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Portofino Development Agreement
This Instrument prepared by, and after recording return to: Name: M" 4Kcu Address: t111 MT _. A`� r c- 3J13 I THIS AGREEMENT is made and entered into as of the —7 day of (Jov��tcr 1995, by and among: (1) the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation ("City"); (2) the MIAMI BEACH REDEVELOPMENT AGENCY, a Florida public agency organized and existing pursuant to the Community Redevelopment Act of 1969 (Chapter 163, Part III, Florida Statutes, as amended) ("Redevelop- ment Agency"), and (3) the following entities which are hereinafter collectively referred to as the "Portofino Entities": (1) West Side Partners, Ltd., a Florida limited partnership ("West Side"); (2) East Coastline Development, Ltd., a Florida limited partnership ("East Coastline"); (3) 404 Investments, Ltd., a Florida limited partnership (11404 Investments"); (4) Azure Coast Development, Ltd., a Florida limited partnership ("Azure"); (5) Beachwalk Development Corporation, a Florida corporation ("Beachwalk"); (6) Portofino Real Estate Fund, Ltd., a Florida limited partnership ("Portofino Real Estate Fund"); (7) St. Tropez Real Estate Fund, Ltd., a Florida limited partnership ("St. Tropez"); and (8) Sun & Fun, Inc., a Florida corporation ("Sun & Fun"). The Portofino Entities are all owned and/or controlled, directly or indirectly, by the same principal; and, accordingly, each of the Portofino Entities will receive a common benefit under the terms and provisions of this Agreement. l Introduction and Background A. The properties that are the subject of this Agreement lie in the South Shore area of Miami Beach. The South Shore area, generally the area lying south of Sixth Street, was the earliest area of Miami Beach to develop. The area suffered economic and physical decline after World War II. The Redevelopment Agency was created in 1973 to reverse these conditions. The Redevelopment Agency created a redevelopment plan in 1976 that called for "Predominant clearance" of buildings in the area and the selection of a master developer. The City considered amending the original redevelopment plan and appointed an ad hoc committee on planned area development to prepare a new revitalization strategy. In 1984, the City adopted a revised redevelopment plan entitled "The South Shore Revitalization Strategy." The original 1976 plan, as the same may have been revised or amended, is hereinafter referred to as the "Redevelopment Plan." The four major goals of the Redevelopment Plan are: W to reestablish the area as an economically viable and functionally diverse urban neighborhood/resort community; (ii) to involve minimum relocation and condemnation; (iii) to enhance the diversity of form and activity through the use of established planning and design principles; and (iv) to create a traffic system that adequately serves both through and local -traffic needs of the area. B. Prior to the adoption of the South Shore Revitalization Strategy, the City initiated a number of plans to encourage redevelopment in the area, some of which resulted in controversies and litigations involving both the Miami Beach Marina (IlMarina") and the uplands property adjacent to the Marina. The uplands property is commonly referred to by the parties as "SSDI North," I'SSDI South" and the "Core Parcel." In addition, the City adopted City Resolution No. 75-14762, under Section 380.06, Florida Statutes, approving a development order ("DO") for a Development of Regional Impact ("DRI") for a mixed use development consisting of the Marina, SSDI North, SSDI South and the Core Parcel. 2 C. In order to resolve the controversies and the litigation involving the uplands property, the City and the Redevelopment Agency entered into a stipulation and order ("Order") in South Shore Developers. Inc.. et al. v. City of Miami Beach, et al., Case No. 82-24526(19) (Fla. lath Cir. Ct. 1982) which was approved by the llth Judicial Circuit in and for Dade County, Florida (the "Court") on July 8, 1985, and the Court retained jurisdiction over the parties and subject matter in order to assure compliance with the terms of the Order. Pursuant to the Order, the City and Redevelopment Agency ratified certain judgments and entered into a series of agreements with South Shore Developers, Inc. ("SSDI") pertaining to the purchase, ownership and development rights of SSDI North and SSDI South, and which, in part, dealt with certain duties and obligations relating to the Marina and Core Parcels, pursuant to the following documents: (1) A Contract of Sale from the City and Redevelopment Agency, as sellers thereunder, in favor of SSDI as purchaser thereunder, dated July 24, 1985, and recorded July 31, 1985, in O.R. Book 12590, at Page 2795, as amended by Amendment of Contract of Sale dated April 17, 1986, and recorded April 30, 1986, in O.R. Book 12873, at Page 2602, all in the Public Records of Dade County, Florida, pursuant to which the City and Redevelopment Agency agreed to sell to SSDI two (2) tracts of land commonly referred to as "SSDI South" and "SSDI North" (the "Contract of Sale"); (2) A Final Judgment for monetary damages with interest thereon dated September 18, 1984, as recorded in O.R. Book 12276, at Page 2258, and a certified copy of which was recorded in O.R. Book 16289, at Page 1495, together with a judgment for attorneys' fees dated September 23, 1986, as recorded in O.R. Book 13033, at Page 1235, and a certified copy of which was recorded in O.R. Book 16293, at Page 1045, all in the Public Records of Dade County, Florida (collectively, the "Judgments"); (3) A Mortgage from the Redevelopment Agency to SSDI encumbering both SSDI South and SSDI North as security for the payment of the Final Judgment referred to in clause 2 above and to ensure the performance by the City of its obligations under the Order and other documents, which Mortgage was dated July 24, 1985, and recorded on July 31, 1985, in O.R. Book 12590, at Page 2786, of the Public Records of Dade County, Florida (the "Mortgage"); (4) A Development Agreement dated as of April 17, 1986, and recorded in O.R. Book 12873, at Page 2612, of the Public Records of Dade County, Florida, by and among the City, the Redevelopment Agency, and SSDI and established in order to define the rights and obligations of the parties relating to the development of SSDI North and SSDI South (the "Development Agreement"); and 3 (5) A Parking Agreement dated as of April 17, 1986, and recorded in O.R. Book 12873, at Page 2731, of the Public Records of Dade County, Florida, by and among the City, the Redevelopment Agency, and SSDI, as further amended by letter agreement dated April 17, 1986, pursuant to which the parties established certain rights and obligations with respect to the construction, cost, purchase, maintenance and operation of certain parking spaces to be located on SSDI North and SSDI South (the "Parking Agreement"). Collectively, the Order and other documents described in sub- paragraphs (1) through (5) above are referred to in this Agreement as the "SSDI Documents." All of the rights of SSDI under the SSDI Documents have been sold and assigned to West Side as evidenced by that certain Assignment and Assumption of Mortgage and Other Documents dated April 6, 1994, and recorded April 7, 1994, in O.R. Book 16313, Page 1077, of the Public Records of Dade County, Florida, a true and correct copy of which is attached to this Agreement as Exhibit "A" hereto. D. The SSDI North and SSDI South parcels are situated adjacent to the Miami Beach Marina, which, together with the Marina Core Parcel, are the subject of a Lease Agreement from the City, as landlord, to Carner-Mason Associates, Ltd., as lessee, dated June 24, 1983, as amended by a First Amendment dated October 23, 1991, µ and a Second Amendment dated August 11, 1994 (collectively, the "Marina Lease"). All of the rights of the lessee under the Marina Lease are currently held by Tallahassee Building Corporation (the "Marina Lessee"). E. The City and the Redevelopment Agency have determined that the cost of complying with their existing obligations under the SSDI Documents and Marina Lease as currently in place would be extremely expensive, and, as a result have: (i) negotiated with West Side and the other Portofino Entities for potential amendments to the SSDI Documents and certain other matters, and (ii) issued a Notice of Proposed Property Disposition pursuant to the provisions of Section 163.380(3), Florida Statutes, which solicited from the public redevelopment or rehabilitation proposals concerning certain of the properties covered by this Agreement which are or may here- after be owned by the City and/or Redevelopment Agency, and which 4 were acquired for purposes of redevelopment. The City and Redevelopment Agency have duly considered any and all such proposals, at a duly noticed public hearing, and have determined, pursuant to the factors and criteria set forth in Section 163.380, Florida Statutes, that the sale, lease or transfer of such properties to the Portofino Entities, under the terms of this Agreement, are at a value which is in the public interest, and in furtherance of the goals of the Redevelopment Plan as well as the purposes of the Community Redevelopment Act of 1969 (the "Redevelopment Act"). Le illative Bac run and Intent F. The City is a Florida municipal corporation with powers and authority conferred under the Florida Constitution, the Municipal Home Rule Powers Act, Florida Statutes and the Miami Beach City Charter and Code of ordinances. The Redevelopment Agency is a public agency organized and existing pursuant to the Redevelopment Act. The City has all governmental, corporate and proprietary powers to enable it to conduct municipal government, perform municipal and governmental functions and render municipal services, including the authority to adopt, implement and enforce (together with any other required governmental approvals) comprehensive plans, zoning ordinances, redevelopment plans and other police power and legislative measures necessary to assure the health, safety and general welfare of the City and its inhabitants and the Redevelopment Agency has all necessary powers to conduct the business of a redevelopment agency under the Redevelopment Act. Furthermore, each of the City and the Redevelopment Agency is a "public agency," within the meaning of Section 163.01 et seq., Florida Statutes, also known as the Florida Interlocal Cooperation Act of 1969 (the "Interlocal Government Act") and they are permitted to enter into agreements providing for the joint exercise of any power, privilege, or authority which such agencies share in common and which they might exercise separately. This Agreement, among other things, is intended to and shall constitute an interlocal agreement between the City and the Redevelopment Agency 5 pursuant to the Interlocal Government Act and this Agreement shall be recorded with the Clerk of the Circuit Court for Dade County, Florida, prior to its effectiveness. G. The City has adopted and implemented a Comprehensive Plan for the redevelopment and continuing development of the City pursuant to Chapter 163 Part II, of the Florida Statutes (the "Comprehensive Plan"). This Agreement, among other things, is intended to and shall constitute a development agreement among the parties pursuant to Section 163.3220, et. seq., Florida Statutes (the "Florida Government Development Agreement Act") and Section 9D-1 of the City's Code. H. The City has created the Redevelopment Agency pursuant to Chapter 163, Part III, of the Florida Statutes, and has adopted the Redevelopment Plan for a redevelopment area which is defined and bounded as described in Exhibit 11$11 hereto (the "Redevelopment Area"). All of the properties which are the subject of this Agreement lie within the Redevelopment Area. I. Following the receipt of all proposals referred to in paragraph E above, and having fully considered them at a duly conducted public hearing, and having further determined that it is in their mutual best interests to deal with these properties as well as certain other properties and issues covered by this Agreement in a comprehensive manner so that the City and Redevelopment Agency, as well as the Portofino Entities, can be assured of the provision of essential public services in a manner and mode that will best permit the economic provision of both public and private resources and the proper use of the Portofino Entities' private properties, in compliance with all applicable laws, ordinances, plans, rules and regulations of the City, but without the uncertainty of potential changes in those laws, ordinances, plans, rules and regulations during the term of this Agreement, the parties have decided to enter into this Agreement. NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 6 1. Recitations. The foregoing recitations are true and correct and are incorporated herein by this reference. 2. Authorit . This Agreement is entered into pursuant to the authority and procedures provided by the Florida Local Govern- ment Development Agreement Act and Section 9D-1 of the Code of the City of Miami Beach. 3. Definition of Parcels. This Agreement pertains to a number of different parcels of land all lying within the Redevelopment Area of the City of Miami Beach, Dade County, Florida, which, as used in this Agreement, shall be defined as follows: 3.1 Alaska Assemblage shall mean collectively the Alaska Parcel, Federal Triangle Parcel (unless the Federal Triangle Parcel is not conveyed to West Side pursuant to subparagraph 7.4 (f) below), Hinson Parcel, and Goodman Terrace Parcel. 3.2 Alaska Parcel shall mean that certain parcel of land owned in fee title by East Coastline, comprising approximately 3.444 acres and legally described in Composite Exhibit "C" hereto. 3.3 City/Redevelopment,Pronerty shall mean collectively the SSDI South Parcel, the Goodman Terrace Parcel, the Federal Triangle Parcel, the Water Tower Triangle Parcel and the End Parcels. 3.4 Core Parcel shall mean that certain parcel of land owned in fee title by the Redevelopment Agency, comprising approximately 2.933 acres and legally described in Composite Exhibit "C" hereto. 3.5 Diamond C Parcel shall mean that certain parcel of land owned in fee title by Marquesa Development, Ltd., a Florida limited partnership ("Marquesa"), comprising approximately 5.425 acres and legally described in Composite Exhibit "C" hereto. 3.6 End Parcels shall mean those certain parcels of land owned in fee title by the City, comprising approximately .166 acres and legally described in Composite Exhibit "C" hereto. 3.7 Federal Triangle Parcel shall mean that certain parcel of land owned in fee title by the City, comprising approximately .3498 acres and legally described in Composite Exhibit "C" hereto. 3.8 404 Parcel shall mean that certain parcel of land located at 404 Washington Avenue owned in fee title by 404 Investments, comprising approximately .565 acres and legally described in Composite Exhibit "C" hereto. 3.9 Goodman Terrace Parcel shall mean that certain parcel of land comprising approximately 1.244 acres owned in fee title by the City of Miami Beach Housing Authority and legally described in Composite Exhibit "C" hereto. 7 3.10 Hinson Parcel shall mean that certain parcel of land owned in fee title by Azure, comprising approximately 1.059 acres and legally described in Composite Exhibit "C" hereto. 3.11 Marina Parcel shall mean that certain parcel of land (including bay bottom) comprising approximately 37.85 acres owned in fee title by the State of Florida, leased to the City, and Legally described in Composite Exhibit ,C" hereto. 3.12 Michigan and Jefferson Parcels shall mean those certain parcels of land owned in fee title by Beachwalk, comprising approximately 1.125 acres and legally described in Composite Exhibit "C" hereto. 3.13 Ocean Parcel shall mean that certain parcel of land owned in fee title by Portofino Real Estate Fund, comprising approximately 12.769 acres and legally described in Composite Exhibit "C" hereto. 3.14 101 and 155 Parcels shall mean those certain parcels of land located'at 101/115 and 155 Ocean Drive, owned by Sun & Fun and St. Tropez, respectively, comprising approximately 1.953 acres in the aggregate and legally described in Composite Exhibit "C" hereto. 3.15 Pgr Park Parcel shall mean that certain parcel of land comprising approximately 3.491 acres and legally described in Composite Exhibit "C" hereto. 3.16 Portofino Property shall mean collectively, the 211 Parcel and the Michigan and Jefferson Parcels. 3.17 SSDI North Parcel shall mean that certain parcel of land owned in fee title by the Redevelopment Agency, comprising approximately 7.087 acres and legally described in Composite Exhibit "C" hereto. 3.18 SSDI South Parcel shall mean that certain parcel of land owned in fee title by the Redevelopment Agency, comprising approximately 6.623 acres and legally described in Composite Exhibit "C" hereto. 3.19 211 Parcel shall mean that certain parcel of land owned in fee title by Sun & Fun, located at 211 Collins Avenue, comprising approximately 0.149 acres and legally described in Composite Exhibit "C" hereto. 3.20 Water Tower Triangle Parcel shall mean that certain parcel of land owned in fee title by the City, comprising 'approximately .161 acres and legally described in Composite Exhibit "C" hereto. The foregoing definitions are included in this paragraph 3 solely for ease of reference in reading and understanding this Agreement, and the inclusion of definitions of certain parcels in this paragraph 3 shall not be deemed to imply that each parcel defined herein is subject to any particular or all provision(s) of this Agreement. 4. Comprehensive Plan Redevelg2ment Plan, Zoning and Other Approvals and Transfer of Development Rights. 4.1 Dev�l4gment Approvals. Certain provisions of this Agreement will require the City and/or its boards, departments or agencies (including the Redevelopment Agency), acting in their governmental capacity to 8 consider certain changes in the City's Comprehensive Plan, Redevelopment Plan and/or Zoning Ordinance as well as to consider taking other governmental actions. The term "Development Approvals" as used in this Agreement shall mean all City and/or Redevelopment Agency approvals, consents, permits, amendments, rezonings, transfers of development rights, special use exemptions or variances as well as such other official actions of the federal, state or local governments which are necessary to accomplish and satisfy the following: (i) The rezoning of the Alaska Parcel, the Federal Triangle Parcel (unless the Federal Triangle Parcel is not conveyed to West Side pursuant to subparagraph 7.4(f) below) and the Goodman Terrace Parcel to City of Miami Beach Zoning Classification CPS-3 including all of the uses permitted therein on the date of this Agreement and in accordance with the terms of this Agreement (provided that the north fifty (50) feet of the Goodman Terrace Parcel shall be limited to a maximum building height of 75 feet). (ii) The rezoning of the End Parcels and Water Tower Triangle to City of Miami Beach Zoning Classification CPS-1 including all of the uses permitted therein on the date of this Agreement and in accordance with the terms of this Agreement. (iii) The transfer of 400,000 square feet of currently available floor area development rights from the SSDI North Parcel as follows: (a) as much floor area as is necessary (pur- suant to existing regulations as reason- ably determined by the City) shall be transferred to the 404 Parcel to allow the building located on the 404 Parcel (as presently constructed) to fully comply with all applicable City floor area ratio requirements and so that a final certificate of occupancy may be validly issued therefor; and (b) the unused balance of the 400,000 square feet not transferred to the 404 Parcel pursuant to (a) above shall be transferred to the SSDI South Parcel and/or the Alaska Assemblage in such proportion and amount as designated by West Side and East Coastline from time to time (but once used by construction of a building the same shall be forever deemed assigned to the parcel where such building has been constructed and -may not be reassigned to another parcel). The transfer of the foregoing floor area development rights shall be in addition to the development rights that otherwise exist on the transferee parcels. Nothing contained herein is to be construed or is intended to prevent the Portofino Entities from filing, processing and seeking approval for construction of any otherwise permitted project on the SSDI South Parcel during the period of time before the 7 transfer of development rights hereunder is finally adopted in its appropriate form, as long as any such application is consistent with the development legally permitted on said parcel, without the necessity for the trans- ferred development rights hereunder. Except for the transfers of floor area development rights provided by this Agreement, there shall be no further floor area transfers of development rights to or from the SSDI South Parcel and/or the Alaska Assemblage without the consent of the City. (iv) The amendment of the commercial parking requirements for the Alaska Assemblage and the SSDI South Parcel to change the same from 2.5 spaces per 1000 square feet of commercial floor area developed to 4 spaces per 1000 square feet of commercial floor area developed. (v) The amendment of the floor area ratio requirements for the Alaska Assemblage and the SSDI South Parcel to change the same as necessary so that such properties are given floor area ratio credit for the land encompassed within all the areas deeded (or released) to the City pursuant to paragraph 7.2 below for the Baywalk Area, Sunset Plaza, the Washington Avenue Extension and the SSDI South Pedestrian Passage. (vi) The amendment of the floor area ratio requirements for the SSDI South Parcel to grant additional floor area ratio credit (over and above the development rights that already exist and as otherwise provided under this Agreement) to such parcel equal in amount to all floor area utilized in providing the parking spaces and lavatory, shower and laundry facilities to the City (and the Marina Lessee) under the New Parking Agreement as referenced in paragraph 8.2 below. (vii) The DRI approvals provided for in paragraph 4.6 below. (viii) The amendment of the applicable requirements for lot area, setbacks, floor area ratio and other land use and zoning criteria for the Alaska Assemblage and the SSDI South Parcel to change the same as necessary so that all lot area, setback, floor area ratio and other land use and zoning calculations shall be made as if title to the Baywalk Area, SSDI South Pedestrian Passage, Washington Avenue Extension, Sunset Plaza, and the portion of the Federal Triangle Parcel not included in the Baywalk Area (to the extent that title to the Federal Triangle Parcel is not conveyed to a Portofino Entity hereunder) is owned in fee simple by the adjacent property owner (it being understood by the parties hereto that development rights are not being transferred from said parcels to the Alaska Assemblage and the SSDI South Parcel, but only that the development rights for the Alaska Assemblage and the SSDI South Parcel are being increased by an amount equivalent to those associated 10 with said parcels), provided that in doing so, any such amendment shall comply with the requirements of the Design Guidelines (as hereinafter defined) and the Urban Design Master Plan (as hereinafter defined). (ix) All actions necessary to consummate the "Initial Closing" and "Second Closing" as such terms are hereinafter defined. The failure of either the Initial Closing or Second Closing to be consummated as hereinafter provided shall be deemed a denial of the Development Approvals under this Agreement. (x) All actions necessary for use of the tax increment revenues (or other revenues as applicable) as hereinafter provided. The obligations of the parties to obtain the Develop- ment Approvals hereunder shall be deemed satisfied and fulfilled at such time as the Development Approvals are fully adopted by all requisite governmental action and the same have become final, binding and no longer subject to appeal, which shall hereinafter be referred to as having obtained the "Final Approvals." In the event any of the Final Approvals include a requirement that the City and/or Redevelopment Agency, as adjacent property owners, provide their consent to the Portofino Entities, the City and Redevelopment Agency hereby agree to promptly provide such consents. Notwith- standing the foregoing, the term Development Approvals are not intended to include building permits, certificates of use or occupancy, plat approvals, or such other City, Redevelopment Agency or other similar governmental permits or approvals that are purely ministerial (as opposed to discretionary) in nature. 4.2 Applications for Development Approvals. Promptly following the date of this Agreement, East Coastline (or such other Portofino Entity as Portofino shall determine) will initiate and diligently pursue all Development Approval applications. The City and/or the Redevelopment Agency shall consent to the filing of all applications for the foregoing as necessary because of their ownership of any properties affected thereby, and the City of Miami Beach Housing Authority has joined in this document to likewise consent as to any filing pertaining to the Goodman Terrace Parcel. In the event this Agreement requires modifications of any ordinances, resolutions, rules or regulations of the City, Redevelopment Agency, or other governmental entity which must (as a matter of law) be initiated by the City and/or Redevelopment Agency, then, and in that event, any modifications to such ordinances, resolutions, rules and/or regulations will be initiated by the City and/or Redevelopment Agency promptly following the date of this Agreement. East Coastline (or Portofino's other designee) agrees to pay all of the application fees and advertising costs required for the processing of these applications. The City will process all Development Approval applications in a timely fashion and both the City and the Redevelopment Agency shall cooperate with the Portofino Entities (at no cost to the City and/or Redevelopment Agency) in processing all necessary Development Approvals from federal, county and state agencies as needed. 4.3 O her D velogment Approvals. After obtaining the Final Approvals, the City and Redevelopment Agency, to the 11 extent permitted by law, shall cooperate and assist Portofino in the applications for and processing of any and all other development approvals with respect to the development of the Alaska Assemblage and SSDI South Parcel (including, without limitation, any building permit requested by the Portofino Entities) as may be required to allow the construction of the improvements requested by the Portofino Entities as long as and to the extent that such improvements are consistent with the terms of this Agreement and as long as such cooperation and assistance does not include the exercise of the City's police power or arise out of the exercise of the City's powers when acting in a quasi- judicial capacity. The City will process all such development approval applications in a timely fashion; however, nothing contained herein shall obligate the City and/or Redevelopment Agency to expend any funds in support of any such applications. 4.4 No Chancre. Except only as necessary to obtain the Development Approvals, the City and the Redevelopment Agency agree not to change the Comprehensive Plan, Redevelopment Plan, zoning classifications or other applicable City or Redevelopment Agency codes, plans or regulations, the existing allowable uses, densities, intensities, development standards, requirements for each such use or classification or any other laws or policies governing the development of the Alaska Assemblage, SSDI South Parcel or any portion thereof, throughout the term of this Agreement except as otherwise permitted or required by Chapter 163 of the Florida Statutes. Notwithstanding the foregoing, all development on the rezoned parcels shall comply with the requirements of Section 7 below, as applicable. 4.5 Comprehensive Plan, Redevelopment Plan. Zoning and Other Approvals. As provided above, the parties recognize and agree that certain provisions of this Agreement will require the City and/or its boards, departments or agencies (including the Redevelopment Agency), acting in their governmental capacity, to consider certain changes in the City's Comprehensive Plan, Redevelopment Plan and/or Zoning Ordinance or other applicable City or Redevelopment Agency codes, plans or regulations, as well as to consider other governmental actions {such as, but not limited to, street abandonments), as set forth in this Agreement. All such considerations and actions shall be undertaken in accordance with established requirements of state statute and City ordinances, in the exercise of the City's jurisdiction under the police power. Nothing in this Agreement is intended to limit or restrict the powers and responsibilities of the City and/or the Redevelopment Agency in acting on applications for Redevelopment Plan and Comprehensive Plan changes and applications for other Development Approvals by virtue of the fact that the City and/or the Redevelopment Agency may have been required to consent to such applications as a property owner. The parties further recognize and agree that these proceedings shall be conducted openly, fully, freely and fairly in full accordance with law and with both procedural and substantive due process to be accorded the applicant and any member of the public. Nothing contained in this Agreement shall entitle the Portofino Entities to compel the City or Redevelopment Agency to take any such actions, save and except the consents to the filing of such applications for land use approvals, rezonings, comprehensive plan amendments or other 12 required approvals, as more fully set forth herein, and to timely process such applications; and, provided that if the City and/or the Redevelopment Agency do not approve the requested Development Approvals and the City and Redevelopment Agency have acted in good faith under this Agreement and are not otherwise in default of any of the provisions hereof (including, without limitation, subsections 5.3(e) and 5.3(f) below) nor otherwise attempting to derogate the rights of the Portofino Entities to develop the subject properties as permitted in subsections 5.3(e) and 5.3(f) below and the SSDI Documents, then the Portofino Entities shall not be entitled to bring any litigation against the City and/or Redevelopment Agency because of the failure by either the City and/or Redevelopment Agency to grant the Development Approvals. 4.6 PRI. The parties shall act in good faith, cooperate with each other and not delay in seeking any and all modifications, bifurcations, trifurcations, amendments and/or abandonments of the existing Development of Regional Impact ("DRI") approval affecting the SSDI North and SSDI South Parcels, and any extensions thereof to other properties affected hereby so as to conform to the development permitted by this Agreement including, without limitation, the consent thereto and the support thereof, and including, without limitation, the assignment of any development rights as necessary for development of the SSDI South Parcel and use of the development rights to be transferred pursuant to paragraph 4.1 above, but saving and reserving for the benefit of the Marina Lessee and City those rights required for the originally planned development of the Marina and Core Parcel, and the Marina retail rights remaining on the SSDI North Parcel (not, with respect to the SSDI North Parcel, to exceed 20,000 square feet of marine related floor area in the aggregate); and, approval or consent to any preliminary development agreement or similar agreement that allows construction to take place on the SSDI South Parcel, consistent with the terms of this Agreement as long as any such construction complies with the terms hereof as to review procedures and consistency with the Design Guidelines and Urban Design Master Plan, but in no event shall construction on the SSDI South Parcel be permitted to utilize any of the transferred development rights set forth in paragraph 4.1 for such construction until final approval of any ordinance or other changes required to effectuate such transfer. The fact that the development rights currently existing pursuant to the existing development order shall be allocated as set forth above, shall in no way be deemed an implication of future use and development rights which are intended to be governed as otherwise provided in this Agreement. 5. Release and Conveyance of Certain Property Rights. 5.1 Closincx and Closincr Conditions. The transactions described in this Section 5 are intended and agreed to be closed in three (3) stages. An initial closing ("Initial Closing") shall be held within thirty (30) days following the execution of this Agreement pursuant to which the SSDI South Parcel shall be conveyed to West Side. A second closing (the "Second Closing") shall be held within seventy-five days following execution of this Agreement pursuant to which the Portofino Property shall be conveyed to the City (or its designee) and the Goodman Terrace Parcel shall be 13 simultaneously conveyed to West Side (or its designee) , all as more particularly hereinafter described. Upon the Initial Closing, West Side shall: W issue a partial release, releasing the SSDI South Parcel from the lien of the Judgments and Mortgage and reducing the amount of the Mortgage and Judgments by $4,904,463.96; provided, however, that the balance owed under the Mortgage and Judgments shall continue to constitute a lien against the SSDI North Parcel) and the City and Redevelopment Agency stipulate and agree that interest on the Judgments has not abated, (ii) grant the appropriate access and baywalk easements as provided for under the Development Agreement, provided that the location of the twenty five (25) foot baywalk easement area adjacent to the SSDI South Parcel under the Development Agreement shall be replaced by the baywalk area shown on the Urban Design Master Plan provided that any changes to the existing approved concept plan under the Development Agreement necessitated thereby shall be effectuated, and (iii) execute a waiver of all riparian rights for the SSDI South Parcel as necessary to assure the City and Redevelopment Agency that the City and Redevelopment Agency will be able to retain the existing submerged land lease with the Board of Trustees of the Internal Improvement Fund, as the same may be modified or extended from time to time (the "TIIF Lease"), and deliver said documents to the City. Following the Initial Closing and Second Closing, it is the agreement of the parties that certain existing rights and obligations be released (as provided in paragraph 5.2 below) and that certain parcels of property be conveyed (as provided in paragraphs 5.3 and 5.4 below). The closing ("Final Closing") of these releases and the balance of the conveyances required by this Agreement shall be held at a mutually convenient time (the "Final Closing Date") within fifteen (15) days following the date when the Final Approvals have been obtained. The parties shall have a period of six (6) months (the "Approval Period") following the date of this Agreement to obtain the Final Approvals, provided that to the extent applications seeking the Development Approvals are still pending hearing or appeal at the expiration of such six (6) month period, then the Approval Period shall be extended an additional six (6) months to obtain the Final Approvals, and provided further that the Approval Period shall be further extended a second additional six (6) months to obtain the Final Approvals in the event that: (i) West Side has received a full building permit for construction of a pedestal and tower on any portion of the SSDI South Parcel, or (ii) West Side withdraws (without refiling) or amends the currently filed application for a building permit for construction of a pedestal and tower on the SSDI South Parcel and fails to reasonably pursue any such applica- tion (as the same may be refiled or amended) in good faith within a reasonable period of time following the date of this Agreement so as to have reasonably been able to obtain a full building permit within the initial twelve (12) month period following the date of this Agreement. In the event, for any reason, the Final Approvals have not been obtained by the expiration of the Approval Period (as may be extended as provided above) , or in the event, prior thereto, any of the required Development Approvals have been denied by the City or the Redevelopment Agency (or, with respect to any Development Approval which is denied by a governmental entity other than the City or the Redevelopment Agency, not refiled or appealed within 14 thirty (30) days after such denial, to the extent such ref iling or appeal is permitted by law) , then West Side and East Coastline may, at their sole option, elect to U) further extend the Approval Period for up to six (6) additional months, with the right to further extend said period for a second six (6) month period, (ii) terminate this Agreement as hereinafter provided, or (iii) waive the requirement of obtaining all of the required Final Approvals as hereinafter provided [and, in the event West Side and East Coastline elect the option to extend under (i) above, then at the end of such extension period if the Final Approvals still have not been obtained, then West Side and East Coastline shall have the option to either terminate or waive as provided in (ii) and (iii) above]. Notice of termination shall be given in writing to the City and Redevelopment Agency no later than the expiration of the Approval Period (as the same may be extended) . The City shall give West Side at least ten (10) days advance written notice of the expiration of the Approval Period (as the same may be extended). If no written notice of termination is given, then West Side and East Coastline shall be deemed to have waived the requirement of obtaining all of the required Final Approvals. If West Side and East Coastline terminate this Agreement prior to the expiration of the Approval Period (as the same may be extended hereunder), then this Agreement shall terminate as to all provisions except those specifically provided below to survive, the City and Redevelopment Agency shall revert, without the objection of the Portofino Entities, any and all of the Development Approvals (except for the transfer of square footage of floor area to the 404 Parcel, as described in paragraph 4.1(iii)(a) above) to the conditions that exist as of the date of this Agreement and all of the other provisions and obligations of the parties under this Agreement shall fully terminate and be null and void except only as specifically provided in paragraphs 5.3, 5.4 (as such provisions pertain to the Second Closing only), 5.10, 9.8, 9.15, 9.16, 9.21 and Section 8 below. If the Final Approvals are obtained prior to the delivery of a written notice of termination, then there shall be no further right of termination hereunder. In the event all of the Development Approvals have been timely obtained, but some or all of them are being challenged by third parties or appeal periods have not expired so that they have not become Final Approvals at a time when the Approval Period (as the same may have been extended) is expiring, the City and the Redevelopment Agency on the one hand, and West Side (on behalf of all of the Portofino Entities) on the other hand, agree to consider the desirability and advisability of further extending the Approval Period, provided that such consideration and the determination thereof shall be in the sole and exclusive discretion of each of such respective parties, and must be separately agreed by the City and the Redevelopment Agency on the one hand, and West Side (on behalf of all of the Portofino Entities) on the other hand, in order to be binding. 