall be
exercised by Tenant's delivery of written notice to Landlord not less than 365 days prior to the end of the
First Option Period. The Second Option Period, if exercised by Tenant, shall be on the same terms and
conditions as provided in this Lease except for the options to extend described in this Section 4 shall not be
applicable and Base Rent for the Second Option Period shall be as set forth in Section 5(b).
The defined term "Term" shall be deemed to include the First Option Period and the Second Option
Period when and if each becomes effective. and the "fa.piration Date" shall be the last day of tile First
Option Period or Second Option Period, when and if each becomes effective. There shall be no options to
extend the Term except as set forth in this Section 4. TIME IS OF THE ESSENCE with regard to the
exercise of each of the options to renew hereunder.
5. Rental. During the Tenn, Tenant shall pay to Landlord. without notice, demand, reduction,
setoff or any defense, a total rental (the ••Renf') consisting of the swn total of the fullowlng:
(a) Bas'<: Rent. Commencing with the Commencement Date and continuing through the
expiration of the TF!tm, Tt'!nant shall pl'ly a minimum Annual rental (the "Base Renf) which is payable in
equal monthly installments, each in advance on or before the first day of each month. If the Commencement
Date is a date other than the first day of a calendar month, the Base Rent shall be prorated daily from such
date to the first day of the next calendar month and paid on the Commencement Date. The amount of Base
Rent to be paid by Tenant relative to eaC":h Lease Year shall be as follows:
LEASE YEAR(S) ANNUAL BASE RENT MONTHLY PAYMENT
I and2 $75,000.00 $6.25G.OO
3 and4 $100,000.00 $8,333.33
5 $105,000.00 $8.750.00
6 $ l l 0,250.00 $9,187.50 ., $115,762.50 $9,646.88
8 $121,550.62 $10,129.22
9 $127,628.15 $10.635.68
JO $134.009.55 $! l.167.46
(b) Option Teml Base Rent. The amount of Base Rent to be paid by Tenant relative to each
Lease Year during the First Option Period and the Second Option Period, if applicable, shall be as follows:
OPTION LEASE
YEA RCS)
2
3
ANNUAL BASE RENT
$140,710.0J
$147,745.52
$155,132.79
3
270
MONTHLY PAYMENT
$11,721.84
$12,312.13
$12,927.73
OPIION LEASE ANNUAL BbSE RENT MONTHLY PAYMENT Y£ARCSl
4 $162,889.42 $13,574.12
5 $171.033.89 $14,252.82
6 $179.585.58 $14,965.47
7 $188.564.85 Sl5,713.74
8 $197,993.09 $16,499.42
9 $207,892.74 $17,324.40
10 $218.287.37 $18,190.61
(i.:) Percentage Rent. Not later than sixty (60) days after the end of each Lease Year, Percentage
Rent (as hereinafter defined) shall be due and payable by Tenant if the Tenant's Gross Sales (as hereinafter
defined} for the preceding Lease Year exceeded the Breakpoint (es set forth below for each Lease Year) for
the preceding Lease Year. for purposes of this provision, "Gross Sales" (after del:lucting payment of sales
tax payable by Tenant to all applicable governmental authorities) shall include, but not be limited to, the
entire amount of the sales price, whether for cash or otherwise, of all sales of merchandise (including gift and
merchandise certificates), services and all other receipcs whatsoever of all business conducted in or from the
Premises. "Percentage Rent" shall be equivalent to fifteen (15%) percent of the Gross Sales in excess of the
Breakpoint for the preceding Lease Year.
L~asYarl::!l Anmu1.l liM~ Rem ~nl:alq,~int
1 and 2 $ 75,000.00 $ 500,000.00
3 and 4 $ 100,000.00 $ 666,666.67
s $ 105,000.00 s 700,000.00
6 $ 110,250.00 $ 13 5,00G.00
7 $ 11s.762.50 $ 771,750.00
8 $ 121,550.62 $ 810,337.47
9 $ 127.628.15 $ 850,854.33
10 $ 134.009.55 $ 893,.397.00
Ei~t Qption
l.~~ Y~i!d:~l AnnYil ~as!:: Rf:nt ~akQQiat
11 $ 140,710.02 $ 938.066.8()
12 $ 147,745.52 $ 984,970.13
13 $ 155,132.79 $ 1,034,218.60
14 $ 162,889.42 $ 1,085,929.47
15 $ 171,033.89 s l, 140,225 93
Second Qi!tion
Leo~ Y 1or!~l Annyal B~~ Rent Br~ak112ill1
16 $ 179,585.58 $I, l 97,237.20
17 $ 188,564.85 $1,257,099.00
18 $ 197.993.09 $1.319,953.33
19 $ 207.892.74 $1,385,951.60
20 $ 218,287.37 $1,455,249. I 3
Tenant agrees to keep at its principal office, records in accordance with generally accepted
accounting practices and principles, in which said Gross Sales shall be recorded. Such records shall be open
to Landlord's inspection and audit at all reasonable business hours during the Term and at least three (3)
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years thereafter, but no more than twice per calendar year in any event. If any audit shows that the amount of
Gross Sales on any of Tenant's statements was understated, Tenant shall immediately pay to Landlord as
Rent under this Lease the following: (a} the Percentage Rent due for any such understatement plus interest at
the rate specified in Paragraph 5(e) below, and (b) if such understatement was more than 2% of the actual
Gross Sales, then Tenant shall pay the costs incurred by Landlord relating to such audit.
{d) Operating, Expenses. Tenant shall pay to Landlord an amount equal to Tenant's
Proportionate Share of the sum of the Operating Expenses (hereinafter defined) and the Taxes (hereinafter
defined) in excess of the Operating E~penses and Taxes for the Base Year (collectively, the "Additional
R~nt"), which amount shall be prorated for any partial calendar year at the beginning or end of the Term. As
used herein the term:
(i) '·Operating Expenses" means all expenses. costs and disbursements, of every kind
and nature which Landlord shall pay or become obligated to pay because of or in connection with the
ownership, operation, leasing. securing, maintenance and management of the Parking Facility and
the land on which the foregoing is located. By way of explanation and clarification, but not by way
of limitation, these Operating Expenses will include the following:
(I) Wages and salaries of all employees engaged in operation, maintenance, and
security of the Parking Facility, employer's social security taxes, unemployment taxes or
insurance, and any other taxes which may be levied on such wages and salaries, the cost of
disability and hospitalization insurance, pension or retirement benefits, and any other fringe
benefits for such employees;
(2)
Facility;
All supplies and materials used in operation and maintenance of the Parking
(3) Cost of all utilities, including without limitation water, sewer, electricity,
gas and fuel oil used by the Parking Facility and not charged directly to another occupant;
(4) Cost of Parking Facility management. including management fees (which
shall not exceed five (5%) percent of the total Operating Expenses per year) and office
rental, janitorial services, accollnting and legal services, rental and other payments under the
Ground Lease (defined below} or any other ground Tease, trash and garbage removal,
servicing and maintenance of all systems and equipment including, but not limited to,
elevators, ventilating, lighting, electrical, security, fire and other alanns, fire pumps, fire
extinguishers and hose cabinets, guard service, alann system, painting, landscaping and
gardening, any maintenance or service agreements, landscape maintenance, elevator, and
ventilation service:
(5) Cost ofall insurance relating to the Parking Facility and Landlord's personal
property used in connection therewith including, without limitation, casualty and liability
insurance applicable to the Parking Facility and Landlord's personal property used in
connection therewith;
(6) Cost of capital improvements to the Parking Facility to the extent they are
depreciated over their deemed useful life; and,
(7) Costs arising from implemerttation of the Laws.
Notwithstanding anything contained in this Lease to the contrary, ''Operating Expenses" shall not
include any costs associated with the renovation of all or any part of 1he Parking Facility, nor any
capital improvement relating to a renovation, nor any reserve item to fund the expenditure of future
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capital improvements, except those costs and expenses incurred by Landlord under Section 7 of the
Lease.
"Taxes" means all impositions, taxes, surcharges. assessments (special or otherwise), water
and sewer charges and rents, and other governmental liens or charge~ of any and every kind, nature and sort
whatsoever, ordinary and extraordinary, foreseen and unforeseen, including all taxes whatsoever (except only
those taxes of the following categories: any inheritance, estate succession, transfer or gift taxes imposed upon
Landlord or any income taxes specifically payabfe by Landlord as a separate tax paying entity without regard
to Landlord's income source as arising from or out of the Parking Facility) attributable in any manner to the
Parking Facility, or the rents receivable therefrom or any part thereof, or any use thereof, or any facility
located therein or thereon or used in conjunction therewith or any charge or other payment required to be
paid to any governmental authority. Pursuant to the Ground Lease, Landlord is obligated to increase its
payments under the Ground Lease if and to the ex.tent that the Parking Facility or the land on which it is
located is exempted from any tax obligations because of the fact that the Property is owned by the City of
Miami Beach, and the term "Taxes" shall be deemed to mean and include all such increases in Ground Lease
payments.
Landlord shall notify Tenant on or before 60 days after the end of each calendar year hereafter
ensuing during the Tenn, of the amount which Landlord estimates (as evidenced by budgets prepared by or
on behalf of Landlord) will be the amount of Additional Rent for lhe then current calendar year and Tenant
shall pay such sum in advance to Landlord in equal monthly installments, during the balance of said calendar
year, on the first day of each remaining month in said calendar year commencing on the first day of the first
month following Tenant's receipt of such notification. Following the end of each calendar year during the
Tenn hereof, Landlord shall submit to Tenant a statement showing the actual amount which should have
been paid by Tenant with respect to Operating Expenses and Taxes for the past calendar year, the amount
thereof actually paid during that year by Tenant and the amount of the resulting balance due thereon. or
overpayment thereof, as the case may be. Any balance shown to be due pursuant to said statement shall be
paid by Tenant to Landlord within 30 days following Tenant's receipt thereof and any overpayment shall be
immediately credited against Tenant's obligation to pay expected additional rent in connection with
anticipated increases in Operating Expenses and Taxes or, if by reason of any termination of the Lease no
such future obligation exists, refunded to Tenant.
Notwithstanding anything in this Lease to the contrary, Tenant will be responsible for Tenant's
Proportionate Share of real estate taxes, including the reasonable costs and expenses of contesting the
validity or amount of real estate tax.es, service payments in lieu of real estate taxes, insurance premiums,
utilities, exterior janitorial service, snow removal, landscaping and management or administrative fees
applicable to such expenses ("Uncontrollable Expenses"), without regard to the level of increase in any or all
of the above in any year or other period of time. Tenant's obligation to pay all other Operating Expenses
which are not Uncontrollable Expenses (herein "Controllable Expenses") shall be limited to a five percent
(5%) per annum increase over the amount of the Controllable Expenses for the immediately preceding
calendar year would have been had the Controllable Expenses increased at the rate of five percent (5%) in al I
previous calendar years beginning with the actual Controllable Expenses for the year ending December 31,
2012. By way of example only, if the Controllable Expenses for 2012 are $I 00,000, the Controllable
Expenses for 2013 could nor exceed $105,000.00 (SI 00,000.00 x. l.05), and for 2014, the Controllable
Expenses could not exceed $112,350.00 ($! 05,000.00 x 1.05).
Additional Rent due by reason of the provisions of Section 5(dXi) above nnd this Section 5(d)(ii) for
the final months of the Lease is due and payable even though it may not be calculated until subsequent to the
Tennination Date; the Operating Expenses and Taxes for the calendar year during which the Lease
terminates shall be prorated according to that portion of said calendar year that the Lease was actua!ly in
effect. Nothing herein contained shall be construed to relieve Tenant, or imply that Tenant is relieved, of the
liability for or the obligation to pay any Additional Rent due for the final month of the Lease by reason of the
provisions of Sections 5(d)(i) and 5(d)(ii).
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273
Provided no Event of Default has occurred, notwithstanding the provisions contained in this Lease to
the contrary, in the event Landlord renders a statement for such additional sums due and owing pursuant to
the tenns of this Lease, and such statement requires a payment in excess of $2,500.00, then the parties agree
that such payment shall be due in three (3) equal installments. one-third (!13) due within ten {10} days of
rendering the statement, one-third ( 113) due within forty-five (45) days of rendering the statement, and the
balance of the one-third (1/3) due within ninety (90) days of rendering the statement.
(e) ~P~-If any monthly installment of Base Rent, Percentage Rent (if any},
Additional Rent or any other sum due and payable pursuant to this Lease remains due and unpaid ten (I 0)
days after said amount becomes due, Tenant shall pay as additional rent hereunder a late payment charge
equal to five percent (S%) of the unpaid rent or other payment. All unpaid rent and other sums of whatever
nature owed by Tenant to Landlord under this Lease shall bear interest from the day after the due date thereof
until paid at the lesser of ten percent (10%} per annum or the maximum interest rate per annum allowed by
applicable law. Acceptance by Landlord of any payment from Tenant hereunder in an amount less than that
which is then due shall in no way affect Landlord's rights under this Lease and shall in no way constitute an
accord and satisfaction. Prior to imposing any late payment charge in the first instance during any twelve
( 12) month period, Landlord snall provide Tenant with ten (1()) days prior written notice thereof, and only for
the fint such instance in any twelve ( 12) month period, landlord shall impose such !ate payment charge only
if Tenant fails to make the applicable payment within such I 0-day period.
6. Evaluation/Approval Periods.
(a) (nitial Evaluation Period. Beginning on the Effective Date and continuing for a period of
sixty (60) days (the "Initial Evaluation Periotf'), Tenant may enter the Premises and the Parking Facility,
upon written consent from Landlord in each instance, which shall not be unreasonably withheld, conditioned
or delayed, for the purposes of conducting commercially reasonable testing, sampling and investigation
customary for the Permitted Use including, without limitation, title and survey inspection (collectively, the
"Tenant Retiiews"). Tenant shall promptly, but in no event longer than thirty (30) days, repair any damages
to the Premises or the Parking Facility caused by the Tenant Reviews. Tenant shall indemnify and hold
Landlord harmless from and against any and all costs, claims, expenses, or causes of action which Landlord
may incur in connection with or arising out of the entry of Tenant, its agents, employees or contractors onto
the Premises or Parking Facility. The terms of the two (2) immediately preceding sentences shall survive the
expiration or earlier termination of chis Lease. Tenant may Lenninate this Lease by providing written notice
to Landlord by 5:00 PM EST on or before the last day of the Initial Evaluation Period and the terms and
conditions hereunder shall be of no further force or effect, except those terms and conditions that specifically
survive the termination of this Lease. Notwithstanding anything to the contrary herein, in no event shall
Tenant Reviews (a) in any way intetfere with the use and occupancy of the Parking Facility or (b) include
any invasive testing or sampling or any environmental evaluation, more than a Phase 1 site assessment.
(b) financing PeJiod. Beginning on the day after the expiration of the Initial Evaluation Period
and continuing for a period of sixty (60) days (the "Financing Contingency Periocf'), Tenant shall use good
faith, diligent and continuous efforts to obtain financing in the amount of Seven Hundred Fifty Thousand
and 00/100 Dollars ($750,000.00) (the '"'Required Financing'"). Jf Tenant does not obtain the Required
Financing during the Financing Contingency Period, Tenant may tenninate this Lease by providing written
notice to Landlord by S:OO PM EST on or before the last day of the Financing Contingency Period, and the
terms and conditions hereunder shalJ be of no further force or effect, except those terms and conditions that
specifically survive the tennination of this Lease.
(c} Governmental Approval Period.
(i) If this Lease has not been terminated as set forth in Section 6(a), beginning on the
day after the expiration of the Initial Evaluation Period and continuing until 100 earlier of (i) Tenant's
receipt of all Approvals (defined below) or (ii) two hundred seventy (270) days after the expiration
of the [nitiat Evaluation Period (the "Governmental Approval Period''), Tenant shall diligently and
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in good faith and continuously pursue, from application to issuance, all necessary permits and
approvals from any governmental agency necessary to construct and operate the Premises for the
Permitted Use (collectively, the "App,ovals"); provided that Tenant shall apply for (i) any state and
federal regulatory approvals and site plan approval from the City of Miami Beach, Florida (the
•;City") within sixty (60) days after the expiration of the Initial Evaluation Period and (ii) any other
Approvals within one hundred twenty (120) days after the expiration of the Initial Evaluation Period.
All plans and specifications submitted to any governmental agency or the City (the "Site Pian"} shall
be approved by Landlord as set forth on Exhibit B. attached hereto and incorporated herein, prior to
submittal and shall not be modified except as provided on Exhibit B or required by the City or any
other governmental agency, all of which, however, shall be subject to Landlord's approval.
Landlord shall cooperate with Tenant to obtain the Approvals; provided that Landlord shall not be
responsible for any costs related to the Approvals. Landlord may attend (whether in person, by
phone or otherwise) any meetings or hearings with any governmental agencies or the City related to
the Approvals (except Tenant's regulatory approvals) and Tenant shall provide Landlord with at le~t
twenty-four (24) hours' notice of any such meeting or hearing. During the Governmental Approval
Period, Tenant shall provide Landlord with a written monthly status report setting forth Tenant's
efforts to maintain the Approvals.
(ii) If no Event of Default (defined below), or an event that with the passage of time
may become an Event of Default, has occurred or is occurring as of the expiration of the
Governmental Approval Period, the Governmental Approval Period shall automatically extend for
three (3) additional periods of thirty (30) days, to the extent necessary for Tenant to obtain the
Approvals. The defined term ••Governmental Approval Period" shall include any of the three (3)
additional thirty (30) day periods, as applicable. If Tenant has not obtained the Approvals prior to
the expiration of the Governmental Approval Period, as extended, Tenant may terminate this Lease
by providing written notice to Landlord by 5:00 PM EST on or before the last day of the
Governmental Approval Period. and the terms and conditions hereWlder shall be of no further force
or effect, except those terms and conditions that specifically survive the termination of this Lease;
provided, however, that if the only Approvals not obtained by Tenant upon the expiration of the
Government.al Approval Period, as extended, are construction-related Approvals, Landlord, in the
sole discretion of Landlord, may obtain such Approvals, at Tenant's cost and based on the Site Plan.
within ninety (90) days after the expiration of the Governmental Approval Period in which case
Tenant's termination of this Lease shall be nullified. If all Approvals have not been obtained after
such ninety (90) day period, this Lease shall automatically tenninate and the terms and conditions
hereunder shall be of no further force and effect, except those terms and conditions that specifically
survive the termination of this Lease.
(Iii) During the Governmental Approval Period, Landlord shall diligently and in good
faith and continuously pursue any and all approvals ("Landlr>rd Approvals") that may be required
under, or necessary in order to comply with, the Ground Lease (defined below). Tenant may pursue
the Landlord Approvals on behalf of Landlord~ provided that Landlord shall be entitled to have a
representative present at any meetings or communications, whether in person or by telephone, with
any representative of the ground lessor regarding Landlord Approvals and Tenant shall provide
Landlord with at least 48 hours' notice prior to any such meetings or communications. If Landlord
(or Tenant, on Landlord's behalf as set forth above) has not obtained the Landlord Approvals prior to
the expiration of the Governmental Approval Period, as may be extended by Landlord or Tenant as
set forth above, Landlord may tenninate this Lease and the tenns and conditions hereunder shall be
of no further force and effect,. except those tenns and conditions that specifically survive the
termination of this Lease.
(d) Construction. On or before one hundred eighty (180) days after the expiration of the
Govemmental Approval Period (the "Construction Period"') (the Construction Period may be extended by
Tenant for up to two (2) forty-five (45) day periods if no Event of Default has occurred and if Tenant has
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been delayed in the completion of its construction for reasons outside of Tenant's control, but only if Tenant
notifies Landford of such delays within ten (10) days after such delay has occurred which notice shall include
the cause for the delay and each 45-day extension period shall be included in the definition of Construction
Period, as applicable), Tenant, at Tenant's expense, shall (i) construct the Tenant Improvements in
accordance with the terms and conditions on Ex,bjbit B. including, but not limited to, the installation of any
plumbing, sewer or other utilities servicing the Premises and (ii) open to the public as a fully stocked and
staffed, first class miniature golf facility (the "Required Ust"). Further, the parties hereby agree that
Tenant's responsibility to incur the cost and expense necessary to comply with all statutes, ordinances, rules,
orders, regulations and other requirements of any Federal, State or City government or any quasi-
govemmental laws and regulations affecting the Premises or the Parking Facility (the "Laws") shall only be
the Tenant's responsibility if necessitated by Tenant's use of the Premises or any work being perfonned by
or on behalf of Tenant. In the event there is any Law which generally requires the modification to the
Premises and all other parking facilities in the vicinity of the Parking Facility and so similarly situated, then
the Landlord shall be responsible for said improvement. Additionally, in the event consent is required by the
Landlord for any alterations, the Landlord agrees that such consent shall not be unreasonably withheld,
conditioned or delayed. Tenant agrees to comply with: (i) the Laws and (ii) the requirements of Landlord's
and Tenant's insurance carriers [collectively (i) and (ii) are referred to as "Requirements"]; however, Tenant
shall not be required to expend any funds to make any alterations, modifications, or additions to the Premises
or otherwise to incur any capital costs to comply with the Requirements unless such capital cos;ts are
necessitated by Tenant's use of the Premises or any work being perfonned by or on behalf of Tenant. Any
such required alterations, modifications, additions and/or other capital costs shall be done and incurred solely
at Landlord's cost and expense unless such capital costs arc necessitated by Tenant's use of the Premises or
any work being performed by or on behalf of Tenant. Landlord agrees to promptly comply with all such
Requirements and Landlord agrees to hold Tenant harmless for all fines, penalties, costs, damages and
attorneys' fees (including before, during and after any trial or administrative proceeding including appellate
proceedings) which Tenant may incur due to Landlord's failure to promptly comply with such Requirements.
Notwithstanding the provisions contained in this Lease to the contrary, any time that Landlord's
approval is required under this Section 6, in the event Landlord does not provide Tenant with notice to the
contrary by 5:00 p.m. on the twentieth (20) calendar day after the date on which Landlord receives Tenant's
request for approval in writing (together with any items requested by Landlord to evaluate any request), then
Tenant shall provide to Landlord a second request for approval in writing which shall include the following
statement in all caps: "YOUR FAILURE TO RESPOND WITHIN 7 BUSINESS DAYS WlLL RESULT IN
AUTOMATIC CONSENT' (the "Second Request"). 1f Landlord does not provide Tenant with notice to the
contrary by 5:00 p.m. on the sevemh (7th) calendar day after which Landlord receives the Second Request,
then such approval shall be deemed to have been granted by Landlord. Any time that Landlord's approval is
required under Section 6 for a minor change order. in the event that landlord does not provide Tenant with
notice to the contrary by 5:00 p.m. on the seventh (7111) calendar day after the date on which Landlord
receives Tenant's request for approval in writing (together with any items requested by Landlord to evaluate
any request), then such approval shall be deemed to have been granted by Landlord.
Notwithstanding anything to the contrary contained in this St:i:tion 6(c), Tenant shall not be liable or
responsible for, and there shall be excluded from the computation of time of the Construction Period, any
delays due to strikes, riots, acts of God, shortages of labor or materials, war, or governmental laws,
regulations or restrictions.
7. Delivery uf Possession. Landlord will deliver the Premises to Tenant as of the date that
Tenant has obtained all Approvals (the "Delivery Date"). Tenant hereby represents that Tenant has inspected
the Premises and accepts same "AS IS, WHERE IS AND WITH ALL f AUL TS." Notwithstanding the
foregoing, Landlord represents and warranrs that as of the Delivery Date, Landlord has not received any
notices stating that the Premises is in violation of any hazardous materials laws or codes. Further, as of the
date of execution of this Lease, and during the Tenn hereof, the Premises and the Parking Facility arc and
will be in full compliance with the Laws (defined below) except for any matters caused by Tenant or any
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party acting by, through or under Tenant. Landlord agrees to indemnify Tenant from any damages resulting
from any lawsuit for violation of the Americans with Disabilities Act ("ADA'') to the extent such violation is
not caused by Tenant or any party acting by, through or under Tenant. Any alterations required to bring the
Parking Facility into compliance with the Laws, including, but not limited to, the ADA, shall be the
Landlord's responsibility except for any matters caused by Tenant or any party acting by, through or under
Tenant; provided, however, Landlord may, in Landlord's sole discretion. include as Operating Expenses all
costs and expenses incurred for such compliance. which shall be amortized on a per-day straight-line basis
over a I 0-year period.
Subject to the Laws, Tenant shall have access to the Premises at all times during the Tenn and
Landlord shall maintain the strucC1.lral components of the Parking Facility.
8. Alterations and Improvements by Tenant. Tenant shall make no changes respecting the
Premises; changes to the electrical, mechanical or other Parking Facility systems of the Premises; changes of
any kind respecting the Premises that are visible from the exterior of the Premises; or any other changes,
alterations, additions, or improvements tn the Premises (specifically including, but not limited to, installation
of utility lines) without the consent of Landlord, which shall not be unreasonably withheld, delayed or
conditioned. Jn each such case where Landlord's consent is required, Tenanl shall submit to Landlord plans
and specifications for the relevant construction to be perfonned by Tenant. All of Tenant's personal property
must be new when installed in, or attached to, the Premises. All alterations, additions or improvements,
made by, for, or at the direction of Tenant shall be removed and the Premises shall be restored in accordance
with Section 30 and 3 I.
9. Use of Premises.
(a) Tenant shall use the Premises only for (i) the Required Use, (ii) for holding and organizing
special events (defined as any event that is not pennitted under the Required Use and for which the entire
Premises is closed to the public), upon the prior written consent of Landlord (in Landlord's sole, but
reasonable discretion) with the express understanding that any request to which Landlord has not responded
within ten (10) days shall be followed by a second request for approval fi'om Tenant which shall include in
all caps "YOUR FAILURE TO RESPOND WtTHfN 7 BUSINESS DAYS WlL RESULT fN AUTOMATIC
CONSENT" and upon Landlord•s failure to respond by 5:00 p.m. on the third (J'd) day after Landlord
receives such request, the request shall be deemed approved and (iii) for food and beverage concession and
merchandise sales associated with the Required Use, and for no other purpose (the "Permitted Use"). Tenant
shall comply with all laws, ordinances, orders, regulations or zoning classifications of any lawful
governmental authority, agency or other public or private regulatory authority (including insurance
underwriters or rating bureaus) having jurisdiction over the Premises. Tenant shall not do any act or follow
any practice relating to the Premises which shall constitute a nuisance or detract in any way from the
reputation of the Premises as a first-class establishment. Tenant's duties in this regard shall include allowing
no noxious or offensive odors, fumes, gases, smoke, dust, steam or vapors. or any loud or disturbing noise or
vibrations to originate in or emit from the Premises.
(b) Without limiting the generality of {a) above, the Premises shall not be used for the treatment,
i;torage, transportation to or from, use or disposal of toxic or hazardous wastes, materials, or substances, or
any other substance that is prohibited, limited or regulated by any governmental or quasi-governmental
authority or that. even if not so regulated. could or does pose a hazard to he.alth and safety of the occupants of
the Premises or surrounding property.
(c) Tenant hereby agrees that this Lease is subordinate to all restrictive covenants and that
Tenant shall abide by such re!'itrictive covenants encumbering the Premises, in connection with its use of the
Premises.
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(d) Tenant shall exercise due care in its use and occupancy of the Premises a.nd shall not commit
or aUow waste to be committed on any portion of the Premises; and at the expiration or earlier termination of
this Lease, Tenant shall deliver the Premises to Landlord in as good condition as existed on the
Commencement Date, ordinary wear and tear and acts of God alone excepted.
(e) Tenant shall, continuously and uninterruptedly from and after its initial opening for business,
(i) operate and conduct for the Required Use within the entire Premises, except while the Premises are
untenantable by reason of fire or other casualty or for other reasons beyond the reasonable controJ of Tenant
and (ii) keep the Premises in a neat, clean and orderly condition.
(f) Tenant shall be open for business to the public in the entire Premises at least six (6) days per
week for no less than sixty (60) hours per week (the "Operating Hours") for the Required Use, and Tenant
shall not be held liable for any failure to open for business, or remain open for business, by reason of strikes,
lockout~, casualties, acts of God, labor troubles, inability to procure materials, failure of power,
governmental laws or regulations, riots, insurrection, war or other causes beyond the reasonable control of
Tenant.
(g) Tenant shall save Landlord hannless from any claims, liabilities, penalties, fines, costs,
expenses or damages resulting from the failure of Tenant to comply with the provisions of this Section 9.
This indemnification shall survive the tennination or expiration of this Lease.
10. Graphics. Tenant, at its sole cost and expense, may install signage at the entrance to the
Premises and within and on the rooftop of the Parking Facility, subject to Landlord's approval as to location,
design and size and otherwise in accordance with Landlord's signage criteria and applicable law. No other
signs or graphic displays shall be used or permitted on the Premises without Landlord's prior wrinen consent.
Landlord shall have the right at any time to change the name of the Parking Facility and to install, affix and
maintain any and all signs on the exterior and on the interior of the Parking Facility as Landlord may, in
Landlord's sole discretion, desire. Tenant shall not use the name of the Parking Facility or use pictures or
illustrations of the Parking Facility in advertising or other publicity or for any purpose other than as the
address of the business to be conducted by Tenant in the Premises, without the prior wrinen consent of
Landlord. Subject to the Laws, Landlord shall not plant any trees or other foliage, or take any other action
which would rnatierally block the visibility of all exterior signage during the Term of this Lease and all
Renewal Terms lht:rcafier.
11. Other Taxes. Tenant shall pay any taxes, documentary stamps or assessments of any nature
imposed or assessed upon this Lease, Tenant's occupancy of the Premises or Tenant's trade fixtures,
equipment, machinery, inventory, merchandise or other personal property located on the Premises and owned
by or in the custody of Tenant as promptly as all such lax.es or assessments may become due and payable.
12. Ex.traba7.ardous Activities. Tenant shall not do or cause to be done or pennit on the Premises
anything deemed extrahazardous on account of fire and Tenant shall not use the Premises in any manner
which will cause an increase in the premium rate for any insurance in effect on the Premises, Parking Facility
or a part thereof. If, because of an)l1hing done, caused to be done, permitted or omitted by Tenant or its
agent(s), contractor(s), employee(s), invitee{s), licenscs(s), servant(s) subcontractor(s) or subtenant(s) the
premium rate for any kind of insurance procured by Landlord and in effect relative to the Premises, Parking
Facility or any part thereof shall be raised, Tenant shall pay Landlord on demand the amount of any such
increase in premium which Landlord shall pay for such insurance and if Landlord shall demand that Tenant
remedy the condition which caused any such increase in an insurance premium rate, Tenant shall remedy
such condition within fifteen (15) days after receipt of such demand.
13. Maintenance and Repair of Premjses by Tenant.
(a) Tenant agrees, at Tenant's cost and expense, to keep and maintaln the Premises and each and
every part thereof in good order and condition and to make al I repairs thereto, and the fixtures and equipment
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therein and the appurtenances thereto, including, without limiting the generality of the foregoing, all Tenant
Improvements and alterations and additions made to the Premises by or on behalf of Tenant. and all of
Tenant's signs. Tenant shall initiate and carry out a program of regular maintenance and repair of the
Premises, including, without limitation, the painting and decorating of all areas of the interior, so as to
impede, to the extent possible, deterioration by ordinary wear and tear, and to keep the Premises in a first
class, clean, neat and attractive condition. Tenant shall keep the inside of all glass, if any, in the doors and
windows of the Premises clean and shall replace any glass broken by Tenant. Tenant's agents, employees or
licensees, with glass of the same kind, size and quality. Tenant shall be responsible for installing and
maintaining any HV AC system and equipment sef'\oing the Premises in good condition at all times, and to
make any repairs or replacements to such HVAC system and equipment. Tenant's responsibilities hereunder
shall include any repairs that are required to be made during the Term by any legal authority having
jurisdiction thereof whether the same is ordinary or extraordinary, foreseen or unforeseen, or which are
required to comply with any requirements of any governmental entity (including, without limitation, the
ADA) hereafter adopted or otherwise made applicable during the Tenn, or which Landlord may deem
reasonably necessary or desirable to prevent waste or deterioration in connection with the Premises.
(b) Tenant covenants and agrees with Landlord, at Tenant's own cost and expense, to repair or
replace any damage done to the Premises or Parking Facility, or any part thereof, caused by Tenant or
Tenant's agents, contractors, employees, invitees, or visitors, and such repairs shall restore the same to as
good a condition as it was in prior to such damage, and shall be effected in compliance with any
requirements of any governmental entity. Landlord shall be responsible for maintaining in good condition,
and repair and for replacing all portions of the Parking Facllity (except those encompassing the Premises or
repairs and replacements required due to damages caused by Tenant). and all common areas of the Parking
Facility. The tenns of this Paragraph J 3(b) shall survive the expiration or earlier termination of this Lease.
14. Maintenance and Reoair of Premises 2Y Landlord. Except as otherwise expressly provided
herein, Landlord shall not be required to make any repairs to the Premises other than repairs to the load-
bearing walls, the floors and the roof of the Parking Facility, which may be required from time to time, but
only after such required repairs have been requested by Tenant in writing and to the extent not caused by the
acts of Tenant, its employees, agents, contractors, invitees, licensees, concessionaires, subtenants and/or
assigns or resulting. directly or indirectly, from the installation of any Tenant's Improvements. It is further
agreed that this Lease is made by Landlord and accepted by Tenant with the understanding that Landlord
shall have the right and privilege to make and build additions, alterations and repairs to the Parking Facility
a~ it may deem wise and advisable without any liability to the Tenant therefor.
15. Trade Fixtures and Eguipmen.t. Any trade fixtures installed in the Premises at Tenant's
expense shall remain Tenant's personal property Tenant §hall not have the right at any time during the term
of this Lease to remove such trade fixtures unless Tenant is replacing same immediately with something of
equivalent value and utility. Upon removal of any trade fhtures, Tenant shall immediately restore the
Premises to substantially the ~me condition as they existed on the Delivery Date, ordinary wear and tear and
acts of God alone excepted. Any trade fixtures not removed by Tenant upon the expiration or earlier
termination of the Lease shall be subject to Sections 30 and 31, below.
16. Utilities. Tenant shall pay for all utilities or services related to the Premises, including,
without limitation, electricity, gas, heat, water, sewer, telephone and janitorial services. Landlord shall not
be responsible for the stoppage or interruption of utilities services, nor shall Landlord be liable for any
damages caused by or from the plumbing and sewer systems. Tenant's usage of all utilities for the Premises
shall be separately metered or sub-metered at Tenant's cost. Notwithstanding the provisions contained in the
Lease to the contrary, Landlord shall not unreasonably withhold, condition or delay consent to any changes,
alterations, additions, or improvements of any nature or kind whatsoever within the Premises (specifically
including, but not limited to, installation of utility lines and/or waste lines to the Premises), except for any
such matters that would affect the structural component of the Parking Facility or any systems serving the
Parking Facility or any improvemenls near the Parking Facility.
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17. Casualty.
(a} If the Premises or any part thereof shall be damaged by fire or other casualty, Tenant shall
give prompt written notice thereof t.o Landlord. If: (i) the Parking facility shall be so damaged that
substantial alteration or reconstruction of the Parking Facility shall, in Landlord's sole opinion, be required
(whether or not the Premises shall have been damaged by such casualty); (ii) any Mortgagee's (defined
below) interest in the Parking Facility requires that the insurance proceeds payable as a result of a casualty be
applied to the payment of the mortgage debt~ (iii) there is any material uninsured loss to the Parking Facility
or any part thereof; Landlord or Tenant may, et their option, terminate this Lease by notifying the other party
in writing of such termination within 90 days after the date of such casualty; and Landlord may, at its option,
not repair, reconstruct, or restore the Premises or the Parking Facility, whether or not the Premises have
suffered from the casualty.
If Landlord or Tenant does not elect to terminate this Lease, Landlord shall commence and proceed
with reasonable diligence to restore the Parking Facility; except that Landlord's obligation to restore shall not
require r .andlord to spend for such work an amount in excess of the insurance proceeds actually received by
Landlord as a result of the casualty.
When Landlord's repairs have been substantially completed by Landlord, Tenant shall promptly
complete the restoration of all improvements to the Premises (including, without limitation, all improvements
previously performed by Tenant) which are necessary to pennit Tenant's reoccupancy of the Premises and to
restore the Premises to the condition immediately before such casualty or damage, in accordance with plans
and specifications approved by Landlord. Landlord shall have the right to approve any contractor Tenant
selects to perform such work. Tenant shall also be responsible for the restoration of Tenant's furniture,
equipment, and fixtures. All cost and expense of reconstructing the Premises to a level in excess of the shell
Parking Facility shall be borne by Tenant.
(b) Landlord shall not be liable for any inconvenience or annoyance to Tenant or injury to the
business of Tenant resulting in any way from such casualty damage or the repair thereof; except that. subject
to the pro\lisions of the next sentence, Landlord shall allow Tenant a fair diminution of Base Rent and
Operating Expenses until the shell Parking Facility is substantially completed by Landlord and a reasonable
period of time, not to exceed one hundred eighty (180) days has elapsed for Tenant to restore any
improvements previously performed by or on behalf of Tenant. If the Premises or any other portion of the
Parking Facility is damaged by fire or other casualty resulting from the fault or negligence of Tenant or any
of Tenant's agents, contractors, employees, or invitees, the Base Rent hereunder shall be diminished during
the repair of such damage only to the extent same is actually covered by insurance proceeds, and Tenant shall
be liable to Landlord for the cost of the repair and restoration of the Premises and the Parking Facility caused
thereby to the extent such costs and expenses are not covered by insurance proceeds.
18. Governmental Orders. Tenant agrees, at its o~n expe";nse, to comply promptly with all laws,
ordinances and regulations (including without limitation the Americans with Disabilities Act) and with all
requirements of any legally constituted public authority that may be in effect from time to time which arc
related to the Premises and/or Tenant's use or occupancy of the Premises.
19. Mutual Waiver of Subrogation. For the purpose of waiver of subrogation, the parties
mutually release and waive unto the other all rights to claim damages, costs or expenses for any injury to
persons (including death) or Jlroperty caused by a casualty of any type whatsoever in, on or about the
Premises if the amount of such damage, cost or expense has been paid to such damaged party under the terms
of any policy of insurance. All insurance policies carried with respect to this Lease, if perm ltted under
applicable law, shall contain a provision whereby the insurer waives, prior to loss, all rights of subrogation
against either Landlord or Tenant.
20. lndemnification.
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(a} Tenant shall indemnify and save Landlord harmless against any and all claims. suits,
demands, actions, tines, damages, and Jiabilities, and all costs and expenses thereof (including, without
limitation, reasonable attorneys' fees) arising out of injury to persons (including death) or property occurring
in, on or about, or arising out of the Premises or Parking facility if caused or occasioned wholly or in part by
any acts or omissions of Tenant, its agents, contractors, employees, invitees, licensees, servants,
subcontractors or subtenants, except if caused by the gross negligence of Landlord, its agents or employees.
Tenant shall give Landlord reasonably timely notice of any such happening causing injury to persons or
property.
(b) Landlord shall indemnify and save Tenant harmless against any and all claims, suits,
demands, actions, fines, damages, and liabilities, and aU costs and expenses thereof (including, without
limitation, reasonable attorneys' fees) arising out of injury to persons (including death) or property occurring
in, on or about, or arising out of the Parking Facility, but not the Premises, if caused or occasioned by any
acts or omissions of Landlord, its agents or employees, except if caused by the gross negligence of Tenant,
its agents, contractorS, employees, invitees, licensees, servants, subcontractors or sublenants. Landlord shall
give Tenant reasonably timely notice of any such happening causing iajury to persons or property.
(c) The tenns of this Paragraph 20 shall survive the expiration or earlier termination of this
Lease.
21. Tenant's Insurance and Requirements.
(a) Tenant agrees to secure and keep in force from and after the Delivery Date (or the earlier
date Tenant enters the Premises for any purpose) and throughout the Tenn, at Tenant's own cost and
expense:
(i) Commercial general liability ins\lrance with a single combined limit, including any
umbrella or excess commercial policy, with a broad fonn commercial general liability endorsement
applicable to the Premises and its appurtenances, the sidewalks, if any, abutting and/or adjoining the
Premises, and the business operated by Tenant and/or any party, in or from lhe Premises. on an
occurrence basis in an amount of not less than $5,000,000 or such additional amount as may be
reasonably required by Landlord from time to time, which shall include insurance for personal
injury, death or property damage occurring upon, in or about the Premises, including water damage
and sprinkler leakage legal liability, and shall include products and completed operations coverage
with a reasonable deductible consistent with standard industry practice. In addition to any and all
insurance required to be maintained by Tenant in the Lease, Tenant shall at all times during the Term
maintain (a) host liquor liability insurance in an amount or not less than $5,000,000.00 per
occurrence, and (b) an endorsement to its liability policy for assault and battery coverage and
firearms coverage in an amount of not less than SI0,000,000.00 per occurrence. Such insurance shall
be maintained by insurance companies that satisfy the requirements of Section 21 (b) of this Lease
and such coverages shall be reflected on the certificates of insurance to be delivered by Tenant and
shall name Landlord and its designecs as additional insureds.
(ii) Special Fonn property insurance covering all of the Tenant's Improvements, and all
trade fixtures, furniture, decorations, equipment, inventory, merchandise and personal property from
time to time in, on or upon the Premises, and alterations, additions or changes made by Tc:nant, in an
amount not less than one !00% percent of their replacement cost from time to time during the Tenn
withotit co-insurance, providing protection against perils included within a standard Florida form of
fire and extended coverage insurance policy, together with insurance against sprinkler damage (if
sprinklers are installed), vandalism, theft, and malicious mischief, and shall also include plate glass
coverage for all plate glass along the exterior wells of the Premises, with a reasonable deductillle
consistent with standard industry practice. At Landlord's option, any proceeds from such insurance
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shall be hdd by an escrow agent approved by Landlord for the repair, restoration, reconstruction or
replacement of the property damaged or destroyed unless this Lease shall cease and tenninate as
hereinafter provided.
(iii) Workers' Compensation insurance in the amount required by law, and employer's
liability insurance in an amount of not less than $1,000,000 with a reasonable deductible consistent
with standard industry practice.
(iv) Employee's non-owned and hired vehicle insurance for any non-owned vehicles that
are used by Tenant's employees in the course of Tenant's business in an amount of not less than
$500,000; if Tenant owns or leases any vehicles used in the operation of its business, commercial
automobile insurance in an amount of not less than $1 ,000,000.
(v) Business income and interruption insurance respecting Tenant'~ operations from the
Premises sufficient to cover Tenant's overhead and payroll for at least 12 months.
(vi) During any period when Tenant Improvements or any other construction work is
being performed within the Premises or on the Property by or for Tenant, Tenant or its contractor(s)
shall provide builder's risk insurance equal to the replacement cost of any improvements being
constructed, naming Landlord as a loss payee, and owner's and contractor's protective liability
insurance in an amount of not less than $1.000,000 with a reasonabk deductible consistent with
standard industry practice; and each contractor shall maintain worker's compensation insurance as
required by law, and Landlord shall be provided with certificates evidencing same.
(vii) Such other insurance as Landlord may reasonably require or as is customarily
carried by businesses similar to Tenant's business, in such amounts and conditions as Landlord may
reasonably require.