5.2 Release of Certain Property Rights by West Side. Subject to and specifically conditioned upon the prior obtaining of the Final Approvals, the City, the Redevelopment Agency and West Side agree to: (a) partially release each other from any and all obligations under the Contract of Sale and the Development Agreement as they pertain to the 15 SSDI South Parcel and to fully release each other from any and all obligations whatsoever under the Parking Agreement; and, in that regard, as part of the Final Closing, West Side, the City and the Redevelopment Agency shall deliver to each other duly executed and recordable: (i} partial releases of any and all obligations and liabilities under the Contract of Sale and Development Agreement as they pertain to the SSDI South Parcel; and (ii) full releases of any and all obligations and liabilities under the Parking Agreement (as well as delivering a full termination of the Parking Agreement). In addition, effective upon Final Closing, the Marina Lease shall be amended and the Parking Agreement replaced as provided in paragraph 8 below; and (b) deliver in escrow, to Chicago Title Insurance Company, as escrow agent (the "Escrow Agent"), duly executed and recordable full mutual releases under and terminations of the Contract of Sale and Development Agreement, as well as full satisfactions of the Judgments and Mortgage. Collectively, the documents delivered under this clause (b) shall be hereinafter referred to as the "Escrowed Documents." The Escrow Agent shall hold the Escrowed Documents pursuant to an escrow agreement to be entered into at the Final Closing among West Side, the City and the Redevelopment Agency, and which shall provide as follows: (i) Upon the timely payment of the Release Price (as hereinafter defined), together with any and all interest that may be due thereon, and other costs pursuant to Section 6 below, the Escrow Agent shall immediately record the Escrowed Documents in the Public Records of Dade County, Florida, and thereafter deliver the original recorded version thereof to the City with certified copies being delivered to West Side and the Redevelopment Agency. In the event the Release Price, any and all interest thereon, and all other costs due under Section 6 below are not timely paid (after any applicable notice and grace period provided in Section 6 for the payment of same), then the Escrow Agent shall void and return the Escrowed Documents, which shall no longer be deemed effective and West Side shall be fully entitled thereafter to enforce all of its rights under the Contract of Sale, Development Agreement, Judgments, and Mortgage against and as they pertain to the SSDI North Parcel, it being agreed and understood that West Side shall not be deemed to have released any rights whatsoever with respect to the Contract of Sale and Development Agreement as they pertain to the SSDI North Parcel, nor to the Judgments and Mortgage, until and unless all financial obligations of the City and Redevelopment Agency to West Side under Section 6 below have been timely satisfied in full. It is understood and agreed that the releases, terminations, satisfactions and amendments provided for in this paragraph 5.2 are to be granted, delivered and effective only if, as and when the Final Approvals are obtained and the subject transaction is fully and finally closed at the Final Closing; provided further, however, as to the Escrowed Documents, the same shall be delivered and effective there- after only as provided pursuant to the escrow agreement to be entered into in accordance with this paragraph 5.2 above. 5.3 Conveyance of Parcels to West Side. The City and the Redevelopment Agency (as appropriate) shall convey the City/Redevelopment Property to West Side (or West Side's designee(s)) in the three (3) separate closings described above in accordance with the following: (a) Conveyance. The conveyances shall be made by good and sufficient special warranty deeds, and shall include all improvements, if any, located on the City/Redevelopment Property, all strips and gores of land lying adjacent to the City/Redevelopment Property (to the extent owned by the City, the Redevelopment Agency, or any subdivision, agency or authority thereof, up to but not including the public rights -of -way and not including any riparian rights), together with all other privileges, intangible rights and appurtenances pertaining to or accruing to the benefit of the City/Redevelopment Property. (b) Purchase Price. The conveyances of City/ Redevelopment Property shall be made without any payment of money to the City or the Redevelopment Agency, but in consideration of the agreements of West Side to give the partial releases, reductions in the Mortgage and Judgments amount and other documents pursuant to paragraphs 5.1 and 5.2 above and the conveyances and undertakings of West Side hereunder; and, in that regard, any obligation of West Side under the Contract of Sale to pay a purchase price for the SSDI South Parcel shall merge with the closing of the SSDI South Parcel under this Agreement and be satisfied. In accordance with the foregoing, the parties acknowledge that, in addition to the other undertakings and agreements of the parties hereunder, {i) the SSDI South Parcel is being conveyed hereunder at the Initial Closing in consideration of West Side's agreement to partially release and reduce the Mortgage and Judgments pursuant to paragraphs 5.1 and 5.2 above; (ii) the conveyance of the Goodman Terrace Parcel is being made at the Second 17 Closing in exchange for the Portofino Property; and (iii) the conveyance of the Federal Triangle Parcel (subject to the provisions of subparagraph 7.4(f) below), the Water Tower Triangle Parcel and the End Parcels at the Final Closing is being made in consideration of various undertakings of West Side and other of the Portofino Entities hereunder, as well as the delivery into escrow of the full satisfaction of the Mortgage and Judgments and other Escrowed Documents pursuant to paragraph 5.2 above. (c) Title. At the Initial Closing, Second Closing and Final Closing, the City and the Redevelop- ment Agency (as appropriate) shall deliver good, marketable and insurable fee simple title to West Side (or its designee) of the appropriate portion of the City/Redevelopment Property, free and clear of all liens, encumbrances, rights of occupancy, or other matters except only the following: U) ad valorem real estate taxes for the year of closing and subsequent years which shall be prorated between the City/Redevelopment Agency and West Side as of the applicable closing date; (ii) applicable zoning ordinances and regulations in accordance with this Agreement; and (iii) those certain matters (including utility easements) as shown in Schedule B-2 to the City/Redevelopment Property Commitment (defined below). West Side has, prior to the execution of this Agreement, obtained a commitment (the "City/Redevelopment Property Commitment") from Chicago Title Insurance Company to issue an owner's ALTA Form B Marketability title insurance policy to West Side effective as of the applicable closing, a copy of which is attached hereto as Exhibit "D". The City and the Redevelopment Agency (and Tallahassee Building Corporation and the Housing Authority, to the extent any actions are required by them) shall take all actions required by Schedule B-1 of the City/ Redevelopment Property Commitment prior to the applicable closing to convey the quality of title required by this Agreement and the City and Redevelopment Agency may extend the applicable closing date a reasonable period of time (not to exceed ninety (90) days) to cure any new title defect first arising after the effective date of the City/Redevelopment Property Commitment. West Side, as necessary shall join in or consent to any actions required to correct title defects provided the same is at no expense or liability to West Side. Prior to each closing, no part of the City/Redevelopment Property shall be alienated, encumbered, conveyed or otherwise 18 transferred and the City and the Redevelopment Agency shall not permit any action to be taken which would result in any defect in the title otherwise required. West Side may update the title and obtain any surveys or updated surveys it desires prior to the applicable closing and the City and Redevelopment Agency shall take all actions necessary to cure any defect first arising after the effective date of the City/Redevelopment Property Commitment. With respect to the Goodman Terrace Parcel, the City represents and warrants to West Side that the City has agreed with the City of Miami Beach Housing Authority (the "Housing Authority"), prior to the execution hereof, to acquire the Goodman Terrace Parcel in exchange for the 211 Parcel and the Michigan and Jefferson Parcels. Alternatively, to the extent permitted by law, the exchange of the Goodman Terrace Parcel for the 211 Parcel and the Michigan and Jefferson Parcels shall be made directly between West Side, Beachwalk and Sun & Fun (or their designee), on the one hand, and the Housing Authority, on the other. (d) Contamination Substances. {i) The City and the Redevelopment Agency previously advised West Side of the existence of "recognized environmental conditions," as that term is defined by ASTM E 1527-93 on the SSDI South Parcel and the Federal Triangle Parcel. The environmental conditions are described in environmental assessments that were previously obtained by West Side. Anything to the contrary notwithstanding, conditioned upon the Final Closing having occurred, the City and the Redevelopment Agency agree to pay for the first $1,000,000 of Remediation Costs (as defined below) in connection with the SSDI South Parcel and Federal Triangle Parcel. In the event the Remediation Costs exceed $1,000,000, then, in settlement of West Side's existing potential claim against the City regarding the remediation of the SSDI South Parcel, the City and the Redevelop- ment Agency agree to loan to West Side up to an additional $1,000,000 (the "Remediation Loan"), as necessary for Remediation Costs incurred by West Side over and above the initial $1,000,000. The Remediation Loan shall bear interest and be repaid in accordance with the following: (a) no interest shall accrue and no principal shall be repaid for a period of one (1) year after advancement; and (b) thereafter, the full loan amount shall be repaid in six, consecutive equal annual self -amortizing installments of principal and interest, calculated at the rate of eight percent (8%) per annum for 19 such six year payback period. The Remediation Loan may be prepaid without premium or penalty at West Side's option. During the period of any default in payment under the terms of the Remediation Loan, the interest rate on the entire indebtedness then outstanding shall be at the rate of fifteen (15%-) percent per annum. If default is made in the payment of any installment of the Remediation Loan or interest thereon which default continues for a period of thirty (30) days following written notice to West Side, then at the option of the City and/or the Redevelopment Agency, the entire unpaid portion of the Remediation Loan together with all accrued and unpaid interest shall become immediately due and payable. West Side agrees to pay any documentary stamp taxes or other taxes (other than Florida franchise or income taxes) which may now or hereafter apply to this obligation. In any action or proceeding brought in connection with this obligation, West Side hereby: (a) waives demand, presentment, protest, notice of dishonor (except only for the thirty (30) day notice set forth above), suit against or joinder of any other person, and all other requirements necessary to charge or hold West Side liable with respect to the obligations evidenced hereby; (b) to the maximum extent permitted by law, waives any right to immunity from any such action or proceeding and waives any immunity or exemption of any property, wherever located, from garnishment, levy, execution, seizure or attachment prior to or in execution of judgment, or sale under execution or other process for the collection of debts; (c) waives any right to interpose any set-off (other than failure to pay the Release Price and interest thereon as hereinafter defined) or non --compulsory counterclaim or to plead lathes or any statute of limitations as a defense in any such action or proceeding. The sums due hereunder shall not be subject to offset, deduction, or claims in the nature thereof which West Side may have against the City of the Redevelopment Agency other than any failure to pay the Release Price and interest thereon. The total charges hereunder for interest and in the nature of interest shall not exceed the maximum amount allowed by law, and any excess portion of such charges that may have been paid shall be deemed to have been prepayments of the Remedi- ation Loan. In the event, for any reason, the City and the Redevelopment Agency are prohibited by applicable law from making the Remediation Loan and West F,Tf Side has to advance said monies or secure funds from another source, then the City and/or Redevelopment Agency shall tender compensation to West Side in an amount so as to afford to West Side the same practical economic result as if the Remediation Loan had been made by the City and/or Redevelopment Agency. For purposes of this Agreement, Remediation Costs include, but are not limited to, costs incurred in performing or preparing tank closures, tank closure assessment reports, initial remedial actions, contamination assessments, contamination assessment reports, remedial action plans, remedial actions, monitoring, sampling and reporting at the direction of the Dade County Department of Environmental Resources (DERM), the Florida Department of Environmental Protection (DEP) and any other federal, state, or county regulatory agency having jurisdiction and claims by third parties, including any unit of government, for damages, remediation costs, and fines and penalties arising out of, or relating to, the environmental condition of the applicable property(ies) prior to the date of the applicable closing and attorneys' fees. West Side agrees to accept the SSDI South Parcel and the Federal Triangle Parcel in their "as is" physical condition at the applicable closing without any other representation or warranty by the City or the Redevelopment Agency regarding their physical condition, and West Side shall assume all the responsibilities and obli- gations that may arise from its ownership of these contaminated properties, except for the payments required as set forth in subparagraph 5.3(d)(i) above. Promptly following the applicable closing and conditioned upon the City and Redevelop- ment Agency timely funding their financial obligations under subparagraph 5.3(d)(i) above, West Side shall take such actions as are necessary to bring these two parcels into compliance with all applicable federal, state and county environmental standards [provided that to the extent the City is prevented from conveying the Federal Triangle Parcel to West Side, then West Side shall have no obligation or responsibility to remediate the Federal Triangle Parcel, and the City shall repay to West Side any Remediation Costs previously incurred by West Side (or the Portofino Entities) in remedi- ation of the Federal Triangle Parcel for the City's benefit]. In addition, West Side agrees to accept the Goodman Terrace Parcel, the Water Tower Triangle Parcel and the End Parcels in their "as is" physical condition (except that the City may remove the palm trees currently warehoused in the End Parcels prior to 21 the Final Closing and restore any damage to the land caused thereby) at the appli- cable closing without representation or warranty from the City and/or Redevelop- ment Agency of any kind, including, without limitation, any and all existing environmental claims or problems or obli- gations that may arise from the presence of any "contamination" on, in or about such property, if any, and which follow- ing the applicable Closing shall be the responsibility of the grantee to remediate, who shall assume all such responsibilities and obligations that may arise from such grantee's ownership of these properties and any operations conducted thereon in compliance with all applicable federal, state and county environmental standards, and upon such closing, grantee shall defend, indemnify and hold the City and Redevelopment Agency harmless from any claims by third parties, including any unit of government, for damages, remediation costs and fines and penalties arising out of or relating to: (i) any lawsuits filed by West Side against third parties for reimbursement or contribution with respect to environmental remediation, and (ii) West Side's post -closing remediation activities, and (iii) any proceeding brought by any unit of government, including, but not limited to DERM, in all of the above events in connection with the Goodman Terrace Parcel, the Water Tower Triangle Parcel and the End Parcels. The aggregate liability of the City and the Redevelopment Agency pertaining to the physical condition of the SSDI South Parcel and the Federal Triangle Parcel shall be limited to $1,000,000, plus the Remediation Loan. West Side shall defend, indemnify and hold the City, the Redevelopment Agency and the Marina Lessee harmless (except as otherwise set forth herein) from any claims by third parties, including any unit of govern- ment, for damages, Remediation Costs, and fines and penalties arising out of, or relating to, the environmental condition of these two properties (provided that the City and Redevelopment Agency have funded their financial obligations under subparagraph 5.3 (d) (i) above) . West Side shall not make any claim against the City, the Redevelopment Agency or the Marina Lessee for Remediation Costs, or for any other expense or liability incurred by it in excess of the $1,000,000 plus the Remediation Loan liability limit. However, nothing contained herein is intended or should be construed to hold harmless or indemnify or otherwise limit the liability of the Marina Lessee for any and all violations of law and/or environmental laws, regulations, statutes, orders, 22 ordinances, resolutions or other legal enactments as and for the direct or indirect actions of the Marina Lessee during their term of tenancy or occupancy if said Marina Lessee would be otherwise liable or responsible for any such liability due to their occupancy. (iv) The obligations of West Side to defend, indemnify and hold harmless, and to not make any claim against the City, the Redevelopment Agency and the Marina Lessee shall not limit its rights in contribution, indemnity, or reimbursement (in addition to the $1,000,000 and the Remediation Loan from the City and Redevelopment Agency) from any prior owners, operators, tenants of or operators of facilities on, or any other occupants or users of these two parcels, excepting only the City, the Redevelopment Agency, and any other agency or instrumentality of the City and/or the Marina Lessee (as qualified and limited above). If necessary to assert a claim or to seek reimbursement, the City, the Redevelopment Agency and/or the Marina Lessee shall assign their rights against any such owner, tenant, operator or other third party and will consent to any reimbursement applications filed by West Side, in form reasonably acceptable to West Side, and, in those regards, the City, Redevelopment Agency and the Marina Lessee shall cooperate with West Side, at no additional cost to the City, Redevelopment Agency and the Marina Lessee in seeking such reim- bursements and contributions. (v) The City and the Redevelopment Agency shall have the right to be apprised of the progress and substance of all remediation efforts hereunder, as well as to a full accounting for all Remediation Costs, but the decision as to the extent of all required remediation shall be determined solely and exclusively. by West Side. West Side shall also apprise the Marina Lessee of the progress and substance of its remediation efforts from time to time as reasonably requested by the Marina Lessee. (vi) Notwithstanding that any closing has not yet occurred and/or the Final Approvals have not yet been obtained, the City, the Redevelopment Agency, and the Marina Lessee, agree that immediately after the date of this Agreement, West Side shall have the right to enter the SSDI South Parcel and the Federal Triangle Parcel, and to commence thereon and/or continue assessments and remedial actions as well as all geotechnical examinations that may be required by West Side. (vii) West Side shall have the right to receive any reimbursement of Remediation Costs 23 under the state Abandoned Tank Restoration Program, or under any other government reimbursement program to recover the Remediation Costs described in this Agreement. The City, the Redevelopment Agency and/or the Marina Lessee shall join in (or consent to) any application for reimbursement, or assign their rights to West Side, if requested by West Side (except only that the Marina Lessee shall be separately entitled to apply for'and retain reimbursement under any such program for any Remediation Costs hereunder actually hereafter funded by the Marina Lessee). (viii) The City, the Redevelopment Agency and/or the Marina Lessee shall also cooperate with West Side in consenting to (or joining in) all applications, as necessary, to secure all permits required for such remediation, if requested by West Side. (ix) In the event West Side recovers any Remediation Costs or any other expense or liability incurred under this paragraph 5.3(d) whether expended by West Side, the City and/or the Redevelopment Agency, all such recoveries shall be the sole and exclusive property of West Side, and the City, Redevelopment Agency and the Marina Lessee hereby assign all such rights of recovery and proceeds to West Side (except for such costs recovered in con- nection with the Federal Triangle Parcel if the City is unable to convey said parcel to West Side and except that the Marina Lessee shall be separately entitled to apply for and retain reimbursement under any such program for any Remediation Costs hereunder actually hereafter funded by the Marina Lessee). (e) Treatment --of SSDI South If Final_Mprovals Not Obtained. Notwithstanding that the Final Closing will be conditioned on obtaining the Final Approvals, West Side, the City and the Redevelopment Agency have previously commenced the process of preparing and submitting a contamination assessment report to DERM and DEP with respect to the SSDI South Parcel (and the Federal Triangle Parcel). In that regard, West Side shall be permitted to continue during the Development Approval process (and prior to the Initial Closing) to take all appropriate steps to remediate the SSDI South Parcel (and the Federal Triangle Parcel), including, without limitation, the right to remove the basketball courts and other improvements located thereon, without any obligation to reconstruct the same, and obtain funding for same from the City up to $1,000,000, plus the Remediation Loan, as if Final Closing had occurred. In this regard, prior to Final Closing, the City and Redevelop- ment Agency shall fund the cleanup and Remediation Costs (not to exceed $1,000,000, plus the Remediation Loan, in the aggregate) within thirty (30) days following receipt of 24 1_� invoices therefor. In the event this Agreement is terminated without a Final Closing hereunder, then anything herein or in the Contract of Sale to the contrary notwithstanding: (i) West Side agrees with the City and the Redevelopment Agency that the Remediation Costs incurred in connection with the SSDI South Parcel shall be evenly (50/50) shared (without limitation as to amount) between West Side, on the one hand, and the City and the Redevelopment Agency, on the other (and any funds advanced under the Remediation Loan shall not be deemed loan funds, but rather, together with funds that may have been theretofore paid by the City, shall be readjusted between the parties to conform to the 50/50 sharing) and, in such event, the City and West Side shall also jointly seek to recover any Remediation Costs that may be recoverable from reimbursement programs and/or third parties (and share the costs and proceeds thereof jointly 50/50). Remediation Costs incurred in connection with the Federal Triangle Parcel shall be paid by the City and the City shall be solely entitled to any third party recoveries associated with the Federal Triangle Parcel. (ii) If not already closed pursuant to the Initial Closing, then such closing shall occur as provided in paragraph 5.1 above, and the Redevelopment Agency shall immediately convey to West Side good, marketable and insurable fee simple title to the SSDI South Parcel, free of all liens, encumbrances, rights of occupancy or other title matters except those permitted by paragraph 5.3(c) above and without payment of any additional sums to the City and/or Redevelopment Agency; provided, however, that the balance owed under the Mortgage and the Judgments shall be reduced, as provided in paragraph 5.1 above. (iii) Further, in the event there is no Final Closing, then: (A) The Development Agreement (in- cluding, without limitation, the access and baywalk easements pro- vided therein) shall remain binding and operative with respect to West Side's development rights on the SSDI South Parcel (except as pro- vided below), and anything to the contrary notwithstanding, at the Initial Closing, West Side shall waive all riparian rights in connection with the SSDI South Parcel as necessary to assure the City and Redevelopment Agency that the City and Redevelopment Agency will be able to retain the TIIF Lease, as the same may be modified or extended from time to time, and 25 deliver the appropriate access and baywalk easements as provided for under the Development Agreement, provided that the location of the twenty five (25) foot baywalk easement area adjacent to the SSDI South Parcel under the Development Agreement shall be replaced by the baywalk area shown on the Urban Design Master Plan provided that any changes to the existing approved concept plan under the Development Agreement necessitated thereby shall be effectuated, (B) West Side shall not be obligated to commence construction of any improvements on the SSDI South Parcel within any prescribed time period or order, (C) West Side shall only be obligated to provide the parking, and laundry, lavatory and shower facilities to the City and the Marina Lessee upon the same terms and conditions as required by Section 8 below, and (D) The Contract of Sale shall be deemed fulfilled as to the SSDI South Parcel. Further, anything to the contrary notwith- standing, and whether or not there is a Final Closing, calculations of open space, floor area limitations and other land use and zoning calculations for any particular building to be located within the SSDI South Parcel shall be made on the basis of total open space, floor area and/or other land use and zoning criteria, as applicable, permitted and/or required for the SSDI South Parcel, even if portions of the SSDI South Parcel are not under common ownership provided the total permissible open space, floor area and/or other land use and zoning criteria for the SSDI South Parcel (in the aggregate) are not exceeded, and the SSDI South Parcel as a whole shall be treated as a single building site for zoning and land use purposes despite any such separate ownership. The foregoing agreement to evenly share such Remediation Costs shall not imply any responsibility for, method of dealing with, or agreement with respect to costs of necessary remediation to the SSDI North Parcel (which cost of remediation shall be allocated as provided in paragraph 5.3(f) below if the Final Approvals are not obtained) or any other property owned by any of the parties to this Agreement. The terms of this subparagraph (e) shall survive the termination of this Agreement. (f} Treatment of SSDI North if Final-- ApRrovals Not Obtained. In the event this 'Agreement is terminated by West Side and East Coastline because the required Final Approvals are not timely obtained, then, in addition to the Initial Closing and Second Closing, which shall 26 r be consummated under this Agreement notwith- standing the failure to obtain the Final Approvals, and anything else herein to the contrary notwithstanding: (i) In exchange for the full satisfaction of the Judgments and Mortgage (as the same may have been previously reduced at the Initial Closing), the City and Redevelopment Agency shall immediately convey good, marketable and insurable fee simple title to the SSDI North Parcel to West Side, free of all liens, encumbrances, rights of occupancy or other title matters pursuant to the Contract of Sale (but without the requirement of presentation by West Side of any specific proposed plans or specifications for construction) and without payment to the City and/or Redevelopment Agency of any moneys (and, in that regard, any obligation of West Side under the Contract of Sale to pay a purchase price for the SSDI North Parcel shall merge with the closing of the SSDI North Parcel under this Agreement and be satisfied). In that regard, a special warranty deed shall be executed by the City and Redevelopment Agency simultaneously herewith and held in escrow by the Escrow Agent and recorded in the event of such termination. In such event, the Development Agreement shall remain binding and operative with respect to West Side's development rights on the SSDI North Parcel (except as provided below) and West Side, simultaneously with the delivery of the special warranty deed, shall execute and deliver to the City the appropriate access and•baywalk easements as provided for under the Development Agreement, and provided that the Development Approvals have not been denied by the City or the Redevelopment Agency and the City and the Redevelopment Agency have acted in good faith, a waiver of riparian rights for the SSDI North Parcel as necessary to assure the City and Redevelopment Agency that the City and Redevelopment Agency will be able to retain the TIIF Lease, as the same may be modified or extended from time to time. (ii) West Side shall simultaneously lease back to the City and Redevelopment Agency for a term of 18 months the SSDI North Parcel to be used solely for surface parking and the additional marina -related uses currently permitted to be made by the Marina Lessee under the Marina Lease at a fair market "triple net" rental (which shall be agreed between the parties, but if the parties cannot agree, shall be determined by majority vote of a panel of three independent M.A.I. appraisers appointed by the American Arbitration Association). The lease shall be drawn 27 otherwise by counsel for each of the parties in reasonable and customary form. (iii) During the term of the lease, West Side shall be permitted to undertake environ- mental remediation actions that do not unreasonably interfere with the parking and marina related uses being made by the Marina Lessee. (iv) West Side shall not be obligated to commence construction of any improvements on the SSDI North Parcel within any prescribed time period or order, and the time periods for performance by West Side under the Development Agreement and Parking Agreement with respect to the SSDI North Parcel shall toll from the date of termination of this Agreement until the expiration of the 18-month lease term hereunder. (v) West Side, on the one hand, and the City and Redevelopment Agency, on the other hand, shall evenly share (50/50) all Remediation Costs associated with the SSDI North Parcel without limitation as to amount, and the Contract of Sale shall be fulfilled as to the SSDI North Parcel with no payment due to the City and/or Redevelopment Agency by West Side, upon the issuance of the full satisfaction of the Judgments and Mortgage [provided the SSDI South Parcel has been previously conveyed, or is simultaneously being conveyed, to West Side (or its designee) in consideration thereof]. The remaining obligations of the parties under the Development Agreement (including, without limitation, the access and baywalk easements provided therein), and the Parking Agreement shall remain binding and operative with respect to West Side's development rights on the SSDI North Parcel (except as otherwise provided in this subparagraph (f)). (vi) The City, Redevelopment Agency and Marina Lessee shall all immediately vacate possession of the SSDI North Parcel upon the termination of the 18-month lease, except only that, at the request of the Marina Lessee, until West Side has built out its intended improvements on the SSDI North parcel, West Side shall make available to the Marina Lessee for surface parking purposes only portions of the SSDI North Parcel not being used by West Side from time to time for construction, environmental remediation, and/or staging areas, provided further that the Marina Lessee (or City and Redevelopment Agency) pay to West Side the prorata share of any real estate taxes and assessments incurred by West Side with respect to the portion of the SSDI North Parcel used for Marina parking, and that West Side be provided with reasonable liability insurance 28 coverage at the expense of the Marina Lessee for such portions of the SSDI North Parcel being so used by the Marina Lessee. The decision as to availability of this additional space for parking shall be made solely by West Side in its exclusive discretion and West Side may also prescribe reasonable rules for such usage. (vii) The City and Redevelopment Agency shall cooperate with any necessary DRI modifi- cations to conform with West Side's development rights under the existing Development Agreement as modified hereby. (viii) Without any implication being made as to the drystack and other potential rights of West Side [and without waiver of any such rights by West Side pursuant to this subparagraph 5.3(f)I, the Marina Lessee acknowledges to the City and Redevelop- ment Agency that, so long as the City follows the provisions governing the implementation of the Area 1 Parking Garage Alternative as set forth and defined in the Second Amendment to Marina Lease, the parking provided for under this subparagraph (f), together with the other parking rights provided under Section 8 below, shall satisfy the parking obligations of the City and Redevelopment Agency under the Marina Lease during the 18-month term of the lease provided for in (ii) above, provided that the City shall always be required to provide all parking necessary to meet the obligations of the City Zoning Code as it existed on October 23, 1991. In order to provide such parking, the Marina Lessee agrees that the City may provide off -site parking within five hundred (500) feet of the Core Parcel or within three hundred (300) feet of the SSDI North Parcel, provided the City first utilizes its best efforts to provide the parking on -site. However, no more than seventy-five (75) parking spaces may be provided north of Fifth Street. The City and the Marina Lessee shall cooperate with each other to try to make up any shortfall in parking resulting during such 18-month lease term, if any, through means such as tandem parking. (ix) The parties shall cooperate with each other under this subparagraph (f) to try to minimize the taxes payable by the City and/or Redevelopment Agency hereunder during the term of the 18-month lease, if any. The terms of this subparagraph (f) shall survive the termination of this Agreement. (g) Improvement Liens and Impact. Fees. Neither the City nor the Redevelopment Agency has currently imposed any improvement liens or impact fees on 29 the City/Redevelopment Property and in partial consideration for the obligations and duties of Portofino Entities hereunder, none shall be imposed as of any applicable closing. After Final Closing and continuing for a period of time until the SAD Bonds or Alternative Special Improvement Lien (as hereinafter defined) have been paid in full, all public improvements to the streets, baywalks, and parks lying adjacent to the City/Redevelopment Property, as well as the Ocean Parcel, Diamond C Parcel, Hinson Parcel and Alaska Parcel shall be funded in the manner provided in Section 7 below, or otherwise paid for by the City or Redevelopment Agency without special assessment against the foregoing parcels of property, and not otherwise assessed by the City or Redevelopment Agency against, or charged to or required from the Portofino Entities or Marquesa with respect to such properties, except as provided in Section 7 below. Nothing herein shall be deemed to limit the City's authority, if any, to collect improvement liens or impact fees, if any, properly imposed by the County or State. (h) Closings. At each closing, the City and Redevelopment Agency, as applicable, shall pay all of the costs for any necessary state documentary stamps and surtax as well as the cost of obtaining and recording any documents necessary to clear title. West Side shall pay for its title insurance coverage. In addition to the special warranty deeds of conveyance, at each closing, the City and Redevelopment Agency, as applicable, shall also deliver to West Side an appropriate mechanic's lien affidavit, affidavit of exclusive possession, FIRPTA affidavit, assignment of intangible rights and other property rights included in this transaction, appropriate evidence of authority, "gap" title affidavit, and such other customary documents as are reasonably required to consummate the transaction or are required by Chicago Title Insurance Company to properly evidence and/or consummate the conveyance. 