(b) Tenant's Insurance -Special Reqyirements. All policies of insurance provided for in Section
2I(a) above shall: (i) be issued in fonn and by an insurance company approved by Landlord rated A VH or
better by the then current Best's Guide, and qualified to do business in the State of Florida; (ii) name the
following parties (the "'interested Parties") as additional insureds (or as loss payee, as applicable): Landlord,
Landlord's agents and managers, any ground lessor or mortgagee, and any other parties in interest from time
to time designated in writing by notice from Landlord to Tenant; (iii) be delivered (or, at Landlord's option, fl
certificate thereof acceptable to Landlord) to the Interested Parties upon or before delivery of possession of
the Premises to Tenant and thereafter within 30 days prior to the expiration of each such policy, and, as often
as any such policy shall expire or terminate, renewal or additional policies shall be procured and maintained
by Tenant in like manner and to like extent; (iv) shall contain a provision that the insurer will give the
Interested Parties at least 30 days notice in writing in advance of any cancellation, termination or lapse, or
the effective date of any reduction in the amounts of insurance or any other material change; (v) shall be
written as a primary policy which does not contribute to and is not in excess of coverage which the Interested
Parties may carry, and (vi) shall contain a provision that the Interested Parties, although added as additional
insureds or named as loss payees, shall nevertheless be entitled to recover under said policies for any loss
occasioned to them, or their servants, agents and employees by reason of the negligence of Tenant. The [imit
of any insurance maintained by Tenant shall not limit the liability of Tenant hereunder.
22. Condemnation" If the whole or substantially the whole of the Parking Facility or the
Premises should be taken for any public or quasi-public use, by right of eminent domain or otherwise or
should be sold in lieu of condemnation, then this Lease shall terminate as of the date when physical
possession of the Parking Facility or the Premises is taken by the condemning authority. If less than the
whole or substantially the whole of the Parking Facility or Premises is thus taken or sold, Landlord (whether
or not the Premises are affected thereby) may, at its option, tenninate this Lease by giving written notice
thereof to Tenant; in which event this Lease shall tenninate as of the date when physical possession of such
portion of the Parking Facility or Premises is taken by the condemning authority. If this Lease is not so
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tenninated upon any such taking or sale, and if a portion of the Premises is taken, the Base Rent payable
hereunder shall be diminished by an equitable amount. All amounts awarded upon a taking of any part or aII
of the Parking Facility or Premises shall belong to Landlord, and Tenant shall not be entitled to and expressly
waives all claims to any such compensation. Notwithstanding anything contained in this Lease to the
contrary, the parties agree that in the event less than a whole but more than ten (I<JG/o) percent of the Premises
shall be expropriated by public or quasi-public authority, Tenant shall have the option to tenninate this tease
as of the date Tenant shall be dispossessed from the part so expropriated, by giving notice to Landlord of
such election to te11T1inate within thirty (30) days from such dispossession. Additionally. Tenant shall not be
entitled to share in any award made by reasop of expropriation of the Premises or any part thereof, public or
quasi-public authority, except for any claim of loss of business or trade fixtures, equipment and furnishings
that does not reduce the amount of an award to Landlord.
23. Events of Default and Remedies.
(a) Upon the occurrence of any one or more of the following events (the "Events of Default,"
any one an "Event of Default"), the patty not in default shall have the right to exercise any rights or remedies
available in this Lease, at law or in equity. Events of Default shall be:
(i) Subject to the tenns of this Section 23{a), Tenant's failure to pay when due any
rental or other sum of money payable hereunder;
(ii) Failure by either party to perform any other of the tenns. covenants or conditions
contained in this Lease if not remedied within thirty (30) days after receipt of written notice thereof,
or if such default cannot be remedied within such period, if such party does not within thirty {30)
days after written notice thereof commence such act or acts as shall be n~essary to remedy the
default or does not thereafter complete such act or acts within a reasonable time;
(iii) Tenant shall become bankrupt or insolvent, or file any debtor proceedings, or file
pursuant to any statute a petition in bankruptcy or insolvency or for reorganization, or file a petition
for the appointment of a receiver or trustee for all or substantially all of Tenant's assets (if such
petition or appointment shall not have been set aside within sixty (60) days from the date of such
petition or appointment), or if Tenant makes an assignment for the benefit of creditors, or petitions
for or enters into an arrangement; or
(iv) Tenant vacates, abandons or fails to operate in the Premises or any substantial part
thereof, unless such failure to operate is in accordance with Paragraph 60 of this Lease, or allows its
leasehold estate to be taken under any writ of execution and such writ is not vacated or set aside
within sixty (60) days.
Notwithstanding the provisions contained in this Lease to the contrary, Tenant shall not be in default
of any obligation for the payment of Base Rent, Percentage Rent (if any), Additional Rent, or any other sum
due and payable pursuant to this Lease until the continuance of such default for ten (I 0) days after Landlord
has given written notice to Tenant specifying the nature of the default (provided that Landlord shall not be
obligated to provide any such written notice more than two (2) times in any one (I) calendar year, after
which an Event of Defau It shall occur upon Tenanl's failure to make any such payment when due.
(b) Upon the occurrence of any of the Events of Default enumerated above, or any other event
of default by Tenant under this Lease, Landlord shall have the option to pursue any one or more of the
following remedies: (i) tenninate chis Lease, in which event Tenant shall immediately surrender the
Premises to Landlord; (ii) terminate Tenant's right to occupy the Premises and re-enter and take possession
of the Premises (without terminating this Lease}; (iii) Landlord shall have the right, with or without
terminating or canceling this Lease or Tenant's right lo possession of the Premises, to declare all amounts
and all Annual Rent due under this Lease for the remainder of the Term (or any extension or renewal thereof)
to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the
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Tenn (or any extension or renewal tenn, if applicable) shall be accelerated; but such accelerated amount shall
be discounted to the then present value at the discount rate of the Federal Reserve Bank of the district within
which the Premises is located; (iv) Landlord may elect to enter and repossess the Premises and relet all or
part of the Premises for Tenant's account, for a term or tenns which may, at Landlord's option, be equal to,
less than, or greater than the period which would otherwise have constituted the balance of the Tenn, holding
Tenant liable in damages for aJl expenses incurred in any such reletting including. without limitation, any
Tenant improvement allowance, expenditures in connection with renovation, maintenance, repairs and/or
alterations for the new tenant, broker's commissions, legal fee.c;, etc_ and for any difference between the
amounr of rent received from such reletting and the Rent due and payable under the tenns of Lhis Lease; (v)
enter upon the Premises and do whatever Tenant is obligated to do under the teTills of this Lease, and Tenant
agrees to reimburse Landlord on demand for any expense which Landlord may incur in effecting compliance
with Tenant's obligations under this Lease, and Tenant further agrees that Landlord shall not be liable for
any damages resulting to the Tenant from such action; and (vi) exercise all other remedies available lo
Landlord at law or in equity, including, without limitation, injunctive relief of all varieties_
ln the event Landlord elects to re-enter or take possession of the Premises after Tenant's default.
Tenant hereby waives notice of such re-entry or repossession. Landlord may make such alterations and/or
decorations in the Premises as Landlord, in Landlord's sole discretion. considers advisable and necessary for
the purpose of reletting, securing or maintaining the Premises. Landlord, in addition to all other rights and
remedies it may have, shall have the right to keep in place and use all of the inventory, fumirure, fixrures,
equipment and other personal property in the Premises and/or remove any or all of Tenant's property from
the Premises which may then be sold, disposed of, or stored at the cost of and for the account of Tenant_
Landlord shall not be responsible for the care or safekeeping of any such property and Tenant waives any
claim against Landlord relating thereto. No re-entry or taking possession of the Premises by Landlord shall
be construed as an election on Landlord's part to terminate this Lease unless written notice of such intention
is given to Tenant. Notwithstanding any reletting without termination of this Lease, Landlord may at any
time thereafter elect to tenninate this Lease. In any event, Landlord shall not be liable for, nor shall Tenant's
obligations hereunder be diminished by reason of, any failure by Landlord to rclet the Premises or any failure
by Landlord to collect any sums due upon such reletting,., and the refusal, failure or inability of Landlord to
relet the Premises or any part or parts thereof shall not release or affect Tenant's liability for damages, the
Tenant hereby specifically waiving any duty on the part of Landlord to mitigate damages that may otherwise
be imposed by law. Landlord may, without prejudice to any other remedy which it may have for possession
or arrearages in rent, expel or remove Tenant and any other person who may be occupying said Premises or
any part thereof. All of Landlord's remedies shall be cumulative and not exclusive. Forbearance by
Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of such default. Without limiting the generality of the foregoing.
the maintenance of any action or proceeding to recover possession of the Premises or any Rent or any other
monies that may be due or become due from Tenant to Landlord shall not preclude Landlord from thereafter
instiniting and maintaining subsequent actions or proceedings for the recovery of possession of the Premises
or of any other Rent or monies that may be due or become due from Tenant. Any entry or re-entry into the
Premises by Landlord shall not be deemed to absolve or discharge Tenant from liability under this Lease.
24_ Subordination.
(a) Tenant accepts this Lease subject and subordinate to any mortgage, deed of trust, ground
lease, or other lien presently existing or hereafter arising upon the Premises, or upon the Parking Facility and
to any renewals, refinancing and extensions thereof or of any ground leases (collectively, a "Mortgagee,.),
1md Tenant agrees that any Mortgagee shall have the right at any time to subordinate such Mortgage to this
Lease on such terms and subject to such conditions as Mortgagee may deem appropriate in its discretion_
The terms of this Lease are subject to approval by Mortgagee, and such approval is a condition precedent to
Landlord's obligations under this Lease. Landlord is hereby irrevocably vested with full power and authority
to subordinate this Lease to any Mortgage now existing or hereafter placed upon the Premises, or the Parking
Facility, and Tenant agrees upon demand to execute such further instruments (collectively, "Subordination
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Instrument") subordinating this Lease or attoming to the holder of any such Mortgage as Landlord may
request. In £he event that Tenant should fail to execute the Subordination instrument promptly as requested,
Tenant hereby irrevocably constitutes Landlord as its attorney-in-fact to execute the Subordination
Instrument in Tenant's name, place, and stead, it being agreed that such power is one coupled with an
interest.
(b) If a Mortgagee, or any other person claiming under a Mortgage, succeeds to Landlord's
interest in this Lease whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination
of lease or otherwise, Tenant will recognize and attorn to said Mortgagee or other person as its Landlord
under this Lease. In the event of a termination of any Mortgage, foreclosure or deed in lieu (as applicable),
any new owner shall not (i) be liable for any act or omission of Landlord or with respect to events occurring
prior to acquisition of ownership to the extent applicable to the period prior to the date such new owner
succeeds to Landlord's interest under this Lease; (ii) be subject to any offsets or defenses which Tenant
might have against Landlord to the extent applicable to the period prior to the date such new OVl/Tler succeeds
to Landlord's interest under this Lease; or (iii) be bound by prepayment of more than one month's. Base Rent.
Notwithstanding the provisions contained in this Lease to the contrary, Landlord shall, within thirty
(JO) days of request, use commercially reasonable efforts to obtain a Non-Disturbance Agreement from all
mortgagees stating that so long as the Tenant is not in default of the terms as contained in this Lease, the
mortgagee shall not disturb the tenancy created herein, and shall attom to the obligations of the Landlord.
Further, Tenant shall have the absolute right from time to time during the Tenn hereof and without
Landlord's further approval, written or otherwise, to grant and assign a mortgage or other security interest in
all of Tenant's trade fixtures, equipment, and other movable personal property to Tenant's lenders in
connection with Tenant's financing arrangements. Landlord agrees to e)j;ecute such documents (except
amendments to this Lease unless Landlord hereafter consents) as Tenant's lenders may reasonably request in
connection with any such financing, all of which shall be in fonn and content satisfactory to Landlord.
25. Assignment and Subletting.
(a) Tenant shall not, voluntarily, involuntarily, or by operation of law, assign, sublease, transfer,
mortgage, pledge or encumber this Lease or any interest therein except with Landlord's prior written consent,
which consent shall not be unreasonably withheld, conditioned or delayed. Any attempted assignment,
sublease, transfer or encumbrance of this Lease by Tenant in violation of the tenns and covenants of this
Section shall be void ah initio. Any consent given by Landlord shall not he considered to be a consent to any
other OI" further proposed assignment, sublease, transfer or encumbrance. In the event Tenant is a
corporation, limited liability company or a partnership, the conveyance, assignment, transfer or alienation of
51 % or more of the corporate srock, membership interests or partnership interests, as the case may be, or the
change in management or controlling interest in Tenant shall be deemed an assignment for the purposes
hereof unless ~uch entity is a Reporting Company under the Securities Exchange Act of 1934. Tenant shall
reimburse Landlord's reasonable altomeys' fees and expenses incurred in connection with Tenant's
assignment, subletting, transfer, or encumbrance of this Lease or any interest therein
(b) If Tenant requests Landlord's consent to an assignment of this Lease or subletting of all or
part of the Premises, Landlord may, in Landlord's sole and absolute discretion, condition any approval of
such sublease or assignment on Tenant remaining primarily liablt: under this Lease. If Landlord should fail
to notify Tenant in writing of its decision within a 30 day period after Landlord is notified in writing of the
proposed assignment or sublease, Landlord shall be deemed to have refused to consent to such assignment or
subleasing, and to ha.,e elected to keep this Lease in full force and effect. Landlord shall not unreasonably
withhold its consent to any assignment or subletting of the Premises, provided that the proposed transferee
( l) is creditworthy, (2) has a good reputation in the business communfty, (3) will use the Premises for the
Required Use, and (4) will not use the Premises or Parking Facility in a manner that would materially
increase the pedestrian or vehicular traffic to the Premises, or Parking Facility; otherwise, Landlord may
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withhold its consent in its sole discretion. Additionally, Landlord may withhold its consent in its sole ·
discretion to any proposed transfer if any Event of Default by Tenant then exists.
(c) All cash or other consideration, including any excess rentals beyond the Base Rent set forth
herein, received by Tenant as the proceeds of, or resulting from, any assignment, or sublease of Tenanfs
interest in this Lease and/or the Premises, whether consented to by Landlord or not, shall be paid to
Land1ord, notwithstanding the fact that such proceeds exceed the Base Rent called for hereunder, unless
Landlord agrees to the contrary in writing, and Tenant hereby assigns all rights it might have or ever acquire
in any such proceeds to Landlord. This covenant and assignment shafJ benefit Landlord and its successors in
ownership of the Parking Facility and shall bind Tenant and Tenant's heirs, executors, administrators,
personal representatives, successors and assigns. Any assignee, sublessee or purchaser of Tenant's interest in
this Lease (all such assignees, sublessees or purchasers being hereinafter referred to as "Successors"), by
occupying the Premises and/or assuming Tenant's obligations hereunder, shall be deemed to have assumed
liability to Landlord for all amounts paid to persons other than Landlord by such Successor in consideration
of any such sale, assignment or subletting, in violation of the provisions hereof, but Tenant shall remain fully
liable to Landlord for all obligations hereunder.
(d) Notwithstanding anything contained in this Section, Tenant may, without Landlord's
consent, but with prior notice to Landlord: (i) sublease the Premises in whole or in part or (ii) assign its
interest in this Lease to any entity which controls, is controlled by, or is under common control with Tenant
(collectively, an "Affiliate"), provided that any such assignee or sublessee must use the Premises for the
Permitted Use and have sufficient financial strength (in Landlord's reasonable estimation, and as reasonably
evidenced to Landlord) to meet the obligations of Tenant hereunder.
(e) The interest of Tenant in this Lease and/or the Premises is not subject to execution, levy
and/or sale, and is not otherwise subject to transfer by Tenant in any manner whatsoever, except as expressly
provided and permitted in this Lease and/or except as may be effectuated by Landlord under this Lease.
(f) No assignment or sublease shall relieve the Tenant named herein from being fully and
primarily liable for all obligations of Tenant under this Lease whenever accruing.
26. Transfer of Landlord's Interest. If Landlord shall sell, assign or transfer all or any part of its
interest in the Premises or in this Lease to a successor in interest which expressly assumes the obligations of
Landlord hereunder. then Landlord shall thereupon be released or discharged from all covenants and
obligations hereunder, and Tenant shall look solely to such successor in interest for performance of all of
Landlord's obligations. Tenant's obligations under this Lease shall in no manner be affected by Landlord's
sale, assignment, or transfer of all or any part of such interest(s) of Landlord, and Tenant shall thereafter
attorn and look solely to such successor in interest as the Landlord hereunder.
27. Covenant of Quiet Enjoyment. Subject to the Laws, Landlord covenants that Tenant, on
paying Rent and performing Tenant's obligations under this Lease, shall peacefully and quietly have, hold
and enjoy the Premises throughout the Tenn and all Renewal Terms without hindrance, ejection or
molestation by landlord.
28. Estoppel Certificates. Within fifteen (l S) days after a request by Landlord, Tenant shall
deliver a written estoppel certificate, in form supplied by or acceptable to Landlord, certifying any facts that
are then true with respect to this Lease, including, without limitation, that this Lease is in full force and
effect, that no default exists on the part of Landlord or Tenant, that Tenant is in possession. that Tenant has
commenced the payment of rent, and that Tenant claims no defenses or offsets with respect to payment of
rentals under this Lease. Likewise, within fifteen ( 1 S) days after a request by Tenant, Landlord shalI de! iver
to Tenant a similar estoppel certificate covering such matters as are reasonably required by Tenant.
29. Protection Against Liens. Tenant shall do all things necessary to prevent the filing of any
mechanics', materialmen's or other types of liens whatsoever, against all or any part of the Premises by
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reason of any claims made by, against, through or under Tenant. If any such lien is filed against the
Premises, Tenant shalJ either cause the same to be discharged of record within thirty (30) days after filing or,
if Tenant in its discretion and in good faith determines that such lien should be contested, it shall furnish such
security as may be necessary to prevent any foreclosure proceedings against the Premises during the
pendency of such contest. If Tenant shall fail to discharge such lien within said time period or fail to furnish
such security, then Landlord may at its election, in addition to any other right or remedy available to it.
discharge the lien by paying the amount claimed to be due or by procuring the discharge by giving security
or in such other manner as may be allowed by law. If Landlord acts to discharge or secure the lien, Tenant
shall immediately reimburse Landlord for all sums paid and all costs and expenses (including reasonable
attorneys' fees) incurred by Landlord involving such lien together with interest on the total expenses and
costs at the maximum lawful rate.
Provided no Event of Default has occurred, notwithstanding the provisions contained in this Lease to
the contrary, in the event Landlord renders a statement for such additional sums due and owing pursuant to
the terms of his Lease Agreement, and such statement requires a payment in excess of $2,500.00, then the
parties agree, notwithstanding anything in this Lease to the contrary, that such payment shall be due within
three (3) equa] instaJJments, one-third (I /3) due within ten (10) days of rendering the statement, one-third
(1/3) due within forty-five (45) days of rendering the statement, and the balance of the one-third (1/3) due
within ninety (90) days of rendering the statement.
30. Surrender; Holding Over. This Lease shall terminate at 11 :59 p.m. on the day of the
expiration of the Term without the necessity of notice from either Landlord or Tenant. Upon the expiration
or termination of this Lease (or such other time as Tenant may vacate the Premises, notwithstanding that so
vacating may constitute a default), Tenant shall peacefully surrender, quit and vacate the Premises and
deliver up same to Landlord in accordance with the terms of this Lease and in good order, condition and
repair, as the same shall be on the Delivery Date (such condition being the "Premises Restoration"), damage
by fire or other insured casualty for which Landlord has received the applicable proceeds excepted, broom
clean, with all trash removed. In the event of holding over by Tenant after expiration or other termination of
this Lease, or in the event Tenant continues to occupy the Premises after the tennination of Tenant's right of
possession, Tenant shall, throughout the entire holdover period. pay Rent equal to twice the Base Rent,
Percentage Rent and Additional Rent which would have been applicable had the Term continued through the
period of such holding over by Tenant. No holding over by Tenant after the expiration of the Term shall be
construed to extend the term of this Lease, and Tenant shall be deemed to be a tenant-at-sufferance during
such holdover period. If, as a result of Tenant's holding over in the Premises after expiration or other
tennination of this Lease, Landlord suffers damages or incurs additional obligations to any third party who
has leased part or all of the Premises, Tenant shall indemnify Landlord to the ex.tent of such damages or
additional obligations, including without limitation Landlord's attorneys' fees.
31. Letter of Credit/Bond/Escrow Deposit. On or before the expiration of the Governmental
Approval Period, Tenant, at Tenant's cost, shall obtain bids from three (3) licensed contractors reasonably
approved by Landlord for all estimated costs associated with the Premises Restoration based on the then-
current plans for the Tenant's Jmprovements. On or before the Delivery Date, Tenant shall either (i) deliver a
letter of credit to Landlord in the amount of the highest of the three (3) bids (the "Restoration Costs"), and in
form and content satisfactory to Landlord, (ii) deliver a bond to Landlord in the amount of the Restoration
Costs and in fonn and content satisfactory to Landlord or (iii) deposit with a title company satisfactory to
Landlord, an amount equal to the Restoration Costs to be held pursuant to the terms and conditions of an
escrow agreement is form and content satisfactory to Landlord (the security for payment of the Restoration
Costs described in (i), (ii) or (iii) that is delivered by Tenant, being the "Security"), At Landlord's request
and at Tenant's cost, Tenant shall obtain updated bids from three (3) licensed contractors upon the expiration
of Lease Year Five. If Landlord elects to obtain updated bids and if the highest bid is at least $10,000 greater
than the then-current Restoration Costs, then the Restoration Costs shall hereinafter be the amount of the
highest updated bid and Tenant will increase the amount of the Security as necessary. If Tenant fails to
restore the Premises as provided under Section 30, in Landlord's discretion, Landlord may draw upon the full
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amount of the Security and, if the cost of the Premises Restoration exceeds the Restoration Costs, Tenant
shall reimburse Landlord for any additional costs. If the Restoration Costs exceeds the cost of the Premises
Restoration. Landlord shall return such amounts to Tenant. The terms of this Paragraph 31 shall survive the
tennination or expiration of this Lease. Notwithstanding anything contained in this Lease to the contrary and
provided that there is no Event of Defauh (which, as provided in Section 23, occurs only after the expiration
of any applicable cure periods expressly provided in Section 23) under the Lease, upon the expiration of the
initial 120-month Term, Landlord shall return the Security to Tenant and Landlord's right to the Security
shall terminate and be of no further force and effect.
32. Attorneys' Fees. Tenant must pay to Landlord on demand all attorneys' fees, costs and
expenses incurred by Landlord in the event Landlord retains an attorney or commences an action for
recovery of any Rent after applicable notice and cure periods have elapsed and is the prevailing party.
Furthermore, if Landlord or Tenant employs an attorney to assert or defend any action arising out of the
breach of any term, covenant or provision of this Lease, or to bring legal action for the unlawful detainer of
the Premises, the prevailing party shall be entitled to recover from the non-prevailing party attorneys' fees,
including attorneys' fees and costs incurred in litigating entitlement to attorneys' fees and costs, as well as in
determining or quantifying the amount of recoverable attorneys' fees and costs. The reasonable costs to
which the prevailing party is entitled shall include costs that are taxable under any applicable statute, role, or
guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, copying costs,
electronic discovery costs, telephone charges, mailing and delivery charges, information technology support
charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless
of whether such costs are otherwise taxable. For purposes of this Section 32, a party shall be considered to
be the "prevailing party" to the extent that (a) such party initiated the litigation and substantially obtained the
relief which it sought (whether by judgment, trial, or alternative dispute resolution process), or (b) such party
did not initiate the litigation and (I) received a judgment in its favor, (2) did not receive judgment in its
favor, ·but the party receiving the judgment did not substantially obtain the relief which it sought, or (3) the
party initiating the litigation unilaterally withdrew its claim or action without having substantially received
the relief which it was seeking (unless otherwise agreed in writing).
33. No Implied Waiver. The failure of Landlord or Tenant to insist at any time upon the strict
performance of any covenant or agreement contained herein or to exercise any option, right, power, or
remedy contained in this Lease shall not be construed as a waiver or a relinquishment thereof for the future,
except as may be expressly waived in writing. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly installment of Rent due under this Lease shall be deemed to be other than on
account of the earliest Rent due hereunder, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or
· pursue any other remedy in this Lease provided.
34. Mortgagee Protection: Landlord's Liabi]jty.
(a) If any Mortgagee shall have given prior notice to Tenant that it is the Mortgagee thereof and
such notice includes the address at which notices to such party are to be sent, then Tenant shall give to said
Mortgagee notice simultaneously with any notice given to Landlord to correct any default of Landlord as
herein provided, and in such event the Mortgagee shall have an additional 60 days within which to cure or
correct such default before Tenant may take any action under this Lease by reason of such default (or if such
default cannot be cured or corrected within that time, then such additional time as may be necessary if such
Mortgagee has commenced within such 60 days, and is diligently pursuing, the remedies or steps necessary
ta cure or correct such default, including without limitation commencement of foreclosure proceedings if
necessary to effect such a cure) and if necessary to cure such default, shall have access to the Premises before
such additional 60 day period shall commence. Any notice of default given Landlord shall be null and void
unless simultaneous notice has been given to said Mortgagee. Landlord shall not be deemed to be in default
under this Lease with respect to any covenant, condition or obligation of Landlord under this Lease until the
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expiration of 60 days after receipt of written notice of such default from Tenant. If by the nature of such
default the default can not reasonably be cured within said 60 day period, if Landlord has commenced a
good faith effort to cure such default within said 60 day period and diligently pursues such cure without
interruption until completion, Landlord shall have such time as is reasonable to cure such default.
(b) The term "Landlord,"' as used in this Lease, shall mean only the owner or owners, at the time
in question, of the leasehold interest in and to the Parking Facility. In the event of any transfer of such title
or interest, Landlord as named in this Lease (and in the case of any subsequent transfers, then the grantor)
shall be relieved from and after the date of such transfer of all liability in respect of Landlord's obligations
thereafter to be performed, provided that any funds in the hands of Landlord or the then grantor at the time of
such transfer, in which Tenant has an interest, shall be delivered to the grantee. The obligations contained in
this Lease to be performed by Landlord shall, subject to the above, be binding on Landlord's successors and
assigns, only during their respective periods of leasehold interest. The obligations of Landlord under this
Lease do not constitute personal obligations of Landlord or the individual partners, shareholders, members,
managers, directors, officers, and property managers, and Tenant shall look solely to Landlord's then
existing interest in the Parking Facility, and to no other assets of Landlord, for satisfaction of any liability in
respect of this Lease, and will not seek recourse against the individual partners, shareholders, members,
managers, directors, officers, property managers, or any of their personal assets for such satisfaction. No
properties or assets of Landlord shall be subject to levy, execution, or other enforcement procedures for the
satisfaction of any judgment (or other judicial process) or for the satisfaction of any other remedy of Tenant
arising out of or in connection with this Lease, the relationship of Landlord and Tenant, or Tenant's use of
the Premises. Anything to the contrary contained in this Lease notwithstanding, Landlord shall under no
circumstances be liable for injury to Tenant's business or for any loss of income, incidental or consequential
damages, or profit therefrom or for punitive damages, all of which is expressly waived by Tenant.
35. ~. Unless otherwise provided in this Lease, all notices and requests required or
permitted under this Lease to Landlord or Tenant shall be in writing and shall be addressed to the addresses
indicated in this Lease or to any other address that Landlord or Tenant may designate in a notice to the other
party given at least 15 days in advance. AU notices shall be deemed to be properly served if delivered to the
appropriate address by registered or certified mail {with postage prepaid and return receipt requested),
courier, express delivery service (such as FEDEX, D.H.L. or similar ex.press services), or by facsimile
transmission (provide that such facsimile transmission is delivered on or before 5:00 p.m .• and the party
sending the transmission has confinnation of transmission and the original notice is delivered to the receiving
party the next business day)). Anything contained herein to the contrary notwithstanding, no notice of
default, tennination or election of any right under this Lease by Landlord or Tenant {collectively "Material
Notices") shall be deemed delivered to, or received by, the receiving party if sent by the sending party only
by facsimile. Such Material Notices, if sent by facsimile, must also be sent by any other notice method
described in this Section and shall on1y be deemed received by Landlord or Tenant pursuant to the provisions
applicable to such applicable non-facsimile notice method so utilized. The date of service of n notice served
shall be the date of actual receipt or refusal of delivery. If any Mortgagee shall notify Tenant that it is the
holder of a Mortgage affecting the Premises, no notice of default thereafter sent by Tenant to Landlord shall
be effective unless and until a copy of the same shall also be sent to such Mortgagee in the manner
prescribed in this Section and to such address as such Mortgagee shall designate. Until further notice, the
address for Tenant and Landlord shall be as set forth in Section l(a).
Although the parties may communicate from time to time by email, email correspondence shall not
be deemed to be effective notice under this Lease. Notices may be given on behalf of any pany by such
party's legal counsel. In the event of any litigation under this Lease, the foregoing notice provisions shall in
no way prohibit notices from being given as provided in the rules of civil procedure of the State of Florida, as
the same may be amended from time to time and any notice so given in any such litigation shall constitute
notice herein.
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36. Severability. If any term or provision of this Lease, or the application thereof to any person
or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such tenn or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be
otherwise valid and enforced to the fullest extent permitted by law.
37. Recordation. Tenant agrees not to record this Lease or any memorandum hereof. At
Landlord's request, Tenant agrees to promptly execute a memorandum of this Lease in recordabJe fonn, and
Landlord may, at its option, record such memorandum in the Public Records of the County in which the
Property is located.
38. Governing Law. This Lease and the rights and obligations of the parties hereto shall be
interpreted, construed, and enforced in accordance with the laws of the State of Florida. Landlord and Tenant
agree to subrn it to the personal jurisdiction of and that the venue for any proceeding under or relating to this
Lease shall be in any court serving the county where the Property is located.
39. force Majeure. Whenever a period of time is herein prescribed for the taking of any action
by Landlord or Tenant, such party shall not be liable or responsible for, and there shall be excluded from the
computation of such period of time, any delays due to strikes, riots, acts of God, shortages of labor or
materials. war. governmental laws, regulations or restrictions, or any other cause whatsoever beyond the
control of the party taking action; provided that this Paragraph 39 shalJ not apply to Tenant's monetary
obligations under the Lease.
40. Time of Performance. Except as expressly otheiwise herein provided, with respect to all
required acts of either party. time is of the essence in this Lease.
41. Brokers. Landlord and Tenant each represent and warrant one to the other that except as set
forth below, neither of them has contracted with any broker in connection with the negotiations of the terms
of this Lease or the execution thereof. Landlord and Tenant hereby agree to indemnify and to hold each
other hannless against any loss, expense or liability with respect to any claims for commissions, finder's fees
or brokerage fees arising from or out of any breach of the foregoing representation and warranty. Landlord
has advised Tenant that Landlord has contracted with the Grubb & Ellis Company (the "Landlord's Broker")
as its broker, which entity may be related to Landlord, and Landlord shall be responsible for any commission
due Landlord's Broker in connection with this transaction pursuant to a separate written agreement.
42. Effect of Delivezy of This Lease. Landlord has delivered a copy of this Lease to Tenant for
Tenant's review only, and the delivery hereof does not constitute an offer to Tenant or option to lease. This
Lease shall not be effective until a copy executed by both Landlord and Tenant is delivered to and accepted
by Landlord.
43. Exhibits. All of the Exhibits are incorporated herein and made a part of this Lease for all
purposes.
44. Captions; Construction. The Section captions used herein are for convenience and reference
only and in no way add to or detract from the interpretation of the provisions of this Lease. Landlord, Tenant
and their separate advisors believe and agree that this Lease is the product of their joint efforts, that It
expresses their agreement, and that this Lease shall be construed without regard to any presumption or other
rule pennitting construction against the party causing this Lease to be drafted and shall not be construed
more strictly in favor of or against either of the parties hereto merely because of their efforts in its
preparation, but this Lease shall be interpreted in accordance with the general tenor of the language in an
effort to reach the intended result.
45. Prior Agreements and Amendments. This Lease contains the sole and entire agreement
between the parties hereto and supersedes all previous written and oral negotiations and agreements between
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the parties with respect to the subject matter of this Lease. All prior agreements, understandings,
representations and/or promises made or entered into by the parties hereto are superseded by and replaced
with this Lease, so that this Lease is the sole agreement between the parties. The provisions of this Lease
may not be modified or amended, except by an instrument in writing and signed by both parties hereto.
46. Binding Effect; Usage. This Lease shall be binding upon and inure to the benefit of
Landlord, its successors and assigns, and Tenant, its successors and, to the extent assignment is permitted
under the provisions hereof, Tenant's assigns. The word ''Tenant" shall be deemed and taken to mean each
and evezy person or party mentioned as a Tenant herein, be the same one or more; and if there shall be more
than one Tenant, any notice required or permitted by the terms of this Lease may be given by or to any one
thereof, and shall have the same force and effect as if given or to all thereof. If more than one party has
executed this Lease as "Tenant," the liability of each party hereunder is joint and several. The use of the
neuter singular pronoun to refer to Landlord or Tenant shall be deemed a proper reference even though
Landlord or Tenant may be an individual, a partnership, a limited liability company, a firm, a corporation, or
a group of 2 or more individuals or corporations. The necessary grammatical changes required to make the
provisions of this Lease apply in the plural sense where there is more than one Landlord or Tenant and to
either corporations, associations, partnerships, or individuals. males or females, shall in all instances be
assumed as though in each case fully expressed.
47. Statutory Notice Requirement. Tenant hereby acknowledges receipt of the following notice
as required by Chapter 88-285, Laws of Florida:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels
of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county public health unit.
48. Waiver of Trial by Juiy. IT IS MUTUALLY AGREED BY AND BETWEEN LANDLORD
AND TENANT THAT THE RESPECTIVE PARTIES HERETO SHALL AND THEY DO HEREBY
WANE THEIR RESPECTNE RIGHT TO A TRIAL BY JURY rN ANY ACTION, PROCEEDrNG, OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON
ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE. THE
RELATIONSHIP OF LANDLORD AND TENANT. AND TENANT'S USE OR OCCUPANCY OF THE
PREMISES, WHETHER SUCH CLAIM IS IN CONTRACT, TORT OR OTHERWISE. TENANT
FURTHER AGREES THAT IT SHALL NOT INTERPOSE ANY COUNTERCLAIM OR
COUNTERCLAIMS fN A SUMMARY PROCEEDING.
49. Financial Statements. Tenant shall furnish Landlord, within 15 business days after
Landlord's request therefor, an updated, current financial statement of Tenant and any guarantors of this
Lease. Unless: (i) Landlord has reason to believe there has been a material reduction in the financial worth
of any of such parties; or (ii) requested by any Mortgagee, other current or proposed lender, investor or
purchaser of Landlord or the Parking Facility, such financial statement(s) shall not be required to be
furnished more than once each calendar year.
50. Representations; Authority.
(a) Tenant represents and warrants that: (i) there are no proceedings pending or, to the
knowledge of Tenant, threatened before any court or administrative agency that would materially adversely
affect the ability of Tenant to enter into this Lease or the validity or enforceability of this Lease; (ii) there is
no provision of any existing mortgage, indenture, contract or agreement binding on Tenant which would
conflict with or in any way prevent the execution, delivery or performance of the terms of this Lease; (iii) if
Tenant is a corporation, partnership (general or limited), limited liability company, or other entity, then the
person executing this Lease on behalf of Tenant has been duly authorized to execute this Lease on behalf of
Tenant by the appropriate officers, directors, shareholders, partners (general or limited) members, managers,
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principals or other persons or entities; (iv) Tenant is in good standing, qualified to do business in the State of
Florida; and (v) Tenant has full right, power and lawful authority to execute, deliver and perfonn its
obligations under this Lease, in the manner and upon the tenns contained herein, and to grant the estate
herein demised, with no other person needing to join in the execution hereof in order for this Lease to be
binding on Tenant.
(b) Landlord represents to Tenant that to Landlord's actual knowledge and belief Landlord has
fuH right, power and lawful authority to execute, deliver and perform its obligations under this Lease, in the
manner and upon the terms contained herein, and to grant the estate herein demised, with no other person
needing to join in the execution hereof in order for this Lease to be binding on Landlord.
S 1. Bankruptcy. Landlord and Tenant understand that, notwithstanding certain provisions to the
contrary contained herein, a trustee or debtor in possession under the Bankruptcy Code may have certain
rights to assume or assign this Lease. Landlord and Tenant further understand that, in any event, Landlord is
entitled under the Bankruptcy Code to adequate assurances of future performance of the provisions of this
Lease. The parties agree that, with respect to any such assumption or assignment, the term "adequate
assurance" shall include at least the following:
{a) In order to assure Landlord that the proposed assignees will have the resources with which to
pay all Base Rent and any Additional Rent payable pursuant to the provisions of this Lease, any proposed
assignee must have, as demonstrated to Landlord's satisfaction, a net worth (as defined in accordance with
generaJly accepted accounting principles consistently applied) of not less than the net worth of Tenant or any
guarantor (whichever is greater) on the date this Lease became effective, increased by 7%, compounded
annually. for each year from the Rent Commencement Date through the date of the proposed assignment. It
is understood and agreed that the financial condition and resources of Tenant were a material inducement to
Landlord in entering into this Lease.
(b) Any proposed assignee must have been engaged in the conduct of business for the year prior
to any such proposed assignment, which business does not violate the Permitted Uses, and such proposed
assignee shall corrtinue to engage in the Permitted Use and will not cause Landlord to be in violation or
breach of any provision in any other lease, financing agreement. operating agreement or other agreement
relating to the Parking Facility. It is understood and agreed that Landlord's asset will be substantially
impaired if the trustee in bankruptcy or any assignee of this Lease makes any use of the Premises other than
the Permitted Use.
(c) Any proposed assignee of this Lease must assume and agree to be personally bound by the
provisions of this Lease.
52. No Partnership. Nothing contained herein, nor any actions of the parties hereto shall be
deemed or construed to create the relationship of principal and agent, partnership, joint venture, or any
relationship between Landlord and Tenant other than that of landlord and tenant, it being understood and
agreed that neither any other provision contained in this Lease nor any acts of Landlord or Tenant shall be
deemed to create any relationship between the Landlord and Tenant other than that of landlord and tenant nor
cause either Landlord or Tenant to be responsible in any way for the acts, debts or obligations of the other.
53. Third Party Rights. The parties hereto do not intend to grant directly, indirectly or by
implication or by any other means any third party beneficiary rights to any persons or entities.
54. Days. Unless otherwise specifically indicated to the contrary, the word "days" as used in
this Lease shall mean and refer to ca]endar days.
55. Counterparts. This Lease may be executed in multiple counterparts, all of which together
shall constitute one and the same original instrument. A facsimile or a PDF signature shall be deemed for all
purposes to be an original.
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56. Puh]ic Filings. In the event Tenant is required to file this Lease with the Securities and
Exchange Commission ("SEC"). Tenant agrees it shall, if permitted by relevant legal requirements, file a
confidential treatment request ("CTR") with the SEC, and shall use reasonable efforts to have the SEC grant
the CT~ concerning the Rent and such other provisions as Landlord deems reasonably confidential.
Promptly upon request, Tenant shall send to Landlord an electronic copy of this Lease with all appropriate
terms and provisions of this Lease redacted. The out of pocket costs of preparing and filing the CTR shall be
paid by Tenant.
57. Survival. Anything contained in this Lease to the contrary notwithstanding, the expiration or
termination of the Tenn of this Lease, whether by lapse of time or otherwise, shall not relieve Tenant from
Tenant's obligations accruing prior to the expiration or termination of the Term, all of which shall survive
the same, whether or not same is expressJy stated in the particular Section of this Lease, including, without
limitation, Tenant's obligations with respect to: (a) the payment of Rent; (b) any provisions of this Lease
with respect to indemnities of Landlord made by Tenant; and (c) the removal of all property of Tenant
required to be removed hereunder and the repair of all damage to the Premises caused by such removal at the
expiration or termination of this Lease to the extent required hereunder.
58. Ground Lease. Tenant acknowledges and agrees that the provisions of this Lease and
Tenant's rights hereunder are in all events subject to the terms and provisions of that certain Agreement of
Lease (as previously or hereafter amended, the "Ground Lease") with respect to the property by and between
the City of Miami Beach and Landlord dated September 1, 1999, and Tenant agrees to comply with all
restrictions applicable to Tenant and Tenant's use and occupancy of the Premises and the property contained
therein.
59. Rules and Regulations. Notwithstanding anything in this Lease or the Exhibits thereto to the
contrary, Landlord shall retain all rights to establish, modify and enforce reasonable Rules and Regulations
so long as said rules and regulations are applied equally to all tenants so similarly situated.
60. Operation. Tenant shall keep the Premises open for business and shaH diligently operate the
business conducted therein during the Operating Hours. Tenant shall conduct Tenant's business at all times
in a first-class. high-grade manner consistent with reputable business standards and practices. Tenant shall
keep the Premises adequately stocked with new merchandise in first-class condition. Tenant shall not use
any portion of the Premises for storage or other purposes except as customary in connection with the use for
which the Premises are leased. Tenant shall have the right to temporari1y close the Premises, in one or more
instance (but not to exceed 90 days in the aggregate during any trailing S-year period or 30 days in any
calendar year and no longer than 30 days in any one instance) over the Lease Term, for the purpose of taking
inventory, training employees, perfonning permitted alterations, decorating and repairs, and for any other
bona fide business purpose; provided if such closure shall exceed two (2) business days, Tenant shaJI provide
prior written notice to Landlord. Tenant may request from Landlord additional periods in which it may be
temporarily closed and Landlord may consent to such additional closure periods in its sole and absolute
discretion.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in multiple original
counterparts as of the day and year first above written.
Witnesses as to Landlord:
Print Name®rleie Gi@'"&
Witnesses as to Tenant:
LANDLORD:
1691 MICWGAN A VE INVESTMENT LP, a
Delaware limited partnership
By: 1691 Michigan Ave Investment GP LLC, a
Delaware limited liability company, its general
:~<I~ Name:~~""-.
Title: 1"fu: 0J:
~~:~;!~ T1tle:__ll1~ e -
TENANT:
. . . .. . . ..
• l!li • • • • •
CITY MIDDLE, LLC, a Florida limited liability company
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EXHIBIT"A"
FLOOR PLAN OF PREMISES
[ATIACHED]
(Sketches, cross-hatching, dimensions and area calculations are for illustrative purposes only and are not intended to
detail the actual physical boundaries, dimensions or square footage of the Premises.)
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EXHIBIT"B»
CONSTRUCTION OF IMPROVEMENTS
l. Tenant, at its sole cost and expense, shall perfonn, or cause to be performed. at Tenant's
sole cost and expense, all work ( .. Tenant's Improvements") related to the initial construction of the
Premises as provided for in the applicable Final Plans (as defined in Section 2(d) hereof).
2. Within thirty (30) days after the expiration of the Initial Evaluation Period (defined in the
Lease), Tenant shall submit the following information and items to Landlord for Landlord's review and
approval:
(a) The scheduled commencement date of construction of such work, milestone dates and the
estimated date of completion of construction.
(b) The names and addresses of Tenant's contractors (and said contractor's subcontractors)
and materialmen to be engaged by Tenant for such work (individually, a "Tenant Contractor", and
collectively ... Tenant's Contractors").