5.4 Conveyance of Parcels to Citv. Conditioned on the delivery of title to West Side (or its designee) of the Goodman Terrace Parcel as provided in paragraph 5.3 , at the Second Closing, Sun & Fun and Beachwalk shall convey the Portofino Property to the City (or the City's designee) in accordance with the following: (a) Conveyance. Conveyance of the real estate shall be made by special warranty deed and shall include all improvements located on the Portofino Property, all strips and gores of land lying adjacent to the Portofino Property (to the extent owned by Sun & Fun and Beachwalk), together with all easements, privileges, rights - of -way, intangible rights, lands underlying any adjacent streets or roads, and appurtenances pertaining to or accruing to the benefit of the Portofino Property and all leases for apartment units within the 211 Parcel (none of which shall be for a term in excess of one (1) year follow- ing the date of the Second Closing). The parties recognize and agree that this trans- action, among other things, also has a 30 beneficial effect upon the City's obligation and, if any, the Portofino Entities' obliga- tions, to meet the public's need for provision of affordable housing for the community. The City also specifically agrees to support the Housing Authority's use of all properties it acquires under this Agreement to provide affordable housing for low and very low income residents (including new construction for such purposes). (b) Purchase Price. The Property shall be payment of money to in consideration undertakings of the to the conveyance of It is agreed that Portofino Property simultaneously with (or its designee) of conveyance of the Portofino made without any separate the Portofino Entities, but of the conveyance and City hereunder with respect the Goodman Terrace Parcel. the conveyances of the shall and must be made the conveyance to West Side the Goodman Terrace Parcel. (c) Title. At the times of conveyance, Sun & Fun and Beachwalk, as appropriate, shall deliver good, marketable and insurable fee simple title to the Portofino Property free and clear of all liens, encumbrances, rights of occupancy, or other matters except only the following: (i) ad valorem real estate taxes for the year of closing and subsequent years which shall be prorated between the City and Sun & Fun/Beachwalk as of the date of the Second Closing; (ii) applicable zoning ordinances and regulations; (iii) those certain matters shown in Schedule B-2 to the Portofino Property Commitment (defined below); and (iv) the rights of those certain apartment tenants at the 211 Parcel under the leases described in Exhibit "E" hereto (provided the terms of such leases do not extend beyond one (1) year following the date of the Second Closing). The City has, prior to the execution of this Agreement, obtained a commitment (the "Portofino Property Commitment") from Chicago Title Insurance Company to issue an owner's ALTA Form B Marketability title insurance policy to the City effective as of the Second Closing, a copy of which is attached hereto as Exhibit "FIV. Sun & Fun and Beachwalk shall take all actions required by Schedule B-1 of the Portofino Property Commitment prior to the Second Closing to convey the quality of title required by this Agreement and Sun & Fun and Beachwalk may extend the Second Closing date a reasonable period of time (not to exceed ninety (90) days) to cure any new title defect first arising after the effective date of the Portofino Property Commitment. Prior to the Second Closing, no part of the Portofino Property shall be alienated, further encumbered, conveyed or otherwise transferred and Sun & Fun and 31 Beachwalk shall not permit any action to be taken which would result in any defect in the title otherwise required. The City may update the title and obtain any surveys or updated surveys it desires prior to the Second Closing and Sun & Fun and Beachwalk shall cure any defect first arising after the effective date of the Portofino Property Commitment. (d) Contamination Substances. (i} The City and the Housing Authority represent to Sun & Fun and Beachwalk that the City and the Housing Authority have reviewed environmental assessment reports for and conducted their own environmental investigation of the Portofino Property. Sun & Fun and Beachwalk represent to the City and the Housing Authority that Sun & Fun and Beachwalk are not aware of the existence of any contamination on the Portofino Property other than anything that may be shown in the environmental reports reviewed by the City or otherwise discovered by the City in its investiga- tion (including the potential existence of certain underground storage tanks on the Michigan and Jefferson Parcels). (ii) The City and the Redevelopment Agency are also aware of the existence of "recog- nized environmental conditions," as that term is defined by ASTM E 1527-93 on the SSDI North Parcel. The environmental conditions are described in environmental assessments that were previously obtained by West Side and the City. Except for these conditions, West Side represents to the City and the Redevelopment Agency that West Side is not aware of the existence of any other recognized environmental conditions on the SSDI North Parcel. (iii) The City and the Redevelopment Agency agree to retain title to the SSDI North Parcel in its existing "as is" physical condition at the Final Closing without any other representation or warranty by West Side regarding its condition, and City and Redevelopment Agency shall remain liable for all the responsi- bilities and obligations that may arise from its ownership of this contaminated property and any operations conducted on the SSDI North Parcel. City and Redevelopment Agency shall be responsible for bringing the SSDI North Parcel into compliance with all applicable federal, state and county environmental standards, except if the SSDI North Parcel is conveyed to West Side pursuant to paragraph 5.3(f) above, and in such event the Remediation Costs in connection with the SSDI North Parcel shall be shared as provided in paragraph 5.3 (f) (v) above. Beachwalk shall be responsible for removing any underground storage tanks located on the Michigan and Jefferson 32 Parcels, if any, and any other actions as may be necessary to bring the Michigan and Jefferson Parcels into compliance with all applicable federal, state and county environmental standards (other than the cost of demolition of the existing improvements thereon). Sun & Fun shall be responsible for any actions as may be necessary to bring the 211 Parcel into compliance with all applicable federal, state and county environmental standards. Except for potential environmental remediation on the Portofino Property, as provided above, the City and the Redevelopment Agency (and the Housing Authority, by acceptance of the deed) agree to accept the Portofino Property in its "as is" physical condition. (iv) City and Redevelopment Agency shall defend, indemnify and hold West Side and the other Portofino Entities harmless from any claims by third parties, including any unit of government, for damages, remediation costs, and fines and penalties arising out of, or relating to, the environmental condition of the SSDI North Parcel; provided, however, that the foregoing indemnification shall not apply and shall be of no further force and effect if the SSDI North Parcel is conveyed to West Side pursuant to paragraph 5.3(f) above and the cost of remediating said parcel shall be shared as provided in paragraph 5.3 (f ) (v) . West Side and the other Portofino Entities shall defend, indemnify and hold the City and Redevelopment Agency harmless from any claims by third parties, including any unit of government for damages, remediation costs and fines and penalties arising out of or relating to the environmental condition of the Portofino Property. City and Redevelopment Agency shall not make any claim against West Side or the other Portofino Entities for remediation costs, or for any other expense or liability incurred by them in connection with the SSDI North Parcel, and West Side and the other Portofino Entities shall not make any claim against the City and Redevelopment Agency for remediation costs or for any other expense or liability incurred by them in connection with the Portofino Property. (v) The obligations of City and Redevelopment Agency to defend, indemnify and hold harmless, and to not make any claim against West Side and the other Portofino Entities shall not limit their rights in contribution, indemnity, or reimbursement from any prior owners, operators, tenants of or operators of facilities on, or any other occupants or users of the SSDI North Parcel, excepting only West Side and the other Portofino Entities. If necessary to assert a claim or to seek 33 reimbursement, West Side and the other Portofino Entities shall assign their rights against any such owner, tenant, operator or other third party and to consent to any reimbursement applications filed by City and Redevelopment Agency, in form reasonably acceptable to City and Redevelopment Agency, and, in those regards, West Side and the other Portofino Entities shall cooperate with City and the Redevelopment Agency, at no additional cost to West Side and the other Portofino Entities, in seeking such reimbursements and contributions. The obligations of West Side and the other Portofino Entities to defend, indemnify and hold harmless, and to not make any claim against the City and the Redevelopment Agency (as described in paragraph 5.4(d)(iv) above) shall not limit their rights in contribution, indemnity, or reimbursement from any prior owners, operators, tenants of, or operators of facilities on or any other occupants or users of the Portofino Property, excepting only the City and Redevelopment Agency. If necessary to assert a claim or seek reimbursement, the City and Redevelopment Agency shall assign their rights against any such owner, tenant operator or other third party and to consent to any reimbursement applications filed by West Side and the other Portofino Entities, and, in those regards, the City and Redevelopment Agency shall cooperate with West Side and the other Portofino Entities, at no additional cost to. the City and Redevelopment Agency, in seeking such reimbursement and contributions. (e) Physical Condition. The City (and the Housing Authority, as applicable) have fully inspected the Portofino Property and agree to accept the same in "as is" physical condition without representation or warranty of any kind including, without limitation, any and all existing environmental claims or problems or obligations that may arise from the presence of any "contamination" on, in or about the property, except for the environmental remediation described in paragraph 5.4(d)(iii) and the environmental indemnity described in paragraph 5.4(d)(iv) above. (f) Improvement Liens. The City (and the Housing Authority, as applicable) agree to accept title to the Portofino Property subject to any existing governmental improvement liens, whether certified or pending. (g) Closing. At the Second Closing, Sun & Fun and Beachwalk shall pay all of the costs for any necessary state documentary stamps and surtax as well as the cost of obtaining and recording any documents necessary to clear title. The City, or Housing Authority, as applicable, shall pay for its title insurance coverage. In addition to the special warranty deeds of conveyance, at 34 the Second Closing, Sun & Fun and Beachwalk shall also deliver to the City, or Housing Authority, as applicable, an appropriate mechanic's lien affidavit, affidavit of exclusive possession, subject only to rights of the tenants under the leases at the 211 Parcel (with terms not to exceed one (1) year following the date of the Second Closing), FIRPTA affidavit, assignment of the leases, intangible rights and other property rights included in this transaction, appropriate evidence of authority, "gap" title affidavit, and such other customary documents as are reasonably required to consummate the transaction or are required by Chicago Title Insurance Company to properly evidence and/or consummate the conveyance. The Portofino Entities, the City, and the Housing Authority acknowledge and agree that it is the intent of the parties, to the extent legally possible without any additional approvals and consents, that Sun & Fun and Beachwalk convey the Portofino Property directly to the Housing Authority in exchange for a direct conveyance of the Goodman Terrace Parcel (without the necessity of the City holding legal title in between) . (h) Casualty Loss. Sun & Fun shall maintain its existing casualty insurance coverage between the date hereof and Second Closing on the improve- ments located at the 211 Parcel and in the event of any casualty loss to the improvements located on the 211 Parcel, the City or Housing Authority, as applicable, shall be entitled at the Second Closing to receive any proceeds payable under such policy in addition to title to the property. 5.5 Baywalk and Riparian Rights. Conditioned on obtaining the Final Approvals, at Final Closing, the Portofino Entities and/or the Redevelopment Agency, as appro- priate, shall transfer fee simple title (by quitclaim deed) to the City, free of all liens and encumbrances, the baywalk area including all riparian rights ("Baywalk Area") upon which a pedestrian (and limited vehicular) baywalk is to be constructed adjacent to the waterfront along the SSDI South Parcel, and the Alaska Assemblage in conformance with the "Urban Design Master Plan" described in paragraph 7.2 below. The Baywalk Area to be transferred as provided herein shall fully supplant and replace any easements previously held and/or the rights to reserve any easements for baywalk purposes held by the City, Redevelopment Agency and/or Marina Lessee under the Development Agreement, any prior deed restriction or otherwise with respect to the SSDI South Parcel, the Hinson Parcel, the Federal Triangle Parcel and the Alaska Parcel, and the City, Redevelopment Agency and Marina Lessee shall execute and deliver appropriate releases of any such prior easements or similar reservations or occupancy rights under the Marina Lease upon delivery of the deeds of the Baywalk Area. The Baywalk Area shall be improved as provided in paragraph 7.2 below (and provided that any demolition of the existing baywalk necessitated by environmental remediation shall be promptly repaired and restored, or replaced following remediation). The deeds transferring the Baywalk Area shall contain covenants (running with the land) by the City in favor of the adjacent upland owners to the effect that: (i) 35 the adjacent upland owners shall be entitled to possession of the Baywalk Areas as necessary for all environmental remediation to be undertaken on the Baywalk Area and adjacent parcels and as necessary to construct the Baywalk improvements called for in paragraph 7.2 below; (ii) requiring that the Baywalk Area be continuously used solely as a public pedestrian (and limited vehicular) baywalk operating in the manner provided in paragraph 7.2 hereof and the Maintenance and Operating Agreement attached hereto as Exhibit "K"; and (iii) West Side, prior to installation of the new public improvements, may use portions of the baywalk area adjacent to the Marina for provision of the temporary facilities to be provided to the Marina Lessee pursuant to paragraph 8.3 below, provided the same does not interfere with appropriate and continuous pedestrian and golf cart type vehicular access along the waterfront. 5.6 Washington Avenue Extension. Conditioned on obtaining the Final Approvals, at Final Closing, the Portofino Entities (as appropriate) shall transfer fee simple title (by quitclaim deed) to the City, free of all liens and encumbrances, a strip of land at the easterly end of the Goodman Terrace Parcel, Hinson Parcel and Alaska Parcel to be used solely as a public right of way for the extension and expansion of Washington Avenue from Biscayne Street southward to Government Cut (the "Washington Avenue Extension") in conformance with the Urban Design Master Plan, and upon substantial completion of the Washington Avenue Extension as provided in paragraph 7.2 below, the City shall release, in appropriate form and substance, its existing easement rights which currently encumber the Diamond C Parcel and relocate the present entrance to South Pointe Park all in conformance with the Urban Design Master Plan. The relocation work shall be done in a manner so as to reasonably minimize the disturbance to existing businesses operating in South Pointe Park. The Washington Avenue Extension shall fully supplant and replace any easements, dedications or reservations previously held for such purpose. The Washington Avenue Extension shall be improved as provided in paragraph 7.2 below. The deed transferring title to the foregoing strip of land shall contain covenants (running with the land) by the City in favor of the adjacent property owners (to the West) to the effect that: W the adjacent property owners shall be entitled to possession of the strip as necessary for construction of the Washington Avenue Extension improvements called for in paragraph 7.2 below; and (ii) requiring that the Washington Avenue Extension be continuously used as a public street. 5.7 Sunset Plaza. Conditioned on obtaining the Final Approvals, at Final Closing, West Side and/or the Redevelopment Agency, as applicable, shall transfer fee simple title (by quitclaim deed) to the City, free of all liens and encumbrances, a parcel of land for a new pedestrian plaza area to be perpetually reserved for the public ("Sunset Plaza") and to be located at the western terminus of Biscayne Street between Alton Road and the Marina as shown on and in conformance with the Urban Design Master Plan. The Sunset Plaza shall be improved as provided in paragraph 7.2 below. The deed transferring title to Sunset Plaza shall contain covenants (running with the land) by the City in favor of the adjacent property owners (lying to the North and South) to the effect that: W the adjacent property 36 owners shall be entitled to possession of Sunset Plaza as necessary for all environmental remediation purposes hereunder and as necessary to construct the Sunset Plaza improvements called for in paragraph 7.2 below; and, (ii) requiring that Sunset Plaza be continuously used as a public pedestrian plaza (with limited vehicular use for emergency vehicles) operating in the manner provided in paragraph 7.2 hereof and the Maintenance and Operating Agreement attached hereto as Exhibit "K." Notwithstanding the foregoing, until the Sunset Plaza area is improved, West Side may: (i) use the nonbaywalk portions thereof for construction staging purposes and/or for the temporary facilities to be provided to the Marina Lessee pursuant to paragraph 8.3 below, (ii) be entitled to remediate and install the public improvements thereon, provided that West Side shall minimize disturbance to the Marina and assure that at all times (except emergencies or short periods of time as necessary to perform required work on the seawall) there remains continuous reasonable uninterrupted access to the Marina piers over the portion of Sunset Plaza that serves as a continuation of the baywalk. 5.8 Sunrise Plaza. Conditioned on obtaining the Final Approvals, at Final Closing, the City shall close off and perpetually reserve (as a covenant running with the land) as a new public pedestrian plaza area ("Sunrise Plaza") the eastern terminus of Biscayne Street lying east of Ocean Drive, together with portions of the Pier Park Parcel, in conformance with the Urban Design Master Plan. Although reserved for pedestrian use, the Sunrise Plaza shall permit access for emergency vehicles and shall include a vehicle drop off area at its westerly terminus. The Sunrise Plaza shall be improved as provided in paragraph 7.2 below; provided that the portion of the Sunrise Plaza improvements located within the Pier Park Parcel may be modified as necessary so as not to violate any parking requirements as currently exist under the lease for restaurant space within the Pier Park Parcel. 5.9 SSDI South Pedestrian Passage. Conditioned on obtaining the Final Approvals, at Final Closing, West Side or the Redevelopment Agency shall transfer fee simple title (by quitclaim deed) to the City a twenty -- foot (201) wide strip of land (from the baywalk to Alton Road) for a permanent pedestrian passage (the "SSDI South Pedestrian Passage") in conformance with the Urban Design Master Plan. The SSDI South Pedestrian Passage shall be improved as provided in paragraph 7.2 below. The deed transferring title to the SSDI South Pedestrian Passage shall contain covenants (running with the land) by the City in favor of the adjacent property owners (lying to the North and South) to the effect that: (i) the adjacent property owners shall be entitled to possession of the SSDI South Pedestrian Passage as necessary for all environmental remediation purposes hereunder and as necessary to construct the SSDI South Pedestrian Passage improvements called for in paragraph 7.2 below; and, (ii) requiring that the SSDI South Pedestrian Passage be continuously used as a public pedestrian passageway operating in the manner provided in paragraph 7.2 hereof and the Maintenance and Operating Agreement attached hereto as Exhibit "K." Notwithstanding the foregoing, prior to installation of the improvements, West Side may use the SSDI South Pedestrian Passage as a construction staging area 37 and/or for the temporary facilities to be provided to the Marina Lessee pursuant to paragraph 8.3 below. 5.10 Lease of Space to City. Conditioned on obtaining the Final Approvals, at Final Closing, the Portofino Entities shall cause to be made available to the City, 3,000 square feet of rentable office or retail floor space (using the "BOMA" measurement) within the Redevelopment Area at a location determined by the Portofino Entities for use by the City as public meeting space and/or City offices (the "Leased Premises"). The Leased Premises shall be made available to the City pursuant to a Lease (the "Lease") to be drawn in the following manner: (a) The term of the Lease shall be 40 years. (b) The Leased Premises may be relocated within the Redevelopment Area from time to time during the term, at the discretion of the Portofino Entities upon at least sixty (60) days advance notice to the City, provided that the cost of relocation and the replacement of any tenant improvements necessitated thereby (including any that need to be made to comply with applicable handicap requirements) shall be borne by the Portofino Entities. The Leased Premises shall always be located within a building equal to or better in quality than the "Deco Plaza Building" as currently existing at 701-731 Fifth Street, Miami Beach, Florida. (c) The Leased Premises shall consist of broom cleaned vacant spaces, with all tenant improve- ments being the responsibility and cost of the City (except for a relocation required by the Portofino Entities). (d) The base rental rate shall be $1.00 per year, but the City shall be responsible for payment of its proportionate share of all taxes, insurance, and operating, maintenance and repair costs for the building in which the Leased Premises are located commencing after the third lease year. Further, the City shall be responsible for all utility costs. To the extent available, the Leased Premises shall include pro rata parking ,rights (which pro rata parking rights the City may accept at the City's option) with the City responsible to pay for all such parking at the standard building parking rates in effect from time to time. It is the intention of the parties that this be a "triple net" lease (after the third lease year). (e) The leasehold shall not be assignable by the City, it being the intention and agreement of the parties that this space only be used for municipal office and meeting purposes. (f) The City shall be provided with a "non - disturbance" agreement from any existing lender holding a mortgage on the premises in form customary for such lender. (g) The remaining provisions of the Lease shall be reasonably drawn by counsel for the Portofino Entities in form customary for office leases in 38 Dade County, Florida, and reasonably acceptable to the City. Notwithstanding that the foregoing lease is conditioned on fulfillment of the Final Approvals and anything in this Agreement to the contrary, in the event that the Portofino Entities are able to obtain the necessary governmental approvals to transfer the appropriate floor area density to the 404 Parcel so as to provide sufficient floor area for the existing improvements (despite the failure of any of the other Development Approvals) then, the City agrees not to rescind or derogate the transfer to the 404 Parcel, and to permit the issuance of a final certificate of occupancy for the existing building, whereupon the Portofino Entities shall deliver the Lease provided for in this paragraph 5.10. The provisions of this paragraph 5.10 shall survive any failure to obtain the Development Approvals. 5.11 Simultaneous Transactions. It is the intent and agreement of the parties that except for the specific conveyances of property called for in the Initial Closing and Second Closing, a single simultaneous Final Closing be held during which all of the foregoing releases, and all of the remaining conveyances and deliveries of documents provided for in this Section 5 are to be made. 6. Payment to West Side. In consideration of the releases to be granted to the City by West Side pursuant to paragraph 5.2 above (and the other obligations undertaken by the Portofino Entities in this Agreement), the City and the Redevelopment Agency agree upon the Final Closing to pay to West Side the agreed and stipulated sum of Eleven Million Three Hundred Seventy -Five Thousand and No/100 ($11,375,000.00) Dollars (the "Release Price"), payable solely from the sources described in paragraph 6.2 below, as follows: 6.1 Payment Terms. (a) no interest shall accrue and no principal shall be paid for a period of one (1) year following the date of this Agreement; and (b) thereafter, the Release Price shall be paid in six, consecutive equal annual self -amortizing installments of principal and interest calculated at the rate of eight percent (8k) per annum, each in the amount of $2,460,587.52: the first of such payments to be made on the second anniversary of this Agreement. The Release Price may be prepaid without premium or penalty at the option of the City and/or Redevelopment Agency. In the event the actual Final Closing occurs at a date later than the second anniversary of this Agreement, then, anything to the contrary notwithstanding, no payments of Release Price shall be due until the Final Closing, but at Final Closing, the City and 39 r- Redevelopment Agency shall pay all installments and interest that would have been paid prior thereto had the Final Closing occurred prior to the second anniversary of this Agreement (the pre -Final Closing interest portions being deemed an increase in the Release Price). The sources of funding under this paragraph 6.1 shall be as more particularly set forth in paragraph 6.2 below. 6.2 Sources of Funding. To secure and pay the obligations of the City and Redevelopment Agency under this Section 6, the City and Redevelopment Agency, as applicable, pledge, agree and covenant as follows: (a) the Redevelopment Agency pledges, agrees and covenants to utilize all tax increment revenues available and necessary from the Redevelopment Area pursuant to Section 163.387, Florida Statutes, as amended (subject only to any prior pledge of these revenues made before the date of this Agreement, the pledge hereunder being junior, inferior and subordinate in all respect to the pledge in favor of bonds issued under the provisions of Resolution No. 81-89, as amended (the "Bond Resolution"), adopted by the Agency on June 21, 1989 as to lien on and source and security for payment and in all other respects) to pay the annual installments required by paragraph 6.1 above (and provided that the foregoing shall not be deemed to prohibit a subordinate pledge); and (b) to the extent the tax increment revenues under subparagraph (a) above are insufficient or for any other reason are unavailable, the City agrees to appropriate in its annual budget, by amendment, if necessary, from Non -Ad Valorem Funds (as hereinafter defined) lawfully available in each fiscal year, amounts sufficient to satisfy: U) the annual principal and interest installments required by paragraph 6.1 above, and (ii) any default interest, fees and costs due to West Side for such fiscal year, all as provided in this Section 6. Such covenant and agreement on the part of the City to budget and appropriate such amounts of Non -Ad Valorem Funds shall be cumulative to the extent not paid, and shall continue until such Non -Ad Valorem Funds or other legally available funds in amounts sufficient to make all such required payments shall have been budgeted, appropriated and actually paid. Notwithstanding the foregoing covenant of the City, the City does not covenant to maintain any services or programs, now provided or maintained by the City, which generate Non -Ad Valorem Funds. Such covenant to budget and appropriate does not create any lien upon or pledge of such Non -Ad Valorem Funds, nor does it preclude the City from pledging in the future its Non -Ad Valorem Funds, nor does it require the City to levy and collect any particular Non -Ad Valorem Funds, nor does it give West Side a prior claim on the Non - Ad Valorem Funds as opposed to claims of general creditors of the City. Such covenant to appropriate Non -Ad Valorem Funds is subject in all respects to the payment of obligations secured by a pledge of such Non -Ad Valorem Funds ED] waive any immunity or exemption of any property, wherever located, from garnishment, levy, execution, seizure or attachment prior to or in execution of judgment, or sale under execution or other process for the collection of debts; (c) waive any right to interpose any set-off (other than failure to repay the Remediation Loan) or non -compulsory counterclaim or to plead laches or any statute of limitations as a defense in any such action or proceeding. The sums due hereunder shall not be subject to offset, deduction, or claims in the nature thereof which the City and/or the Redevelopment Agency may have against West Side other than any failure to repay the Remediation Loan. The total charges hereunder for interest and in the nature of interest shall not exceed the maximum amount allowed by law, and any excess portion of such charges that may have been paid shall be deemed to have been prepayments of the Release Price. 6.4 Security. Prior to payment of the Release Price in full to West Side, the City and the Redevelopment Agency shall not be entitled to make any conveyance of title to (or interest in) any portion of the SSDI North Parcel to any third party (except for use by the Marina Lessee as permitted in this Agreement) and the City and the Redevelopment Agency at Final Closing shall record an appropriate covenant to this effect in the public records in the form attached hereto as Exhibit I'G". 7. Restrictions and Development Obligations. 