(c) Payment and performance bonds for Tenant's general contractor naming Landlord (or an
agent. designee or representative appointed by Landlord's written notice to Tenant given prior to Tenant's
procurement of said bonds) as a dual obligee.
(d) The Plans (as hereinafter defined) for such work, which Plans shall be subject to
Landlord's approval in accordance with this Section 2(d).
Tenant will update such information and items by notice to Landlord of any changes.
As used herein the term "Fina[ Plans" shalI mean any Plans (as hereinafter defined), as and when
approved in writing by Landlord. As used herein, the tenn .. Plans" shall mean the full and detailed
architectural and engineering plans and specifications covering Tenant's Improvements, including,
without limitation, landscape plans, exterior improvements plans, building elevations, and architectural,
mechanical and electrical working drawings for the construction of the Premises. Any Plans shall be
subject to Landlord's approval and the approval of all local governmental authorities requiring approval
of Tenant's Improvements. Landlord shall give its approval or disapproval (giving reasons in case of
disapproval) of any Plans within thirty (30) business days after their delivery to Landlord. Landlord
agrees not to unreasonably withhold its approval of said Plans. If Landlord notifies Tenant that changes
are required to the Plans submitted by Tenant, Tenant shall, within five (5) business days thereafter,
submit to Landlord, for its approval, the Plans amended in accordance with the changes so required. The
Plans shall also be revised, and Tenant's Improvements shall be changed, all at Tenant's cost and
expense. to incorporate any work required by any governmental authority. Landlord's approval of the
Plans shall in no way be deemed to be (i) an acceptance or approval of any element therein contained
which is in violation of any applicable Jaws, ordinances, regulations or other governmental requirements,
or (ii) an assurance that work done pursuant to the Final Plans will comply with all applicable law (or
with the interpretations thereof) or satisfy Tenant's objectives and needs. No approval of any Plans or
any other approval by Landlord or consent by Landlord shall in any way be deemed to be an agreement or
certification by Landlord that the contemplated work complies with any legal requirements or insurance
requirements, or the certificate of occupancy for the Parking Facility, nor shall any such consent or
approval be deemed to be a waiver by Landlord of any of the provisions of the Lease.
297
No Tenant's Improvements shall be undertaken or commenced by Tenant in the Premises until (i)
Tenant has delivered, and Landlord has approved, the Plans and (ii) all necessary Approvals have been
obtained by Tenant.
3. In the event Tenant, for any reason, fails to complete Tenant's Improvements on or
before the Commencement Date, Tenant shall be responsible for all rental and alJ other obligations set
forth in the Lease from and after the Commencement Date regardless of the degree of completion of
Tenant's Improvements on such date, and no such delay in completion of Tenant's Improvements shall
relieve Tenant of any of its obligations under the Lease.
4. All changes to the Final Plans must be approved by Landlord in advance of the
implementation of such changes as part of Tenant's Improvements. All delays caused by Tenant-initiated
change orders, including, without limitation, any stoppage of work during the change order review
process, are solely the responsibility of Tenant and shall cause no delay in the Commencement Date or
the rental and other obligations set forth in the Lease.
5. All work done in or upon the Premises by Tenant shall be done according to the standards
set forth in this Section 5, except as the same may be modified in the Final Plans.
(a) All design and construction of Tenant> s Improvements shaJI comply with aU applicable
statutes, ordinances, regulations, laws, codes and industry standards, including, but not limited to,
requirements of Landlord's fire insurance underwriters.
(b) Tenant shall obtain all required building permits and occupancy permits.
(c) Tenant shall use only new, first-class materials in perfonning Tenant's Improvements.
All Tenant's Improvements shall be done in a good and workmanlike manner.
(d) Tenant and Tenant's Contractors shall take all precautionary steps to minimize dust,
noise and construction traffic, and to protect their facilities and the facilities of others affected by
Tenant's Improvements and to properly police same. Construction equipment and materials are to be kept
within the Premises and delivery and loading of equipment and materials shall be done at such locations
and at such time as Landlord shall direct so as not to burden the operation of the Parking Facility.
Landlord may require that Tenant employ dust mitigation and other measures during any construction in
the Premises, and Tenant shall employ such measures at its cost and expense.
(e) Tenant shall permit access to the Premises, and Tenant's Improvements shall be subject
to inspection, by Landlord and Landlord's architects, engineers, contractors and other representatives, at
all times during the period in which Tenant's lmprovements are being constructed and installed and
following completion of Tenant's [mprovements.
(f) Tenant shall furnish to Landlord "as-built" drawings of Tenant's Improvements within
thirty (30) days after completion of Tenant's Improvements.
6. In addition to any insurance which may be required under the Lease, Tenant shall cause
Tenant's general contractor to secure, pay for and maintain during the continuance of construction and
fixturing work within the Parking Facility or Premises, insurance having the following minimum
coverages and minimum limits of liability:
(a) Worker's Compensation and Employer's Liability Insurance with limits of not less than
$500,000.00, or such higher amounts as may be required from time to time by any Employee Benefit Acts
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or other statutes applicable where Tenant's Improvements is to be performed, and in any event sufficient
to protect Tenant's general contractor from liability under the aforementioned acts.
(b) Commercial General Liability Insurance (occurrence coverage} in an amount not less
than $5,000,000.00. Such insurance shall provide for explosion and collapse, completed operations
coverage and broad form blanket contractual liability coverage and shall insure Tenant's general
contractor against any and all claims for bodily injury, including death resulting therefrom, and damage to
the property of others and arising from its operations under the contracts, whether such operations are
performed by Tenant's general contractor or by anyone directly or indirectly employed by said general
contractor.
(c) "Allwrisk" builder's risk insurance upon Tenant's Improvements to the full insurable
value thereof. This insurance shall include the interests of Landlord and Tenant (and their respective
contractors and subcontractors of any tier, to the extent of any insurable interest therein) in Tenant's
Improvements and shall insure against the perils of fire and extended coverage and shall include "all-risk"
builder's risk insurance for physical loss or damage including, without duplication of coverage, theft-
vandalism and malicious mischief.
All policies (except the worker's compensation policy) shall be endorsed to include as additional
insured parties Landlord and its mortgagee. The waiver of subrogation provisions contained in the Lease
shall apply to all insurance policies (except the worker's compensation policy) to be obtained pursuant to
this Section 6. The insurance policy endorsements shall also provide that all additional insured parties
shall be given thirty (30) days prior written notice of any reduction, cancellation or non-renewal of
coverage (except that ten (10) days notice shall be sufficient in the case of cancellation for non-payment
of premium) and shall provide that the insurance coverage afforded to the additional insured parties
thereunder shall be primary to any insurance carried independently by said additional insured parties.
Additionally, where applicable, eacb policy shall contain a crosswliability and severability of interest
clause.
Without limitation of the indemnification provisions contained in the Lease, to the fullest extent
permitted by law, Tenant agrees to indemnify, protect, defend and hold harmless Landlord from and
against all claims, liabilities, losses, damages and expenses of whatever nature arising out of or in
connection with Tenant's Improvements or the entry of Tenant or Tenant's Contractors into the Parking
Facility and the Premises, including, without limitation, mechanic's liens, the cost of any repairs to the
Premises or Parking Facility necessitated by activities of Tenant or Tenant's Contractors, bodily injury to
persons or damage to the property of Tenant, its employees, agents, invitees, licensees or others, except to
the extent caused by negligent acts by Landlord, its contractors, architects, partners, employees and
agents. It is understood and agreed that the foregoing indemnity shall be in addition to the insurance
requirements set forth above and shall not be in discharge of or in substitution for same or any other
indemnity or insurance provision of the Lease. The terms of this grammatical paragraph shall survive the
expiration or earlier termination of this Lease.
7. Upon completion of Tenant's [mprovements, Tenant shall furnish Landlord with (i) the
permanent certificate of occupancy for the Premises (if applicable) and (ii) full and final waivers of liens
and contractors' affidavits and statements, in such form as may be required by Landlord, Landlord's title
insurance company and Landlord's construction or permanent lender, if any, from all parties performing
labor or supplying materials or services in connection with Tenant's Improvements showing that all of
said parties have been compensated in full and waiving all liens in connection with the Premises and
Parking Facility.
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EXHIBIT "C"
RULES AND REGULATIONS
The following Rules and Regulations, hereby accepted by Tenant, are prescribed by Landlord to enable
Landlord to provide, maintain, and operate, to the best of Landlord's ability, orderly, clear and desirable
Parking Facility at as economical a cost as reasonably possible and in as efficient a manner as reasonably
possible, to assure security for the protection of Tenants so far as reasonably possible, and to regulate
conduct in and use of said Parking Facility in such manner as to minimize interference by others in the
proper use of same by Tenant.
l. Tenant, its officers, agents, servants and employees shall not block or obstruct any of the
entries, passages, doors, elevators, elevator doors, hallways or stairways of the Parking Facility, or place,
empty or throw any rubbish, litter, trash or material of any nature into such areas, or permit such areas to
be used at any time except for ingress or egress of Tenant, its officers, agents, servants, employees,
patrons, licensees, customers, visitors or invitees.
2. The movement of furniture, equipment, machines, merchandise or materials within, into
or out of the Parking Facility shall be restricted to time, method and routing of movement as determined
by Landlord upon request from Tenant and Tenant shall assume all liability and risk to property, Premises
and Parking Facility in such movement Tenant shall not move furniture, machines, equipment,
merchandise or materials within, into or out of the Premises or Parking Facility without having first
obtained written permission from Landlord 24 hours in advance. Safes, large files, electronic data
processing equipment and other heavy equipment or machines shall be moved into Premises or Parking
Facility only with Landlord's written permission and placed where directed by Landlord.
3. No sign, door plaque, advertisement or notice shall be displayed, painted or affixed by
Tenant. its officers. agents, servants, employees, patrons, licensees, customers, visitors. or invitees in or
on any part of the outside or inside of the Premises or Parking Facility without prior written consent of
Landlord and then only of such color, size, character, style and materials and in such places as shall be
approved and designated by Landlord.
4. Landlord will not be responsible for lost or stolen property, equipment, money or any
article taken from Premises or Parking Facility regardless of how or when loss occurs, except in the case
of gross negligence by Landlord and its agents.
5. No additional locks shall be placed on any door or changes made to existing locks in the
Parking Facility without the prior written consent of Landlord. Landlord will furnish 2 keys to each lock
on doors in the Premises and Landlord, upon request of Tenant, shall provide additional duplicate keys at
Tenant's expense. Landlord may at all times keep a pass key to the Premises. All keys shall be returned
to Landlord promptly upon termination of the Lease.
6. Landlord reserves the right to: (i) close the Parking Facility at 6:00 P.M., subject,
however, to Tenant's right to admittance under regulations prescribed by Landlord, and to require the
persons entering the Parking Facility to identify themselves and establish their right to enter or to leave
the Parking Facility; (ii) close all parking areas betvveen the hours of 9:00 P.M. and 7:00 A.M. during
week days; and (iii) close all parking areas on weekends and holidays. Provided, however, if requested
by Tenant, Landlord will use good faith efforts to allow the Parking Facility to remain open at other hours
if allowed by law and if Tenant pays all costs and expenses of keeping the Parking Facility open at other
hours.
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7. Tenant, its officers, agents, servants and employees shall not permit the operation of any
musical or sound producing instruments or device which interferes with the use and occupancy of any
other space within the Landlord's property or which may emanate electrical waves which will impair
radio, television broadcasting or reception or interfere with the use of computers or telephonic equipment
from or in the Parking Facility without Landlord's consent.
8. All contractors and/or technicians performing work for Tenant within the Premises or
Parking Facility shaU be referred to Landlord for approval before perfonning such work. This shall apply
to all work including, but not limited to, installation of telephones, telegraph equipment, electrical devices
and attachments, and all installations affecting floors, walls, windows, doors, ceiling, equipment or any
other physical feature of the Premises or the Parking Facility. None of this work shall be done by Tenant
without Landlord's prior written approval.
9. No showcases or other articles shall be put in front of or affixed to any part of the exterior
of the Parking Facility; nor placed in the halls, corridors or vestibules without the prior written consent of
Landlord.
I 0. Canvassing. soliciting and peddling in the Parking Facility (including the Parking
Facility) is prohibited and each Tenant shall cooperate to prevent the same. Tenant shall not distribute
any handbills or other advertising matter in automobiles parked in the Parking Facility. Tenant shall
promptly report any such activities to the Manager's office.
11. No hand trucks, except those equipped with rubber tires and side guards, shall be used in
any space,. or in the public halls of the Parking Facility, either by any Tenant or by jobbers or others, in
the delivery or receipt of merchandise or otherwise.
12. If Tenant must dispose of crates, boxes, etc., which will not fit into office wastepaper
baskets, it will be the responsibility of Tenant with Landlord's assistance to dispose of same. In no event
shall Tenant set such items in the public hallways or other areas of Parking Facility, excepting Tenant's
own Premises, for disposal.
13. Tenants may not bring furniture and equipment into the Premises that does not fit in the
elevators for the Parking Facility and that does not pass through the doorways of the Premises or Parking
Facility unless such furniture or equipment is made in parts and set up in the Premises. Landlord reserves
the right to refuse to allow to be placed in the Parking Facility any furniture or equipment of any
description which does not comply with the above conditions.
14. Tenant will be responsible for any damage to the Premises, including carpeting and
flooring, caused by rust or corrosion of file cabinets, roller chairs, metal objects or spills of any type of
liquid.
15. If the Premises become infested with vennin, Tenant, at its sole cost and expense, shall
cause the Premises to be exterminated, to the satisfaction of Landlord, and shall employ exterminators
approved by Landlord.
I 6. Tenant shall not use the name of the Parking Facility for any purpose other than that of
the business address of Tenant or use any letterheads, envelopes, circulars, notices, advertisements,
containers or wrapping material without Landlord's express consent in writing.
17. Tenant shall not conduct its business in such manner as to create any nuisance, or
interfere with, annoy or disturb any other tenant in the Parking Facility or Landlord in its operation of the
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Parking FacilitY or commit waste or suffer or pennit waste to be committed in the Premises or Parking
Facility. In addition, Tenant shall not allow its officers, agents, employees, servants, patrons, customers,
Jicensees and visitors to conduct themselves in such manner as to create any nuisance or interfere with,
annoy or disturb any other tenant in the Parking Facility or Landlord in its operation of the Parking
Facility or commit waste or suffer or permit waste to be committed in the Premises or the Parking
Facility.
18. Tenant, its officers, agents, servants and employees shall not bring into Premises or
Parking Facility any inflammable fluids or explosives without written pennission of Landlord.
19. Tenant, its officers, agents, servants or employees shall not use Premises, or any portion
of the Parking Facility for housing, lodging or sleeping purposes without the prior written consent of the
Landlord.
20. Tenant, its officers, agents, servants, employees, patrons, licensees, customers, visitors or
invitees shall not bring into the Parking Facility or Premises or any other part of the Parking Facility, or
keep on the Premises any fish, fowl, reptile, insect, or animal.
21. Tenant shall not have its employees or laborers paid in the Parking Facility {other than
employees who work in the Parking Facility on a full time basis), but shail arrange to pay their payrolls
elsewhere.
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MIAMI BEACH
PLANNING DEPARTMENT
DESIGN REVIEW BOARD
STAFF REPORT
FROM: Richard G. Lorber, AICP, LEED AP
Acting Planning Director
DATE: March 5, 2013 Meeting
RE: Design Review File No. 22941
1691 Michigan Avenue -The Putting Club
The applicant, City Middle, LLC., is requesting Design Review Approval for modifications to an
existing 6-story parking garage, including the construction of several single story roof-top
structures, which include a bar, kitchen, and restrooms, as part of a new miniature golf course
facility.
LEGAL DESCRIPTION:
Lots 7-10, and Lots 14-20, Block 37, Palm View Subdivision of the Alton Beach Realty
Company, according to the Plat Thereof, as recorded in Plat Book 6 at Page 29, of the Public
Records of Miami-Dade County, Florida.
HISTORY:
The application came before the Board on February 5, 2013, and was continued to a date
certain of March 5, 2013, at the request of the applicant.
SITE DATA:
Zoning -
Future Land Use Designation-
Lot Size-
Existing FAR-
Proposed FAR-
THE PROJECT:
CD-3 (Commercial, High Intensity)
CD-3 (Commercial, High Intensity)
76,500 S.F.
210,292 S.F. / 2.75
210,375 S.F / 2.75 (Max FAR= 2.75)
The applicant has submitted plans entitled "The Putting Club", as prepared Berenblum Busch
Architecture, dated 12-6-2012.
The applicant is proposing to construct a new miniature golf course facility on the roof top of an
existing parking garage. Approximately one-half of the existing roof-top parking decks will be
converted from parking to a landscaped miniature golf course. The course, along with the added
roof-top buildings, including a reception area, storage, restrooms, office, and bar are all located
on the southern half of the garage structure. Parking will remain on the northern one-half of the
garage at the roof-top level, separated from the golf course facility with a new wall comprised of
open breeze block. It should also be noted that the northern part of the garage ramps upward
from the level of the proposed golf course facility, and the existing office building located to the
Exhibit "2"
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ORB File: 22941
Meeting Date: March 5, 2013
northwest of the parking garage and proposed golf course is a full story higher than the
proposed facility.
Elevator access to the roof-top facility is provided at the southeast comer of the building.
COMPLIANCE WITH ZONING CODE:
The application, as proposed, may be inconsistent with the following requirements of the City
Code.
1. All signage will have to comply with the requirements of the City Code, which may
require modification of the proposed signage.
2. If the occupant load exceeds 300, Conditional Use review and approval from the
Planning Board will be required for a neighborhood impact establishment. The
calculations provided by the applicant will require review and final verification by the
Building Department.
3. The F.A.R. and parking analysis provided requires further verification to ensure
compliance with the requirements of the City Code.
This shall not be considered final zoning review or approval. All zoning matters shall require
final review and verification by the Zoning Administrator.
CONCURRENCY DETERMINATION:
In accordance with Chapter 122 of the Code of the City of Miami Beach, the Transportation and
Concurrency Management Division has conducted a preliminary concurrency evaluation and
determined that the project does not meet the City's concurrency requirements and level-of-
service standards. The City's concurrency requirements can be achieved and satisfied through
payment of mitigation fees or by entering into an enforceable development agreement with the
City. The Transportation and Concurrency Management Division will make the determination of
the project's fair-share mitigation cost.
A final concurrency determination shall be conducted prior to the issuance of a Building Permit.
Mitigation fees and concurrency administrative costs shall be paid prior to the project receiving
any Building Permit. Without exception, all concurrency fees shall be paid prior to the issuance
of a Temporary Certificate of Occupancy or Certificate of Occupancy.
ACCESSIBILITY COMPLIANCE
Additional information will be required for a complete review for compliance with the Florida
Building Code 2001 Edition, Section 11 (Florida Accessibility Code for Building Construction.)
These and all accessibility matters shall require final review and verification by the Building
Department prior to the issuance of a Building Permit.
COMPLIANCE WITH DESIGN REVIEW CRITERIA:
Design Review encompasses the examination of architectural drawings for consistency with the
criteria stated below with regard to the aesthetics, appearances, safety, and function of the
structure or proposed structures in relation to the site, adjacent structures and surrounding
community. Staff recommends that the following criteria is found to be satisfied, not satisfied or
not applicable, as hereto indicated:
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Meeting Date: March 5, 2013
1. The existing and proposed conditions of the lot, including but not necessarily limited to
topography, vegetation, trees, drainage, and waterways.
Satisfied
2. The location of all existing and proposed buildings, drives, parking spaces, walkways,
means of ingress and egress, drainage facilities, utility services, landscaping structures,
signs, and lighting and screening devices.
Satisfied
3. The dimensions of all buildings, structures. setbacks, parking spaces, floor area ratio,
height, lot coverage and any other information that may be reasonably necessary to
determine compliance with the requirements of the underlying zoning district, and any
applicable overlays, for a particular application or project.
Not Satisfied; See Zoning Analysis
4. The color, design, selection of landscape materials and architectural elements of
Exterior Building surfaces and primary public interior areas for Developments requiring a
Building Permit in areas of the City identified in section 118-252.
Satisfied
5. The proposed site plan. and the location, appearance and design of new and existing
Buildings and Structures are in conformity with the standards of this Ordinance and other
applicable ordinances, architectural and design guidelines as adopted and amended
periodically by the Design Review Board and Historic Preservation Boards, and all
pertinent master plans.
Satisfied
6. The proposed Structure, and/or additions or modifications to an existing structure,
indicates a sensitivity to and is compatible with the environment and adjacent Structures,
and enhances the appearance of the surrounding properties.
Satisfied
7. The design and layout of the proposed site plan, as well as all new and existing buildings
shall be reviewed so as to provide an efficient arrangement of land uses. Particular
attention shall be given to safety, crime prevention and fire protection, relationship to the
surrounding neighborhood, impact on contiguous and adjacent Buildings and lands,
pedestrian sight lines and view corridors.
Satisfied
8. Pedestrian and vehicular traffic movement within and adjacent to the site shall be
reviewed to ensure that clearly defined, segregated pedestrian access to the site and all
buildings is provided for and that all parking spaces are usable and are safely and
conveniently arranged; pedestrian furniture and bike racks shall be considered. Access
to the Site from adjacent roads shall be designed so as to interfere as little as possible
with traffic flow on these roads and to permit vehicles a rapid and safe ingress and
egress to the Site.
Not Applicable
9. Lighting shall be reviewed to ensure safe movement of persons and vehicles and
reflection on public property for security purposes and to minimize glare and reflection on
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Meeting Date: March 5, 2013
adjacent properties. Lighting shall be reviewed to assure that it enhances the
appearance of structures at night.
Satisfied
10. Landscape and paving materials shall be reviewed to ensure an adequate relationship
with and enhancement of the overall Site Plan design.
Satisfied
11. Buffering materials shall be reviewed to ensure that headlights of vehicles, noise, and
light from structures are adequately shielded from public view, adjacent properties and
pedestrian areas.
Not Applicable
12. The proposed structure has an orientation and massing which is sensitive to and
compatible with the building site and surrounding area and which creates or maintains
important view corridor(s).
Satisfied
13. The building has, where feasible, space in that part of the ground floor fronting a street
or streets which is to be occupied for residential or commercial uses; likewise, the upper
floors of the pedestal portion of the proposed building fronting a street, or streets shall
have residential or commercial spaces, shall have the appearance of being a residential
or commercial space or shall have an architectural treatment which shall buffer the
appearance of the parking structure from the surrounding area and is integrated with the
overall appearance of the project.
Satisfied
14. The building shall have an appropriate and fully integrated rooftop architectural treatment
which substantially screens all mechanical equipment, stairs and elevator towers.
Satisfied
15. An addition on a building site shall be designed, sited and massed in a manner which is
sensitive to and compatible with the existing improvement(s).
Satisfied
16. All portions of a project fronting a street or sidewalk shall incorporate an architecturally
appropriate amount of transparency at the first level in order to achieve pedestrian
compatibility and adequate visual interest.
Satisfied
17. The location, design, screening and buffering of all required service bays, delivery bays,
trash and refuse receptacles, as well as trash rooms shall be arranged so as to have a
minimal impact on adjacent properties.
Satisfied
STAFF ANALYSIS:
The applicant is proposing to construct a new miniature golf course facility on the roof top of an
existing parking garage. Approximately one-half of the existing roof-top parking deck will be
converted from parking to a landscaped miniature golf course. The course, along with the added
roof-top buildings, including a reception area, storage, restrooms, office, and bar are all located
on the southern half of the garage structure. Parking will remain on the northern one-half of the
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Meeting Date: March 5, 2013
garage at the roof-top level, separated from the golf course facility with a new wall comprised of
open breeze block. It should also be noted that the northern part of the garage ramps upward
from the level of the proposed golf course facility, and the existing office building located to the
northwest of the parking garage and proposed golf course is a full story higher than the
proposed facility.
Staff is supportive with the concept of converting a harsh roof-top parking deck into a well-
landscaped outdoor miniature golf course facility, and has no concerns with the proposed
design, pending the final assurance that all life-safety and noise issues can be fully addressed.
Staff has discussed concerns such as errant golf balls flying off the roof, and the applicant has
made assurances thatthe course has been designed to direct balls inward. Such consideration
is important as staff would not recommend in favor of safety netting surrounding the roof-top due
to its adverse aesthetic impact.
Regarding possible noise issues, the applicant has submitted an acoustic study, prepared by
The Audio Bug, Inc., dated December 29, 2012. Staff also engaged Edward Dugger &
Associates, P.A., to perform the peer review of the acoustic study, dated January 23, 2013, in
accordance with the requirements of the City Code. The Audio Bug responded to the peer
review, "Sound Study Peer Review Response", dated January 24, 2013. On February 2, 2013,
Edward Dugger further responded, indicating that the response of the Audio Bug was
appropriate.
As indicated in the acoustic study prepared by The Audio Bug, the closest residential building
{Jeffersonian Condos) to the proposed project is located to the north of the proposed facility,
and has the potential to be most affected by the subject application. However, it is also noted
that the roof-top of the facility is located two floors higher and also separated by a nine-foot wall,
as well as by approximately 150 feet. The residential area located on the north side of 17tri Street
is located approximately 400 feet from the facility, and the study concludes that based on
analysis of the report, that the proposed use will have no negative impact on the surrounding
residential uses.
The peer review has raised some minor issues with the initial study, which staff believes have
been addressed with the subsequent response provided by The Audio Bug. It is also important
to note that staff is recommending numerous operational and noise conditions in order to ensure
that any possible negative impact from noise on the surrounding neighborhood is fully
addressed. In particular, staff is recommending that the applicant return to the Board within 60
days of receiving a TCO {Temporary Certificate of Use) for the project, in order to ensure it is
operating in accordance with the conditions required by the Board. Further, the Planning
Director and/or the Board also have the right to call the owners and/or operators back to the
Board to amend the conditions of operation, which include amending the hours of operation if
such modification is warranted.
Finally, while generally pleased with the concept of the rooftop miniature golf course, staff still
has some concerns relative to the required depths of all planting beds as well as the potential for
noise which could be generated by large groups gathered on the roof deck, however, staff has
recommended conditions of approval which should address those matters.
RECOMMENDATION:
In view of the foregoing analysis, staff recommends the application be approved, subject to the
following conditions, which address the inconsistencies with the aforementioned Design Review
criteria:
307
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ORB File: 22941
Meeting Date: March 5, 2013
1. Revised elevation, site plan and floor plan drawings shall be submitted to and approved
by staff; at a minimum, such drawings shall incorporate the following:
a. The final design and detailing for the increased parapet and railing heights
surrounding the roof-top shall be provided, in a manner to be reviewed and
approved by staff.
b. The proposed wall between the golf course facility and the existing parking shall
be an architecturally articulated solid wall, in order to help mitigate the transfer of
noise northward, subject to the review and approval of staff.
c. With the exception of doors required for ingress and egress, the storefront
system surrounding the bar shall be comprised of fixed glazing, subject to the
review and approval of staff.
d. Sound attenuating design elements shall be installed throughout the property in
order to minimize any spillover of sound to adjacent properties, if necessary, in a
manner consistent with the limits and requirements of the City Code, subject to
the review and approval of staff.
e. All roof-top lighting fixtures shall be designed to preclude light from spilling over
to adjacent properties, in a manner to be reviewed and approved by staff.
f. All exterior building signage shall be composed of flush mounted, individual
letters, and shall require a separate permit.
g. The final design and details of the proposed storefront system shall be required,
in a manner to be reviewed and approved by staff. Manufacturers drawings and
Dade County product approval numbers for all new windows, doors and glass
shall be required.
h. All roof-top fixtures, air-conditioning units and mechanical devices, both existing
and proposed, shall be clearly noted on a revised roof plan and shall be
screened from view, in a manner to be approved by staff.
i. Prior to the issuance of a Certificate of Occupancy, the project Architect shall
verify, in writing, that the subject project has been constructed in accordance with
the plans approved by the Planning Department for Building Permit.
2. A revised landscape plan, prepared by a Professional Landscape Architect, registered in
the State of Florida, and corresponding site plan, shall be submitted to and approved by
staff. The species type, quantity, dimensions, spacing, location and overall height of all
plant material shall be clearly delineated and subjectto the review and approval of staff.
At a minimum, such plan shall incorporate the following:
a. Sufficient depth of soil shall be provided for all proposed roof deck landscaping
to ensure the proper health and growth of all landscape materials, in a manner to
be reviewed and approved by staff.
308
Page 7of11
ORB File: 22941
Meeting Date: March 5, 2013
b. The final design and details of all exterior fencing shall be provided and shall be
subject to the review and approval of staff.
c. Bicycle racks shall be provided within the property, or within the adjacent right-of-
way, in a manner to be reviewed and approved by staff.
d. A fully automatic irrigation system with 100% coverage and an automatic rain
sensor in order to render the system inoperative in the event of rain, shall be
required. Applicant shall work with staff to develop an irrigation plan that consists
primarily of drip irrigation and is most efficient in water use. The applicant shall
also explore the use of a storm water collection system as a primary source to
satisfy the irrigation requirements for the project, subject to the review and
approval of staff.
e. The applicant shall verify, prior to the issuance of a Building Permit, the exact
location of all backflow preventors and all other related devices and fixtures;
such fixtures and devices shall not be permitted within any required yard or any
area fronting a street or sidewalk. The location of backflow preventors, siamese
pipes or other related devices and fixtures, if any, and how they are screened
with landscape material from the right-of-way, shall be clearly indicated on the
site and landscape plans and shall be subject to the review and approval of staff.
f. The applicant shall verify, prior to the issuance of a Building Permit, the exact
location of all applicable FPL transformers or vault rooms; such transformers and
vault rooms, and all other related devices and fixtures, shall not be permitted
within any required yard or any area fronting a street or sidewalk. The location of
any exterior transformers, and how they are screened with landscape material
from the right-of-way, shall be clearly indicated on the site and landscape plans
and shall be subject to the review and approval of staff.
g. Prior to the issuance of a Certificate of Occupancy, the Landscape Architect for
the project shall verify, in writing, that the project is consistent with the site and
landscape plans approved by the Planning Department for Building Permit.
3. The final exterior surface color scheme, including color samples, shall be subject to the
review and approval of staff and shall require a separate permit.
4. A traffic mitigation plan, which addresses all roadway Level of Service (LOS) deficiencies
relative to the concurrency requirements of the City Code, if required, shall be submitted
prior to the issuance of a Building Permit and the final building plans shall meet all other
requirements of the Land Development Regulations of the City Code.
5. All new and altered elements, spaces and areas shall meet the requirements of the
Florida Accessibility Code (FAC).
6. The applicant may be required to submit a separate analysis for water and sewer
requirements, at the discretion of the Public Works Director, or designee. Based on a
preliminary review of the proposed project, the following may be required by the Public
Works Department:
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ORB File: 22941
Meeting Date: March 5, 2013
a. A traffic and neighborhood impact study shall be conducted as a means to
measure a proposed development's impact on transportation and
neighborhoods. The study shall address all roadway Level of Service (LOS)
deficiencies relative to the concurrency requirements of the City Code, and if
required, shall be submitted prior to the issuance of a Building Permit. The final
building plans shall meet all other requirements of the Land Development
Regulations of the City Code. The developer shall refer to the most recent City of
Miami Beach's Traffic and Neighborhood Impact Methodology as issued by the
Public Works Department.
b. Remove/replace sidewalks, curbs and gutters on all street frontages, if
applicable. Unless otherwise specified, the standard color for city sidewalks is
red, and the standard curb and gutter color is gray.
c. Mill/resurface asphalt in rear alley along property, if applicable.
d. Provide underground utility service connections and on-site transformer location,
if necessary.
e. Provide back-flow prevention devices on all water services.
f. Provide on-site, self-contained storm water drainage for the proposed
development.
g. Meet water/sewer concurrency requirements including a hydraulic water model
analysis and gravity sewer system capacity analysis as determined by the
Department and the required upgrades to water and sewer mains servicing this
project.
h. Payment of City utility impact fees for water meters/services.
i. Provide flood barrier ramps to underground parking or minimum slab elevation ta
be at highest adjacent crown road elevation plus 8".
j. Right-of-way permit must be obtained from Public Works.
k. All right-of-way encroachments must be removed.
I. All planting/landscaping in the public right-of-way must be approved by the Public
Works and Parks Departments.
7. The project shall comply with any landscaping or other sidewalk/street improvement
standards as may be prescribed by a relevant Urban Design Master Plan approved prior
to the completion of the project and the issuance of a Certificate of Occupancy.
8. The Applicant agrees to the following operational conditions for all permitted uses and
shall bind itself, lessees, permittees, concessionaires, renters, guests, users, and
successors and assigns and all successors in interest in whole or in part to comply with
the following operational and noise attenuation requirements and/or limitations. The
applicant shall ensure through appropriate contracts, assignments and management
310
Page 9of11
ORB File: 22941
Meeting Date: March 5, 2013
rules that these restrictions are enforced and the applicant agrees to include the rules
and regulations set forth in these conditions in any contract or assignment.
a. OPERATIONAL CONDITIONS
i. The Noise and Operational Conditions below are issued to the Applicant
City Middle, LLC ("Operator'') as tenant and operator of the proposed
miniature golf course facility on the property. Any change of the operator
shall require review and approval by the Design Review Board as a
modification of this approval. Subsequent operators shall be required to
appear before the Board, within ninety (90) days of change of operator to
affirm their understanding of the conditions listed herein. The Board
reserves the right to determine the timing and need for future progress
reports for the new operator.
ii. Within ninety (60) days of the issuance of the TCO or CO for the project,
the Operator shall make a progress report to the Design Review Board.
The Board reserves the right to modify the conditions of this approval at
the time of a progress report in a non-substantive manner, to impose
additional conditions to address possible problems and to determine the
timing and need for future progress reports.
iii. The patron hours of operations shall be as follows:
Sunday -Thursday:
11 :00 a.m. -Midnight
Friday-Saturday:
10:00 a.m. -1 :DO a.m.
Staff clean up shall cease within one hour after these times.
iv. All trash containers shall utilize inflated or other noise mitigating rubber
wheels, or the path for the trash containers shall consist of a surface
finish that reduces noise, in a manner to be reviewed and approved by
staff.
v. Adequate trash room space, air conditioned and noise baffled, shall be
provided, in a manner to be approved by the Planning and Public Works
Departments. Doors shall remain closed and secured when not in active
use.
vi. Trash room(s)/garbage room(s) shall be large enough, or sufficient in
number to accommodate enough dumpsters so that no more than one
pick up of garbage per day will be necessary.
vii. Garbage dumpster covers shall be closed at all times except when in
active use.
viii. Garbage pickups and service deliveries shall not take place between
7PM and SAM.
ix. Outdoor cooking anywhere on the premises is prohibited. Kitchen and
other cooking odors will be contained within the premises. All kitchens
311
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ORB File: 22941
Meeting Date: March 5, 2013
and other venting shall be chased to the roof and venting systems shall
be employed as necessary to minimize or dissipate smoke, fumes and
odors.
x. Equipment and supplies shall not be stored in areas visible from streets,
alleys or nearby buildings.
xi. The Operator shall be responsible for maintaining the areas adjacent to
the facility near the public entrances, such as the sidewalks, curb and
gutter on Jefferson Avenue, keeping these areas in a clean condition,
free of all refuse, at all times.
xii. Applicant agrees to hire a security guard from 5:00 PM to closing, seven
days a week, for a period of 6 months beginning with the issuance of the
certificate of occupancy or certificate of completion. At the end of the 6
months, the applicant may return to the Board for a progress report, at
which time the Board shall determine the need for any continued security
guard and the necessity and timing of subsequent reports.
b. NOISE CONDITIONS
i. No outdoor bar counters shall be permitted on the premises.
ii. The Design Review Board (ORB) or the Planning Director shall retain the
right to call the owners and/or operators back before the ORB, at the
expense of the owners and/ or operators, to impose and/or modify the
hours of operation, or amend or impose other conditions, should there be
a valid violation (as determined by Code Compliance) about loud,
excessive, unnecessary, or unusual noise or other conditions of this
approval. An adverse adjudication of a violation against the owner or
operator is not necessary for the board to have jurisdiction over the
matter under this condition. This condition vests jurisdiction independent
of any other condition hereof.
iii. A violation of Chapter 46, Article IV, "Noise," of the Code of the City of
Miami Beach, Florida (a/k/a "noise ordinance"), as amended, shall be
deemed a violation of this approval and subject the approval to
modification in accordance with the procedures for modification of prior
approvals as provided for in the Code, and subject the applicant to the
review provided for in the first sentence of this subparagraph.
iv. Small, ground level speakers, not capable of bass, within the landscape
areas, may be permitted, but only for ambient, back ground music, which
does not interfere with normal conversation, and shall cease after the
patron hours of operation.
v. The installation plan for the sound system, including the location of all the
speakers and sound system controls shall be consistent with the
recommendations contained within the sound study report prepared by
The Audio Bug, Inc., subject to the review and approval of staff.
vi. All music played at the establishment, both inside and outside, shall be
limited to ambient, background music.
312
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ORB File: 22941
Meeting Date: March 5, 2013
vii. The installation plan for the sound system, including the location of all the
speakers and sound system controls shall be submitted to staff for
review and approval prior to obtaining a building permit.
viii. No outdoor live music shall be permitted at any time, inclusive of
percussion, musical instrument, or vocal.
ix. No DJ shall be permitted inside or outside the establishment.
x. The miniature golf courses' rules and practices shall prohibit visitors,
invitees, and others using the facilities or otherwise on the premises,
from operating audio amplification equipment, inclusive of loudspeakers,
radio receivers, television sets, musical instruments, or other machines
or devices for the production or reproduction of sound.
xi. Entertainment establishments, as well as dance halls, as defined in the
Miami Beach City Code, shall be prohibited, and the applicant will not
seek permits therefore.
xii. Special events pursuant to the Miami Beach City Code may not be held
on the premises and the applicant agrees that it will not seek or authorize
applications for such permits.
9. The Final Order shall be recorded in the Public Records of Miami-Dade County, prior to
the issuance of a Building Permit.
1 D. At the time of completion of the project, only a Final Certificate of Occupancy (CO) or
Final Certificate of Completion (CC) may be applied for; the staging and scheduling of
the construction on site shall take this into account. All work on site must be completed
in accordance with the plans approved herein, as well as any modifications approved or
required by the Building, Fire, Planning, CIP and Public Works Departments, inclusive of
all conditions imposed herein, and by other Development Review Boards, and any
modifications required pursuant to field inspections, prior to the issuance of a CO or CC.
This shall not prohibit the issuance of a Partial or Temporary CO, or a Partial or
Temporary CC.
11. The Final Order is not severable, and if any provision or condition hereof is held void or
unconstitutional in a final decision by a court of competent jurisdiction, the order shall be
returned to the Board for reconsideration as to whether the order meets the criteria for
approval absent the stricken provision or condition, and/or it is appropriate to modify the
remaining conditions or impose new conditions.
12. The conditions of approval herein are binding on the applicant, the property's owners,
operators, and all successors in interest and assigns.
13. Nothing in this order authorizes a violation of the City Code or other applicable law, nor
allows a relaxation of any requirement or standard set forth in the City Code.
RGL:TRM:MAB
F:\PLAN\$DRB\DRB13\MarDRB13\22941.Mar13.docx
313
DESIGN REVIEW BOARD
City of Miami Beach, Florida
MEETING DATE: March 5, 2013
FILE NO: 22941
PROPERTY: 1691 Michigan Avenue
LEGAL: Lots 7-10, and Lots 14-20, Block 37, Palm View Subdivision of the Alton
Beach Realty Company, according to the Plat Thereof, as recorded in
Plat Book 6 at Page 29, of the Public Records of Miami-Dade County,
Florida.
IN RE: The Application for Design Review Approval for modifications to an
existing 6-story parking garage, including the construction of several
single story roof-top structures, which include a bar, kitchen, and
restrooms, as part of a new miniature golf course facility.
ORDER
The applicant, City Middle, LLC, filed an application with the City of Miami Beach Planning
Department for Design Review Approval.
The City of Miami Beach Design Review Board makes the followlng FINDINGS OF FACT,
based upon the evidence, information, testimony and materials presented at the public hearing
and which are part of the record for this matter:
A. Based on the plans and documents submitted with the application, testimony and
information provided by the applicant, and the reasons set forth in the Planning
Department Staff Report, the project as submitted is not consistent with Design Review
Criteria No. 3 in Section 118-251 of the Miami Beach Code.
8. The project would be consistent with the criteria and requirements of section 118~251 if
the following conditions are mef:
1. Revised elevation, site plan and floor plan drawings shall be submitted to and
approved by staff; at a minimum, such drawings shall incorporate the following:
EXHIBIT 2
314
Page 2 of 9
Meeting Date: March 5, 2013
DRB File No. 22945
a. The final design and detailing for the increased parapet and railing
heights surrounding the roof-top shall be provided, in a manner to be
reviewed and approved by staff.
b. The proposed wall between the golf course facility and the existing
parking shall be an architecturally articulated solid wall, in order to help
mitigate the transfer of noise northward, subject to the review and
approval of staff.
c. With the exception of doors required for ingress and egress, the storefront
system surrounding the bar shall be comprised of fixed glazing, subject to
the review and approval of staff.
d. Sound attenuating design elements shall be installed throughout the
property In order to minimize any spillover of sound to adjacent
properties, if necessary, in a manner consistent with the limits and
requirements of the City Code, subject to the review and approval of staff.
e. All roof-top lighting fixtures shall be designed to preclude light from
spilling over to adjacent properties, In a manner to be reviewed and
approved by staff.
f. All exterior building signage shall be composed of flush mounted,
Individual letters, and shall require a separate permit.
g. The final design end details of the proposed storefront system shall be
required, in a manner to be reviewed and approved by staff.
Manufacturers drawings and Dade County product approval numbers for
all new windows, doors and glass shall be required.
h. All roof-top fixtures, air-conditioning units and mechanical devices
proposed, shall be clearly noted on a revised roof plan and shall be
screened from view with noise attenuating materials, in a manner to be
approved by staff.
i. Prior to the issuance of a Certificate of Occupancy, the project Architect
shall verify, in writing, that the subject project has been constructed In
accordance with the plans approved by the Planning Department for
Building Permit.
2. A revised landscape plan, prepared by a Professional Landscape Architect,
registered in the State of Florida, and corresponding site plan, shall be submitted
to and approved by staff. The species type, quantity, dimensions, spacing,
location and overall height of all plant material shall be clearly delineated and
subject to the review and approval of staff. At a minimum, such plan shall
incorporate the following:
a. Any unhealthy or missing landscape material within the existing planters
surrounding the perimeter of the garage shall be replaced prior to the
issuance of a Temporary Certificate of Occupancy {TCO) or Certificate of
Occupancy (CO), for the proposed miniature golf facility.