7.1 Restrictions. (a) North-SSDI. Subject to and effective upon Final Closing, the City and the Redevelopment Agency stipulate and agree, as a covenant running with the title to the SSDI North Parcel, that unless released by West Side, the SSDI North Parcel may only be used and developed as follows: (i) from and after the date of Final Closing until the full payment of the Release Price and all interest thereon, the SSDI North Parcel may only be used for surface parking, green space areas and those limited [not, in any event, to exceed 20,000 square feet of floor space (plus any future drystack storage facility which the City may hereafter elect to construct on the SSDI North Parcel, in the City's discretion, if any, and ancillary retail space for the drystack facility, if actually constructed, not to exceed 4,000 square feet of floor space in the aggregate)] amounts of ancillary and accessory marine -related retail space as currently permitted to exist under the Marina Lease (but without waiver by West Side of any rights under the Contract of Sale until the same is fully terminated) , (ii) from and after the full payment of the Release Price and all interest thereon until a date which is the last day of the sixth (6th) year following the date of Final Closing, the SSDI North Parcel may only be used for municipal purposes, such municipal purposes shall specifically not include any residential construction, nor any office, commercial or retail construction except such limited amounts of ancillary and accessory office and retail and/or commercial space as may be reasonably required to support the municipal function 42 located on said Parcel including limited amounts of ancillary and accessory marine -related retail space as currently permitted to exist under the Marina Lease, and (iii) from and after the first day of the seventh (7th) year following the date of Final Closing (and provided West Side has received full payment of the Release Price and all interest thereon) until the expiration of this Agreement, the SSDI North Parcel may be used for any municipal purposes. In addition, the City and the Redevelopment Agency agree to permit the Portofino Entities to erect and maintain a signage feature on the SSDI North Parcel throughout the term of this Agreement, to be built and located in a manner mutually agreeable to the City and Redevelopment Agency, on the one hand, and West Side, on the other, neither side to be unreasonable with respect thereto. (b) South SSDI and Alaska Assemblage. (i) Subject to and effective upon Final Closing, the Portofino Entities stipulate and agree, as a covenant running with the title to the SSDI South Parcel and the Alaska Assemblage, to develop the same in substantial compliance with: (i) those certain design guidelines (the "Design Guidelines") attached hereto as Exhibit "H", and (ii) the Urban Design (the "Urban Design Master Plan" attached hereto as Exhibit "I". It is understood and agreed that the drawings of South Pointe Park and the potential Marina expansion on the Urban Design Master Plan are for illustrative purposes only. The redesign of South Pointe Park shall be determined solely in the City's discretion. The detailed drawings of sections as contained in the Urban Design Master Plan are set forth as guidelines to and conceptual plans for the parties for preparation of the detailed construction plans. The parties hereby agree that the final design of the public improvements set forth in paragraph 7.2 below (other than South Pointe Park) shall be subject to construction materials selection and final design as reasonably mutually agreed, but with the understanding that the improvements are intended to be of first class quality and appearance, consistent with the high standards of development on the adjacent properties being developed pursuant hereto and the highest standards in the City, but also mindful of the need for durability and ease of repair and maintenance. Anything to the contrary notwithstanding, calculations of open space, floor area limitations and other land use and zoning calculations for any particular building to be located within the SSDI South Parcel or Alaska Assemblage shall, anything to the contrary notwithstanding, be made on the basis of total open space, floor area and/or other land use and zoning 43 criteria, as applicable, permitted for the SSDI South Parcel or Alaska Assemblage, as applicable, even if portions thereof are not under common ownership provided the total aggregate permissible open space, floor areas and/or other land use and zoning criteria for the SSDI South Parcel and Alaska Assemblage (as applicable) are not exceeded, and the SSDI South Parcel and Alaska Assemblage shall each, as a whole, be treated as a single building site for zoning and land use purposes despite any such separate ownership. Subject to the prior obtaining or waiver of the Final Approvals as provided in paragraphs 4.1 and 5.1 above, this Agreement constitutes approval by the City of the Design Guidelines and the Urban Design Master Plan. Subject to the prior obtaining or waiver of the Final Approvals as provided in paragraphs 4.1 and 5.1 above, specific site plans, which are in substantial compliance with the Design Guidelines and Urban Design Master Plan (as reasonably determined by the City), shall not require further action by the City Commission unless otherwise required by the City's land development code as it exists on the date of this Agreement. Specific site plans which are not in substantial compliance with the Design Guidelines and Urban Design Master Plan shall require further action by the City Commission to approve or deny the deviation. In approving the deviation, the City Commission may prescribe reasonable conditions, restrictions and limitations to give effect to the purpose and intent of this Agreement. The City's Design Review Board ("DRB") shall have the authority to determine if one or more deviations are in substantial compliance with the Design Guidelines and Urban Design Master Plan. In making this determination, the DRB shall apply the following criteria: (a) density and intensity of use shall not be increased; (b) building height and coverage, impervious area and floor area shall not be increased; (c) setbacks, spacing requirements between buildings, open space and landscaped areas shall not be decreased. (iv) Any decision of the DRB regarding whether a submitted specific development plan is in substantial compliance with the Design Guidelines and/or Urban Design Master Plan, may be reviewed and determined by the City Commission and the consideration by the City Commission shall be expedited and considered de novo and shall constitute the final action of a "lower tribunal" and subject to appellate review by the Circuit Court. 44 (v} Any and all other reviews by the City shall be advisory only, save and except for : a) Review by the DRB pursuant to the review criteria established by Section 18 of the City Zoning Code as existing on the date of this Agreement (a copy of which is attached hereto as Exhibit "J") provided that such review standards shall be deemed limited and modified by any specific provisions set forth in this Agreement and the Design Guidelines and matters shown in the Urban Design Master Plan; and b) Review of final construction plans by the City's Building Department for compliance with the provisions of the South Florida Building Code (including those provisions which incorporate other codes). (vi) The City Commission shall reasonably consider any requested changes to the approved Design Guidelines and Urban Design Master Plan requested by the Portofino Entities from time to time and any such requested change approved by the Commission shall be deemed an amendment of the Design Guidelines and/or Urban Design Master Plan, as appropriate, and a copy thereof shall be recorded in the public records. (c) Water Tower Triangle Parcel. Effective upon Final Closing, West Side stipulates and agrees, as a covenant running with the title to the Water Tower Triangle Parcel, that the Water Tower Triangle Parcel may only be used for landscaping, public art and buffer purposes. The existing water tower structure situated on this parcel may be removed by West Side at West Side's sole option and expense. 7.2 Urban Design Master Plan. Subject to and effective upon the Final Closing, the City and the Portofino Entities have developed and agreed upon the Urban Design Master Plan, which, among other things, specifies and sets forth the plan for development of the following public improvements, all of which shall be owned by the City or Redevelopment Agency: (a) a baywalk (including necessary seawall construc- tion and repairs) along the SSDI South Parcel and Alaska Assemblage; (b) the renovation of South Pointe Park; (c) Sunrise Plaza; (d) Sunset Plaza; (e) the Washington Avenue Extension; and (f) the SSDI South Pedestrian Passage. 45 The cost of construction and installation of the renovation of South Pointe Park as shown on the Urban Design Master Plan shall be funded by the City and/or the Redevelopment Agency from tax increment funds available from properties within the Redevelopment Area or from other legally available sources at the City's discretion. The cost of construction and installation of the baywalk (including any necessary seawall construction and/or repairs), Sunset Plaza, Sunrise Plaza, the SSDI South Pedestrian Passage and the Washington Avenue Extension shall all be funded by the creation of a special assessment district encompassing the SSDI South Parcel, the Alaska Assemblage and the Ocean Parcel (the "SAD"). The Portofino Entities, effective upon the Final Closing, agree to the creation of the SAD. The City covenants that it will create the SAD and, to the extent permitted by law, levy assessments against the SSDI South Parcel, Alaska Assemblage, and Ocean Parcel sufficient in amount to provide for the construction and installation of these public improvements and the City will use its good faith efforts to cause to be issued tax-exempt (to the extent legally available, and, if not, taxable) special assessment bonds (the "SAD Bonds") supported by such assessments. The assessments for the SAD Bonds shall not be subordinate to any existing mortgage liens against these properties. It is the intent and agreement of the parties that the SAD Bonds shall be authorized as soon as feasible after execution of this Agreement, but to the extent legally feasible issued in phases as necessary to meet the construction timetable provided for below. The SAD Bonds shall be repayable over the maximum time period feasible at market rates and the assessments shall be levied against the properties as the improvements relate to those properties in accordance with Florida law. The City agrees to cooperate with the Portofino Entities to reasonably allocate the assessment liens in phases against portions of the properties based upon the relationship between the improvements and the properties and otherwise in accordance with Florida law. Furthermore, the City agrees that the proceeds from the sale of the SAD bonds (or proceeds from any Special Improvement Liens as hereinafter defined) shall first be utilized to repay the Portofino Entities for any monies previously advanced by the Portofino Entities to fund the improvements, to the extent legally permitted. To the extent the City fails for any reason to issue and market the SAD Bonds, other than for non-compliance by the Portofino Entities with their obligations under the next succeeding sentence, then in lieu thereof, the City shall directly advance the funds necessary for such construction and installation work as a special assessment improvement lien ("Special Improvement Lien") against the properties within the SAD and payable in equal annual installments over a 20-year term following completion of the work, together with interest at the rate that would have been available for tax-free SAD Bonds had they been issuable and with the same priority as the SAD Bonds and allocated and apportioned as provided above for the SAD Bonds. The Portofino Entities acknowledge that in connection with the issuance of the SAD Bonds, certain continuing disclosure requirements may be imposed upon them under Securities and Exchange Commission Rule 15c2-12, and hereby covenant to comply with such requirements as a condition to the City obligation to issue the SAD Bonds and fund the foregoing improvements. 46 The Portofino Entities shall be responsible (at no profit to the Portofino Entities) for supervision and management of the construction and installation of the baywalk (and any necessary seawall construction and/or repairs), Sunrise Plaza, Sunset Plaza, SSDI South Pedestrian Passage and the Washington Avenue Extension, and the City shall be responsible for supervision of the construction and installation of the South Pointe Park renovations. The City shall be entitled to redesign the South Pointe Park renovations in any manner reasonably determined by the City. All of the foregoing public improvements (except for the renovation of South Pointe Park, which shall be completed in good faith by the City as and when funds are available) shall be installed within no more than ten (10) years following the Final Closing, but sooner in accordance with the following: (a) Upon completion of construction of improvements to the northern portion of the SSDI South Parcel, the immediately adjacent baywalk shall be completed; (b) upon completion of construction of improvements to the southern portion of the SSDI South Parcel, the immediately adjacent baywalk, Sunset Plaza, and the SSDI South Pedestrian Passage shall all be completed; (c) upon completion of construction of improvements to the Alaska Assemblage, the immediately adjacent baywalk and the Washington Avenue Extension shall be completed; and (d) upon completion of construction of improvements to the Ocean Parcel, Sunrise Plaza shall be completed. [The numbering of the foregoing provisions does not imply any particular order or sequence of construction, and none shall be required.] The Portofino Entities may, at their option, cause the improvements to be completed at such earlier times as may be feasible; and, prior thereto, the City may install temporary baywalk improvements (at the City's expense). Each phase of improvements shall be deemed completed for purposes of this paragraph upon issuance of a certificate of occupancy for all primary buildings to be located within such phase.. The City, the Redevelopment Agency and the Portofino Entities shall all cooperate with the scheduling and performance of the work on the public improvements. After construction and installation of the foregoing baywalk (including any necessary seawall construction and repairs), Sunset Plaza, Sunrise Plaza, and the SSDI South Pedestrian Passage, those Portofino Entities holding title to property adjacent to these public improvements, may, at their option, be responsible for the maintenance and operation thereof for a period of up to one (1) year following completion of each portion of phase in accordance with the agreed schedule, and thereafter the City shall assume all obligations of maintenance and operation, all in accordance with a Maintenance and Operating Agreement to be duly executed and delivered at Closing in the form attached hereto as Exhibit "K". The City shall be responsible at all 47 7.3 7.4 times for the maintenance and operation of the Washington Avenue Extension and South Pointe Park. Certain Grandfather Rights. (a) Parcels 101 and 155. Subject to and effective upon Final Closing under this Agreement, if the 101 and 155 Parcels are not included in any historic preservation district, Sun & Fun and St. Tropez will waive and relinquish any rights they may have to exceed the height limitations currently in effect and applicable to the 101 and 155 Parcels by virtue of previously applied for Design Review Board applications on such parcels and will agree to comply with the currently imposed height limitation and all other development regulations for these properties as exist on this date. Upon such Final Closing, Sun & Fun and St. Tropez agree to withdraw all pending applications that are in conflict with this paragraph 7.3(a). (b) Ocean Parcel. Portofino Real Estate Fund has succeeded to the rights of the "Developer" under that certain Development Agreement (the "South Pointe Development Agreement") dated October 9, 1984, between the City and South Pointe Development Company. Subject to and effective upon the Final Closing of this Agreement, the City shall confirm the continued viability and enforceability of the South Pointe Development Agreement and agree and stipulate as follows: {i) the provisions of clause (c) of paragraph 14 shall be waived so that the term of the South Pointe Development Agreement shall continue uninterrupted (as to all of the property covered thereby except the Hinson Parcel) for the full twenty (20) years from the effective date of the agreement and not expire until October 9, 2004. (ii) All obligations of the Developer specified in Exhibit "E" thereto shall be waived in their entirety. Miscellaneous Matters. (a) Color Charts. The City will expand its approved color charts applicable within the Redevelopment Area in the manner provided in Exhibit "L" hereto as the same may hereafter be expanded by the City's Design Review Board (and any required further action to accomplish same, if any, shall be deemed a Development Approval hereunder). (b) MacArthur TCauseway. The parties agree to cooperate to seek appropriate additional dedicated public access between the MacArthur Causeway and Alton Road. (c) Biscayne Street. In recognition of its common usage, the City will rename Biscayne Street to "South Pointe Drive." (d) Beach Restoration. The City will cooperate in seeking state and federal funds for beach restoration on or adjacent to the Ocean Parcel 48 and elsewhere in the Redevelopment Area. Said cooperation may include filing in its own name or joining with the Portofino Entities in the filing of any such application. However, the City shall have no obligation to fund any portion of such beach restoration. (e) Construction obligations. It is recognized by the City and the Redevelopment Agency that the Portofino Entities shall be permitted to develop any of the properties owned by any of them within the Redevelopment Area in any specified sequence, it being understood and agreed that any timing limitations that may exist in any prior development agreements, development orders or otherwise shall no longer apply and shall be of no further force and effect, and that timing and phasing of construction shall be determined by the Portofino Entities, in their sole and absolute discretion. (f) Federal Triangle. Anything in this Agreement to the contrary notwithstanding, in the event, for any reason, the City is unable to obtain the release of the restrictions in favor of the United States of America or otherwise is legally prevented from conveying the Federal Triangle Parcel to the Portofino Entities, then, in such event, the Development Approvals shall not be deemed to require the rezoning on the Federal Triangle Parcel and the City shall not be obligated to convey the Federal Triangle Parcel to the Portofino Entities; but, alternatively, the City agrees as a covenant running with the title to such lands that: W the easterly 50 feet thereof shall be utilized for baywalk purposes, and (ii) the balance shall be used for public park purposes and fully landscaped (without inclusion of any other improvements unless consented to by West Side or East Coastline). (g) Surplus TIF Funds. The City and Redevelopment Agency agree that any and all tax increment funds generated within the Redevelopment Area from properties owned by the Portofino Entities, Marquesa and/or any other affiliates of the Portofino Entities (their respective successors in title) after payment of the Release Price and all interest thereon and establishment of a Five Million Dollar ($5,000,000) fund (or direct payment of such amount) for renovation of South Pointe Park and/or any other obligations of the City and/or Agency existing as of the date hereof against tax increment funds, shall be split fifty percent (50) toward payment of the then outstanding balance of the SAD Bonds (or alternative Special Improvement Lien) and any previously unreimbursed Remediation Costs and the balance as the Redevelopment Agency and City determine; provided, however, that the application of such tax increment funds as described in this clause (g) shall be junior, inferior and subordinate in all respects to the pledge in favor of bonds issued under the Bond Resolution as to lien on and source and security for payment and in all other respects. 49 (h) Condemnation. The Portofino Entities shall not request any condemnation of property within the Redevelopment Area in connection with this Agreement. 8. Marina and Parking Issues. The City, the Redevelop- ment Agency and West Side, together with the Marina Lessee [who is joining in this Agreement for the sole purpose of consenting to the provisions of this Section 8 (and subparagraphs 5.3 (c), (d), (e) and (f) and paragraph 5.5)] agree as follows with respect to the Marina: 8.1 Marina Lease. West Side shall, upon Final Closing, consent to the elimination of the requirements for construction of a drystack facility on the Core Parcel as set forth in the Second Amendment to the Marina Lease dated August 11, 1994, and the Marina Lease shall be amended as necessary to comply with the provisions of this Agreement pertaining to the Marina; further, in such event, the City affirms to the Housing Authority that no drystack construction will ever occur on the site currently designated under the Second Amendment to the Marina Lease for such construction, nor, in such event, will any other major construction occur on such site during the term of this Agreement, except, if necessary, a parking garage which will contain not less than 50 spaces for the Housing Authority (provided that, to the extent such garage exceeds sixty feet (601) in height, then the Housing Authority shall be entitled, in addition to the foregoing fifty (50) spaces, to an additional ten (10) parking spaces per each floor constructed above sixty (60) feet in height); and the City and the Marina Lessee may use such site to relocate fuel facilities provided the Housing Authority is indemnified (by the City and/or Marina Lessee as they agree) for any environmental contamination that may result therefrom. 8.-2 Parking Agreement. At Final Closing, the City, Redevelopment Agency and West Side shall execute and record in the Public Records of Dade County, Florida a new parking agreement in the form attached hereto as Exhibit I'M" (the "New Parking Agreement") , which shall replace the Parking Agreement in its entirety. Except as provided in the New Parking Agreement, West Side is, effective as of the date of Final Closing, released by the City, Redevelopment Agency and (by its joinder below, the Marina Lessee) from all other obligations to provide parking or other facilities for the benefit of the Marina. In the event this Agreement is terminated without a Final Closing, then the temporary facilities described in paragraph 8.3 below shall be provided pur- suant to this Agreement, and the permanent facilities shall be provided in accordance with the existing Parking Agreement. In addition, at the request of the Marina Lessee, until such time as West Side has built out its intended improvements on the SSDI South Parcel, (or if the improvements are thereafter destroyed by casualty, until the improvements have been reconstructed) West Side shall make available to the Marina Lessee for surface parking purposes only portions of the SSDI South Parcel not being used by West Side from time to time to provide the foregoing temporary facilities or for construction, environmental 50 remediation and/or staging areas, provided further that the Marina Lessee pay to West Side the prorata share of any real estate taxes and assessments incurred by West Side with respect to the portion used for Marina parking, and that West Side be provided with reasonable liability insurance coverage at the expense of the Marina Lessee for such portions of the SSDI South Parcel so used by the Marina Lessee. The decision as to availability of this additional space for parking shall be made solely by West Side in its exclusive discretion and West Side may also prescribe reasonable rules for such usage. 8.3 TeM2orary Facilities. Promptly following the execution of this Agreement, Marina Lessee shall vacate possession of the SSDI South Parcel in favor of West Side so that West Side may commence environmental remediation of such property and so that the City and Redevelopment Agency may consummate the Initial Closing to West Side of this property in accordance herewith. Notwithstanding the foregoing, West Side shall at all times prior to Final Closing (and to the extent this Agreement is terminated without a Final Closing, at all times prior to delivery to Marina Lessee of the permanent parking spaces, permanent laundry, lavatory and shower facilities, and permanent drive-in drop off facilities pursuant to the existing Parking Agreement) provide to the Marina Lessee (at West Side's expense): (a) space for fifty (50) temporary parking spaces, together with temporary laundry, lavatory and shower facilities (similar in scope to those laundry, lavatory and shower facilities currently existing on the SSDI South Parcel), for use by the Marina Lessee, the parking spaces to be located on the SSDI South Parcel or within three hundred (300) feet thereof as determined in the sole discretion of West Side (except as otherwise specifically provided in this para- graph 8.3 below) and the laundry, lavatory and shower facilities to be located within the SSDI South Parcel or on a barge adjacent to the seawall abutting the SSDI South Parcel as determined in the sole discretion of West Side; and, to relocate same from time to time as necessary in West Side's discretion; and (b) a temporary accessway and dropoff parking area (for at least 5 cars) for the benefit of the Marina Lessee within the general vicinity of the southern terminus of the SSDI South Parcel. West Side shall be permitted to relocate the access and dropoff parking area from time to time as necessary for the completion of any environmental remediation and/or other construction upon the SSDI Parcel; provided there always remains direct access to the baywalk near the southern terminus of the SSDI South Parcel. In performing environmental remediation work hereunder, West Side shall make reasonable efforts to minimize the disturbance of the operations of the Marina provided that such efforts do not materially delay West Side nor materially increase West Side's expenses as a result thereof. West Side shall provide copies of all plans for temporary facilities in advance to the Marina Lessee and review the same with the Marina Lessee in a spirit of mutual cooperation so as to minimize the 51 disruption of operation of the Marina and of the construction activities of West Side. Anything to the contrary notwithstanding, temporary lavatory, shower and laundry facilities shall be located as close as reasonably convenient to the Marina without disrupting West Side's construction work (either within the SSDI South Parcel or on a barge adjacent to the seawall abutting the SSDI South Parcel) and there shall be continuous baywalk access and no interruption of utility services and continuous access to these temporary facilities, subject only to emergency interruption and other brief access interruption as required for seawall installation and repair. 8.4 Right of First Refusal. At the Initial Closing, the Marina Lessee shall execute a Marina Slip Agreement (the "Marina Slip Agreement") in favor of the Portofino Entities in the form attached to this Agreement as Exhibit "N", and the Marina Lease shall be modified to conform herewith. The City and the Redevelopment Agency at the Initial Closing shall irrevocably designate West Side as the "Qualified Entity" as such term is defined under and pursuant to the Marina Slip Agreement and shall duly and promptly notify the Marina Lessee of such designation. 8.5 No Objection. The Marina Lessee agrees not to object to any building plans filed by West Side (or other Portofino Entity) provided the same comply with the provisions of this Agreement, and its exhibits. Further, the Marina Lessee agrees to support any DRI amendments, extensions, bifurcations or trifurcations consistent with paragraph 4.6 above as well as the Development Approvals and the construction of the improvements reflected on the Urban Design Master Plan other than those shown for illustrative purposes only. 8.6 Survival. Other than those provisions specifically conditioned upon a Final Closing, the remaining provisions of this Section 8 shall survive a termination of this Agreement. 9. Miscellaneous Provisions. 9.1 Vacation of First _Street. The City hereby agrees, subject to the prior fulfillment of the condition specified in this paragraph below, to abandon and/or vacate, as applicable, that portion of First Street lying east of Ocean Drive so that title to the northern half thereof will revert to Sun & Fun (as the abutting property owner) if and to the extent that Sun & Fun is able to build a first class, upscale hotel, as reasonably determined by the City (and consistent with the size of the underlying parcel of land), on the adjacent parcel of land located at 101 and 115 Ocean Drive. It is intended by this provision that the City will so abandon or vacate the public right of way and allow the northern half of such portion of First Street to be included within the 101 and 115 Parcel to form a single site for the hotel if, and, to the extent the hotel condition is satisfied. The abandonment or vacation shall only become binding upon delivery of reasonable evidence to the City for the full financing of the upscale hotel, together with reasonable plans for the hotel. In the event that a building permit for an upscale hotel is not issued prior to the expiration of this Agreement, then the abandonment or vacation shall no longer be valid. At the time the abandonment or vacation is effectuated, Sun & Fun shall deliver to 52 the City a covenant running with the land which shall contain an appropriate reversion of such applicable northern portion if and to the extent the upscale hotel is not completed within a reasonable time (including sufficient time for any lender taking over the project to acquire title by foreclosure or otherwise and complete construction). In the further event the City so abandons or vacates such portion of First Street, the City shall at the same time reserve the southern portion of First Street as a pedestrian access easement and Sun & Fun shall be responsible at its expense to install the accessway in accordance with plans to be mutually and reasonably agreed upon. 9.2 Marina Ex ansion. The City, the Redevelopment Agency and West Side agree that they will cooperate in seeking the consent of the Marina Lessee to an expansion of the southern portion of the Marina and will seek all appropriate state and federal permits together with the Marina Lessee as may be necessary therefor. The plans for any such expansion shall, of course, be subject to the reasonable approval of the City, the Marina Lessee and fair and appropriate agreement among the parties for the sharing of costs and revenues relating thereto and shall not affect the status of the Marina as being a public marina. 9.3 No Permit. This Agreement is not and shall not be construed as a development permit, development approval or authorization to -commence development, nor shall it relieve the Portofino Entities of the obligations to obtain necessary Redevelopment Plan and Comprehensive Plan amendments and development approvals that are required under applicable law and under and pursuant to the terms of this Agreement. 9.4 Good Faith• Further Assurances• No Cost. The parties to this Agreement have negotiated in good faith. It is the intent and agreement of the parties that they shall cooperate with each other in good faith to effectuate the purposes and intent of, and to satisfy their obligations under, this Agreement in order to secure to themselves the mutual benefits created under this Agreement; and, in that regard, the parties shall execute such further documents as may be reasonably necessary to effectuate the provisions of this Agreement; provided that the foregoing shall in no way be deemed to inhibit, restrict or require the exercise of the City's police power or actions of the City when acting in a quasi-judicial capacity. Wherever in this Agreement a provision requires cooperation, good faith or similar effort to be undertaken at no cost to a party, the concept of no cost shall not be deemed to include any cost of review (whether legal or otherwise), attendance at meetings, hearings or proceedings and comment and/or execution of documents, all such costs to be borne by the party receiving a request to so cooperate, act in good faith or so forth. 9.5 Consistency with _the_ City's Master Plan. The City hereby finds and declares that as to those properties that do not require any further zoning approvals or modifications of the City's Comprehensive Plan, the provisions of this Agreement dealing with said properties are consistent with the City's adopted Comprehensive Plan and land development regulations. As to those properties which will require further zoning and/or planning changes, the City does hereby declare that upon completion of the Comprehensive Plan 53 amendment process and zoning process required in conjunction therewith, that said properties will be consistent with the City's adopted Comprehensive Plan and land development regulations. 9.6 Recording of the Development Agreement. At Final Closing (or sooner as may be required by applicable law), this Agreement shall be recorded in the Public Records of Dade County, Florida (provided that the parties may agree to record only those portions of the Agreement which are executory in nature and omit the portions that only deal with obligations which terminate on Closing). The provisions hereof shall remain in full force and effect during the term and subject to the conditions of this Agreement and shall be binding upon the undersigned, their heirs, legal representatives, estates, successors, grantees and assigns. 9.7 Court Approval and Enforcement. (a) Within ten (10) days of the date of execution of this Agreement by City and Redevelopment Agency, the parties shall submit this Agreement to the Circuit Court retaining jurisdiction over the litigation noted in the recitals hereof, by joint motion and the parties shall cooperate in expediting any hearing to be held on said motion. In the event that approval of this Agreement by said court is not obtained within one hundred twenty (120) days of said filing, then and in that event West Side and East Coastline within thirty (30) additional days thereafter shall be permitted to notify the City and the Redevelopment Agency, in writing, of its termination of this Agreement, in which event this Agreement shall be deemed terminated as if and to the extent as though the Final Approvals had been denied. If no written notice of abandonment is timely given, then this Agreement shall continue in full force and effect. (b) The Court retaining jurisdiction shall be the forum for the purposes of (i) determining any disputes among the parties, to the extent that this Agreement provides for resolution of disputes by the Court, and (ii) implementing and enforcing the terms and conditions of this Agreement. (c) Submission of a matter to the Court shall not extend any of the deadlines in this Agreement unless the parties agree to an extension or unless such extension is otherwise sought and received from the Court. 9.8 Term of this Agreement; Tolling. (a) If this Agreement is formally approved by the City Commission and the Redevelopment Agency after public hearing, then the City and Redevelopment Agency shall promptly file the appropriate notice of intention to accept this Agreement, and shall execute and deliver this Agreement as soon as feasible and legal thereafter in accordance with all requirements of law, whereupon this Agreement shall become effective immediately upon the execution and delivery of the parties. This Agreement shall 54 terminate on the date which is ten (10) years following the date of Final Closing, provided that it may be further extended after public hearing, by mutual consent of City and the Redevelopment Agency, on the one hand, and West Side and East Coastline, on the other. (b) The City, Redevelopment Agency and Portofino Entities recognize the substantial amount of time spent and to be spent by the parties to this Agreement in negotiating this Agreement and in pursuing the Development Approvals as well as the cost thereof; and, accordingly, the City, Redevelopment Agency and Portofino Entities hereby agree that all time periods for performance by the City, Redevelopment Agency and west Side under the Contract of Sale, Parking Agreement and Development Agreement shall toll from April 6, 1994 to the earlier of: (i) the full payment of the Release Price and all interest thereon; or (ii) the termination of this Agreement. The terms of this paragraph 9.8 shall survive the termination of this Agreement. 9.9 Pre ently Permitted Development. The development which is presently permitted on the properties subject hereto, including population densities, and building intensities and height, which are the subject to this Agreement are more specifically set forth in Exhibit 11011 hereto. 9.10 Public Facilities to Serve the Properties. A description of the public facilities that will service the proposed development of the properties subject to this Agreement, including who shall provide such facilities; the date any new facilities, if needed, will be constructed; and a schedule to assure public facilities are available concurrent with the impacts of the development is included as Exhibit "P" hereto. 9.11 Public Reservations and/or Dedications. A description of the reservations and/or dedications of land for public purposes that are proposed under the terms of this Agreement is included as Exhibit 'IQ" hereto. 9.12 Required.. Land Development Permits by City. Attached and made a part hereof as Exhibit "R" is a listing and description of all local development permits approved or needed to be approved for the development of the properties contemplated by the terms of this Agreement. 9.13 Conditions, Terms Restrictions Re fired for Public Health. Safety or .Welfare. Any and all conditions, terms, restrictions, or other requirements determined to be necessary by the City for the public health, safety, or welfare of its citizens and dealing with the development of the properties subject to this Agreement, as set forth herein, are addressed under those provisions of this Agreement dealing with such changes. In the event, however, that portions of the properties which are the subject of this Agreement require further public hearings for property disposition, zoning or rezoning or Comprehensive Plan amendments, and as part of those proceedings other conditions, terms, restrictions are deemed to be required for the public health, safety or welfare, said added conditions, terms or restrictions shall be deemed 55 to and shall be supplemented to this Agreement as later added Exhibit 'IS", which shall be considered to be a part of this Agreement, from its inception and for all purposes; provided that any conditions, terms or restrictions which are added during the process of obtaining the Development Approvals which in any way increase the burden of development or otherwise restrict the development of the affected properties other than as specified in this Agreement shall be deemed a denial of such Development Approvals. 9.14 Omissions. The parties hereto recognize and agree that the failure of this Agreement to address a particular permit, condition, term, or restriction shall not relieve the Portofino Entities of the necessity of complying with the law governing said permitting requirements, conditions, term, or restriction notwithstanding any such omission. 9.15 No Broker. All of the parties hereto represent and warrant to the others that no real estate broker, salesman or finder was involved in this transaction, and each party fully indemnifies the others from any breach of the foregoing representation and any claim for brokerage commission that may be made because of such party's actions. The terms of this paragraph 9.15 shall survive the termination of this Agreement. 