315
Page 3 of 9
Meeting Date: March 5, 2013
ORB File No. 22945
b. Sufficient depth of soil shall be provided for all proposed roof deck
landscaping to ensure the proper health and growth of all landscape
materials, in a manner to be reviewed and approved by staff.
c. The final design and details of all exterior fencing shall be provided and
shall be subject to the review and approval of staff.
d. Bicycle racks shall be provided within the property, or within the adjacent
right~of~way, in a manner to be reviewed and approved by staff.
e. A fully automatic Irrigation system with 100% coverage and an automatic
rain sensor in order to render the system inoperative in the event of rain,
shall be required. Applicant shall work with staff to develop an irrigation
plan that consists primarily of drip irrigation and is most efficient in water
use. The applicant shall also explore the use of a storm water collection
system as a primary source to satisfy the Irrigation requirements for the
project, subject to the review and approval of staff.
f. The applicant shall verify, prior to the issuance of a Building Permit, the
exact location of all backflow preventors and all other related devices and
fixtures; such fixtures and devices shall not be-permitted within any
required yard or any area fronting a street or sidewalk. The location of
backflow preventors, siamese pipes or other related devices and fixtures,
if any, and how they are screened with landscape material from the right-
of-way, shall be clearly Indicated on the site and landscape plans and
shall be subject to the review and approval of staff.
g. The applicant shall verify, prior to the issuance of a Building Permit, the
exact location of all applicable FPL transformers or vault rooms; such
transformers and vault rooms, and all other related devices and fixtures,
shall not be permitted within any required yard or any area fronting a
street or sidewalk. The location of any exterior transformers, and how
they are screened with landscape material from the right-of-way, shalt be
clearly indicated on the site and landscape plans and shall be subject to
the review and approval of staff.
h. Prior to the issuance of a Certificate of Occupancy, the Landscape
Architect for the project shall verify, in writing, that the project is
consistent with the site and landscape plans approved by the Planning
Department for Building Permit.
3. The final exterior surface color scheme, including color samples, shall be subject
to the review and approval of staff and shall require a separate permit.
4. A trf!ffiC mitigation plan, which addresses all roadway Level of Service (LOS)
deficiencies relative to the concurrency requirements of the City Code, if
required, shall be submitted prior to the issuance of a Building Permit and the
final building plans shall meet all other requirements of the Land Development
Regulations of the City Code.
5. All new and altered elements, spaces and areas shall meet the requirements of
the Florida Accessibility Code (FAC).
316
Page 4of9
Meeting Date: March 5, 2013
DRS File No. 22945
6. The applicant may be required to submit a separate analysis for water and sewer
requirements, at the discretion of the Public Works Director, or designee. Based
on a preliminary review of the proposed project, the following may be required by
the Public Works Department:
a. A traffic and neighborhood impact study shall be conducted as a means
to measure a proposed development's impact on transportation and
neighborhoods. The study shall address all roadway Level of Service
(LOS) deficiencies relative to the concurrency requirements of the City
Code, and if required, shall be submitted prior to the issuance of a
Building Permit. The final building plans shall meet" all other requirements
of the Land Development Regulations of the City Code. The developer
shall refer to the most recent City of Miami Beach's Traffic and
Neighborhood Impact Methodology as Issued by the Public Works
Department.
b. Remove/replace sidewalks, curbs and gutters on all street frontages, if
applicable. Unless otherwise specified, the standard color for city
sidewalks Is red, and the standard curb and gutter color Is gray.
c. Mill/resurface asphalt in rear alley along property, if applicable.
d. Provide underground utility service connections and on-site transformer
location, If necessary.
e. Provide back-flow prevention devices on all water services.
f. Provide on-site, self-contained storm water drainage for the proposed
development.
g. Meet water/sewer concurrency requirements including a hydraulic water
model analysis and gravity sewer system .capacity analysis as determined
by the Department and the required upgrades to water and sewer mains
servicing this project.
h. Payment of City utility impact fees for water meters/services.
i. Provide flood barrier ramps to underground parking or minimum slab
elevation to be at highest adjacent crown road elevation plus 8".
j. Right-of-way permit must be obtained from Public Works.
k. All right-of-way encroachments must-be removed.
I. All planting/landscaping In the public right-of-way must be approved by
the Public Works and Parks Departments.
7. The project shall comply with any landscaping or other sidewalk/street
Improvement standards as may be prescribed by a relevant Urban Design
Master Plan approved prior to the completion of the project and the issuance of a
Certificate of Occupancy.
317
Page 5of9
Meeting Date: March 5, 2013
ORB File No. 22945
8. The Applicant agrees to the following operational condltions for all permitted uses
and shall bind itself, lessees, permittees, concessionaires, renters, guests, users,
and successors and assigns and all successors in interest In whole or in part to
comply with the following operational and noise attenuation requirements and/or
limitations. The applicant shall ensure through appropriate contracts,
assignments and management rules that these restrictions are enforced and the
applicant agrees to Include the rules and regulations set forth in these conditions
in any contract or assignment.
a. OPERATIONAL CONDITIONS
i. The Noise and Operational Conditions below are Issued to the
Applicant City Middle, LLC ("Operator'') as tenant and operator of
the proposed miniature golf course facility on the property. Any
change of the operator shall require review and approval by the
Design Review Board as a modification of this approval.
Subsequent operators shall be required to appear before the
Board, within ninety (90) days of change of operator to affirm their
understanding of the conditions listed herein. The Board reserves
the right to determine the tlmlng and need for future progress
reports for the new operator.
ii. Within sixty (60) days of the issuance of the TCO or CO for the
project, the Operator shall make a progress report to the Design
Review Board. The Board reserves the right to modify the
conditions of this approval at the time of a progress report in a
non-substantive manner, to impose additional conditions to
address possible problems and to determine the timing and need
for future progress reports.
iii. The patron hours of operations shall be as follows:
Sunday -Thursday:
10:00 a.m. -Midnight
Friday, Saturday, and one (1) day events associated with a
National Holiday:
10:00 a.m. -1:00 a.m.
Staff clean-up of the roof-top shall cease within one hour after
these times; however transportation of any trash to the ground
level trash room shall not take place prior to Sam and shall not
occur after normal closing times.
iv. After midnight, alcohol shall not be served at outdoor tables
unless accompanied by food.
v. All trash containers shall utilize inflated tires or other noise
mitigating rubber wheels, or the path for the trash containers shall
consist of a surface finish that reduces noise, in a manner to be
reviewed and approved by staff.
vi. Adequate trash room space, air conditioned and noise baffled,
shall be provided, in a manner to be approved by the Planning
318
Pages of 9
Meeting Date: March 5, 2013
ORB File No. 22945
and Public Works Departments. Doors shall remain closed and
secured when not in active use.
vii. Trash room{s)/garbage room(s) shall be large enough, or
sufficient in number to accommodate enough dumpsters so that
no more than one pick up of garbage per day will be necessary.
viii. Garbage dumpster covers shall be closed at all times except when
in active use.
Ix. Garbage pickups and service deliveries shall not take place
between ?PM and BAM.
x. Outdoor cooking anywhere on the premises is prohibited. Kitchen
and other cooking odprs will be contained within the premises. All
kitchens and other venting shall be chased to the roof and venting
systems shall be employed as necessary to minimize or dissipate
smoke, fumes and odors.
xi. Equipment and supplies shall not be stored in areas visible from
streets, alleys or nearby buildings.
xii. The Operator shall be responsible for maintaining the areas
adjacent to the faciHty near the public entrances, such as the
sidewalks, curb and gutter on Jefferson Avenue, keeping these
areas in a clean condition, free of all refuse, at all times.
b. NOISE CONDITIONS
I. No outdoor bar counters shall be permitted on the premises.
ii. The Design Review Board (ORB) or the Planning Director shall
retain the right to call the owners and/or operators back before the
ORB, at the expense of the owners and/ or operators, to impose
and/or modify the hours of operation, or amend or impose other
conditions, should there be a valid violation (as determined by
Code Compliance) about loud, excessive, unnecessary, or
unusual noise or other conditions of this approval. An adverse
adjudication of a violation against the owner or operator is ndt
necessary for the board to have jurisdiction over the matter under
this condition. This condition vests jurisdiction independent of any
other condition hereof.
iii. A violation of Chapter 46, Article IV, "Noise," of the Code of the
City of Miami Beach, Florida (a/k/a "noise ordinance"), as
amended, shall be deemed a violation of this approval and subject
the approval to modification in accordance with the procedures for
modification of prior approvals as provided for in the Code, and
subject the applicant to the review provided for in the first
sentence of this subparagraph.
iv. Small, ground level speakers (as specified in the Sound Report
prepared by The Audio Bug, Inc., dated December 29, 2012),
within the landscape areas, may be permitted, but only for
319
Page 7 of9
Meetlng Date: March 5, 2013
ORB File No. 22945
ambient, back ground music, which does not interfere with normal
conversation, and shall cease after the patron hours of operation.
v. The installation plan for the sound system, including the location
of all the speakers and sound system controls shall be consistent
with the recommendations contained within the sound study report
prepared by The Audio Bug, Inc., subject to the review and
approval of staff.
vi. All music played at the establishment, both inside and outside,
shall be limited to ambient, background music.
vii. The installation plan for the sound system, including the location
of all the speakers and sound system controls shall be submitted
to staff for review and approval prior to obtaining a building permit.
viii. No outdoor live music shall be permitted at any time, inclusive of
percussion, musical instrument, or vocal.
ix. No DJ shall be permitted inside or outside the establishment.
x. The miniature golf courses' ·rules and pra·ctices shall prohibit
visitors, invitees, and others using the facilities or otherwise on the
premises, from operating audio amplification equipment, inclusive
of loudspeakers, radio receivers, television sets, musical
instruments, or other machines or devices for the production or
reproduction of sound.
xi. Entertainment establishments, as well as dance halls, as defined
in the Miami Beach City Code, shall be prohibited, and the
applicant will not seek permits therefore.
xii. Special Events pursuant to the Miami Beach City Code shall not
exceed eight (8) nights per calendar year.
9. The Final Order shall be recorded in the Public Records of Miami-Dade County,
prior to the issuance of a Bullding Permit.
10. At the time of completion of the project, only a Final Certificate of Occupancy
(CO} or Final Certificate of Completion (CC) may be applied for; the staging and
scheduling of the construction on site shall take this into account. All work on
site must be completed in accordance with the plans approved herein, as well as
any modifications approved or required by the Building, Fire, Planning, CIP and
Public Works Departments, inclusive of all conditions imposed herein, and by
other Development Review Boards, and any modifications required pursuant to
field inspections, prior to the issuance of a CO or CC. This shall not prohibit the
issuance of a Partial or Temporary co, or a Partial or Temporary CC.
11. The Final Order is not severable, and if any provision or condition hereof is held
void or unconstitutional in a final decision by a court of competent jurisdiction, the
order shall be returned to the Board far reconsideration as to whether·the order
meets the criteria for approval absent the stricken provision or condition, and/or it
is appropriate to modify the remaining conditions or impose new conditions.
320
Page 8 of 9
Meeting Date: March 5, 2013
ORB File No. 22945
12. The conditions of approval herein are binding on the applicant, the property's
owners, operators, and all successors in interest and assigns.
13. Nothing in this order authorizes a violation of the City Code or other applicable
law, nor allows a relaxation of any requirement or standard set forth in the City
Code.
IT IS HEREBY ORDERED, based upon the foregoing findings of fact, the evidence, information,
testimony and materials presented at the public hearing, which are part of the record for this
matter, and the staff report and analysis, which are adopted herein, including the staff
recommendations which were adopted by the Board, that the Application for Design Review
approval is GRANTED for the above-referenced project subject to those certain conditions
specified in Paragraph 8 of the Findings of Fact (Cond~ion Nos. 1-13, inclusive) hereof, to
which the applicant has agreed.
PROVIDED, the applicant shall build substantially in accordance with the plans approved by the
Design Review Board, as determined by staff, entitled "The Putting Club", as prepared
Berenblum Busch Architecture, dated 12-6-2012, modified In accordance with the conditions set
forth in this Order and staff review and approval.
No ~building permit may be Issued unless and until all conditions of approval that must be
satisfied prior to permit issuance as set forth in this Order have been met. The issuance of
Design Review Approval does not relieve the applicant from obtaining all other required
Municipal, County and/or State reviews and permits, including final zoning approval. If adequate
handicapped access is not provided on the Board-approved plans, this approval does not mean
that such handicapped access is not required.
When requesting a building permit, the plans submitted to the Building Department for permit
shall be consistent with the plans approved· by the Board, modified in accordance with the
conditions set forth in this Order.
If the Full Building Permit for the project is not issued within eighteen (18) months of the meeting
date at which the original Design Review Approval was granted, the Design Review Approval
will expire and become null and void, unless the applicant makes application to the Board for an
extension of time, in accordance with the requirements and procedures of Chapter 118 of the
City Code; the granting of any such extension of time shall be at the discretion of the Board. At
the hearing on any such application, the Board may deny or approve the request and modify the
above conditions or impose additional conditions. If the Full Building Permit should expire for
any reason (including but not limited to construction not commencing and continuing, with
required Inspections, in accordance with the applicable Building Code), the Design Review
Approval will expire and become null and void.
In accordance with Section 118-264 of the City Code, the violation of any conditions and
safeguards that are a part of this Order shall be deemed a violation of the land development
regulations of the City Code.
Dated this C:qth dayof ~c..~ 1 20-"13""--_
321
STATE OF FLORIDA )
Page 9 of 9
Meeting Date: March 5, 2013
ORB File No. 22945
DESIGN REVIEW BOARD
THE CITY OF MIAMI BEACH, FLORIDA
BY: J L~;\ ~ ~r TRI+'\
THOMAS R. MOONEY, AICP
DESIGN AND PRESERVATION MANAGER
FOR THE CHAIR
)SS
COUNTY OF MIAMI-DADE ) f'/J
The forEJQO!t;L~strument was acknowledged before me this &9 aay of e/tJLLZl 2DM by Thomas R. Mooney, Design and Preservation Manager,
Planning Department, City of Miami Beach, Florida, a Florida Municipal Corporation, on behalf
of the Corporation. He is personally known t:o-R:ur.---.c......._
"'~;~~·;~•.,._, JUDITH PANTIGOSO . /JJm·· it-\ Notary Public • s1a1e 01 Ftorkla r,. • • ;s My Comm. Expires Jun 15, ~015
-:..:,~·~ .. , , <t.?.l Commlsalon I EE 103632
'"""'"' Bo~decl rtirough National NotatyAHn.
Approved As To Form: a; J/,,J
Lega1Department: ___ ~""I¥-' ......... -----( ; ... ~?-.,,1..{)/3 ) FiledwiththeClerkoftheDe~on 5-Z.'\-z.or; ( WJ'f\.
F:\PLAN\$DRB\DRB13\MerDRB 13\22941.Mer13. FO.docx
322
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100 111nooe BB&T 2 2
105 111/2008 Coldwell Banker Real Estala 12
110 2/1812011 Bana & Ohmen Miami Beach 2
110 81612011 Bang & Oluf&en Miami Beach 2
115 111/2008 Lucky Strike Lanes 11
120 1/112008 The Don Bar 1
130 VACANT SPACE
200 1/1/2008 CBS Broldcastlng 4
205 1/112008 P•ul & Shark Latin America 2
210 2/2212013 FTN Flnancill 3
215 1'14/2011 AlJ Hokllnas LLC 1 9
220 VACANT SPACE
225 VACANT SPACE
240 8/12/2013 Alsls Funds 4
250 413012012 Raymond James 3 4
260 VACANT SPACE
310 111/2008 Wealth Plannlng Center 1 2
320 11112008 Clear Title Group I Beloff Parter 2 20
325 1(1/2008 A•lor Washlnoton I KNR 2 8
325 11112008 Amr Washington IKNR 1
330 VACANT SPACE
335 VACANT SPACE
MO 1/312012 Red Eye Productions 2
345 111112012 In Hou.a ldeaa 6
355 1/112008 Ml1mi Beach Cltv Pension Fund 4
380 VACANT SPACE
400/405 11912012 GOS 2
400 VACANT SPACE
410 1/112008 Avalanche LLC 1 II
415 11112008 Diego + Kb•r + Partnera, LLC 11
425 1011712013 Planet Enarov 2
436 111/2008 Exlm 8
440 611/2013 Morabito Properties 2
445 51112013 JSK 5
600 11112008 Dr. Arthur S. ADablton, MD. PA 1 24
510l530 111/2008 ColdweU Banker I 12 12
550 1/1/2008 Morgan Stanley I Smith Barney 1 12
600 11112008 On Board Madia I Bolldl Crulae Control 66
601 512412011 Car Cha ·Ing Grou •,Inc 1 9
Tola I 31 252
Non-Tenant 111/2008 605 LROCAI Joa Llano 1
Non-tenant 311212013 4701 North Meridian LLC 3
Non-Tenant 21112013 7 For All Mankind 4
Non-Tenant 111/2012 Aaron Balkanv 1
Non-Tenant 1113/2010 AccllYitv Construction, LLC 2
Non-Tenant 9120l2012 Adler Kawa Real Estala Investors 1 4
Non-Tenant 3n12012 Ahmed Flguerola 1
Non-Tenant 11112008 Alelandro Sosa 2
Non-Tenan1 111712012 Alex Lolero ' Non-Tenant 412212013 Alexander Ballerini 1
Non-Tenant 511112012 Alexandra Sierra ' Non-Tenant 8/26120ft Annalisa Sichel 1
Non-Tenant 91112012 Anthony Rodriguez 1
Non-Tenant 211/2013 Antonio Fragoso 1
Non-Tenant 812112012 Antonio Rodrlauaz 1
Non-Tenant 1/112008 Apple Inc 181
Non-Tenant 1f.l/2013 Argentina lnL 1
Non-Tenant 1111912012 Aviv Ecksh1eln 1
Non-Tenant 1/112008 Awe Mana11ernent Como 1 0 Exhibit "5"
Non-Tenant 118/2013 AyseOzy111t 1
325
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........ _;J-~ ::.u.,.~ ._-_-__ .£.:J~ O _...:;L:.:.,_~;_~ .. .'...d. •. :~,-L_.f.._,.! ..... ..t:l~' .... .!l;"-::.J..>;."','"'..::....:...., .. "'-"~'.;.C.'.! ~.~_,_·~~-• ---·· _;
100 111/2008 BB&T 2 2
Non-Tenant 1/1f2008 BaseUsa 2
Non-Tenant 112412011 BasUZW•mer 1
Non-Tenant 1211012012 Barbara Estevei. 1
Non-Tenant 1115/2012 Beatrice Wise 1
Non-Tenant &17/2010 Blue Skv Miami 1
Non-Tenant 111012612 BoskoRls 1
Non-Tenant 61112013 Blue Park Group 1
Non-Tenant 1012212013 Brian AleJCander Suarez 2
Non-Tenant 31412613 Br111ltte Respaut 1
Non-Tenant &12012013 Brittany Bruce 1
Non-Tenant 513/20t2 Brittany Martinez 1
Non-Tenant 513/2012 Britto Cenlr•I 1
Non-Tenant 21112013 Carlos Gii 1
Non-Tenant 91112012 Carlos Mesa 3
Non-Tenant 61812011 Carlos Senni 1
Non-T•nant 111/2008 CBS-TV City 4
Non-Tenant 9122120!2 Certatlm, LLC 11
Non-Tenant 121112011 Chelsle Eddln11s 1
Non-Tenant 1V112008 China Fob LLC 5
Non-Tenant 112212013 Christina Slla11/aa 1
Non-Tenant 8123/2013 Christopher Bvrne 1
Non-Tanant 41612012 Cleophus Hathln11ton 1
Non-Tenant 15116/2013 Cleotha Ball !John Varvatosl 1
Non-Tenant 8/1/2013 Colleen ThomDSon 1
Non-Tenant 10/2112013 Coltortl 1
Non-Tenant 8/6/2012 Constantlrt11 Cola 1
Non-Tenant 31712011 Cvnthla Winston 1
Non-Tenant 6/212012 Danie! Requlz t
Non-Tenant 113/2012 Danlel Rodriguez 1
Non-Ten1nt 31212012 Daryl Berkowlti. 1
Non-Tenant 121112012 David Adam• 1
Non-Tenant 211/2013 David Plchlnta 1
Non-Tenant 1/3/2012 David Tomek 1
Non-Tenant 211/2012 Dawn Azarlalan 1
Non-Tanant 7f9/2012 Dianne Rosenfeld 1
Non-Tenant 7/1/2008 Dizzy 2
Non-Tenant 10/212009 Dobromlr Nlkolov 1
Non-Tenant 11112008 Donell Dunstan 1
Non-Tenant 1/1/2008 Eiieen Lomars 1
Non-Tenant 4123/2012 Edgar Fogelman 1
Non-Tenant 1016/2010 Elida de Jesus 1
Non-Tenant 211/2012 En11lne Shoo LLC 1
Non-Tenant 412412012 Erin Grant 1
Non-Tenant 1/1512013 Eetela Cerda 1
Non-Tenant 1/13/2012 FaveReb11 1
Non-Tenant 2/112013 Forever 21 12
Non-Tenant 111512013 francas Pumarol 1
Non-Tenant 211/2013 Francisco Anoulo 1
Non-Tenant 512212013 Francisco Delaado IRaleiah Hotel Emnl t
Non-Tenant 1/2312013 Gabriel Zllban 1
Non-Tenant 611/2013 Gadlnskl Real Estate LLC 1
Non-Tenant 11312013 Giorgio Armanl 8
Non-Tenant 10/21/20t3 Glenn GoorskY 1
Non-Tenant 511112012 GLOD 1
Non-Tenant 1/112008 Graspa Consulting 2
Non-Tenant 101112012 GueBS 5
Non-Tenant 6/112012 Gumenk:k Properties 1 1
Non-Tenant 1011712012 Gwendolyn Fuller 1
Non-Tenant 101712013 Harrison & Shrlftman 5
Non-Tenant D/512012 HenrvO!ada 1
Non-Tenant 1011912012 Holly Riiey 1
326
~~B~f :~~~~~~~,~~~~~I~ :;:::·.·~:: til'll0:~~~"-~~1 ~:'.\i:f;'1,ii'."fNi,~W':i:,'f.f;f')l?'i~;,);•-:?''' ~'Jf;J(Jif>Jii;-"~ :·~;-J[, \.,;;;;, ,;t·f:J 0~' , =...,,:_j~ '_1 -=..li.-=Jo~""-•-u<~•• f:.';:-,.~.,..-~_,,,,_jcj..,._,._4,_,=JWl'_.,~,_.,~ti,..~. ~ ~'----~ -
100 1/112008 BB&T 2 2
Non-Tenant 111/2008 IBG Tradlna Inc 5
Non-Tenant 51712012 Irina Konstantlnov 1
Non-Tenant 617/2012 Jaanlka Ulaa 1
Non-Tenant 12/1/20t1 James Chipman 1
Non-Tenant 7/1812011 Jean Proa110 1
Non-Tenant 21t2J21113 Jeff Nlelsen 1
Non-Tenant 1211nooa Jessica Miiton 1
Non-Tenant 1/1/2008 Jessica Pakdee 1
Non-Tenant 618/2012 Jessica Perez 1
Non-Tenant 9H1nOt2 Jennifer Valdes 1
Non-Tenant 211412011 James Harris 1
Non-Tenant 1/312012 Jet Manaaement Aaaoclatea 3
Non-Tenant 211912013 Jlrasak Sakunsurivasaa 1
Non-Tenant 412512013 Jonathan Lazar 1
Non-Tenan1 211sno13 Jonathan Nunez 1
Non-Tenant 61812012 Jose Montalvo 1
Non-Tenant 9/2412013 Joseph Deforca 1
Non-Tenant 71612012 JoHPh Meek 1
Non-Tenant 711612012 Joseph Swicegood 1
Non-Tenant 711/20t2 Juan Faustln 1
Non-Tenant 211912013 Julieta Paradiso 1
Non-Tenant 41412012 JunyLee 1
Non-Tenant 916i2012 Justin Pineiro ,
Non-Tenant 61412012 Katharine Domlnauez 1
Non-Tenant 10120/2010 Kawa Capita I Management Inc 1 20
Non-Tenant 71'612013 Kimberly Cotto [Raleklh Hotel Emploree) 1
Non-Tenant 61112013 Kristian Amador 1
Non-Tenant 1/1/2012 Lllcos1e 6
Non-Tenant 113/2012 Larry Chirinos 1
Non-Tenant 1111412011 Leadman Trade Un Inc 1
Non-Tenant 2121112012 Lemuel Lamb 1
Non-Tenant 111612008 Levey Filler Rodrlnuez 3
Non-Tenant 6/t/2011 Lina Dlnkova 1
Non-Tenant 1211/2011 Llsaette Paguaga 1
Non-Tenant 8/Z/2011 Lizbeth Lope2 1
Non-Tenant 7/2/2013 Lourdes Bennudez 1
Non-Tenant 5/3/2012 Luis Navarro 1
Non-Tenant 111/2008 LtlisRossell t
Non-Tenant 7/1/2012 Ma1111I Melin 1
Non-Tenant 3/1512012 Marcelo Burgos 1
Non-Tenant 911/2012 Mariano Perez 1
Non-Tenant 811/2012 Marina Sampaia 1
Non-Tenant 7/15/2011 Mario Molina 1
Non-Tenant 3119/2012 Mayde Montesano 1
Non-Tenant 916/2008 Matthew Crane 1
Non-Tenant 1/112008 Meat Market 12
Non-Tenant 1/1/2008 Merchant Data S11stem 13
Non-Tenant 11212008 Meridian Miami LLC 11
Non-Tenant 11/17/2011 Michael Laurie 1
Non-Tenant 1(1/2008 Mfchael McKinnon 1
Non-Tenant 1/1/2008 Mlchael Shirah t
Non-Tenant 2/2812013 MleChl11kl 1
Non-Tenant 1/1/2008 Mika Stake 1
Non-Tenant 51412012 MlneH Karimi 1
Non-Tenant 111/2013 Motl Shanfarber 1
Non-Tenant 7/612012 Nicole Valez 1
Non-Tenant 51212012 Nicholas Richberg 1
Non-Tenant 1211/2012 Nicholas Rodriguez 1
Non-Tenant 211/2012 Nlghtllfa Holdlnas LLC 1
Non-Tenant 21112011 NlxvGomez 1
Non-Tenant 511/2013 Norman Coburn 1
327
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100 111(2008 BB&T 2 2
Non-Tenant 1/112008 OAK Grove Holdlna 1
Non-Tenant 41112012 Oscar Alonso 1
Non-Tenant 1212612012 Otto Chevas 1
Non-Tenan1 9/19/2012 Pam Abraham 1
Non-Tenant 8124/2011 Paola Soto 1
Non-Tenant !l/1/2013 P1trlcla Mateus 1
Non-Tenant 41212012 Paul C11rdona 1
Non-Tenant 611512013 PaulConlll 1
Non-Tenant 111/2008 Paul Jacober 1
Non-Tenant 3(1/2012 Paul Sherman 1
Non-Tenant 61212011 PaulaTomco 1
Non-Tenant 7/912012 Pedro Carmona 1
Non-Tenant 311/2012 Perry Elll• International 2
Non-Tenant 21112013 PottarvBam 4
Non-Tenant 51112013 Ralaklh Hotel Emplovaes 9
Non-Tenant 412"'2012 Rebecca Louis 1
Non-Tenant 111812012 Red Pig Realty 5
Non-Tenant 3122/2013 Ricardo VIiiaiba 1
Non-Tenant 112212013 Rita Sanchez 1
Non-Tenant 1"12013 Rolando Ordonez 1
Non-Tenant 6116/2013 Ruben P1redes t
Non-T•nant 2/T/2013 Samantha Sykee 1
Non-Tenant 21112012 Sandra Osorio 1
Non-Ten1nt 916/2011 SCPF 3
Non-Tenant 1/1/2008 Sea Inc. 1
Non-Tenant ~112013 Serena Joaqulm 1
Non-Tenant 121112012 Sheena Nanwanl 1
Non-Tenanl 10/1612013 Shelv Perez 1
Non-Tenant 311/2013 Slripom Doooelhammer 1
Non-Tenant 10/1/2012 SLS Hotel tLAZ Partlna Valetl 1"
Non-Ten1nt 1011212012 Soll Martull 1
Non-Tenant 111/2008 South Beach lnvesbnent 2
Non-Tenant 1/112008 Sunbelt Lendlna 1
Non-Tenant 316/2011 Sunaan Gauriella Factor 1
Non-Tenant .U1Tl2012 Sungla6B Hut 6
Non-Tenant 41112012 Suaemov1PP, LLC 6
Non-Tan1nt 11/13/2012 Swarovskl 3
Non-Tenan1 111/2013 Syclnee Horowltlz 1
Non-Tenant 111112011 Synerav Deslan & Martetlna 1
Non-Tenant 111212012 Takarra Carter 1
Non-Tenant 10111/2013 Tammy Boyle 1
Non-Tenant 8/1/2013 Taylor Janalk 1
Non-Tenant 12/18/2012 Tasia Motors 3
Non-Tenant 1/1/2008 The Sterilna Bulldlna " Non-Tenant 1/1/2008 The Swatch Group IUSI 12
Non-Tenant 1/312012 Todd Davis 2
Non-Tenant 21112012 Victoria's Secret 12
Non-Tenant 71912013 Vlralnla VIVH 1
Non-Tenant 6/5/2012 Vladlmlr Corona 1
Non-Tenant 313112010 Walter Pulltl t
Non-Tenant 11/1/2012 Win a 2
Non-Tenant 9/1412012 Wiiiiam l'5aac1on 1
Non-Tenant 31112013 Willlam Sannlento 1
Non-Tenant 2/1/2013 Wllllam Sonoma 2
Non-Tenant 2/16/2011 Yaklr Shouahan 1
Non-Tenant 1 t/5/2012 ZlpCar 2
Non-Tenant 8/112013 Zlvan Habibi 1
Total 12 586
328
Non-Tenant Th• Lincoln Garage Security 12
Non-Tenant LAZParklna 10
Non-Tenant TIPTOP :i.
Non-Tenant Jones Lang LaSaHa 29
Total 54
329
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1691 Mlchlpn Ave Investment LP, a Oelaware Umlttd Partnenhip
·1111." 1.inmlu
Daic:Jantwy 28, 2014
Max Sklar
Dircclor oITourinn, Culcurc, ~A-011011ail' l>tr-'Clopmcul., Rncl I.he OffiC'C of Real &late
av «Mlnoi Baldi
17.SS Mcridiui A.l'all&
..asoo
MimD' &e.m PS 88180
Dear Mr. Sklar:
111ia lccter if to C'006nu tl1lt we f&l'CC to IUpport dle prapolCd. modificaticm to 8cct»u 6.1 (b) elf the Laue Agreement
bctsovem1 the Teuanl, 1691 Michipu Ave Io\IClr:meut LP (J'bc IinaobJ), aud the Ci~ of Miami Beath (Owner) wblch will be
modified to Jtipulare that The Lincoln PaJtin1 Gange dedicet2 uad nudullin at lcRIL 15.5 p11ti111 IJllOI far 111C by
memben of die~ public at all lime•.
SiJICCl'CJy,
Inngan1 l . .inkc:r
Exhibit "7"
340
RESOLUTION NO.--------
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK
TO EXECUTE AMENDMENT NO. 1 TO AGREEMENT OF LEASE ("GROUND LEASE")
BY AND BETWEEN THE CITY OF MIAMI BEACH(" OWNER"}, AND 1691 MICHIGAN
AVE INVESTMENT LP ("TENANT"), DATED AS OF SEPTEMBER 1, 1999, INVOLVING
THE IMPROVEMENTS TO PROPERTY LOCATED AT 1663 MICHIGAN AVENUE, MIAMI
BEACH, FLORIDA ("GARAGE FACILITY") AND 1691 MICHIGAN AVENUE, MAMI
BEACH, FLORIDA ("OFFICE SPACE") (COLLECTIVELY THE "PROJECT"); MODIFYING
THE SCOPE OF USE UNDER THE GROUND LEASE BY REDUCING THE MINIMUM
NUMBER OF PARKING SPACES REQUIRED FOR THE GARAGE FACILITY, FROM 700
TO 645 SPACES; INCREASING THE MINIMUM NUMBER OF PARKING SPACES
REQUIRED TO BE MAINTAINED AT ALL TIMES FOR USE BY THE GENERAL PUBLIC
FROM 100 TO 155 PARKING SPACES; AND FURTHER INCREASING THE MINIMUM
NUMBER OF MONTHLY PARKING SPACES FOR MEMBERS OF THE GENERAL
PUBLIC FROM 50 TO 75, IN CONNECTION WITH THE DEVELOPMENT OF A
MINIATURE GOLF PROJECT AT THE SIXTH FLOOR OF THE GARAGE FACILITY.
WHEREAS, the City of Miami Beach ("Owner") and 1691 Michigan Ave Investment LP
("Tenant") are parties to a Lease, dated as of September 1, 1999 ("Ground Lease"), in connection
with the lease of the Land underlying Tenant improvements consisting of a parking garage ("Garage
FaciHty"), located at 1663 Michigan Avenue, Miami Beach, Florida and an office building ("Office
Space") located at 1691 Michigan Avenue, Miami Beach, Florida, both of which have ground retail
space (collectively the "Project"); and
WHEREAS, Tenant entered into a lease with City Middle, LLC ("Subtenant"), dated as of
July 1, 2012, involving the proposed development of a miniature golf project on the sixth floor of the
Garage Facility, which is the roof top level ("Miniature Golf Project"); and
WHEREAS, the use of the parking spaces as a Miniature Golf Project is not prohibited under
the lease; however, Section 6.1 (b) of the Lease requires Tenant to operate the Parking Facility
containing not less than seven hundred (700) parking spaces, provided that not less than one
hundred (100) parking spaces shall be available for use by members of the general public; and
WHEREAS, additionally, Section 6.1 (b) of the Lease requires Tenant to provide not less than
fifty (50) parking spaces for monthly parking for members of the general public who are not
subtenants of the Premises; and
WHEREAS, the Miniature Golf Project will encompass 84 of the existing parking spaces,
decreasing the minimum number of parking spaces by 55 spaces; therefore, Tenant requires a
lease amendment, allowing Tenant to operate the Garage Facility with a minimum of 645 spaces,
instead of 700 spaces; and
WHEREAS, subject to and contingent upon Tenant securing all requisite governmental
approvals for the construction and completion of said Miniature Golf Project, as well as compliance
with the requirements of the Ground Lease, including but not limited to Section 14.5 of the Ground
Lease, the City has agreed to reduce the requisite number of parking spaces at the Garage facility
from 700 to 645, so long as the public is compensated for the loss of said parking spaces, through
an increase in the minimum number of parking spaces which have to be maintained at all times for
use by the general public, and the minimum number of monthly parking spaces for use by the
general public; and
WHEREAS, in order to compensate for the loss of the parking spaces relating to the
341
development of the Miniature Golf Project, Tenant has agreed to increase the minimum number of
parking spaces required to be maintained at all times for use by the general public from 100 to 155
parking spaces; and further, to increase the minimum number of monthly parking spaces for
members of the general public from 50 to 75.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission of the City of Miami
Beach, Florida, hereby authorizes the Mayor and City Clerk to execute Amendment No. 1 to
Agreement of Lease ("Ground Lease") by and between the City of Miami Beach and 1691 Michigan
Ave Investment LP ("Tenant"}, dated as of September 1, 1999, modifying the Scope of Use under the
Ground Lease by reducing the minimum number of parking spaces required for the Garage Facility
from 700 to 645 spaces; increasing the minimum number of parking spaces required to be
maintained at all times for use by the general public from 100 to 155 parking spaces; and further
increasing the minimum number of monthly parking spaces for members of the general public from
50 to 75, in connection with the development of a Miniature Golf Project, at the sixth floor of the
Garage Facility.
PASSED and ADOPTED this 12th day of February, 2014.
ATTEST:
CITY CLERK
JLM\KGB\MS\GNT
MAYOR
F:\DDHP\$ALL\ASSET\The Lincoln\Resolutions\Amendment No. 1 Reso (2) Commission 2-12-2014
APPROVED AS TO
FORM & LANGUAGE
& F()8. E)\~CUTION
-/L.4~~~u,,_;_ i--s/ it L-.. ey~ Oate
342
AMENDMENT NO. 1 TO AGREEMENT OF LEASE BY AND BETWEEN THE CITY OF MIAMI
BEACH AND 1691 MICHIGAN AVE INVESTMENT LP, DATED AS OF SEPTEMBER 1, 1999,
INVOLVING THE IMPROVEMENTS TO PROPERTY LOCATED AT 1663 MICHIGAN
AVENUE, MIAMI BEACH, FLORIDA ("GARAGE FACILITY"); AND 1691 MICHIGAN
AVENUE, MAMI BEACH, FLORIDA ("OFFICE SPACE"); MODIFYING THE SCOPE OF USE
UNDER THE GROUND LEASE BY REDUCING THE MINIMUM NUMBER OF PARKING
SPACES REQUIRED FOR THE GARAGE FACILITY. FROM 700 TO 645 SPACES;
INCREASING THE MINIMUM NUMBER OF PARKING SPACES REQUIRED TO BE
MAINTAINED AT ALL TIMES FOR USE BY THE GENERAL PUBLIC FROM 100 TO 155
PARKING SPACES; AND FURTHER INCREASING THE MINIMUM NUMBER OF MONTHLY
PARKING FOR MEMBERS OF THE GENERAL PUBLIC FROM 50 TO 75, IN CONNECTION
WITH THE DEVELOPMENT OF A MINIATURE GOLF PROJECT AT THE SIXTH FLOOR OF
THE GARAGE FACILITY
This Amendment No. 1 ("Amendment No. 1") to Agreement of Lease, is made and
executed as of this 12th day of February, 2014 ("Effective Date"), relating to the Ground Lease
dated as of September 1, 1999, by and between the City of Miami Beach, a municipal
corporation duly organized and existing under the laws of the State of Florida ("Owner"} and
1691 Michigan Ave Investment LP, a Delaware limited liability partnership, whose principal
place of business is located at c/o Real Estate Capital Partners, LP., 114 West 47'h Street, 23rd
Floor, New York, New York 10036 ("Tenant").
RECITALS:
WHEREAS, An Agreement of Lease was executed between the City of Miami Beach
and Lincoln Plaza Partners LLC, dated as of September 1, 1999 ("Ground Lease"), in
connection with the lease of the Land where Tenant agreed to develop an office, retail and
commercial project with a parking garage ("Garage Facility"), now located at 1663 Michigan
Avenue, Miami Beach, Florida and an office building ("Office Space"), located at 1691 Michigan
Avenue, Miami Beach, Florida, both of which have ground retail space (collectively the
"Project"); and
WHEREAS, On December 20, 2000, the Mayor and City commission adopted
Resolution No. 2000-24220, modifying the terms of the Lease by waiving the provisions of
Section 10.3(a) and amending Section 10.4, approving the sale and Assignment and
Assumption of the Ground Lease from Lincoln Plaza Partners LLC to LNR Jefferson LLC before
a certificate of occupancy had been obtained; and
WHEREAS, On October 5, 2005, LNR Jefferson LLC changed its name to The Lincoln,
LLC; and
WHEREAS, On or about July 18, 2006, The Lincoln LLC sold its interest in the Project
and assigned its leasehold interest in the Land to Lincoln Miami Beach Investment LLC, a
Delaware limited liability company, pursuant to that certain Assignment and Assumption of
Ground Lease recorded in O.R. Book, 24738, Page 4073, of the Public Records of Miami-Dade
County, Florida; and
WHEREAS, On November 17, 2006, Lincoln Miami Beach Investment LLC changed its
name to OIK Lincoln Miami Beach Investment LLC, and on June 17, 2009 merged with 1691
Michigan Ave Investment LP, a Delaware limited liability partnership ("Tenant"}; and
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Amendment No. l
Commission February 12, 2014
WHEREAS, Tenant entered into a lease with City Middle, LLC ("Subtenant"), dated as of
July 1, 2012, involving the proposed development of a miniature golf project on the sixth floor of
the Parking Facility, which is the roof top level ("Miniature Golf Project"); and
WHEREAS, Section 6.1 {b) of the Lease requires Tenant to operate the Parking Facility
containing not less than seven hundred {700) parking spaces, provided that not less than one
hundred (100) parking spaces shall be available for use by members of the general public and a
minimum of fifty (50) parking spaces for monthly parking for members of the general public; and
WHEREAS, The garage currently has 729 spaces; however, the development of the
Miniature Golf Project will encompass a minimum of 84 of the parking spaces, reducing the total
number of available parking spaces to 645; and
WHEREAS, on February 12, 2014, pursuant to Resolution No. _______ _
the Mayor and City Commission of the City of Miami Beach, Florida authorized the Mayor and
City Clerk to Execute this Amendment reducing the minimum number of parking spaces which
Tenant is required to have at the Parking Facility, from 700 to 645; increased the minimum
number of parking spaces required to be maintained at all times for use by the general public,
from 100 to 155 parking spaces; and further increased the minimum number of monthly parking
spaces for members of the general public from 50 to 75, in connection with the development of
a Miniature Golf Project at the sixth floor of the Garage Facility.
NOW THEREFORE, Owner and Tenant, in consideration of the mutual covenants,
agreements and undertakings herein contained, do by these presents mutually covenant and
agree to amend the Lease, based upon the following terms and conditions:
1 . Section 6 .1 (b) of the Ground Lease, titled "Scope of Use" is hereby deleted and
replaced with the following:
"In accordance with Tenant's obligations to meet and comply with the maintenance
and operating standards set forth in Article 14 and other provisions of this Lease,
Tenant shall, from and after the Project Opening Date, operate the Premises as an
office, retail and commercial (excluding any apartments, hotels, apartment hotels or
residential uses) project and parking garage containing not less than Six Hundred
Forty-Five (645) parking spaces. The number of parking spaces required by the Land
Development Regulations for the uses within the Premises shall be available to
Tenant to sublease or license to its subtenants; provided, however, that the
remainder of the parking spaces in the Garage {but in no event less than one
hundred fifty-five (155) parking spaces) shall be available for use by members of the
general public at all times and all of the spaces in the Garage shall be available for
use by members of the general public during non-office hours to the extent not used
by subtenants. Furthermore, Tenant shall provide not less than seventy-five (75}
parking spaces for monthly parking for members of the general public who are not
subtenants of the Premises at monthly garage parking rates established by Tenant,
which rates shall not be higher than the highest rate paid by any subtenant in the
Premises. Notwithstanding the preceding sentence, Tenant reserves the right to
close or restrict access to any portion of the Premises in connection with Alterations
undertaken in accordance with the provisions of this Lease or to such extent as may,
in the reasonable opinion of Tenant's counsel, be legally necessary to prevent a
dedication thereof or the accrual of prescriptive rights to any Person or Persons.
2
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Lease between the City and 1691 Michigan Ave Investment LP
Amendment No. I
Commission February 12, 2014
2. Except as amended herein, all other terms and conditions of the Ground Lease shall
remain in full force and effect and are hereby ratified and confirmed by the parties.
IN WITNESS WHEREOF, this Amendment No. 1 has been duly executed by the parties hereto
as of the day and year first above written.
ATIEST:
Print Name: -------
Print Name: -------
Print Name: -------
Print Name: -------
3
OWNER:
CITY OF MIAMI BEACH, FLORIDA,
A municipal corporation of the State of
Florida
Mayor
___ day of _____ , 2014.
City Clerk
___ day of _____ , 2014.
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Lease between the City and 1691 Michigan Ave Investment LP
Amendment No. 1
Commission February 12, 2014
ATTEST:
Print Name: --------
Print Name: _________ _
TENANT:
1691 Michigan Ave Investment LP, a Delaware
limited liability partnership
___ day of _____ ,2014.
F:\RHCD\$ALL \ECON\$ALL \ASSEnthe Lincoln\Amendment No. 1 for February, 2014 Commission Meeting
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