9.16 Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: If to the City or Redevelopment Agency at: With a copy to: If to the Portofino Entities or any one or more of them: 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Attorney 446 Collins Avenue Miami Beach, Florida 33139 Attn: Heinrich Hanau With a copy to: Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. 1221 Brickell Avenue Miami, Florida 33131 Attn: Matthew B. Gorson, Esq. Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U.S. mails. The terms of this paragraph 9.16 shall survive the termination of this Agreement. 9.17 Representatives of the Portofino Entities. The Portofino Entities hereby acknowledge and agree that this Agreement may only be modified or terminated by an instrument duly executed by West Side and East Coastline. In this regard, the Portofino Entities hereby irrevocably appoint West Side and East Coastline 56 as their respective representatives and agents here- under, and hereby grant to West Side and East Coastline powers of attorney, coupled with an interest, as necessary, to execute all such modifications and terminations on their behalf. 9.18 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. [Notes this paragraph is provided for informational purposes pursuant to Section 404.056(7), Florida Statutes, (1993) .] 9.19 Construction. (a) This Agreement shall be construed and governed in accordance with the laws of the State of Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof; and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. (b) In construing this Agreement, the use of any gender shall include every other and all genders, and captions and section and paragraph headings shall be disregarded. (c) All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. 9.20 Severability. In the event any term or provision of this Agreement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. 9.21 Litigation. In the event of any litigation between the parties under this Agreement for a breach hereof, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. The terms of this paragraph 9.21 shall survive the termination of this Agreement. 9.22 Time of Essence. Time shall be of the essence for each and every provision hereof. 9.23 Entire Agreement. This Agreement, together with the documents referenced herein, constitute the entire agreement and understanding among the parties with respect to the subject matter hereof, and there are no other agreements, representations or warranties other than as set forth herein. This Agreement may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought (subject to the provisions of paragraph 9.17 above). 9.24 CCCL. Pursuant to Section 161.57 of the Florida Statutes, the parties hereto waive any obligation on the part of the others to provide an affidavit or 57-A survey meeting the requirements of Chapter 472 Florida Statutes delineating the location of the coastal construction control line on any properties reflected in this Agreement. 9.25 Parking District. The Portofino Entities (for themselves, but not for any of their successors and assigns) agree to support and vote with respect to properties owned by them for the creation of a special assessment district to create additional public parking within the Redevelopment Area, provided that: (i) such district is neutral to the Portofino Entities (e.g., all land south of second street, third street, etc; and not gerrymandered in any manner to predominantly affect the Portofino Entities or discriminate against the INTENTIONALLY LEFT BLANK --SEE NEXT PAGE FOR CONTINUATION 57-B Portofino Entities in any way), and (ii) the method of assessment is neutral to the Portofino Entities (so that assessments are not made in a manner which discriminates against the uses permitted or intended to be made by the Portofino Entities as opposed to the generalized uses permitted within the proposed district, i.e., an unfair burden placed against commercially zoned property as opposed to residential property, or vice versa). 9.26 Third Party Beneficiary. The parties acknowledge and agree that except only for the Marina Lessee and Housing Authority, there are no third party beneficiaries under this Agreement. EXECUTED as of the date first above written in several coun- terparts, each of which shall be deemed an original, but all constituting only one agreement. Signed, sealed and delivered in the presence of: �_�_.GAL DEPT. By -zr- -s�:-- STATE OF FLOR COUNTY OF W e- CITY O MIAMI BEACH, F ORIDA, a muni ipal corporat'op By: est: ty Clerk THE MIAPn BEACH REDEVELOPMENT AGENCY, a public agency organized and ex. tin pursuant to thWArt ommunity Re a elopment Act o69, as amen e , Chapter 163, III Flori tatAtq 3 By: Attest SS: Secretary The foregoing instrument wAs acknowl dged before me this ZS121 da of Oc+abe'✓ , 19 by De-ij rv.oac.r Ae 1be-✓ as aycN of City of Miami Beach, Florida, a municipal corporation, on behalf of the corporation. He/she personally appeared before me, . ersona y nown to_ or produced as identification. [NOT�NI+IAI NOTARY PUBLIC STATE OF FLORIDA COMMISSION NO. CC449380 lY COMMISSION EXP. MAR. 29,79c5 STATE OF FLORIDA COUNTY OF A a de Notary: Print Nam Jao,ne L,(it,/iSk,' Notary Public, State of Plo-eda- My commission expires: 22-L979 SS: The fopregoing instrument was acknowledged before me this 2V—` day of ®cis ben- , 19� by 5e timp m- (be 1 b e-v- as Cha�rryj&" of The Miami Beach Redevelopment Agency, a public agency organized and existing pursuant to the Community Redevelopment Act of 1969, as amended, Chapter 163, Part III Florida Statutes. He/she personally appeared before me, is ersona y nown to me or produced as identii ation. [NOTARIAL SEAL] OFFICIAL NOTARY SEA:' JANINE MILINSKI NOTARY PUBLIC STATE OF FLOR!'- COMMISSION NO. CC449360 r'OtiMMISSION F.XP. Notary: Print Na Ta_n1ne IC•(" "r S4" Notary Public, State of F)ari d a., My commission expires: Z /493 58 I— . 1111 1 T 01 WASWENUA Hal PORTOFINO ENTITIES WEST SIDE PARTNERS, LTD., a Florida limited partnership By: WEST SIDE PARTNERS, INC., a Florida corporation, General Par r / By: Y�o WlWer, President EAST COASTLINE DEVELOPMENT, LTD., a Florida limited partnership By: EAST COASTLINE, INC., a Florida corporation, General By: Tho�j$i�if President Y 404 INVESTMENTS, LTD., a Florida limited partnership By: 404 INVESTCORP, INC., a Florida corporation, General AZURE COAST DEVELOPMENT, LTD., a Florida limited partnership By: AFJRE COAST, INC., a Florida corpor 'on, General Partner By:4 - sident BEACHWALK DEVELOPMENT CORPORA- TION/1 Florida x-orporallltion /�R Vol�/11��� s • _ 59 6M PORTOFINO LTD., a partnership By: PORTOF: Flo ida c Part er By: REAL ESTATE FUND, Florida limited GROUP, INC., a ration, General President ST. TROPEZ REAL ESTATE FUND, LTD., a Florida limited partnership By: ST. TROPEZ LIVING, INC., a Florida corppration, General grt,cf("L ' -� esl SUN &QY-UN, jfpe. , a Florida By: m sident INTENTIONALLY LEFT BLANK 61 STATE OF FLORIDA } ) S S : COUNTY OF OA &:- ) The foregoing instrumen,.5�as acknowledged before me this 3 day of 19?-r- by &S��� _ _ _ as Z --7 of West Side Partners, Inc., a Florida corporation which is a general partner in West Side Partners, Ltd., a Florida limited partnership, on behalf of the corporation and the partnership. He/she personally appeared before me, is personally known to me or producedaN��/ X?�,o. - as identification. CAROLYN ROGERS NOTARY PUBLICBlTR11A&DS EAM] COMMLSSION NO. CC405194 MY COMMISSION EXR SEPT 61998 STATE OF FLORIDA SS: COUNTY OF �� } Notary: L :;�eA_ Print Name: Notary Public, State of My commission expires: i9 9,P / Cl' The foregoing instrument was acknowledged before me this3 day of /Uaret-; , 19°ry by %mooll�vi L-"Yz- as 47 of East Coastline, Inc. , a Florida corporation which is a general partner in East Coastline Development, Ltd., a Florida limited partnership, on behalf of the corporation and the partnership. He/she personally appeared before me, is personally known to me or producedocIoE"srru"--;)/% �N�lJJ as identification. Notary: CAROLULIo1�AL EAL] NOTARY PUBLIC Print Name: RIDA COWUSSIONNo. CC405194 Notary Public, State of MYCpMhfiSS[CNXP. SEPT6 ]>98 My commission expires: STATE OF FLORIDA ) } COUNTY OF hA� SS: } The foregoing instrument was acknowledged before me this � day of iyotl nrr bes-- , 19_q'�- by ; rN L- as 7 of 404 Investcorp, Inc., a Florida corporation which is a general partner in 404 Investments, Ltd., a Florida limited partnership, on behalf of.the corporation and the partnership. He/she personally appeared before me, is personally known to me or produced sso rug t/ NHS w� as identification. Notary: [NOTARIAL SEAL] Print Name: Notary Public, State of�i My commission expires: C"r IAL OTARY . NOTARY PUBLIC SPATE YN OF F DRWA COMMISSICAROLON NO. CGp519,4 MY COMMISSION &XP. SEPT 619% 62 STATE OF FLORIDA SS: COUNTY OF The foregoing instrument was acknowledged before me this day of No vetn6 19 qs by AZ*/14f %(/lam /!1 !-- rz as of Azure Coast, Inc., a Florida corporation which is a general partner in Azure Coast Development, Ltd., a Florida limited partnership, on behalf of the corporation and the partnership. He/she personally appeared before me, is personally known to me or produced rsoA-�Iily /Sni�c��LJ_ as identification. IA Notary: Orco�YNRo4MT SEAL] Print Name: �O,1pgYpl7 CSTATEOFFIAR Notary Public, State of COMHdI5S1ON HiO.C51� My COmm1SS10n expires: G7177 U //1r'�' MY COMMISSION &XP• 5EPT 61998 STATE OF FLORIDA ) SS: COUNTY OF� ) r� The fore ok .,.�ing instrument was acowledged before me this day of ,VQP GV , 192:2:--by as &- of Beachwalk Development Corporation, a Florida corporation, on behalf of the corporation. He/she personally appeared before me, is personally known to me or produced �O2rso�,��y hl"a—ds identification. s -Or"Vi IA L'1OT IJU S EAL ] CAROLYN ROGERS NOTARY PUBLIC STATE OF FLORIDA COMMISSION NO. CC405194 MY COMMISSION KXP, SEPT 6 1998 STATE OF FLORIDA ) SS: COUNTY OF Notary: Print Name: Notary Public, State of 14-4 My commission expires: The foregoing instrument was acknowledged before me this 3rd day of Nov etn bz-r— , 1942--by �7%'/l19-S /, &z n2 4-72. as Gai1�s� 0e�J � of Portofino Group, Inc., a Florida corporation which is a general partner in Portofino Real Estate Fund, Ltd., a Florida limited partnership, on behalf of the corporation and the partnership. He/she personally appeared before me, is personally known to me or produced as identification. Notary: [NOTARIAL SEAL] Print Name: 1 4 Notary Public, State of FX%_4A My commission expires: .SST io i� 9� .-.<...�:iCILt O—TAR SEA CAROLYN ROGERS 'NOTARY PUBLIC STATE OF FLORIDA COM"44ISSION NO. CC405194 �My COMMISSION P. EI'T 6 19" 63 STATE OF FLORIDA } SS: COUNTY OF The foregoing instrument was acknowledged before me this-3day of �ouP��af�.o✓ 191ft by as c-S.',0 -)-7 of St. Tropez Living, Inc., a Florida corporation which is a general partner in St. Tropez Real Estate Fund Ltd., a Florida limited partnership, on behalf of the corporation and the partnership. He/she personally appeared before me, is personally known to me or produced as identification. Fr,=AIRY LA.tOLYN SEAL] PUU'LIC ST'AI� O .53SSIUN NO. CC405194J Ott 1i ��i CI'. SEI'i b,199B STATE OF FLORIDA ) COUNTY OFLJC� SS Notary: Print Name: 6 4-74S Notary Public, State of FZ6f,'0./-2 My commission expires: _SW T /,9 The foregoing instrument was acknowledgeA before me this 2 r� d7-40 of iu���P�dpr , 19 21- by ,e nyL� as . 101-11r & of Sun & Fun, Inc., a Florida corporation, on behalf of the corporation. He/she personally appeared before me, is personally known to me or produced N'!911_Y as identification. Notary: [NOTARIAL SEAL] Print Name: CM Notary Public, State of My commission expires: Sc-.�-r ( /9Qk «..m.Q 11CICIAL OTAR EA CAROLYN ROGERS NOTARY PUBLIC STATE OF FLOMA COMMJSSION NO. CC405194 MY COMMISSION FXP. SEPT 6 1996 64 JOINDER The undersigned TALLAHASSEE BUILDING CORPORATION, a Florida corporation, as the Marina Lessee, hereby joins in the foregoing Agreement for purposes of confirming its agreement to the provisions of subparagraphs 5.3 (c) , (d) , (e) and (f) , paragraph 5.5 and Section 8 thereof. c-ORATION �.�iri d:.��; STATE OF FLORIDA ) COUNTY OF w`LL SS: ) The foregoing instrument was acknowledged before me this 6, day of , 19a` by 7 om f-s PAc kid as V .sk Qrasj'en+ of Tallahassee Building Corporation, a Florida corporation, on behalf of the corporation and the partnership. He/she personally appeared before me, is personally known to me or produced as identification. Notary: l�A [NOTARIAL SEAL] Print Name: JI v CilaKeMo�¢ Notary Public, State of =7 L My commission expires: ,,OFFICIAL SEAL" Holly Slakomort Notary Publlo, Stott of Illinois M toffiffAllon bplffi A►18114, Inv 65 JQINDER The undersigned CITY OF MIAMI BEACH HOUSING AUTHORITY hereby joins in the foregoing Agreement for purposes of confirming its agreement to the provisions of paragraphs,4.2, 5.3 and 5.4 thereof. CITY OF AMI BEACH HOUSING AUTHORITY B STATE OF FLORIDA } ? SS: COUNTY OF bade - The foregoing instrument was acknowledged before me this Z�A- day of IV cVeMbz-r , 19c)5 by ward Ga-lbu.-f as ChLtrrmav� of City of Miami Beach Housing Authority, a , on behalf of said /she personally appeared before me, is personally known to me or produced as identification. [NOTARIAL SEAL] OFFICIAL NOTARY SEAT. JANINE MILINSKI NOTARY PUBLIC STATE OF FLORIDA COMMISSION NO. CC449380 MY COMMISSION FXP, MAR.29,19CIQ 66 Notary: w,1e Print Nam : _Sawn Notary Public, State of do - My commission expires: 29 19917 oO SMrr The undersigned lender currently holding a mortgage lien against the Alaska Parcel hereby consents to the creation of the SAD, the issuance of the SAD Bonds (or alternative Special Improvement Lien) and the priority of the SAD Bonds (or alternative Special Improvement Lien) as provided in paragraph 7.2 of the foregoing Agreement. UNITED-.WZTIONAL BANK By: C9E�;�0 Wewv2 STATE OF FLORIDA } COUNTY OF } SS: The for going instrume t as ackn w edg d ore me this 3-Al da of 19 -, by c before X as of ) a on behalf of said He/ire personally appeared before me, is oers�,,y known to me oN- prOdu,cecL _ Notary: Ali &� 4fa!� _ [NOTARIAL SEAL) Print Name: Notary Public, State of My commission expires: °�rJlltl!!111JlllllllhllllllllllJllll)llltlllJlllll S liwtnav C. Cobb < • � + Notary Palk, State of Florida mmt j,"*Myc`CoiW nNo. CC `oF n Coramisa Sxgim Q3 < 1-M -NMAAY • ft NOWY Savioe 67 The undersigned lender currently holding a mortgage lien against the Ocean Parcel hereby consents to the creation of the SAD, the issuance of the SAD Bonds (or alternative Special Improvement Lien) and the priority of the SAD Bonds (or alternative Special Improvement Lien) as provided in paragraph 7.2 of the foregoing Agreement. CITY NATIONAL BANK OF FLORIDA, a National Bankingoration��% By: STATE OF FLORIDA ) SS: COUNTY OF DADE ) The foregoing instrument was acknowledged before me this bth day of November 19 95 by Bares R. Stempel _ as of City National Bank of Florida a National Banking Corporation on behalf of said _ Corporation _ He/fie personally appeared before me, is personally known to -me -ear Notary: . [NOTARIAL SEAL] Print Name: Chantal Weir Notary Public, State of Florida - My commission expires: a December 301995 '�f1f � smare'� xaerry, vebBo vim. 68 SCHEDULE OF EXHIBITS A = West Side Assignments B - Redevelopment Area Boundary C = Legal Descriptions of Various Parcels D = City/Redevelopment Property Title Commitment E = Leases for Apartments at 211 Parcel F = Portofino Property Commitment G = Covenant Not to Convey H = Design Guidelines I - Urban Design Master Plan J = DRB Review Standards as of date of Agreement K = Maintenance and Operating Agreement L = Color Code Expansion M New Parking Agreement N = Marina Slip Agreement O = Presently Permitted Development P = Public Facilities Q = Public Reservations and/or Dedications R = Required Permits S = Subsequent Conditions 69 EXHIBIT "A" West -Side Assic7nmer.t This Instrument Prepar. _ Name: Joel K. Goldman, Esq. Address: Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. 1221 Brickell Avenue Miami, Florida 33131 F i e. 0 14 5 1994 APF. 07 16:2 (iDCSTF'DE= 5P611.16 SURTX 4008.4 8*.'VEi' RILyVlNt t:LEn"K DADE QUNTYr F (Space Reserved for Clerk of the Court) ASSIGNMENT AND ASSUMPTION OF MORTGAGE AND OTHER DOCUMENTS THIS ASSIGNMENT AND ASSUMPTION OF MORTGAGE AND OTHER DOCUMENTS made as of this kc7t day of April, 1994, by and between SOUTH SHORE DEVELOPERS, INC., a Florida corporation, having an office c/o First Boston Real Estate, 55 East 52nd Street, New York, New York 10055 ("Assignor"), and WEST SIDE PARTNERS, LTD., a Florida limited partnership, having an office at 446 Collins Avenue, Miami Beach, Florida 33139 ("Assignee"). W I T N E S S E T H: WHEREAS, by Purchase and Sale Agreement (the "Agreement") dated as of March 26, 1993 between Assignor and Assignee, Assignor agreed to sell the Assignee all of its rights, title and interest relatinc to the real property more fully described in Exhih.t A attached hereto and hereby made a part hereof (the "Real Property") under a Contract of Sale, dated as of July 24, 1985, and recorded _:: Official Records Book 12590, at Page 2795 in the Public Records c�� Dade County, Florida (the "Public Records") between and among the City of Miami Beach, Florida (the "City"), the Miami Beach nedevelcpmen;. Agency (the "Agency") and Assignor, as amended by Amendment of Contract of Sale, dated as of April 17, 1986, and recorded in Official Records Book 12873, at Page 2602 of the Public Records, among the City, the Agency and Assignor (the "Contract of Sale"); ) . e and VHEREAS, the Aareemen` provides, inter alia, that Assignor s.all assign to Assignee all of the rights, title and interest of Assicncr under the SSDI Development Agreement, dated as of April 17, 1986, and recorded in Official Records Book 12873, at Page 2612 of the Public Records, among the City, the Agency and Assignor (the "Development Agreement") and the Parking Agreement, dated as of Aoril 17, 1-966, and recorded in Official Records Book 12873, at Page 2731 of the Public Records, among the City, the Agency and Assignor, as further amended by letter agreement dated April 17, 1986, by and among the City, the Agency and Assignor (the "Parking Agreement"), the Mortgage granted to Assignor and the Agency, dated July 24, 1985 and recorded on July 31, 1985 in Official Records Book 12590, at Page 2786 of the Public Records (the "Mortgage"), the Stipulation and Order, last dated July 1, 1985 entered in the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida (the "Stipulation and Order") the Final 01 OFF p":1631 Y..18T8 ' ,d9ment for monetary damages with interest thereon dated September 18, 1984 entered in the Circuit Court of the 11th Judicial Circuit 4" and for Davie County, Florida and recorded in Official Records Book 12276,. at Page 2258, a certified copy of which has been recorded under Clerk's File Number 94R-133305, all of the Public Records (the "Monetary Damages Judgment"), and the Judgment for Attorneys' Fees, dated September 23, 1986 entered in the Circuit Court of the llth Judicial Circuit in and for Dade County, Florida and recorded in Official Records Book 13033, at Page 1235, a certified copy of which was recorded under Clerk's File No. 94R- 240-176, all of the Public Records (collectively with the Monetary Damages Judgment, the "Judgments"), all as they relate to the Real Property, and Assignee shall assume all of the obligations of Assignor under the Contract of Sale, the Development Agreement, the Parking Agreement, the Mortgage, the Stipulation and Order and the Judgments which accrue from and after the date of such assignment. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as follows: 1. Assignor hereby assigns, transfers and sets over unto Assignee=:_thout recourse, representation or warranty, except as otherwise specifically set forth herein and except as otherwise set forth in that certain Purchase and Sale Agreement between Assignor and Sur. & Fun, Inc., dated March 26, 1993, and. assigned to Assignee b%, that certain Assignment of Contract dated April 5, 1994, effective as of the date hereof, all of Assignor's right, title and interest in, to and under the Contract of Sale, the Development Agreement, the Parking Agreement, the Mortgage, the Stipulation and Order and the Judgments, TO PAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever. 2. Assignee hereby accepts the assignment set forth herein anA- hereby assumes all of the terms, covenants, conditions and provisions of the Contract of Sale, the Development Agreement, the Parking Agreement, the Mortgage, the Stipulation and Order and the Juagments on Assignor's part to be performed thereunder, provided that Assignee's assumption of any obligations under the foregoing documents shall be limited to those obligations of Assignor which arise from and after the date hereof. �. (a) Assignor agrees to indemnify and hold harmless Assignee from and against any and all costs, claims, obligations, damages, penalties, causes of action, losses, injuries, liabilities and expenses (including, without limitation, reasonable legal fees and expenses) accruing or arising as Assignor's obligations under the Contract of Sale, the Development Agreement, the Parking Agreement, the Mortgage, the Stipulation and Order and .the Judgments before the date hereof (except only with regard to those specific matters which have not been warranted. by Assignor as +N Off CH 6313ff 1079 den ified in Exhibit "B" attached hereto and by this reference made a Dart hereof). (b) Assignee agrees to indemnify and hold harmless Assignor from and against any and all costs, claims, obligations, damages,- penalties, causes of action, losses, injuries, liabilities and expenses {including, without limitation, reasonable legal fees and expenses) accruing or arising as Assignee's obligations under the Contract of Sale, the Development Agreement, the Parking Agreement, the Mortgage, the Stipulation and Order and the Judgments on or after the date hereof. 4. This Agreement and the obligations of the parties hereunder shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns, shall be governed by and construed in accordance with the laws of the State of Florida and may not be modified or amended in any manner other than by a written agreement signed by the party to be charged therewith. S. Assignor hereby represents and warrants to Assignee that Assignor has the right to make this assignment and has not previously assigned or otherwise encumbered Assignor's rights, title or interest under any of the foregoing documents. 5 The parties hereto acknowledge and agree that this Agreement is intended solely for the benefit of the parties hereto and their- respective successors and assigns a:_ shall not be for the benefit of any other person or entity. 7N Wl';Iv-SS the parties hereto have duly executed h_s Assignment and Assumption Agreement as of the day and year firs;, Written. r 3 Witnesses: r � Witness: Print Name: C: L71-!.,',-7, Witness. Print Name: s�,t �, ±r''•- ^z�:,: RrE 16313` 1 OBO ! Assignor: Witness : 6L Print Name: _;loci Gold _ Witness Print Name: �I �4TtrttMJ �jptscr„ SOUTH SHORE DEVELOPERS, ,f Name: S n- P Title. Assignee: WEST SIDE PARTNERS, By: WES•'r SIDE P� GeneralXrtne Name: Title: Nc.;nr,*6, �- JOINDER LTD. t CNERS,.,���,�•,'1�(.•, The undersigned hereby joins in the foregoing Assignment and assigns, transfers and set over unto Assignee without recourse, representation or warranty, effective as of the date hereof, all of the undersigneds' right, title and interest, if any, in, to and under the Contract. of Sale, the Development Agreement, the Parking .Agreement, the Mortgage, the Stipulation and Order and the judgments, to have c'.tnd to hold the same unto Assignee, its successors and assigns, for ever. i• REL:16313N 108 I�.1 tresses : Witness: Print Name: Witness: � }`�',#^�`'"•'• �:�'A! Print Name: c-Zs Fitness : -a , J F., Pxist Name. Witness: Print Name: CLIPPER SOUTH SHORE, INC:; a corporation By: 1. •� ,:����„ Name: 1 P T i t I e ' f' c [Corporate Seal] BT SOUTH SHORE ASSOCIATES, a Florida partnership BY: CLIPPER SOUTH SHORE, INC., General Partner , By: '•`' Name: Title: [Corp? ae�� `Sa'1 STATE OF 1 SS: OF r� The roregoi ng i.nszrument was ackno 1Edged before me this day or April, 1994 by ^� r�:oud as Of SOJT:. S.:0 E D ~'ELOPERS, INC., a ccrporatio�, on behalf of the corporation. He/she/they personally appeare before me, is/are personally known to me or produced as identification. n A i Notary: ��-t-- JINC)TARIF.L SEAL) print Name: ��►,/ t Sr h h Notary Public, State of My commission expires- f?ENNI ad N York `` • . No. 41.4908184 Quw iod in Ouoww C*LrW camaAmion rok" w/r?X s S +'AT: OF ) SS: COUNTY OF ) The foregoing instrument was acknowledged before me this day of April, 1994 by 1�rie�r�41+ NG,G- as V,7 Pies:cic•+r of WEST SIDE PARTNERS, INC., a Florida corporation, as General Partner of West Side Partners, Ltd., on behalf of the corporation and partnership. He/she/they personally appeared before me, is/are personally known to me or produced as identification. 11•- .r I�� �., •. � , . Notary: * •!:O]-?'[I�'?'ARIAL SEAL] Print Nam •/CA4 . -�-r.!%!t/F/1 � Notary Public, State of My commission expiresN C Na. 41-"98841 t Qualified Queens counq • Certificate Filed in New York Courdy L+�••••...•• . "^^ M1ra6nn ,.SSAT OFF ) ExoirasJuns 15, 19' SS: COUNTY OF ) 7 /�- C_ The forec_dng instrume was ac no ledged before•me this day of April, 1994 by - �.�� "' _ as ,�� of CLIPPER SOUTH SHORE, INC., a ���,�� T corporation, on behalf of the corporation. He/she/they personally appeared ' '�efme, is/are personally known to me or produced 4% as identifica�ion. �• C �1. Notary: L tiu....� T' OTj1,RIAL SEAL] Print Nam : _'nk�-nl N►�e, (, IL _c0 l K {� Notary Public, State of _ [� •j•',•' My commission expire :DS_ ENNNIIS�EL.MAOLFNAAR Ottn r y '�.�' 1io rY No 41- 9M190 fQualified In Oueens County S =ATE OF 1 •., ) Commission E*res /q, 9 ( 9 6- SS: COTJZ?Y OF NAu..J The foregoina instrrent was acknowledged before me this ^ay. of April, 1994 by • 1' as Ic-c.e_ • &e�.. of CLIPPER SOUTH SHOR , INC., a corporation, as General partner of PT South Shore Associates, on h-e-half of the corporation and partnership. He/she/they personally appeared before. -me, is/are personally known to me or produced as ider.-�ification. ��+ .a �•. •'��' Notary: �'� �� [] QTARIAL SEAL] Print Name: r L. ^ C1ti A > Notary Public, State of = � My commission expires: -+'• �'••' DENNiSE�L, MOOLEKW �ry No 41 49091 spew Yaric OACommission b�rM / 1 �f / �I5 6 eL I VId I %J ' ' �-d—`J 1 ` F-MilBIT "A" LEGAL DESCE.PTIOM Oi PARCUI A 500th Parcel (Phases I and II) Lots 1 through 14, inclusive, in Block i l 1, of OCEAN BEACH F..OP.IDA ADDITION N0. 3, according to the Plat thereof. as recorded in Plat Book 2, at Page 81, in the Public Records of psde County, Florida, together with tht accretions thereto. ALSO; That Part of Biscayne Street (also known as Biscayne Avenue) as ahoun on said Flat of OCEAN BEACH FLORIDA ADDITION NO. 3, lying westerly of the southerly projection of the wcst Fight of way line of Jefferson Avenue as shown on sold Plat and being bounded on the vest by Biscayne Bay, together with the accretions thereto. I 1150: .All that part of the Korth 132.0' of Section 10, Township 54 South, Range t2 East, described as: Beginning at a point on the Northern boundary of said Section 10, :rhicb is intersected by the Easterly boundary of Jefferson Avenue extended Southerly across Biscayne Street as a point or place of beginning: thence Southerly continuing the Easterly boundary of Jefferson Avenue extended for a distance of 132.0' to a point; thence Westerly 208.1' more or less along a line parallel to and 132.0' Southerly fro= the Northern line of said Section 10 to Biscayne Flay; thence Northw's:erly ceandering the Bay to the intersection of the }Northern line or Section 10; thence Easterly along the Northern line of Section 10, 285.0' *ore or less t) the point or piece of beginning (the Northerly boL.-ndary of said Section 10 being co =on with the Southerly :oundarr of T:acayne Street); Also described as: All of that part of the North 132.0' of Section 10 Towr,zhip 54 South, Range 42 East, known as Tract A or the S_ith Co=Many Bay Front Tract &,ire particularly described ss follows to wit: Bounded on the !North by the Northern line -or said Section 10: bo;:nded on the East by the Eas: line or Jefferson avenue extended: bounded on the South by a line parallel to and distant 132.0' South of the _ Northern line of said Section 10, and bo;:rded on the Yes" by Biscayne Bay, together vl6th the accretions theretc. North PxrcEl (Phaacs III an'. IV) Lots 30 thro„gh 42 inclusive, in block tit, or OCEAK BEACH-FLORIDA aD,TIOX k0. 3, according to the Plat thereon. recorded in Plat Book 2, at page E1, of the Public Records or Dade County, Floric:, together with the accretions thereto. 1LS0: Lots 43. 44, 45, x6. 47, 45A, igE, and 50C of DADE COUM PROPERTY, according to the Plat thereof, recorded in Plot Book 14, at Page 70, of the Public Records of Dade County, Florida, together with the accretions thereto. h:L. I VJ I J ' I UVY Exhibit B Seller does not warrant: (i) compliance with the commencement of development under the Development Agreement, or (ii) the amount of interest due and payable after February 17, 1988 thereunder, or (iii) the manner of calculating the sales price under the Contract of Sale, or (iv) whether the "Dry Stack Storage Agreement" meeting the requirements of the Contract of Sale has been delivered to Seller. N r 7 "Colata M CWP IUAJ RXWM ipp� I DRU COUN" hO&OA. iveerrrefl NAWEY RUYIN; clerk of Circuit & COUpf Courts EXHIBIT "B" 0 0 0 Q 11 LEGEND Fifth Street First Street Biscayne Street Allan Road Washington Avenue Collins Avenue Jefferson Avenue Ocean Drive Pier Park South Pointe Park Miami Beach Marina South Pointe Tower Specific Properties subject to the proposed Development Agreement REDEVELOPMENT AREA BOUNDARY SOUTH POINTE REDEVELOPMENT AREA MIAMI BEACH, FLORIDA B=BTT `"C"' AlaRK&M PJLRCz A parcel of land and accreted land located in Section 10 Township 54 South, Range 42 East, Dade County, Florida, and being more particularly described as follows: For a Point of Beginning commence at a 10-inch-square concrete monument located an the northerly boundary of the U.S. Army Corps of Engineers Reservation, being the westernmost corner of Lot 6, Block 4, of South Beach Park Subdivision as shown in Plat book 6, Page 77, of the public records of Dade County; said monument designated "C' having grid coordinates of X-784,440.39 and Y- 521,912.47. Said monument also lies approximately South 24 degrees 27126' West a distance of 592.30 feet South of and North 65 degrees 36116' East of a distance of 554.97 feet West of the northeast corner of the northwest 1/4 of Section 10, Township 54 South Range 42 East. Prom said Point of Beginning run thence South 24 degrees 25.50' west a distance of 420.43 feet, more or less, to the Mean High Water (M.H.W.) line of the northerly shoreline of the "Government Cut" for the entrance channel of the Miami Harbor; thence North 65 degrees 35119' West along said M.H.W. line a distance of 261.59 feet to a point on a bulkhead; thence North 31 degrees 08128" West along said bulkhead a distance of 242.83 feet to U.S. Army Corps of Engineers Monument "Virgil' having a grid coordinate of X-783,902.72 and Y-521,845.63; thence Worth 57 degrees 41'41" East a distance of 226.20 feet to Monument "West" having a grid coordinate of X-784,093.91 and Y-521,966.52; thence North 87 degrees 38137' East a distance of 208.58 feet to Monument "G', having a grid coordinate of X-784,302.32 and Y- 521,975.14; thence South 65 degrees 35,12' East a distance of 151.63 feet to Monument "C' and the Point of Beginning. COYtE Png�� All of Lots 22 through 29, inclusive, and Lot 21, less the southerly 40 feet thereof, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO. 3, according to the Plat thereof, recorded in Plat Dook 2, Page 81, of the Public Records of Dade County, Florida; together with a 40-foot right-of-way on the Bay side of Rebecca and Hope Tower property, (being Lots 15 through 20 inclusive and the southerly 40 feet of Lot 21 in Block 111, of OCEAN BEACH FLORIDA ADDITION NO. 3); together with an easement over or under and upon the westerly 100 feet of Lots 30 and 31, all in Block 111, OCEAN BEACH FLORIDA ADDITION NO. 3, as recorded in Plat. Book 2, page 81, of the Public Records of Dade County, Florida. Together with: The West 2 feet of Lots 15 through 20, inclusive, and the westerly 40 feet of the southerly 40 feet of Lot 21, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO. 3, according to the Plat thereof as retarded in Plat Book 2, Page 81, of the Public Records of Dade County, Florida. I Commence (P.O.C.) at the Southeasterly intersection of Biscayne Street (Formerly Biscayne Avenue) ,and Washington Avenue, as said Avenue and Street are shown on South Beach Park Subdivision, recorded in Plat Book 6, at page 77 of the public records of Dade County, Florida; thence S. 10'47'35' W., 6.16 feet to the Southerly line of a 6.00 foot Roadway Dedication for Biscayne Street; thence N. 87'38157' E. along the Southerly line of said dedication recorded in O.R. Book 12566, at page 2914 of the public records of Dade County, Florida, 364.79 feet to the Point of Beginning (P.O.S.) of the hereinafter described Phase I; thence S. 10*47,35, W., 70.93 feet thence N. 87'38'57' E., 93.21 feet; thence N. 2*211030 W., 4.00 feet; thence N. 87'38157" Z., 14.10 feet; thence S. 2'21103" E., 4.00 feat; thence N. 87*38157" E., 81.37 feet; thence S. 2*211030 E., 85.815 feet; thence run S. 62'18104' W., 24.53 feet; thence S. 27'41156' E., 18.00 feet; thence N. 62'18104' E., 2.00 feet; thence S. 27*41156' E., 38.33 feet; thence S. 62'18104' W., 2.00 feet; thence S. 27'41156' E., 116.74 feet; thence N. 62'18104• R., 27.00 feet; thence S. 27*41156' E., 16.67 feet; thence S. 62*1.8,040 W., 27.00 feet; thence S. 27*41,56, E., 29.33 feet; thence S. 62'18104' W., 145.65 feet; thence S. 27*41156, E., 12.00 feet; thence S. 62'18104' W., 27.93 feet; thence S. 27'41'56' E., 43.555 feet; thence S. 24'23144' W., 40.00 feet to the Southerly line of said South Beach Park Subdivision; thence N. 65*36,16, W., 352.64 feet along the said Southerly line; thence run N. 24*23,449 E., 40.00 feet along the dividing lime between Phase I and Phase III. The following 4 courses are on the said dividing line; thence run N. 27*41,56, W., 29.35 feet; thence N. 62'18104' E., 81.58 feet; thence N. 27'41156' W., 158.00 feet; thence N. 62*181041 E., 134.43 feat; thence N. 10*47135' B., 69.213 feet to the above referenced Southerly line of the 6.00 foot Roadway Dedication; thence N. 87'38'57' a., along said Southerly line, 73.00 feet to the Point of Beginning (P.O.B.) LESS PHASE I FOOTPRINT (a/k/n SOUTH POINT TOWER I CONDOMINIUM) DESCRIBED AS POLL OWS Commence at the S.B. corner of Washington Avenue and Biscayne Street, as said Avenue and Street are shown on SOUTH BEACH PARK SUBDIVISION, Recorded in Plat Book 6 at Page 77 of the Public Records of Dade County, Florida, and run S. 10*47.35, W. along the Easterly line of Washington Avenue, a distance of 238.22 feet to a point; Thence run S. 2'21103' E. along the Easterly line of Washington Avenue, a distance of 40.31 feet to the intersection of the Northerly line of the GOVERNMENT RESERVATION, Recorded in O.R. Book 10271 at Pages 1068 and 1069 of the Public Records of Dade County, Florida, said Northerly line also being the Southerly line of said SOUTH BEACH PARK SUBDIVISION; Thence run S. 65'35'12" E. along the Southerly line of SOUTH BEACH PARK, a distance of 16.00 feet to Monument 'C"; Thence run S. 65*36,16" E. along the Southerly line of said SOUTH BEACH PARK, a distance of 475.72 feet to a point; Thence run N. 24'23144" E., a distance of 50.70 feet to the Point of Beginning (P.O.B.), being the Southwest corner of the first level of the residential condominium building constituting South Pointe Towers I; All of the following courses are along the exterior wall, or its projection, of said building; Thence run N. 27*41,56, W., a distance of 199.67 feet; Thence run N. 62*18104, E., a distance of 21.83 feet; Thence run S. 27'41'56' E., a distance of 1.50 feet; Thence run N. 62*18.04" E., a distance of 11.70 feet; Thence run N. 27'41.56' W., a distance of 10.66 feet; Thence run N. 62*18104' E., a distance of 27.13 feet; Thence run S. 27*41,36, E., a distance of 219.00 feet; Thence run S. 62'18104' W., a distance of 15.93 feet; Thence run S. 27'41'56' E., a distance of 4.00 feet; Thence run S. 62*18,04, W.. a distance of 14.08 feet; Thence run N. 27'41156' W., a distance of 14.17 feet; Thence run S. 62'18104' W., a distance of 8.83 feet; Thence run S. 27'41156' E., a distance of 5.17 feet; Thence run S. 62'18104' W., a distance of 10.33 feet; Thence run N. 27*41,56, W., a distance of 5.17 feet; Thence run S. 62*18,049 W., a distance of 11.49 feet to the Point of Beginning (P.O.B.). Area of Building described contains 12,758 square feet, more or lees, or 0.293 acres, more or less. PHASE IIY P&['SY, Commence (P.O.C.) at the Southeasterly intersection of Biscayne Street (formerly Biscayne Avenue) and Washington Avenue, as said Street and Avenue are shown on South Beach Park Subdivision, recorded in Plat Book 6, at page 77 of the public records of Dade County, Florida; thence N. 87*38157' E., along the Southerly line of said Biscayne Street, 291.65 feet; thence S. 10'47'35' W., along the dividing line between Commercial Parcel No. 1 and Phase I, 69.27 feet to the point of Beginning (P.O.B.) of Phase III, described as follows: The following 3 courses are on the dividing line between Commercial Parcel No. 1 and Phase III; thence run N. 79'12125' W., 6.40 feet; thence S. 87'38'57' W., 249.018 feet; thence S. 62*18,04, W.. 44.865 feet to the Easterly line of Washington Avenue referenced above= The following 2 courses are on the Easterly line of Washington Avenue; thence S. 10.471350 W., 150.72 feet; thence S. 2*21,03• E., 40.31 feet to the Southerly line of the above referenced South Beach Park Subdivision; thence S. 65'351129 E., 16.00 feet; thence S. 65'36'16' E., 203.12 feet along the said Southerly line; The following 6 courses are an the dividing line between Phase I and Phase III; thence run N, 24'23'44" E., 40.00 feet; thence N. 27*41,56, W., 29.35 feet; thence N. 62'18104" E., 81.58 feet; thence N. 27'41'56- W., 158.00 fact; thence N. 62*18.04, E., 134.43 feet; thence N. 10'47135• E., 6.103 feet to the Point of Beginning (P.O.B.). Commence (P.O.C.) at the Southeasterly corner of Biscayne Street (Formerly Biscayne Avenue) and Washington Avenue, as said Street and Avenue are shown on South Beach Park Subdivision, recorded in Plat Book 6, at page 77 of the public records of Dade County, Florida, and run S. 10*471351, W. along the Easterly line of Washington Avenue, a distance of 6.16 feet to a point on Lthe Southerly line of existing Biscayne Street, as said line was created by a 6.00 foot roadway dedication, said dedication recorded in Official Record Book 12566, at page 2914 of the public records of Dade County, Florida, said point being the Point of Beginning (P.O.B.) of Commercial Parcel No. 1; thence run N. 87*381571 E., along the Southerly line of said dedication, along the existing Southerly line of Biscayne Street, a distance of 291.65 feet; thence run S. 10'47135' W., a distance of 63.11 feet; thence run N. 79'12'254 W., a distance of 6.40 feet; thence run S. 87'381571 W., a distance of 249.018 feet; thence run S. 62'18104" W., a distance of 44.865 feet to a point on the Easterly line of aforesaid Washington Avenue; Thence run N. 10'47135" E., along the Easterly line of Washington Avenue, a distance of 81.34 feet to the Point of Beginning (P.O.B.). LECAL DESCRIPTION DI! COMMERCIAL Commence (P.O.C.) at the Southeasterly corner of Biscayne Street (Formerly Biscayne Avenue) and Washington Avenue, as said Street and Avenue are shown on South Beach Park Subdivision, recorded in Plat Book 6, at page 77 of the public records of Dade County, Florida, and run S. 10*4713511 W. along the Easterly line of Washington Avenue, a distance of 6.16 feet to a point on the Southerly line of a 6.00 foot roadway dedication, said dedication recorded in Official Record Book 12566, at page 2914 of the public records of Dade County, Florida] thence run N. 87'38'57• E. along the Southerly line of said 6.00 foot dedication, along the existing Southerly line of Biscayne Street, a distance of 638.266 feet to the Point of Beginning (P.O.B.) of Commercial Parcel No. 2; thence run S. 10'47'35" W., a distance of 70.93 feet; thence run S. 87'38157• W., a distance of 166.226 feet; thence run N. 2'21103' W., a distance of 4.00 feet; thence run S. 87'38157" W., a distance of 14.10 feet; thence run S. 2*211031 E., a distance of 4.00 feet; thence run S. 87*38,57, W., a distance of 93.21 feat; thence run N. 10'47135" E., a distance of 70.93 feet to the existing Southerly line of the 6.00 foot dedication; thence run N. 87'38157• E. along the existing Southerly line of Biscayne Street, a distance of 273.536 feet to the Point of Beginning (P.O.B.). Commence (P.O.C.) at the Southeasterly corner of Biscayne Street (Formerly Biscayne Avenue) and Washington Avenue, as said Street and Avenue are shown on South Beach Park Subdivision, recorded in Plat Book 6, at page 77 of the public records of bade County, Florida, and run N. 87*381571 E. along the Southerly line of said Biscayne Street, a distance of 638.266 feet; thence run S. 10*471351 W., a distance of 77.09 feet to the Point of Beginning (P.O.B.) of the Master Parcel Infrastructure; thence continue S. 10*47135, W., a distance of 88.124 feet; thence run S.87°38'57" W., a distance of 64.817 feet; thence run N. 2'21' 03" W., a 3 distance of 85.815 feet; thence run N. 87*38157, E., a distance of 84.856 feet to the point of Beginning {P.O.B.). A portion of Lots 1 and 2, in Block 51, of the Plat of OCEAN BEACH FLA. ADDITION N0. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, more particularly described as follows: Begin at the Northwesterly corner of said Lot 2; thence N 77013,280 E along the Northerly line of said Lots 1 and 2 for a distance of 33.49 feet to a point, said point being 40 feet West of the East line of said Lot 1 measured at right angles to said line; thence S 00*00,33 W along a line 40 feet West of and parallel with the East line of said Lot 1 measured at right angles to said line, a distance of 102.54 feet to a point on the South line of said Lot 2; thence S 77*13,280 W along the Southerly line of said Lot 2 a distance of 10.91 feet to the Southwesterly corner of said Lot 2; thence N 121146109, W along the Westerly line of said Lot 2 a distance of 100.00 feet to the POINT OF BEGINNING. All of the above lying and being in Section 3, Township 54 South, Range 42 East, City of Miami Beach, Dade County, Florida. A portion of Lot 18 and the 10 foot walk adjacent thereto, Block 51 of the Plat of OCEAN BEACH FLA. ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, more particularly described as follows; That portion of said Lot 18 and the 10 foot walk adjacent thereto lying Easterly and Northerly of the following described line; begin at a point on the Northerly line of said Lot 18, said paint being 0.39 feet Easterly of the Northwesterly corner of said Lot 18; thence S 12046109" E, parallel with and 0.39 feet Easterly of the Westerly line of said Lot 18 for 74.85 feet to a point of non - tangential curve leading to the left and concave to the Northeast, having a radius of 47.50 feet and whose radius point bears N 68024'46• E; thence Southerly and Easterly through a central angle of 37°27'59- for as arc distance of 31.06 feet to a point on the Southerly line of said Lot 18 and on the Northerly line of a 10 foot walkway as shown on said plat of OCEAN BEACH FLA, ADDITION No. 3, said point being also a point of compound curve having a radius of 45.00 feet; thence Southerly and Easterly through a central angle of 23*25.51, for an arc distance of 18.40 feet to a point on the Southerly extension of the Easterly line of said Lot 18, said point being 9.78 feet Southerly of the Southeasterly corner of said Lot 18 and the TERMINAL POINT of the herein described line. All of the above lying and being in Section 3, Township 54 South, Range 42 East, City of Miami Beach, Dade County, Florida. Lot 15 and a portion of Lot 16, Block 51, of the plat of OCEAN BEACH FLA. ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, more particularly described as follows: Lot 15 and that portion of Lot 16 lying Easterly of the following described line; commence at the Northwesterly corner of said Lot 16; thence N 77013,281 E along the Northerly line of said Lot 16 for 28.00 feet to a point of non -tangential curve, said point being the POINT OF BEGINNING of the herein described line; said point of non -tangential curve leading to the left and concave to the East and having a radius of 35.00 feet and whose radius point bears S 510571451 E; thence Westerly and Southerly through a central angle of 71032,390 for an arc distance of 43.70 feet to a point of non -tangential curve leading to the right and concave to the West having a radius of 225.00 feet and whose radius point bears S 57052,43, W; thence Southerly and Easterly through a central angle of 12°39'48, for an arc distance of 49.73 feet; thence S 160141191 E for 12.15 feet to a point on the South line of said Lot 16, said point being the TERMINAL POINT an the herein described line. All of the above lying and being in Section 3, Township 54 South, Range 42 Last, City of Miami Beach, Dade County, Florida. A portion of Lots 29 and 30 and the 10 foot walk adjacent thereto, in Block 51 of the Plat of OCEAN BEACH FLA. ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, more particularly described as follows: Begin at the Northwesterly corner of said Lot 29; thence N 77013,28, E along the Northerly line of said Lots 29 and 30 a distance of 55.15 feet to a point; thence S 00037113- W for a distance of 112.35 feet to a point on the Southerly line of a 10 foot walk shown on said Plat of OCEAN BEACH ADDITION NO. 3, thence S 76°52.58" W along the Southerly line of said 10 foot walk a distance of 31.51 feet to its intersection with the Southerly extension of the Westerly line of said Lot 29; thence N 12*461090 W along said Southerly extension and along the Westerly line of said Lot 29 a distance of 110,02 feet to the POINT OF BEGINNING. All of the above lying and being in Section 3, Township 54 South, Range 42 East, City of Miami Beach, Dade County, Florida. Lot 3 and a portion of Lots 1 and 2, Block 52, of the Flat of OCEAN BEACH FLA. ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, more particularly described as follows: Begin at the Northwesterly corner of said Lot 3; thence N 77'13128" 8 along the Northerly line of said Lots 1, 2 and 3 a distance of 69.26 feet to a point, said point being 40 feet West of the East line of said Lot 1 as measured at aright angles to said line; thence S 00'00,32• W along a line 40 feet West of, measured at right angles, and parallel with the East line of said Lot 1 for a distance of 102.54 feet, to a point on the Southerly line of said Lot 2; thence S 77`131280 W along the Southerly line of said Lots 2 and 3 a distance of 46.58 feet to the Southwesterly corner of said Lot 3; thence N 12*461091 W along the Westerly line of said Lot 3 a distance of 100.00 feet to the POINT OF BEGINNING. All of the above lying and being in Section 3, Township 54 South, Range 42 East, City of Miami Beach, Dade County, Florida. A portion of Lots 34 and 35 of Block 52 of the Plat of OCEAN BEACH FLA. ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the public Records of Dade County, Florida, more particularly described as follows: Begin at the Northwesterly corner of said Lot 34; thence N 77*13,280 E along the Northerly line of said, Lots 34 and 35 a distance of 42.04 feet to'a point being 40 feet West of the East Line of said Lot 35 as measured at right angles to said line; thence S 00'00,32" W along a line 40 feet West of and parallel with the East line of said Lot 35, measured at right angles to said line, a distance of 102.54 feet to a point on the Southerly line of said Lot 34; thence S 77'13128" w a distance of 19.36 feet to the Southwesterly corner of said Lot 34; thence N 12'46,09• W along the Westerly line of said Lot 34 a distance of 100.00 feet to the POINT OF BEGINNING. All of the above lying and being in Section 3, Township 54 South, Range 42 East, City of Miami Beach, Dade County, Florida. rXRMk__TRIMLZ FARM For a Point of Reference commence at monument "C" as described in the Legal Description for South Pointe Park, run thence along the northeasterly line of the U.S. corps of Engineers Reservation, 5 North 65' 32, 12• west, a distance of 151.63 feet, more or lose, to a steel pin set in concrete, designated monument %GO; thence run South 87' 38' 37" West a distance of 208.58 feet along the northeasterly Northwesterly boundary of the U.S. Corps of Engineers Reservation to monument "West', having coordinates of X- 784,093.91 and Y-521,966,52, said point being the Point of Beginning of the tract being described herein. From said Point of Beginning, run thence South 57'41'41" west, a distance of 226.20 feet to U.S. Corps of Engineers monument "Virgil", having coordinates of X-783,902.72 and Y-521,845.63; thence continue South 57'41141" West a distance of 4.0 feet, more or loss, to the face of an existing steel bulkhead and the approximate north shore of the Entrance Channel to Miami Harbor; thence run Northwesterly along the north shore of Miami Harbor on an approximate bearing of North 32'05108" West, a distance of 132.34, more or less, to a point which lies South 87*38,37, west, a distance of 265.09 feet from monument "West"; thence run North 97*381379 East along the Northwesterly boundary of the U.S. Corps of Engineers Reservation passing through a concrete monument designated "F' at a distance of 121 feet, more or less, for a total distance of 265.09 feet to monument "west", and the Point of Beginning.; also being described as follows: A triangular portion of land lying and being in Section 10, Township 54 South, Range 42 East, Dade, County, Florida. Bounded on the North by, the South line of Lot 3, Block 8 of "South Beach Park Subdivision- Plat Book 6, Page 77 Public Records of Dade County Florida, Bounded on the West by the Biscayne Bay and Bounded on the South by the North line of the Eskimo Parcel, said Eskimo Parcel being described as follows: Por a Point of Beginning commence at a 10-inch-square concrete monument located on the northerly boundary of the U.S. Army Corps of Engineers Reservation, being the westernmost corner of Lot 6, Block 4, of South Beach Park Subdivision as shown in Plat book 6, Page 77, of the public records of Dade County; said monument designated "C" having grid coordinates of X-784,440.39 and Y- 521,912.47. Said monument, also lies approximately South 24 degrees 27126" West a distance of 592.30 feet South of and North 65 degrees 36,16• East of a distance of 554,97 feet west of the northeast corner of the northwest 1/4 of Section 10, Township 54 South Range 42 East. From said Point of Beginning run thence South 24 degrees 25150• Weat a distance of 420.43 feet, more or less, to the Mean High Water (M.H.W.) line of the northerly shoreline of the "Government Cut" for the entrance channel of the Mimi harbor; thence North 65 degrees 35119' West along said M.H.W. line a distance of 261.59 feet to a point on a bulkhead; thence North 31 degrees 08128" West along said bulkhead a distance of 242.83 feet to U.S. Army Corps of Engineers Monument "Virgil - having a grid coordinate of X-783,902.72 and Y-521,845.63; thence North 57 degrees 41,410 East a distance of 226.20 feet to Monument "West' having a grid coordinate of X-784,093.91 and Y-521,966.52; thence North 87 degrees 38'37" East a distance of 208.58 feet to Monument "Go, having a grid coordinate of X-794,302.32 and Y- 521,975.14; thence South 65 degrees 35,12• East a distance of 151.63 feet to Monument "C' and the Point of Beginning. 4 GA P11R= Lots 3, 4 and 5, Block 49, OCEAN BEACH ADDITION NO. 3, according to the Plat thereof, as recorded in Plat Book 2, at Page 81 of the Public Records of Dade County, Florida. GOQ TasJ=X Ph&= Part of the Northwest quarter of Section 10, Township 54 South, Range 42 East, described as follows: Begin in North line of Section 10, which line is also South line of Biscayne Street at its intersection with East line of Jefferson Avenue extended; then South in line drawn at right angles to South line of Biscayne Street 132 feet, thence, East in line drawn 6 parallel with South line of Biscayne Street to West line of Washington Avenue; thence, North along West line of Washington Avenue to its intersection with South line of Biscayne Streets thence, West along South line of Biscayne Street to point of beginning. Also described as: all that part of North 132.0 feet of Section 10-54-42 known as Smith Cottages Tract and also as Tract B and bounded on North by North line of Section 10; on West by East line of Jefferson Avenue extended; on South by line parallel to and 132' South of North line of Section 10; on East by West line of Washington Avenue extended. BLOCK 8, SOUTH BEACH PARK SUBDIVISION, recorded in Plat Book 6, at Page 77, of the Public Records of Dade County, Florida, less and excepting therefrom the following two dedications: A 50.00 foot dedication in BLOCK 8, SOUTH BEACH PARK SUBDMSION, recorded in Plat Book 6, Page 77, of the Public Records of Dade County, Florida. Said 50.00 foot dedication being described as follows: Bounded on the North by the Northerly line of said BLOCK 8; Bounded on the South by the Southerly line of said BLOCK 8; said Southerly line also being the Northerly line of the Government Reservation shown hereon; Bousuied on the East by a line parallel to and 50.00 feet distant Easterly of, as measured at 90-degrees to the Westerly line, of said BLOCK 8: Bounded on the West by the Westerly line of the above -referenced BLOCK 8, said Westerly line also being the Easterly line of Biscayne Bay. A 40.00 foot dedication in BLOCK 8, SOUTH BEACH PARK SUBDIVISION, recorded in Plat Book 6, at Page 77, of the Public Records of Dade County, Florida. Said 40.00 foot dedication being described as follows: Bounded on the North by the Northerly line of the above -referenced BLOCK 8; Bounded on the South by the Southerly line of the above - referenced BLOCK 8, said Southerly line also being the Northerly boundary line of the Government Reservation shown hereon; Bounded on the eaut by the Westerly line of Washington Avenue, said Westerly line also being the Easterly line of BLOCK 8; Bounded on the West by a line parallel to and 40.00 feet distant Westerly of, as measured at 90-degrees to the Westerly line, of the above - referenced Washington Avenue. 30MINA PRRCZL A portion of land lying West of and adjacent to Block Ill of OCBAN BEACH, FLORIDA ADDITION NO. 3 according to the Plat thereof as recorded in Plat Book 2, at Page 81 of the Public Records of Dade County, Florida. More particularly described as follows: Commence at the Northwest corner of Section 3 for 1550.00 feet more or less, to a point on the East line of Block 90 of aforementioned Plat; thence run S 0*30,00, E along the East line of Blocks 90,89, 88, 87, 86. 85,84, 83, 82, 81, 80, 79, and a portion of Block Ill and along their extensions for 5207.00 feet to the Southeast corner of Lot 1, Block lll, for 260.00 feet to a point on the East waterline of Biscayne Bay, said point also being the Point of Beginning of Tract of land hereinafter described: thence run N 320001001 W 300 feet west of and parallel to the Westerly Right of Way line on Alton Road for 2150.00 feet to a point, thence run N 25037426, W for 335 feet to the Northwesterly corner of a Lot designated 50-C less the Northerly 15 feet thereof as shown on the Amended Plat of Lots 43 to 50, Block 111, Ocean Beach, Florida, No. 3. recorded in Plat Book 14 at Page 70 of the Public Records of Dade County, Floridan thence run S 58000'00" W at right angles to said Alton Road for 600.35 feet to a point; thence run S 32*00,000 E for 1264.00 feet to a paint; thence run S 58000,001 W for 150.00 feet to a points thence run S 32°00'00" R for 500.00 feet to a point; thence run N 58000,001 E for 150.00 feet to a point; thence run S 32000,000 E for 772.00 feet to a point; thence run S 67*36106, E for 438.00 feet to a point; fl r thence run N 58000,00, E for 330.00 feet more or less, to other land of the City of Miami Beach; thence run 32°00.00" W for 368.00 feet, more or less, by other land of the city of Miami Beach to the Point of Beginning; containing 1,648,911 square feet (37.85 acres) more or lass. NxcaxesatQ s arRREW Py►UM Lots 3 and 4, in Block 81 of OCEAN BEACH ADDITION NO. 3, according to the plat thereof recorded in Plat Book 2, Page 81, of the Public Records of Dade County, Florida. Lot 1, in Block 81 of OCEAN BEACH ADDITION NO. 3, according to the plat thereof recorded in Plat Book 2, Page 81, of the Public Records of Dade County, Florida. Lots 4, in Block 82, of OCEAN BEACH ADDITION NO. 3, according to Plat thereof, recorded in Plat Book 2, 'Page 81, of. the Public Records of Dade County, Florida. Lot 5, in Block 82, of OCEAN BEACH ADDITION NO. 3, according to Plat' thereof, recorded in Plat Book 2, Page 81, of the Public Records of Dade County, Florida. Lcts 11. and 12, in Block 82, of OCEAN BEACH ADDITION NO. 3, according to Plat thereof, recorded in Plat Hook 2, Page 81, of the Public Records of Dade County, Florida. 20W PA=NL THE OCEAN PARCEL DESCRIBED AS FOLLOWS: Commence (P.O.C.) at the Southeasterly corner of Biscayne Street (Formerly Biscayne Avenue) and run N.87°38157"E. along the Southerly line of Biscayne Street, as said Street is shown on South Beach Park Subdivision, recorded in Plat Book 6, at page 77 of the public records of Dade County, Florida, a distance of 717.266 feet to the Point of Beginning (P.0.S.) of the referenced Ocean Parcel. The following 17 courses are on the dividing line between the Ocean Parcel and the Master Parcel, both within the South Pointe Parcel; thence run S.100471350W., a distance of 165.214 feet; thence run S.87038,57"W., a distance of 143.817 feet; thence run 5.62018,040W., a distance of 24.53 feet; thence runs S.27041.561E., a distance of 18.00 feat; thence run N.62018104"E., a distance of 2.00 feet; thence run S.27°411561E., a distance of 38.33 feet; thence run S.620181041W., a distance of 2.00 feet; thence run S.27°41,561E., a distance of 116.74 feet; thence run N.62118,04"E., a distance of 27.00 feet; thence run S.27°411561E., a distance of 16.67 feet; thence run S.62°181041W., a distance of 27.00 feet; thence run S.27"41156"E., a distance of 29.33 feet) thence run S.62018104'W.. a distance of 145.65 feet; thence run S.27041.56"E., a distance of 12.00 feet; thence run S.62°18104•W., a distance of 27.93 feet; thence run S.279411560E., a distance of 43,555 feet; thence run 8.24023,440W., a distance of 40.00 feet to a point on the Southerly line of the above referenced South Beach Park Subdivision, said point being the most Southwesterly corner of the Ocean Parcel, also being the most Southeasterly corner of the Master Parcel, both being part of the South Pointe Parcel; thence run S.65"36,160E. along the Southerly boundary of the said South Beach Park Subdivision, a distance of 903.356 feet to an intersection with the Erosion Control Line of the Atlantic Ocean, said Line recorded in Plat Book 105, at page 62 of the public records of Dade County, Florida.; thence run N.00115110.8"E. along the Erosion Control Line, a distance of 937.12 feet to an intersection with the Southerly line of Biscayne Street as shown on the South Beach Park Subdivision; thence run S.87°38157•W. along said Southerly line of Biscayne Street, a distance of 588.426 feet to the Point of Beginning (P.O.B.) The Ocean Parcel contains 543,963 square feet, more or less, or 22.486 acres, more or less. LEGAL DESCRIPTION OF THE EASEMMT PROPERTY, SAID PROPERTY BEING PART OF THE SOUTH POINTE PARCEL. Commence (P.O.C.) at the Southeasterly corner of Biscayne Street (Formerly Biscayne Avenue) and Washington Avenue, as said Street and Avenue are shown on the South Beach Park Subdivision, recorded in Plat Book 6, at page 77 of the public records of Dade County, Florida, and run S.10°471351W. along the Easterly lime of Washington Avenue, a distance of 6.16 feet to a point on the Southerly line of a 6.00 foot Roadway Dedication, said Dedication recorded in Official Record 12566, at page 2914 of the public records of Dade County, Florida; thence run N.87"381570E. along the Southerly line of said 6.00 foot Dedication, along the existing Southerly line of Biscayne street, a distance of 638.266 feet to a Point of Beginning (P.O.B.) of the Easement Property; thence run S.10047,350W., a distance of 159.054 feet; thence run N.870391571E., a distance of 79.00 feet; thence run N.100471359E., a distance of 165.214 feet to the original Southerly line of Biscayne Street (Formerly Biscayne Avenue); thence run S.87°38,57'W., along the Southerly line of Biscayne Street, a distance of 3.556 feet; thence run S.10°47135"W. along the Easterly line of the said 6.00 foot Dedication, said Dedication recorded in Official Record 12566, at page 2914 of the public records of Dade County, Florida, a distance of 6.16 feet to the Southeasterly corner of said Dedication; thence run S.87038157'W. along the Southerly line of said Dedication, a distance of 75.444 feet to the Point of Beginning (P.O.B.) The Easement Property contains 12,257 square feet, more or leas, or 0.281 acres, more or less. Lot 7, less the West 15 feet thereof, and Lot 8, less the West 15 feet thereof, in Block 113 of OCEAN BEACH ADDITION'NO. 4, according the plat thereof as recorded in Plat Book 3, at Page 151, of the Public Records of Dade County, Florida, together with that land lying East of the Easterly boundary line of Lots 7 and 8 in Block 113 of OCEAN BEACH ADDITION NO. 4 and West of the Erosion Control Line and South of the Easterly prolongation of the North line of Lot 7 and North of the Easterly prolongation of the South line of Lot 8 in Block 113 of OCEAN BEACH ADDITION NO. 4, according to the Plat thereof as recorded in Plat Book 3, at Page 151, of the Public Records of Dade County, Florida. Lots 2 and 3, less the West 15 feet thereof, of Block 113, OCEAN BEACH, FLORIDA, ADDITION NO. 4, according to the Plat thereof, as recorded in Plat Book 3, at Page'151 of the Public Records of Dade County, Florida, a/k/a 155 Ocean Drive, Miami Beach, Florida; including any lands lying between the easterly extensions of said Lots 2 and 3, and the Dade County Erosion Control Line, according to the Plat thereof, recorded in Plat Book 105, at Page 61 of the Public Records of Dade County, Florida. Lots 1 through 8, Block 112, OCEAN BEACH, FLORIDA ADDITION NO. 4, A SUBDIVISION recorded in Plat Book 3, at Page 151 of the Public Records of Dade County, Florida. So= No Lots 30 through 42 inclusive, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO. 3, according to the Plat thereof, recorded in Plat Book 2, Page 81, of the Public Records of Dade County, Florida, together with the accretions thereto; ALSO; Lots 43, 44, 45, 46, 47, 48A, 49B, and 50C of DADS COUNTY PROPERTY, according to Plat thereof, recorded in Plat Book 14, Page 70, of the Public Records of Dade County, Florida, together with the accretions thereto. 9 AA2 anMM pnRCn Lbta 1 through 14, inclusive, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO. 3, according to the Flat thereof as recorded in Plat Book 2, Page 81, in the Public Records of Dade County, Florida, together with the accretions thereto; ALSO; That Part of Biscayne Street (also known as Biscayne Avenue) as shown on said Plat of OCEAN BEACH ADDITION No. 3, lying westerly of the southerly projection of the west Right of Way line of Jefferson Avenue as shown on said Plat and being bounded on the west by Biscayne Bay, together with the accretions thereto; ALSO; All that part of the North 132.0' of Section 10, Township 54 South, Range 42 East, described as: Beginning at a point on the Northern boundary of said Section 10, which is intersected by the Easterly boundary of Jefferson Avenue extended Southerly across Biscayne Street as a point or place of beginning; thence Southerly continuing the Easterly boundary of Jefferson Avenue extended for a distance of 132,0' to a point; thence Westerly 208.1' more or less along a line parallel to and 132.01 Southerly from the Northern line of said Section 10 to Biscayne Bay; thence Northwesterly meandering the Bay to the intersection of the Northern line of Section 10; thence Easterly along the Northern line of Section 10, 285.0' more or less to the point or place of beginning (the Northarly boundary of said section 10 being common with the Southerly boundary of Biscayne Street); Also described as: All of that part of the north 132.0, of Section 10 Township 54 South, Range 42 East, known as Tract A or the Smith Company Bay Front Tract, more particularly described as follows to wit: Bounded on the North by the Northern line of said Section 10; bounded on the East by the East line of Jefferson Avenue extended; bounded on the South by a line parallel to and distant 132.0' South of the Northern line of Paid Section 10, and bounded on the West by Biscayne Bay, together with the accretions thereto. Lot 10, in Block 3 of OCEAN BEACH, FLORIDA, according to the Plat thereof, recorded in Plat Book 2, Page 38 of the public Records of Dade County, Florida. N&M TONE& TRiAlreU , PAAMM All of Block 79, OCEAN BEACH ADDITION NO. 3 as recorded in Plat Book 2, Page 81, of the Public Records of Dade County, Florida, commonly known as the water tower triangle, said property being located at the intersection of First Street, Jefferson Avenue and Alton Road. 10 JFA EXHIBIT " D " CITY/REDEVELOPMENT AGENCY PROPERTY TITLE COMMITMENT AMERICAN LAND TITLE ASSOCIATION COMMITMENT -- 1966 10 0113 010 00006857 CHICAGO TITLE INSURANCE COMPANY COMMITMENT FOR TITL!_ INSURANCE CHICAGO TITLE INSURANCE COMPANY, a corporation of Missouri, herein called the Company, for a valuable consideration, hereby commits to issue its policy or policies of title insurance, as identified in Schedule A. in favor of the proposed Insured named in Schedule A, as owner or mortgagee of the estate or interest Covered hereby in the land described or referred to in Schedule A, upon payment of the premiums and charges therefor; all subject to the provisions of Schedules A and 13 and to the Conditions and Stipulations hereof. This Commitment shall be effective only when the identity of the proposed Insured and the amount of the policy or policies committed for have been inserted in Schedule A hereof by the Company, either at the time of the issuance of this Commitment or by subsequent endorsement. This Commitment is preliminary to the issuance of such policy or policies of title insurance and all liability and obligations hereunder shall cease and terminate six months after the effective date hereof or when the policy or policies committed for shall issue, whichever first occurs, provided that the failure to issue such policy or policies is not the fault of the Company. IN WITNESS WHEREOF, Chicago Title Insurance Company has caused this Commitment to be signed and sealed as of the effective date of Commitment shown in Schedule A, the Commitment to become valid when countersigned by an authorized signatory. ' CHICAGO TITLE INSURANCE COMPANY By: Issued by: GREENBERG, TRAURIG, HOFFMAN, LIPOFF, ROSEN & QUENTEL, P.A. 1221 Brickell Avenue Miami, Florida 33131 (305) 579-0500 President. ATTEST: Authorized Signatory Secretary. �R Copyright 1966 American 1,41'l6 -1,jM neav�•- Office File Number 1. 2. 3. A.L.T.A. COMMITMENT CHICAGO TITLE INSURANCE COMPANY SCHEDULE A Policy or Policies to be issued: Effective Date May 31, 1995 at 11:00 P.M. ALTA OWNFR'S POLICY, Form B (amended 10/17/92 with Florida modifications): Proposed insured: To be determined ALTA LOAN POLICY (amended 10/17/92 with Florida modifications): Proposed insured: N/A Commitment Number $To be determined $N/A CTR-1953 Revises The estate or interest in the land described or referred to in this Commitment and covered herein is a fee simple, and title thereto is at the effective date hereof vested in: The Miami Beach Redevelopment Agency, a public agency existing under the Laws of the State of Florida, as to Parcel A, The Housing Authority of the City of Miami Beach, municipal corporation as to Parcel B, The City of Miami Beach, Florida, a municipal corporation, as to Parcel C, and Parcel D The Land is described as follows: Parcel A: South Parcel (Phases I and II}: Parcel 1 Lots 1 through 14, inclusive, in Block III, of OCEAN BEACH FLORIDA ADDITION NO. 3, according to the Plat thereof, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, together with the accretions thereto. ALSO: Parcel 2 That part of Biscayne Street (also known as Biscayne Avenue) as shown on said Plat of OCEAN BEACH FLORIDA ADDITION No. 3, lying westerly of the southerly projection of the West right of Way line of Jefferson Avenue as shown on said Plat and being bounded ont he West by Biscayne Bay, together with the accretions thereto. ALSO: Parcel 3 All that part of the North 132.0 feet of Section 10, Township 54 South, Range 42 East, described as: Beginning at a point on the Northern boundary of said Section 10, which is intersected by the Easterly boundary of Jefferson Avenue extended Southerly across Biscayne Street as a point or place of beginning; thence Southerly continuing the Easterly boundary of Jefferson Avenue extended for a distance of 132.0 feet to a point, thence Westerly 208.1 feet more or less along a line parallel to and 132.0 feet Southerly from the Northern line of said Section 10 to Biscayne Bay; thence Northwesterly meandering the Bay to the intersection of the Northern lire of Section Note: This Commitment consists of insert pages labeled in Schedule A, Schedule B-Section 1, and Schedule 8-Section 2. This Commitment is of no force and effect unless all schedules are included, along with any Rider pages incorporated by reference in the insert pages. 1V. ' A.L.T.A. COMMITMENT CTR-1953 Revisec CHICAGO TITLE INSURANCE COMPANY SCHEDULE A, continued Commitment Number 2D; thence Easterly along the Northern line of Section 10, 285.0 feet more or less to the point or place of beginning (the Northerly boundary of said Section to being common with the Southerly boundary of Biscayne Street); Also described as: All of that part of the North 232_0 of Section 10 Township 54 South, Range 42 East, known as Tract A or the Smith Company Bay Front Tract more particularly described as follows to wit: Bounded on the North by the Northern line of said section 10; bounded on the East by the East line of Jefferson Avenue extended: bounded on the South by a line parallel to and distant 132.0 feet South of the Northern line of said Section 10, and bounded on the West by Biscayne Bay, together with the accretions thereto. Parcel B: Goodman Terrace Part of Northwest quarter of Section 10, Township 54 South, Range 42 East, described as :follows: Begin in North line of Section 10, which line is also South line of Biscayne Street at its intersection with East line of Jefferson Avenue extended; then South in line drawn at right angles to South line of Biscayne Street 132 feet, thence East in line drawn parallel with solid line of Biscayne Street to West line of Washington Avenue;, thence, North along West line of Washington Avenue to its intersection with South line of Biscayne Street; thence West along South line of Biscayne Street to point of beginning. Also described as: all that part of North 132.0 feet of Section 10-54-42 known as Smith Cottages Tract and also as Tract B and bounded on North by North line of Section 10; on West by East line of Jefferson Avenue extended; on South by line parallel to and 132' South of North line of Section 10; on East by West line of Washington Avenue extended. Parcel C: Federal Triangle For a Point of Reference commence at monument "C", run thence along the northeasterly line of the U.S. Corps of Engineers Reservation, North 65035'12" West, a distance of 151.61 feet, more or less, to a steel pin set in concrete, designated monument "G"; thence run South 8703B'37" West a distance of 208.58 feet along the Northwesterly boundary of the V.S. Corps of Engineers Reservation to monument "West", having coordinators of X-784,D93.91 and Y- 521,966.52, said point being the Point of Beginning of the tract being described herein, From said Point of Beginning, run thence South 57041'41" West, a distance of 226,20 feet to -u,S. Corps of Engineers monument "Virgil", having coordinates of X-783,902.72 and Y- 521,845.63; thence Continue South 57041141" West a distance of 4.0 feet, more or less, to the face of an existing steal bulkhead and the approximate north shore of the Entrance Channel to Miami Harbor; thence run Northwesterly along the north shore of Miami Harbor on an approximate bearing of North 32005'08" West a distance of 132.34 feet more or less, to a point which lies South 87038137" West, a distance of 265.09 feet from monument "West"; thence run North 87038'37" East along the Northwesterly boundary of the U.S. Corps of Engineers reservation passing thru a concrete monument designated "B"' at a distance of 121 feet, more or less, for a total distance of 265.09 feet to monument "West", and the Point of Beginning; also being described as follows: A portion of land in the Northwest 1/4 of Section 10, Township 54 South, Range 42 East, Bade county, Florida, being more particularly described as follows: Commence at the most westerly corner of Lot 6, in Block 4, of SOUTH BEACH DARK, as shown in Plat Book 6, at Page 77, of the Public Records of Dade County, Florida; thence run North f5035'12" West for a distance of 151.,63 feet to a point on the Southerly line of Block 8, of said plat of SOUTH BEACH PARK, thence run South 8'7038'37" along the Southerly line of Block 8 of said Plat of SOUTH BEACH PARK, for a distance of 208.58 feet to the Point of Beginning of the parcel of land hereinafter described thence continue South 87038'37" west along the Southerly line of Block 8 of said plat of SOUTH BEACH PARK, for a distance of 265.09 East to Nate: This Commitment consists of insert pages labeled in 5chedute A. Schedule B-Section 1, and Schedule B-Section 2. This Commitment i:; of no force and effect unless all schedules are included, along with any Rider pages incorporated by reference in the insert pages- Z y Commitment Number A.L.T.A. COMMITMENT CHICAGO TITLE INSURANCE COMPANY SCHEDULE A, continued CTR-1953 Revisec a point thence run South 33047'59" East for a distance of 132.44 feet to a point, said point being a U.S. Army Corps of Engineers Monument; thence run North 57041'41" East for a distance of 229.20 feet to the POINT OF BEGINNING. Parcel D: 1- All of Block 79, of OCEAN BEACH ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, commonly known as the water tower triangle, said property being located at the intersection of First Street, Jeffersor Avenue and Alton Road; 2. Lots i and 2, Block 51, of OCEAN BEACH ADDITION NO. 3, as recorded in Plat Book 2, at: Page 81, of the Public Records of Dade County, Florida, less and except the part thereof used for road right of way, said property being located at the southwest corner of Commerce Street and Washington Avenue; 3. Lot 15, 16, 17, and 18, in Block 51 of OCEAN BEACH ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, together with 10' strip -walk south of said lots 17 and 18, less and except the part thereof used for road right of way, said property being located at the southeast corner of Commerce Street and Jefferson Avenue; 4. Lots 29, 30, and 31, Block 51, of OCEAN BEACH ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, less and except the part thereof used for road right of way, said property being located at the northwest corner of Washington Avenue and Biscayne Street; 3. Lots 1, 2 and 3, Block 52, of OCEAN BEACH ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, less and except the part thereof used for road right of way, said property being located at the southwest corner of First Street and Washington Avenue, 6. Lots 34 and 35, Block 52, of OCEAN BEACH ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, less and except the part thereof used for road right of way, said property being located at the northwest corner of Commerce Street and Washington Avenue, Note: This Commitment consists of insert pages labeled in Schedule A, Schedule B-Section 1, and Schedule B-Section 2. This Commitment is of no force and effect unless all schedules are included, along with any Rider pages incorporated by reference in the insert pages. I . J. A.L.T.A. COMMITMENT CTR-1953 Revised CHICAGO TITLE INSURANCE COMPANY ` SCHEDULE B - Section 1 Commitment Number L The following are the requirements to be complied with: 1. Instruments necessary to create the estate or interest to be insured must be properly executed, delivered and duly filed for record. a. Warranty Deed from the parties in title to the proposed owner insured, conveying the land described in Schedule A. 2. Payment of the full consideration to, or for the account of, the grantors or mortgagors. 3. Payment of all taxes, charges, assessments, levied and assessed against subject premises, which are due and payable 4. Satisfactory evidence should be had that improvements and/or repairs or alterations thereto are completed; that contractor, subcontractors and material men are all paid. 5. Proof of payment of any/all municipal liens, including liens for water, sewer, gas and waste. 6. Proof of payment of 1994 real property taxes and all years prior thereto. 7. Upon receipt of a survey certified in accordance with Chapter 627.7842 Florida Statutes, the survey exception and unrecorded easement exception shall be deleted. The Policies issued hereunder will be subject to a Special Exception for matters disclosed by said survey. 6. Upon receipt of a Non -Lien and Possession Affidavit pursuant to Chapter 627.7842 Florida Statutes all exception as to mechanic's liens and persons in possession shall be deleted. The Policies issued hereunder will be subject to a special Exception for the rights of parties disclosed by said affidavit. 9. The Company will require an Affidavit from the City Attorney's Office confirming that compliance has been had with of all municipal and county ordinances relating to the sale of real property owned by the city. 20. Satisfaction and/or release of the Mortgage from Miami Beach Redevelopment Agency to South Shore Developers, Inc., dated July 24, 1985, filed July 31, 1985, in Official Records Book 12590, at Page 2785, as assigned to West Side Partners, Ltd., a Florida limited partnership, by that Assignment and Assumption of Mortgages and Other Documents filed April 7, 1994, in Official Records Book 16313, at Page 1077, both of the Pubic Records of Dade County, Florida. (Affects Parcel A) 22. Satisfaction and/or release of the Final Judgment in favor of South shore Developers, Inc., filed September 26, 1984, in Official Records Book 12276, at Page 2258, a certified copy was recorded under Clerk's File No. 94R-123305, as assigned to West Side Partners, Ltd., by that certain Assignment and Assumption of Mortgages and Other Documents, filed April 5, 1994, in official Records Book 16313, at Page 1077, of the Public Records of Dade County, Florida. (Affects Parcel A) 4 A.L.T.A. COMMITMENT CTR-1953 Revii CHICAGO TITLE INSURANCE COMPANY SCHEDULE B - Section 'I, continued Commitment Number 3.2. Satisfaction and/or release of the Judgment for Attorneys Fees, in favor South Shore Developers, Inc., filed September 30, 1988, in Official Records Bo 13033, at Page 1235, a certified copy which was filed March 23, 1994, in Offici Records Book 16293, at Page 1045, as assigned West Side Partners, Ltd., by th. certain Assignment and Assumption of Mortgages and Other Documents, filed Apr. 7, 1994, in Official Records Book 16313, at Page 1077, all of the Public Rec= of Dade County, Florida. (Affects Parcel A) 13. Dismissal with Prejudice of the proceeding now pending in the United State District Court for the Northern District of Illinois, Eastern Division as Ca. No. 94C4074, a Notice of Lis Pendent; of which was filed May 24, 1995, in off icia Records Book 16791, at Page 1634, of the Public Records of Dade County, Florida Note: The Company is not made a complete examination of said proceeding. Note: The Notice of Lis Pendens should vacated or discharge. (Affects Parcel A) 14. The actual value of the estate or interest to be insured must be disclosed to th4 Company, and subject to approval by the Company, entered as the amount of the policy to be issued. This Commitment is not effective until the amount ol insurance is entered as the amount of the policy to be issued., Until the amount of the policy to be issued is determined, and entered as aforesaid, it is agrees that as between the Company, the applicant for this commitment, and every person relying on this commitment, the Company cannot be required to approve any such evaluation in excess of $100,000.00 and the total liability of the Company on account of this commitment shall not exceed said amount. 15. The names) of the proposed insured must be furnished to the Company for this Commitment to become effective. 16. Satisfaction and/or release of the Amended Final Judgment in favor of Stephen Carner, Irwin H. Mason, and Lis, Inc., d/b/a Miami Beach Marina filed January 2, 1990, in Official Records Book 14379, at Page 1978, of the Public Records of Dade County, Florida. 17. Satisfaction and/or release of the order on Prejudgment Interest in favor of Stephen Carner,. Irwin H. Mason, and Lis Inc., d/b/a Miami Beach Marina, filed January 3, 1990, in official Records Book 14383, at Page 473, of the Public Records of Dade County, Florida. 3.8. Termination of the Notice of Letter Agreement Affecting Title to Real Property filed September 17, 1980, in Official Records Book 10872, at Page 1411, of the Public Records of Dade County, Florida, as assigned to West Side Partners, Ltd., by that certain unrecorded Assignment dated April 6, 1994. 19. Termination of the Notice of 'terms and conditions of Agreements of Lease from the City of Miami Beach, as Lessor, to Carner-Masan Associates Limited, Lessee, filed November 9, 1983, in official Records Book 11963, at Page 1142, of the Public Records of Dade County, Florida. The lessee's interest is presently vested in Tallahassee Building Corp., a Delaware corporation, as a result of a Certificate of Title issued October 17, 1989, in Official Records Book 14294, at Page 58, of the Public Records of Dade County, Florida. 20. Termination of the Lease from Carner-Mason Associates Limited to Washbowl Vending, Inc., filed January 9, 1985, in Official Records Book 12376, at Page 164, of the Public Records of Dade County, Florida. G'� A.L.T.A. COMMITMENT CTR-1953 Revised CHICAGO TITLE INSURANCE COMPANY SCHEDULE B - Section 1, continued Commitment Number 21. Termination of the Contract of Sale between Miami Beach Redevelopment Agency and the City of Miami Beach, Florida, as Sellers, and South Shore Developers, Inc., a Florida corporation, Buyer, dated July 25, 1985, filed July 31, 198s, in Official Records Book 12590, at Page 2795, and the consequences of the enforcement of any rights of the contract vendor, record owner thereunder; together with an Amendment of Contract of Sale filed April 30, 1986, in Official Records Book 12873, at Page 2602, as assigned to West Side Partners Ltd., by that certain Assignment and Assumption of Mortgage and Other Documents filed April 7, 1994, in Official Records Book 16313, at Page 1077, of the Public Records of Dade County, Florida. 22. Termination of the Subleases set out on Schedule "C° of Contract of Sale filed in Official Records Book 12590, at Page 2795, as amended by Amendment of Contract of Sale filed April 30, 1986, in Official Records Book 12873, at Page 2602, of the Public Records of Dade County, Florida. 23. Termination of the SSDI De-elopment Agreement between the City of Miami Beach, Florida, Miami Beach Redevelopment Agency and South Shore Developers, Inc., dated April 17, 1986, filed April 30, 1986, in Official Records Book 12873, at Page 2612, of the Public Records of Dade County, Florida, as assigned to West Side Partners, Ltd., by that certain Assignment and Assumption of Mortgage and Other Documents filed April 7, 1994, in Official Records Book 16313, at Page 1077, of the Public Records of Dade County, Florida.of {t)pen �'lt,��nct Ctct;n5j 24- Termination of the Parking Agreement between the City of Miami Beach, Miami Beach Redevelopment Agency and South Shore Developers, Inc., dated April 17, 1986, filed April 30, 1986, in Official Records Book 12873, at Page 2731, as assigned to West Side Partners, Ltd., by that certain Assignment and Assumption of Mortgage and Other Documents filed April 7, 1994, in Official Records Book 16313, at Page 1077, of the Public Records of Dade County, Florida. Z3. Release of the provisions of the Declaration of Trust filed by the Housing Authority of the City of Miami Beach, Florida, filed October 9, 1951, under Clerk's File No. AA102547, of the Public Records of Dade County, Florida. 26. Release of the provisions of the Declaration of Trust filed by the Housing Authority of the City of Miami Beach, Florida, filed April 19, 1989, in Official Records Book 14075, at Page 1401, of the Public Records of Dade County, Florida. 2 A.L.T.A. COMMITMENT CTR-1953 Revised CHICAGO TITLE INSURANCE COMPANY SCHEDULE B - Section 2 Cwwdtment Number M Schedule B of the policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company. i. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereto but prior to the date the proposed Insured acquires for value of record the estate or interest or mortgage thereon covered by this Commitment. 2. Standard Exceptions: a. Rights or claims of parties in possession not shown by the public records. b. Easements, or claims of easements, not shown by the public records. C. Encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey and inspection of the premises. d. Any lien, or right to a lien, for service, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. e. Taxes or special assessments which are not shown as existing liens by the public records. f. SUbFAWIGd. filled �! g. Taxes and assessments for the year 1995 and subsequent years, not yet due and payable. 3. Standard exceptions (b) and (c) may be removed from the policy when a satisfactory survey and surveyor's report and inspection of the premises is made. 4. Standard exceptions (a) and (d) may be removed upon receipt of a satisfactory affidavit -indemnity from the party shown in title and in possession stating who is in possession of the lands and whether there are improvements being made at date of commitment or contemplated to commence prior to the date of closing which will not have been paid for in full prior to the closing. 5- Any claim that those portions of the insured property which are submerged and/or lie West of the Westerly line of the lots in the subdivisions as same may be extended in a Southerly directions, all as shown on the Survey, are sovereign lands of the State of Florida. (Affects Parcel A and Parcel C) As to Parcel A: 5. Rights and easements of the United States Government for commerce, navigation, recreation and fisheries in and to any portion of said lands which have been created by artificial means or accreted to any portions so created and riparian rights, if any. (Affects Parcel A and Parcel C) 7- That certain utility easement over the vacated right-of-way, reserved unto the City of Miami Beach and contained in that Resolution No. 83-17427 filed August 23, 1983, in Official Records Book 11885, at Page 1331, of the Public Records of Dade County, Florida. NOTE: On loan policies, junior and subordinate matters, if any, will not be reflected in Schedule B. 7 Y: rc,• • A.L.T.A. COMMITMENT CTR-1953 Revised CHICAGO TITLE INSURANCE COMPANY SCHEDULE B - Section 2, continued Commitment Number As to Parcel B: 8. Covenants, Restrictions, Reservations and Easements as contained in Quit Claim Deed from United States of America to the City of Miami Beach, filed January 18, 2978, in Official Records Book 10271, at Page 1068, as corrected by that Corrective Quit Claim Deed filed May 24, 1985, in Official. Records Book 12520, at Page 469, both of the Public Records of Dade County, Florida. As to Parcel D 9. Restrictions, limitations and easements contained in the Plat of OCEAN BEACH, FLORIDA, ADDITION NO. 3, according to the Plat thereof as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida. 1D. Resolution No. 88-19440, filed March 8, 1989, in Official Records Book 14024, at Page 498, of the Public Records of Dade County, Florida. 11- Rights afforded Washington Harrison Properties, Inc. pursuant to that Lease Agreement dated November 19, 1988, and attached to Resolution No. 88-19440, recorded in Official Records Book 14024, at Page 495, of the Public Records of Dade County, Florida. NOTE: On loan policies, junior and subordinate matters, if any, will not be reflected in Schedule B. 8 1. > �r - 3ftV1M/= 21: el i r t.ut< r i i Lh I NStlRRNM GREENBERG TRAUR I N0. E143 ENDORSEMENT No. 2 Attached to and forming a part of Star Report No. CTR-1953 Revised Issued by CHICAGO TITLE INSURANCE COMPANY DE Endorsement No. 1 is hereby revised to read as follows: 1. Schedule B, section 1, item 1(a) is hereby amended to read as followat n, Special warranty Deed from the parties in title to the proposed owner insured, conveying the land described in Schedule A. Z. Schedule B, section 1 is hereby amended to add the following; 27, Satisfaction of any lien arising from the Final Order Notice of Violation, filed May 29, 1981, in Official Records Book i1i15, at page 139, of the Public Records of Dade County, Florida. Affects parcel D 28. Satisfaction of any lien; arising from the Final Order Notice of Violation, filed October 10, 1985, in Official Records Book 12664, at Page 2550, of the public Records of Dade County, Florida. Affects Parcel D 29. Satisfaction and/or release of the Claim of Lien filed March 18, 1966, in Official Records Book 12825, at Page 2031, of the Public Records of Dade County, Florida. Affects Parcel D 30. Satisfaction and/or release of the Notice of Lien filed November 19, 1986, in Official Records Book 13090, at rage 729, of the Public Records of Dade County, Florida, Affects Parcel D 31. Satisfaction and/or release of the Notice of Lien filed December 16, 1986, in official Records Hook 13115, at Page 2145, of the Public Records of Bade County, Florida. Affects Parcel D. 32. Any Claim arising from the Final. Order Notice of Violation, filed march 13, 1987, in Official Records Book 13210, at gage 3789, of the public Pecorde of Dade County, Florida. Affects Parcel D 33. Satisfaction and/or release of the Notice of Lien filed March 31, 1987, in official Records Book 13229, at; Page 1288, of the Public Records of bade County, Florida. Aftects.Parcel D 31. schedule B, Section 2, Item a is hereby .amended to read as follows: ag to Parcel Cs a. covenants, Restrictions, Reservations and Easements as contained in Quit Claim Deed from United States of America to the City of Miami Beach, filed January 18, 1978, in Official Records Book 10271, at page 1068, as corrected by that Corrective Quit Claim Deed filed May 24, 1985, in Official Records Book 12520, at Page 469, both of the Public Records of Dade County, Florida. This endorsement Is made a part of the commitment or policy. it Is subject to all the terms of the commitment or policy' and prior endorsements. Except as expressly stated on this endorsement, the terms, dates and amounts of the commitment or policy and prior endorsements are not changed. DATED. August is, 1995 CHICAGO TITLE INSURANCE COMPANY IL Z G Z`-al Z gafthprizod Signatory !Mott: 711s endorsement skull nor lie valid nr bindink un:9 signed by ari authorke'd signatory. ENDORSEMENT No. 3 Attached to and forming a part of Star Report No. CTR-1953 Revised Issued by CHICAGO TITLE INSURANCE COMPANY I. Schedule A, Item 3, the Legal Description is hereby amended to read as follows: Parc;1 A: South Parcel (Phases I and II): Parcel 1 Lots 1 through 14, inclusive, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO. 3, according to the Plat thereof, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, together with the accretions thereto. ALSO: Parcel 2 That part of Biscayne Street (also known as Biscayne Avenue) as shown on said Plat of OCEAN BEACH FLORIDA ADDITION No. 3, lying westerly of the southerly projection of the West right of Way line of Jefferson Avenue as shown on said Plat and being bounded on the West by Biscayne Bay, together with the accretions thereto. ALSO: Parcel 3 All that part of the North 132.0 feet of Section 10, Township 54 South, Range 42 East, described as: Beginning at a point on the Northern boundary of said Section 10, which is intersected by the Easterly boundary of Jefferson Avenue extended Southerly across Biscayne Street as a point or place of beginning; the#tce Southerly continuing the Easterly boundary of.Cefferson Avenue extended for a distance of 132.0 feet to a point,'thence Westerly 208.1 feet more or'less along a line parallel to and 132.0 feet Southerly from the Northern line of said Section'10 to Biscayne Bay; thence Northwesterly meandering the Bay to the intersection' of the Northern line of Section 10; thence Easterly along the Northern line of Section 10, 285.0 feet more or less to the point or place of beginning (the Northerly boundary of said Section 10 being common with the Southerly boundary of Biscayne Street); Also described as: All of that part of the North 132.0 feet of Section 10 Township 54 South, Range 42 East, known as Tract A or the Smith Company Bay Front Tract more particularly described as follows to wit: Bounded on the North by the Northern line of said Section 10; bounded on the East by the East line of Jefferson Avenue extended: bounded on the South by a line parallel to and distant 132.0 feet South of the Northern line of said Section 10, and bounded on the West by Biscayne Bay, together with the accretions thereto. Parcel B: Goodman Terrace '.'-._ ._ F ...: `t.,�� +u _ -+- t,• �' " ^ Te+.^.zshil' 54 S^firth, Rar_ge c 2 East, described as follows: Begin in North line of Section 10, which line is also South line of Biscayne Street at: its intersection with East line of Jefferson Avenue extended; then Sough in line drawn at right angles to South line of Biscayne Street 132 feet, thence East in line drawn parallel with South line of Biscayne Street to West line of Washington Avenue; thence, North along West line of Washington Avenue to its intersection with South line of Biscayne Street; thence West along south line of Biscayne Street to point of beginning. Also described as: all that part of North 132.0 feet of Section 10-54-42 known as Smith Cottages Tract and also as Tract B. and bounded on North by North line of+Section 10; on West by East line of Jefferson Avenue extended; on South by line parallel to and 132' South of North line of Section 10; on East by West line of Washington Avenue extended. ,.0. Endorsement No. 3 Star Report CTR-1953 Revised Page 2 Parcel C: Federal Triangle For a Point of Reference commence at monument "C", run thence along the northeasterly line of the U.S. Corps of Engineers Reservation, North 65o35112" West, a distance of 151.63 feet, more or less, to a steel pin set in concrete, designated monument "G"; thence run South 87o38137" West a distance of 208.58 feet along the Northwesterly boundary of the U.S. Corps of Engineers Reservation to monument "West", having coordinates of X-784,'093.91 and Y-521,966.52, said point being the Point of Beginning of the tract being described herein. From said Point of Beginning, run thence South 57041'41" West, a distance of 226.20 feet to U.S. Corps of Engineers monument "Virgil", having coordinates of X-783,902.72 and Y-521,845.63; thence continue South 57041141" West a distance of 4.0 feet, more or less, to the face of an existing steal bulkhead and the approximate north shore of the Entrance Channel to Miami Harbor; thence run Northwesterly along the north shore of Miami Harbor on an approximate bearing of North 32o05108" West a distance of 132.34 feet more or less, to a point which lies South 87038'37" West, a distance of 265.09 feet from monument "West"; thence run North 87o38137" East along the Northwesterly boundary of the U.S. Corps of Engineers Reservation passing thru a concrete monument designated "F,, at a distance of 121 feet, more or less, for a total distance of 265.09 feet to monument "West", and the Point of Beginning; also being described as follows: A triangular portion lying & being in Section 10, Township 54 South, Range 40 East, Dade County, Florida, Bounded on the North by the South line of Lot 3, Block 8, of SOUTH BEACH PARK SUBDIVISION, Plat Book 6, Page 77, Public Records of Dade County, Florida, Bounded on the West by the Biscayne Bay and Bounded on the South by the North line of the Eskimo Parcel, said Eskimo Parcel being L C.aL.i �beu 4.ii For a POINT OF BEGINNING commence at a 10-inch-square concrete monument located on the northerly boundary of the U.S. Army Corps of Engineers Reservation, being the westernmost corner of Lot 6, Block 4, of South Beach Park Subdivision as shown in Plat Book 6, at Page 77, of the Public Records of Dade County, Florida. said monument designated "C" having grid coordinates of X-784,440.39 and Y- 521,912.47. Said monument also lies approximately South 24027'26" West a distance of 592.30 feet south of and North 65036'16" East a distance of 554.97 feet West of the northeast corner of the northwest 1/4 of Section 10, Township 54 South, Range 42 East. From said Point of Beginning run thence South 240251501, West a distance of 420.43 feet, more or less, to the Mean High Water (M.H.W.) line of the northerly shoreline of the Government Cut for the entrance channel of the Miami Harbour; thence North 65o35119" West along said M.H.W. line a distance of 261.59 feet to a point on a bulkhead; thence North 31008'28" West along said bulkhead a distance of 242.83 feet to U.S. Army Corps of Engineers Monument "Virgil" having a grid coordinate of X-783,902.72 and Y-521,845.63; thence North 57041'41" East a distance of 226.20 feet to Monument "West" having Fi. _.Yi.� rnrr.ci�.*s.*e of 157.784;Pq 91 vi.3 V.-521:966.52: thence North 87016,37" East a distance of 208.58 feet to Monument "Gil, having a grid coordinate of X- 784,302.32 and Y-521,975.14; thence South 65035'12" East a distance of 151.63 feet to Monument "C" and the Point of Beginning. Parcel D: 1. All of Block 79, of OCEAN BEACH ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, commonly known as the water tower triangle, said property being located at the intersection of First Street, Jefferson Avenue and Alton Road; 2. Lots 1 and 2, Block 51, of OCEAN BEACH ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, less and except the part thereof used for road right of way, said property _ being located at the southwest corner of Commerce Street and Washington Avenue; Endorsement No. 3 Star Report CTR-1953 Revised Page 3 _3- Lot 15, 16, 17, and IS, in Block 51 of OCEAN BEACH ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, together with 10, strip -walk south of said lots 17 and IS, less and except the part thereof used for road right of way, said property being located at the southeast corner of Commerce Street and Jefferson Avenue; 4. Lots 29 30, and :!: , Blc k 51, of OCEAN REACH HDizTIG.; IM. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, less and except the part thereof used for road right of way, said property being located at the northwest corner of Washington Avenue and Biscayne Street; 3. Lots 1, 2 and 3, Block 52, of OCEAN BEACH ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, less and except the part thereof used for road right of way, said property being located at the southwest corner of First Street and Washington Avenue, E. Lots 34 and 35, Block 52, of OCEAN BEACH ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, less and except the part thereof used for road right of way, said property being located at the northwest corner of Commerce Street and Washington Avenue. This endorsement is made a part of the commitment or policy. it is subject to all the terms of the commitment or policy and prior endorsements. Fxceot as expressly stated on this endorsement, the 'terms, dates and amounts of the cornmitment.or policy and prior endorsements are not changed. DATED: August 22, 1995 CHICAGO TITLE INSURANCE COMPANY Authorized Signatory Nore: 77.,1s endorsement shall not be valid or binding broil signed In an authorized signafor�y. ENDORSEMENT No. 4 Attached to and forming a part of Star Report No. CTR-1953 Revised Issued by CHICAGO TITLE INSURANCE COMPANY I. Schedule B, Section 1, items 28, 29, 30, 31, 32 and 33 are hereby deleted. CM1953.pro/epm This endorsement is made a part of the commitment or policy. It is subject to all the terms of the commitment or policy and prior endorsements. Except as expressly stated on this endorsement, the terms, dates and amounts of the commitment or policy and prior endorsements are not changed. DATED: September 22, 1995 CHICAGO TITLE INSURANCE COMPANY " Z-Z Authorized Signatory Note: This endorsement shall not be valid or binding tuuil signed by an authorized signatory. ENDORSEMENT No. 5 Attached to and forming a part of Star Report No. CTR-1953 Revised Issued by CHICAGO TITLE INSURANCE COMPANY Z. Schedule B, Section 1, Item 22 is hereby amended to read as follows: 22. The Company will require an affidavit from the current titleholder confirming that it is in exclusive possession of the land and that there are no tenants in possession under recorded or unrecorded leases. 21. Schedule B, Section 1, Item 27 is hereby deleted.- CZR2953.pro/epm This endorsement is made a part of the commitment or policy. It is subject to all the terms of the conninitment or policy an.d p i;;r C u^r ?nth Ex"p! eL- wmnrnG,0; ctats-I ,11j this anrinr�arv,Ant thP. terms, dates and amounts of the commitment or policy and prior endorsements are not changed. DATED: September 27, 1995 CHICAGO TITLE INSURANCE COMPANY Authorized Signatory Note. 77ds endorsement shall not be valid or binding until signed by an authorized signatory. ENDORSEMENT No. 6 Attached to and forming a part of Star Report No. CTR-1953 Revised Issued by CHICAGO TITLE INSURANCE COMPANY I. Schedule B, Section 1 Items 16 and 17 are hereby deleted. CTR1953.prolepm This endorsement is made a part of the commitment or policy. It is subject to all the terms of the commitment or policy and prior endorsements. Except as expressly stated on this endorsement, the terms, dates and amounts of the commitment or policy and prior endorsements are not changed. DATED: October 4, 1995 CHICAGO TITLE INSURANCE COMPANY Authorized Signatory Note. 7121s endorsement shall not be valid or binding until signed by an authorized signatory. ENDORSEMENT No. 7 Attached to and forming a part of Star Report No. CTR-1953 Revised Issued by CHICAGO TITLE INSURANCE COMPANY 1_ Schedule A, Item 3, is hereby amended to read as follows: Parcel D-2: A portion of Lots 1 and 2, in Block 51, of the Plat of OCEAN BEACH FLA. ADDITION NO. 3, as recorded in Plat Book 2, at Page 81 of the Public Records of Dade County, Florida, more particularly described as follows: Being at the Northwesterly corner of said Lot 2; thence N 77013/28/1 E along the Northerly line of said Lots 1 and 2 for a distance of 33.49 feet to a point, said point being 40 feet West of the East line of said Lot 1 measured at right angles to said line; thence S 00000/31/1 W along a line 40 feet West of an parallel with the East line of said Lot 1 measured at right angles to said line, a distance of 102.54 feet to a point on the South line of said Lot 2; thence S 77013/2811 W along the Southerly line of said Lot 2 a distance of 10.81 feet to the Southwesterly corner of said Lot 2 a distance of 10.81 feet to the Southwesterly corner of said Lot 2; thence N 12o4610911 W along the Westerly line of said Lot 2 a distance of 100.00 feet to the POINT OF BEGINNING. All of the above lying and being in Section 3, Township 54 South, Range 42 East, City of Miami Beach, Dade County, Florida. Parcel D-3(a): A portion of Lot 18 and the 10 foot walk adjacent thereto, Block 51 of the Plat of OCEAN BEACH FLA. ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, more particularly described as follows: That portion of said Lot 18 and the 10 foot walk adjacent thereto lying Easterly and Northerly of the following described line; begin at a point on the Northerly line of said Lot 18, said point being 0.39 feet Easterly of the Northwesterly corner of said Lot 18; thence S 12046/09/1 E, parallel with and 0.39 feet Easterly of the Westerly line at said Lot 18 for 74.85 feet to a point of non -tangential curve leading to the left and concave to the Northeast, having a radius of 47.50 feet and whose radius point bears N 68o2414611 E; thence Southerly and Easterly through a central angle of 37o27159" for an arc distance of 31.06 feet to a point on the Southerly line of said Lot 18 and on the Northerly line of a 10 foot walkway as shown on said plat of OCEAN BEACH FLA. ADDITION NO. 3, said point being also a point of compound curve having a radius of 45.00 feet; thence Southerly and Easterly thra+_u7h a car]tral angle of 23025' 511, for an arc distance of 18.40 feet to a point on the Southerly extension of the Easterly line vZ said Lot 18, said point being 9.76 feet Southerly of the Southeasterly corner of said Lot 18 and the TERMINAL POINT of the herein described line. All of the above lying and being in Section 3, Township 54 South, Range 42 East, City of Miami Beach, Dade County, Florida. Parcel D-3(b): Lot 15 and a portion of Lot 16, Block 51, of the plat of OCEAN BEACH FLA. ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, more particularly described as follows: Endorsement No. 7 (Continued) Star Report No. CTR-1953 Page 2 Lot 15 and that portion of Lot 16 lying Easterly of the following described line; commence at the Northwesterly corner of said Lot 16; thence N 77o13'28" E along the Northerly line of said Lot 16 for 28.00 feet to a point of non -tangential curve, said point being the POINT OF BEGINNING of the herein described line; said point of non -tangential curve leading to the left and concave to the East and having a radius of 35.00 feet and whose radius point bears S 51057'45" E; thence Westerly and Southerly through a central angle of -71032'39" for an arc distance of 43.70 feet to a point of non -tangential curve leading to the right and concave to the West having a radius of 225.00 feet and whose radius point bears S 57o52'43" W; thence Southerly and Easterly through a central angle of 12o39'48" for an arc distance of 49. 73 feet; thence S_6014' 19'1 E for 12. 15 feet to a point on the South line of said Lot 16, said point being the -TERMINAL POINT on the herein described line. All of the above lying and being in Section 3, Township 54 South, Range 42 East, City of Miami Beach, Dade County, Florida. Parcel D-4. A portion of Lots 29 and 30 and the 10 foot walk adjacent thereto, in Block 51 of the Plat of OCEAN BEACH ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, more particularly described as follows: Begin at the Northwesterly corner of said Lot 29; thence N 77013128" E along the Northerly line of said Lots 29 and 30 a distance of 55.15 feet to a point; thence S O0o37113" W for a distance of 112.35 feet to a point on the Southerly line of a 10 foot walk shown on said Plat of OCEAN BEACH ADDITION NO. 3, thence S 76052.58-' W along cne Southerly line of said 10 icoc walk a distance of 31.51 feet to its intersection with the Southerly extension of the Westerly line of said Lot 29 a distance of 110.02 feet to the POINT OF BEGINNING. All of the above lying and being in Section 3, Township 54 South, Range 42 East, City of Miami Beach, Dade County, Florida. Parcel D-5: Lot 3 and a portion of Lots 1 and 2, Block 52 of the Plat of OCEAN BEACH FLA. ADDITION NO. 3, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, more particularly described as follows: Begin at the Northwesterly corner of said Lot 3; thence N 7701312811 E along the Northerly line of said Lots 1, 2 and 3 a distance of 69.26 feet to a point, said point being 40 feet West of the East line of said Lot 1 as measured at right angles to said line; thence S ill)'=Vt�" W aloal a line •iG i e:¢:L Cf, i.., :AaU!:Sd at right angles, and parallel with the East line of said Lot I for a distance of 102.54 feet, to a point on the Southerly line of said Lot 2; thence S 77013'28" W along the Southerly line of said Lots 2 and 3 a distance of 46.58 feet to the Southwesterly corner of said Lot 3; thence N 12046/09/1 W along the Westerly line of said Lot 3 a distance of 100.00 feet to the POINT OF BEGINNING. All of the above lying and being in Section 3, Township 54 South, Range 42 East, City of Miami Beach, Dade County, Florida. Parcel D-6: A portion of Lot 34 and 35 of Block 52 of the plat of OCEAN BEACH FLA. ADDITION NO. 3, as recorded in Plat Book 2 at Page 81, of the Public Records of Dade County, Florida, more particularly described as follows: Endorsement No. 7 (Continued) Star Report No. CTR-1953 Page 3 Begin at the Northwesterly corner of said Lot 34; thence N 77013/2811 E along the Northerly line of said Lots 34 and 35 a distance. of 42.04 feet to a point being 40 feet West of the East line of said Lot 35 as measured at right angles to said line; thence S 00o00132" W along a line 40 feet West of and parallel with the East: line of sid Lot 35, measured at right angles to said line, a distance of 102.54 feet to a point on the Southerly line of said Lot 34; thence S 77013`28" W a distance of 19.36 feet to the Southwesterly corner of said Lot 34; thence N 12046/09/1 W along the Westerly line of said Lot 34 a distance of 100.00 fee to the POINT OF BEGINNING. All of the above lying and being in Section 3, Township 54 South, Range 42 East, City of Miami Beach, Dade County, Florida. CTR1953.pro/epm This endorsement is made a part of the commitment or policy. It is subject to all the terms of the t . prior v..y. 3"' ':L E::' t a , ^Xpresrhi stated on thin Prdorspment, the. commitment Or Nlili4'y arid �i��: i. n:i � iC: :i. � .:5'i: a. _ _.r terms, dates and amounts of the commitment or policy and prior endorsements are not changed. DATED: October 17, 1995 CHICAGO TITLE INSURANCE COMPANY Authorized Signatory Note. This endorsement shall not be valid or binding until signed by an authorized signatoq. EXHIBIT "E" Leases at 211 Parcel 211 COLLINS AVENUE Residential Lease THIS LEASE Is made this 12tkay of Se tember,�19b by and between SUN AND FUN, INC., a Florida corporation, whose address Is 446 Collins Avenue, Mlaml Beach, Florida 33139 ("Landlord") and Ambrosi& Associa_tes, Inc. ('Tenant"), whose address Is 1100 W. Washington Blvd. Chicago, IL 60607 for Apartment No. 206 (the "Apartment") In 211 COLLINS AVENUE (the 'Building"), located at 211 Collins Avenue, Miami Beach, Florida 33139. The Apartment and the Bulldlrig are sometimes herein referred to as the "premises". Landlord hereby agrees to lease the Apartment. to Tenant on the terms and condtlons set forth below, and Tenant hereby agrees to lease the Apartmentfrom Landlord on those terms and conditions. 1. JjM. The term of this Lease shall commence on November 1, 1994 —, and terminate on October 31, 1995 unless terminated sooner In accordance with the terms hereof, Under no circumstances shall Landlord be liable to Tenant for damages If the Apartment Is unavailable for occupancy because the previous tenant of the Apartment refused to vacate when Its lease terminated; provided, however, Landlord agrees to use Its best efforts to evict such previous tenant at the earliest possible time. If a previous tenant shall hold over, the term hereof shall not commence until one (1) day following the date that the prior tenant shall vacate the Apartment, except that If the previous tenant still has not vacated within forty-five (45) days after -the commencement date specified above, either Landlord or Tenant may cancel this Lease by giving notice to the other. Under no circumstances shall the expiration date hereof be extended by reason of the said holding over. 2. - tin , The total rent for the term (which Tenant hereby agrees to pay to Landlord) shall be_ Twenty thousand four hundred —and and 0_/100 Dollars ($ 2. 0, 400 } payable In advance In monthly installments of one thousand seven hundred and 04 /100 Dollars (S._-LJIQ ,-,) due on the first day of each month during :the term hereof. The payment of rent Is an independent obligation and covenant of Tenant and shall be made without offset or deduction of any kind. Upon execution of this Lease, Tenant shall pay to Landlord three thousand four hundred and QQJi 00 Dollars ($, 400 } as rent forthe first monthly Installment andlast monthly Installment of rental due hereunder. dent payments shall be made to Landlord at 446 Collins Avenue, Miami Beach; Florida 33139, or at such other address as Landlord specifies In,wrhing to Tenant. If any check of Tenant Is returned on account of Insufficient funds or other fault of Tenant, Landlord may require future payments to be In the form of cash, money order or cashler's checks. Rent payments that are more than five (5) days overdue (time being of the essence) must be accompanied by a late charge equal to eighteen percent (18°%) an annual of the amount of the overdue -payment, but no acceptance of a late charge by Landlord shall be consideredpercentage a waiver of Its other remedies.for Tenant's default. 3, Security Deposit. Upon executing this Lease, Tenant shall deposit with Landlord one thousand seven hundredand W100 Dollars {$ t.;<oo ) as security for Tenant's performance of all of Its obligations under this Lease. Landlord shall hold the security deposit until Tenant has vacated the Apartment and Landlord shall have fifteen (15) days to return said security deposit or In which to give Tenant written notice by certified mall of its Intention to Impose a claim thereon. Under no circumstances shall Landlord. -be required to apply the security deposit as rent and under no circumstances shall Tenant be entitled to remain In possession of the Apartment while In default in the payment of rent or other money due Landlord on the theory that the security deposit should be applied to remedy the default. Landlord shall place all security deposits and advance rent payments In a separate account for Tenant's benefit In Sun & Fun Inc. Escrow and shall not commingle security deposits or advance rentals of Tenant with other funds of Landlord, but Landlord may deposit security deposits and advance rental payments from other tenants In such account. in United National. Bank. ployees 4. Permitted Og_cu ap nts and Use. The Apartment shall be used exclusively as a private d residence for Tana#-aad4ha-rnemb a#anA)�and In no event shall the number of persons vitees occupying the Apartment exceed the maximum occupancy. provided for by law. The Tenant at all times Tenantduring the tenancy shall comply with all obligations Imposed upon tenants by applicable provisions of building, housing, and health codes; shall keep the Apartment clean and sanitary, shall use and operate In a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, including elevators; shall not destroy, deface, damage, Impair or remove any part of the pre- mises or property therein belonging to the Landlord nor permit any person to do so, and shall conduct him- self and requlre other persons on the premises with his consent to conduct themselves In a manner that does not unreasonably disturb neighbors or constitute a breach of the peace. Tenant understands and agrees that no pets may be malntalned In the Apartment. S. Utilities. Tenant shall be responsible for paying the charges (Including any deposits required) for electric service, telephone service and any other utllftles separately metered to the Apartment before they become overdue. 6. Personal Prooegy and Fixtures, Tenant acknowledges that the Apartment is equipped with those appliances, fixtures and furnishings described on Schedule 'A" attached hereto and made a part hereof, all of which belong to Landlord. Tenant agrees to use and maintain all such equipment, and plumb- Ing fixtures and all other equipment with which the Apartment Is furnished In accordance with manufacturers` specifications and the regulations of Landlord now or. hereafter provided, and to be responsible for all repairs and any damage brought about by misuse or neglect of such equipment by Tenant. landlord shall be responsible for repairing mechanical defects or failures of these appliances that are not caused by Tenant's misuse or negligence, but Tenant shall be responsible for otherwise maintaining them In good condition and repair and for yielding them up to Landlord when this Lease terminates In the same condition (excepting only reasonable -wear and tear) they were In when this Lease commenced. Landlord shall not be required to make any repair to an appliance unless Landlord. first receives written notice of the failure or defect to be repaired, and no reasonable delay In making a repair shall constitute a default by Landlord or a constructive evictlon of Tenant. Tenant acknowledges having Inspected said- appliances, fixtures and furnishings, and agrees that, at the commencement of this Lease, all such appliances are In good working order and condition. 7. Tenant's Addltions and Alterations. Tenant shall,not make any additions or alterations to the Apartment or the Building without first receiving Landlord's written consent to them. This prohibition shall extend without limitation to creating holes In walls or countertops, changing orInstalling a ona o s except hang pi or locks, Installing lighting or other fbdures, painting and wallpapering, removing window tinting and affixing or attaching any tape, sign or decoration on or to a window, balcony or exterior door. Landlord may remove or change any addition or alteration made by Tenant that Landlord did not consent to and may charge Tenant the reasonable cost of Landlord's doing so. Landlord shall accept the Apartment at the end of the term subject to any decorations that it consented to In writing and that conform to whatever conditions and requirements were set forth In Landlord's consent. 8. Parkina..There Is absolutely no parking provided by Landlord. Tenant acknowledges that It Is Tenant's responsibility to provide Tenant's parking and at Tenant's own convenience and expense. 9. Q20ditlon and Maintenance of the Apartment. Tenant shall keep the Apartment and the balcony adjoining It, If any, in a clean, safe and tenantable condition throughout the term of this Lease and shall yield them up to Landlord when this Lease terminates In the same condition they were In when this Lease commenced (excepting only hormal wear and tear). If Tenant fails to carry out the obligations under this section in any respect,. Landlord may carry them out for Tenant and charge Tenant the reasonable cost of doing so, provided Teriant shall have first been given written notice of said obligation and a reasonable opportunity (but not to exceed seven (7) days) to comply with same. 10. Landlord'g SigbtEntry, The Tenant shall not unreasonably withhold consent from the Landlord to enter the Apartment from time to time In order to Inspect the premises, to make necessary or needed repairs, decorations, alterations, or Improvements; to supply agreed services or to exhibit the Apartment to prospective or actual purchasers, mortgagees, tenants, workmen or contractors. The Landlord shall not abuse the right of access nor use it to harass the Tenant. 11. No Asslanmgnt or__&biettIno. Tenant shall not, directly or Indirectly, assign, transfer, mortgage, pledge or otherwise encumber or dispose of this Lease or sublet the Apartment or any part thereof or permit the Apartment to be occupied by other persons. :easonable m Ilan wt 1 n 1 .Tenant shall strictly comply with all Rules and Regulations adopted by Lan or modifications of or additions to them that may be made In the future, none of which Tenant has any right to object to), and any breach of them by Tenant, a member of Tenant's family or a guest or Invitee of Tenant shall be considered a material default under this Lease entitling Landlord to the remedies RrovIded herein Tenant shall promptly pay to landlord, upon any fines assessed against the Apartment or Landlord as a result of Tenant's failure to comply with any of these rules. However, nothing In this paragraph shall be construed to give Landlord any rights Ldemand, t would not�otherwfsa Provided such modifications do not increase any economic or other mater al obligations of Tenant;. 13. Default. 1f Tenant falls to make any payment of rent when due, or If Tenant breaches any covenant, rule or condition provided in this Lease, thkh (1) Tenant's right to possession of the Apartment shall terminate, (II) If Landlord so elects, this Lease shall terminate, (III) If Landlord so elects, the entire amount of rent for the then-remalning term of this Lease shall be accelerated and Immediately due and payable, and (Iv) landlord .shall be entitled to any and all remedles available to it under Florida law. If Tenant's right to possession terminates, Landlord shall be entitled to Immediately expel or remove Tenant or any other person in possession of the Apartment, and its doing so shall not be considered a trespass or forcible entry, a waiver or forfeiture of Landlord's right to rents then or thereafter due it, or a waiver or release of any of Tenant's obligations under this Lease. in no event shall Landlord's retaking of possession of the Apartment be deemed to have been done for the purpose of reletting the Apartment on Tenant's behalf or as an acceptance of a surrender of the Apartment In Ileu of any other rights of Landlord. No failure by Landlord to enforce its rights under this Lease In one Instance shall be considered a waiver of its right to do so. In any other Instance, All Landlord's rights and remedies under this Lease are cumulative, so that its resort to one remedy shall not preclude its resort to another,or other remedies. Anything herein to the contrary notwithstanding, Landlord shall have no right to terminate this Lease or seek any other remedy against Tenant unless Tenant shall have first been given written notice of the alleged default and a reasonable period of time (not to exceed three (3) days if the default Is a failure to pay 2 rent when due or seven (7) days If the default Is other than a failure to pay rent when due) within which to cure the same. 14. _Subordination. This Lease and Tenant's rights hereunder shall be subject and subordinate to any and all mortgages (and all renewals, modifications and extensions of them) that may now or hereafter encumber the Apartment or the Building. This provision Is self-executing Insofar as It relates to bona fide mortgages, but, upon Landlord's request, Tenant shall execute and deliver to Landlord an Instrument expressly subordinating. Tenant's rights under this Lease to any sOch mortgage specified by Landlord. 15. TMeA and -As; essmsnts. Tenant shall .pay any sales, use or similar tax that may be Imposed by any governmental authorlty with respect to•monles received by Landlord from Tenant under this Lease. Landlord shall, pay any ad valorem real estate taxes relative to the Apartment. Is. Estoppel lnifgrmatlon. Within ten (10) days after Landlord requests it, Tenant shall sign and deliver to Landlord a statement acknowledging that this Lease Is In full force and effect and has not been modified (or, If it Is not In full force and effect or has been modified, stating why It Is not In full force or effect or the substance of tt -he modification), that Landlord Is not In default hereunder and containing specific— if true answers to whatever questions concerning this Lease's status Landlord may have posed In his request for the statement. Tenant's •failure to sign and deliver this statement within the ten (10) day period shall constitute a representation by Tenant, upon which a prospective purchaser or mortgagee of the Apartment may rely, that this Lease Is;ln good standing, free from any default by Landlord and that there are no oral or written modifications hereof. Any false statement by Tenant that Landlord 1s In default under this Lease or that this Lease is otherwise not In good standing shall constitute a default by Tenant under this Lease. 17. Destruplign ty QasUaltIf the Apartment Is made untenantabfe, by a fire or other casualty, Landlord may elect In its sole discretion, either to repair the damage so as to make the Apartment tenant- able again within sixty (60) days or to terminate this Lease. Such election must be made within fifteen (15) days after the occurrence of such casualty. In the event that no election shall be made or Landlord shall not have repaired such damages- %0thin sixty (60) days after its occurrence, this Lease shall be deemed terminated as of the date of such casualty and Tenant shall have no further claim against Landlord. Tenant's rent shall be justly abated during the period the Apartment Is untenantabfe as a result of casualty. if Landlord elects, the expiration date of this Lease shall remain unchanged. is. Eminent Oomaln. This lease shall be unaffected If a part of the Bulfdfng (or appurtenant land) Is taken by eminent domain but the Apartment itself Is not made untenantabfe. If the entire Building Is thus taken or the taking makes the Apartment untenantabfe, this Lease shall automatically terminate. Landlord shall be entitled to all condemnation awards and proceeds. In this regard, Tenant hereby waives any c1alm to any part of any reward or compensation paid In connection with a taking by eminent domain. 19. Qutet Enfoyment. As tong as Tenant commits no default under this tease or breach of It, he shall have quiet enjoyment of the Apartment for the duration of this Lease's term from all parties claiming by, through or under Landlord, subject, however, to the other provisions in this Lease, and the rights, rules and regulations of the Landlord. 20. Holdino Over and Surrpa ter. Unless Landlord specifically agrees in writing to extend the term of this Lease past the termination date specified In paragraph 1, Tenant's occupancy of the Apartment past that date shall constitute an unlawful holding over. No agreement by Landlord to accept a surrender of the Apartment shall be valid unless'It Is written and signed by Landlord. In the event of any holdover, Tenant shall be liable for, all damages caused to Landlord and shall be obligated to pay DOUBLE RENT. 21. Sale gt EBcWmbrance by Landlord. Tenant acknowledges that Landlord Is free to self or euncumber the Building, before or after the end of the term of this Lease (subject to the right of Tenant, If any, to extend the term of this Lease). Landlord may,.In its sofa discretion, elect to Improve or alter the Apartment and other areas of the Building (to the extent. Landlord may do so) In connection with the sale or refinancing of the Building. Tenant acknowledges dnd agrees not to obstruct or Interfere In any manner with any of the aforesald activities and that such activities shall not be deemed to constitute an eviction of Tenant or a breach of this Lease by Landlord. Landlord agrees that the aforesaid activities shall be conducted fn such a manner, if at all, as not to unreasonably interfere with Tenant's use and enjoyment of the Apartment or appurtenant facilities. 22. Assignment by Landlord. Landlord may self the Building at anytime. If Landlord sells the Building to a purchaser who assumes Landlord's obligations under this Lease, Landlord shall have no further (lability to Tenant. " 23, Identfflcatlon of Eartles. The term "Landlord" Includes the successors and assigns of Landlord. The term "Tenant` Includes each and every person or entlty named above as Tenant (notwithstanding the use In this Lease Agreement of masculine, neuter and singular pronouns and adjectives In referring to Tenant) and the heIrs, executors;-personat representatives, successors and assigns of each. 24. Lia lilt If Tenant consists of more than one party, all such parties shall be jointly and severally ffabfe for the performance of Tenant's obligations, and a default by or notice to one of them shall constitute a default by or notice to all of them. This Lease shall be binding on Tenant's heirs, personal representatives, executors, successors and assigns, and his obligations under this Lease shall not be considered purely his personal obligations. 25. Petformance y Landlord f tenant's 0 llgatlons. If Tenant falls to perform any obligation A has under this Lease, ,Landlord may (but need not) perform it for him and charge Tenant the cost of Its doing so provided Tenant shall first be given written notice of such obligation and a reasonable opportunity (not to exceed three (3) days) to comply, with the same. ' 26. DhLrgg . All charges owed by Tenant to Landlord under this Lease shall be payable on demand and considered additional rent. 27. Brokerage. Tenant represents and warrants that It has dealt with no broker, salesman, agent or other person In connection with this transaction and that no broker, salesman, agent or other person brought about this transaction, other than-, Portofino Realty, Inc. - and Tenant agrees to Indemnify and hold Landlord harmless from and against any claims by any other broker, salesman, agent or other person -claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to this leasing transaction. The provisions of this paragraph shall survive the termination of this Lease. Landlord (not Tenant) shall be responsible for paying the Real Estate Commissibn,due to Portofino Realty, Inc. which shall be 107. of the total re •28. N__QtIces. Any notice which Landlord or Tenant desires to give to the other must, to ba of the t effective, be in writing and be either hand delivered or sent by certified or registered mall. If It is delivered by hand to Landlord, it must be delivered during normal business hours to the address of Landlord where rent Is then payable and be duly recelpted for by Landlord; and, If It Is delivered by hand to Tenant, It must be either handed to Tenant or a member of his family (and recelpted for by,the person to whom it is handed) or placed in the mailbox provided for in the Building or In the Apartment Itself, If It Is mailed to Landlord, It may be addressed to the address of Landlord where rent Is then payable (or whatever other address or post office box address Landlord may have specified to Tenant at least five (5) days before the date the notice is given), and ff it• Is malted to Tenant, it may be addressed to the Apartment or to such other address as may be designated by Tenant In writing. If sent by certified or registered mail, any notice shall be deemed given three (3) days after being placed In the United States mall, postage prepaid and addressed as provided above. 29. W lyfJVryTrIgI, LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR: COUNTERCLAIM BROUGHT BY EITHER ONE AGAINST THE OTHER IN CONNECTION WITH THE NON-PAYMENT OF RENT ONLY. 30. Attorn. If either party defaults In the performance of any of the terms or provisions of this Lease and by reason thereof the other party employs the services of an attorney to enforce performance of the covenants, br to perform any service based upon defaults, then In any of said events the prevailing party shall be.'entitled to receive from the other party reasonable attorneys fees and all expenses and costs Incurred by the prevailing party pertaining thereto (Including costs and fees relating to any appeal) and In enforcement of any remedy. 31. Governina Law; •ConstrVotloj3. This Lease shall be governed by, and construed and enforced In accordance with the laws of the State of Florida. In the event of any litigation between the parties under this Agreement: (1) the parties shall and hereby submit to the Jurisdiction of the state and federal courts of the State of Florida, and (11) venue shall be laid In Dade County, Florida. All of the parties to this Lease have participated fully In the negotiation and preparation hereof, and, accordingly, this Lease shall not be more strictly construed against any one of the parties hereto. In construing this Lease, the singular shall be held to include the plural, the plural. shall be held to Include the singular and the use of any gender shall be held to Include every other gender.'. The captions of the various paragraphs of this Lease are Inserted for the purpose. of convenient reference only and shall not affect the construction or Mlerpretatlon to be given any of the provisions hereof or be deemed in any manner to define, limit, modify or prescribe the scope or Intent of.thls Lease or any provision hereof, 32. Severabillty. In the event any term or provision of this Lease shall be determined by appropriate Judicial authority to be Illegal or otherwise invalid, such provision shall be given Its nearest lega' meaning or be construed as deleted as such authority determines, and the remainder of this Lease shall be construed In full force and effect, 33. No Recording' Neither this Lease nor any memorandum of lease hereof shall be recorded In the Public Records. 34. No Reoresentatlons. Tenant acknowledges that neither Landlord nor any employee or agent of Landlord has made any promises, any representations or any warranties In connection with this Lease that are not contained In this Lease. This Lease is the entire agreement between the parties, and once it Is signed, it can only be amended by a written Instrument executed by both Landlord and Tenant which specifically states that it.is amending this Lease. 4 35. R_ adon. TENANT IS HEREBY ADVISED THAT 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 1T OVER TIME. LEVELS OF' RADON THAT EXCEED F40ERAL 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. (NOTE: THIS NOTICE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY PURSUANT TO SECTION 404.056(7), FLORIDA STATUTES (1988).] 36. gntfre Agreement. This Lease constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to such subject matter. This Lease may not be modified In any way, unless by a written Instrument executed by both Landlord and Tenant. EXECUTED as of the day and year first above written. Witnesses as to Landlord: Witnesses as to Tenant: Landlord; SUN ANA FUN, INC., a Florlda corporation .r 1 By: ' Tenant; Schedulg "A" Personal. Property and Fixtures. I Stove, refrigerator, dishwasher, range hood, mini -blinds (on ALL windows), smoke alarms and security access phone. ii• ��i JJ lU J1 V 0Uj Oao u4ito l..Uit111tL1t1t1L IoUU1 211 COLLINS AVENUE Residential tease THIS LEASE Is made this I day of L&A 19_1!rby and between SUN AND FUN, INC., a ,F rlda corporation, whose'address Is 446 Collins enue, Miami Beach, Florida 33139 ("Landlord') and ('Tenant"), whose address Is 21 1 5 far Apartment No. _*Aj�(the `Apartment') In 211 COLLINS AVENUE (the "BUIIding"), located at 211 Collins Avenue, Miami Beach, Florida 33139. The - Apartment and the Building are sometimes herein referred to as the 'premises". Landlord hereby agrees to lease the Apartment to Tenant on the terms and conditions set forth below, and Tenant hereby agrees to lease the Apartment from Landlord on those terms and conditions. 1. Term. The .term of this Lease shall commence on Q1.1 1.s =' i R Q j and terminate on lqq„G unless terminated sdoner In accordance with the terms hereof. Under'no rcumstbnces shall Landlord be liable to Tenant for damages If the Apartment Is unavailable for occupancy because the previous tenant of the Apartment refused to vacate when its lease terminated; provIded, however, Landlord agrees to use Its best efforts to evict such previous tenant at the earliest possible time: If a previous tenant shall hold over, the term hereof shall not commence until one (1) day following the.date that the prior tenant shall vacate the Apartment, except that If the previous tenant still has not vacated. within forty-five (45) days after the commencement date specified above. either Landlord or Tenant may cancel this Lease by giving notice to the other. Under no circumstances shall the expiration date hereof be extended by reason of the said holding over. 2. �n :. The total rent for the term (which Tenant hereby agrees to pay to Landlord) shall be 4A. Wr%,ml e= hu acfve,,,,[ and C /1 ),Dollars (sit too ] payable In advance In monthly installments of IJL u. h&dad reA4 -��2.+'s and _7100 Dollars ($ • m due on.the first day of each month during the term h roof. The payment of rent Is an Independent obligatlo'n and covenant of Tenant and shall be made without offset or deduction of any kind. Upon execution of thls Lease, Tenant shall pay to Landlord PKIh" and j$[/100 Dollars ($W as rent for the first monthly Installment and last monthly installment of rental due hereunder. Rent payments shall be made to Landlord at 446 Collins Avenue, Miami Beach, Florida 33139, or at such other address as Landlord specifies In writing to Tenant. If any check of Tenant Is returned on account of insufficient funds or other fault of Tenant, Landlord may require future payments to be In the form of cash, money order or cashier's checks. Rent payments that are more than five (5) days overdue (time being of thp.essence) must be accompanied by a late charge equal to eighteen percent (18%) of the amount of the overdue payment, but no acceptance of a late charge by Landlord shall be considered a waiver of Its other remedies for Tenant's default. 3. Secu'ity Dew. Upon executing this Lease, Tenant shall deposit with Landlord Y and _./100 Dollars (a_ t as security for. Tenant's performance of all of:its obligations under this Lease. Landlord shall hold the security deposit until Tenant has vacated the Apahment.and Landlord shall have fifteen (15) days to return said security deposit or In which to give Tenant written notice by certified mail of Its Intentlon to Impose a claim thereon. Under no circumstances shall Landlord be required to apply the security deposit as rent and under no circumstances shall Tenant be entitled to,remaln In possession of the Apartment while In default In the payment of rent or other money due Landlord on the theory that the security deposit should be applied to remedy the default. Landlord shall place -all security deposits and advance rent payments in a separate account for Tenant's benefit In _ 0J O - e5C_f ty _ and shall not commingle security deposits or advance rentals of Tenant with other 7unds of Landlord, but Landlord may deposit security deposits and advance rental' payments from othee tenants In such account. AC '(�,�,rt.�. srWU (tea-( c(i 0r%L Q06• O0 CL 5 Si! C.tur od S a'+- cv, o r to e 4t ram, r�30 ✓ewA to e e I 4. Permitted OcgUpanis and Use. The Apartment shall be used exclusively as a private residence for Tenant'and the members of his Immediate family and In no event shall the number of persons occupying the Apartment exceed the maximum occupancy provided for by law. The Tenant at all times during the tenancy shall comply with all obligations Imposed upon tenants by applicable provisions of building, housing, and health codes; shalt keep the Apartment clean and sanitary; shall use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, alrconditloning and other facilities and appliances, Including elevators; shall not destroy, deface, damage, Impair or remove any part of the pre- mises or property therein belonging to the Landlord nor permit any person to do so, and shall conduct him- self and require other persons on the premises with his consent to conduct themselves In a manner that does not unreasonably disturb neighbors or constitute a breach of the peace. Tenant understands and agrees that no pots may be maintained In the Apartment. 5. Utilltles. Tenant shall be responsible for paying the charges (Including any deposits required) for electrlc;serv(ce, telephone service and any other utilities separately metered to the Apartment before they become .overdue. 6. PersonAl Property and Fixtures. Tenant acknowledges that the Apartment Is equipped with those appliances, flxtgres and furnishings described on Schedule "A' attached hereto and made a part hereof, all of which belong to Landlord. Tenant agrees to use and maintain all such equipment, and plumb- ing fixtures and all other equipment with which the Apartment Is furnished In accordance with manufacturers' ..,.,�... IA UO3 y specifications and thd.regulations of Landlord now or hereafter provided, and to be responsible for all repalrs and any damage brought about by misuse or neglect of such equipment by Tenant. Landlord shall be responsible for repalring mechanical defects or (allures of these appliances that are not caused by Tenant's misuse or negligence, but Tenant shall be responsible for otherwise maintaining them In good condition and repair and for yielding them up to Landlord when this Lease terminates In the same condition (excepting only reasonable wear and tear) they were In when this Lease commenced, Landlord shall not be required to make any repair to an appliance unless Landlord first receives written notice of the failure or defect to be repaired, and no reasonable delay In making a repair shall constitute a default by Landlord or a constructive eviction of Tenant. Tenant acknowledges having Inspected se Id• appliances, fixtures and furnishings, and agrees that, at the commencement of this Lease, all such appliances are In good working order and condition. 7. Tenant's Add it1gg. 5n and Alterations. Tenant shall not make any additions or alterations to the Apartment or the Building without first receiving Landlord's written consent to them. This prohibition shall extend without Ilmltatlon to creating holes In walls or countertops, changing or Installing additional bolts or locks, Installing lighting or other fixtures, palnting and wallpapering, removing window tinting and affixing or attaching any tape, sign or decoration on or to a window, balcony or exterior door. Landlord may remove or change any addition or alteration made by Tenant that Landlord did not consent to and may charge Tenant the reasonable cost of Landlord's doing so. Landlord shall accept the Apartment at the end of the term subj ct to any decorations that it consented to in writing and that conform to whatever conditions and requlrernents'were set forth in Landlord's consent. S. Parkin ..There Is absolutely no parking provided by Landlord. Tenant acknowledges that it is Tenant's responsibility to provide Tenant's parking and at Tenant's own convenience and expense. 9. Condltlob and M Ina tenanga of the Apartrrignt. Tenant shall keep the Apartment and the balcony adjoining it, If•any,.ln a clean, safe and tenantable condition throughout the term of this Lease and shall yield them up to Landlord when this Lease terminates In the same condition they were In when this Lease commenced (excepting only normal wear and tear). If Tenant falls to carry out the obligations under this section In any respect, Landlord may carry them out for Tenant and charge Tenant the reasonable cost of doing so, provided Tenant shall have first been given written notice of said obligation and a reasonable opportunity (but not to exceed seven (7) days) to comply with same. 10. jAndigrd'11 Rlaht of Entry. The Tenant shall not unreasonably withhold consent from the Landlord to enter the Apartment from time to time In order to inspect the premises, to make necessary or needed repairs, decorations, alterations, or Improvements; to supply agreed services or to exhibit the Apartment to prospective , or actual purchasers, mortgagees, tenants, workmen or contractors. The Landlord shall not abuse the right of access nor use it to harass the Tenant. 11. No Ailionment or Subletting. Tenant shall not, directly or Indirectly, assign, transfer, mortgage, pledge or otherwise encumber or dispose of this Lease or sublet the Apartment or an� part thereof or permit the -Apartment to be occupied by other persons. I 12. Qompilance with Rules and Reaulatlona. Tenant shall strictly comply with all Rule and Regulations adopted by Landlord (including any modifications of or additions to them that may be riade in the future, none of. which. Tenant has any right to object to), and any breach of them by Tani nt. a member of Tenant's family or a guest or Invltee of Tenant shall be considered a material default and r this Lease entitling Landlord to.the remedies provided herein. Tenant shall promptly pay to Landlord, upon demand, any fines assessed against the Apartment or Landlord as a result of Tenant's failure to cc mply with any of these rules.. However, nothing In this paragraph shall be construed to give Landlord any i Ights It would not otherwise• have. 13. Default. if Tenant fails to make any payment of rent when due, or If Tenant breach any covenant, rule or condition provided in this Lease, then (I} Tenant's right to possession of the Apent snail terminate, ([i) If Landlord so elects, this Lease shall terminate, (111) K Landlord so elects, thitre amount of rent for the then -remaining term of this Lease shall be accelerated and immediately dand payable, and (Iv) Landlord shall be entitled to any and all remedies available to h under Florida if Tenant's right to possession terminates, Landlord shall be entitled to Immediately expel or remove ant or any other person in •possession of the Apartment,.and Its doing so shall not be considered a tress or forcible entry, a waiver or forfeiture of Landlord's right to rents then or thereafter due It, or a wor release of any of Tenant's obligations under this Lease. In no event shall Landlord's retaking of possession of the Apartment be deemed to have been done for the purpose of reletting the Apartment on Tenant's behalf or as an acceptance of a surrender of the Apartment In lieu of any other rights of Landlord. No failure by t andford to enforce its rights under this Lease In one instance shall be considered a waiver of Its right to dd so In any other Instance. All Landlord's rights and remedles under this Lease are cumulative, so that its -resort to one remedy shall not preclude its resort to another or other remedies. Anything herein to the contrary notwkhstanding, Landlord shall have no right to terminate this Lease or seek any other remedy against Tenant unless Tenant shall have first been given written notice of the alleged default and a reasonable period of time (not to exceed three (3) days ff the default Is a failure to pay K rent when duo or seven (7) days H the default Is other than a failure to pay rent when due) within which to cure the same. 14. Sutptdinatloo. This Lease and Tenant's rights hereunder shall be subject and subordinate to any and all mortgagps (and all renewals, modlflcations and extensions of them) that may now or hereafter encumber the Apartment or the Building. This provision Is self-executing Insofar as It relates to bona fide mortgages, but, upon I: ndlord's request, Tenant shall execute and deliver to Landlord an Instrument expressly subordinating Tenant's rights under this Lease to any s6ch mortgage specified by landlord. 1s. Taxes 'and Assessments. Tenant shall pay any sales, use or similar tax that may be Imposed by any governrpental authority with respect to monies received by Landlord from Tenant under this Lease. Landlord.'shall pay any ad valorem real estate taxes relative to the Apartment. 16. ' Esjogn6l'lnformatlon. Within ten (10) days after Landlord requests It. Tenant shall sign and deliver to Landlord a 'statement acknowledging that this Lease is In full force and effect and has not been modified (or, If It Is not. In full force and effect or has been modified, stating why it Is not In full force or effect or the substance of the modification), that Landlord Is not In default hereunder and containing specific answers to whatever questions concerning this Lease's status Landlord may have posed In his request for the statement. Tenant's failure to sign and deliver this statement within the ten (10) day period shall constitute a representation by Tenant, upon which a prospective purchaser or mortgagee of the Apartment may rely, that this Lease Is In good standing, free from any default by Landlord and that there are no oral or written modiflcatlons hereof. Any false statement by Tenant that Landlord Is In default under this Lease or that this Lease Is otherwise not In good standing shall constitute a default by Tenant under this Lease. 17. DestructionDv Casualty. If the Apartment Is made untenantable by a fire or other casualty, Landlord may elect In Its sole discretion, either to repair the damage so as to make the Apartment tenant- able again within sixty (60) days or to terminate this Lease. Such election must be made within fifteen (15) days after the occurrence of such casualty. In the event that no election shall be made or Landlord shall not have repaired such damages within sixty (60) days after Its occurrence, this Lease shall be deemed terminated as of the date of such casualty and Tenant shall have no further claim against landlord. Tenant's rent shall belustly abated during the period the Apartment Is untenantable as a result of casualty. If landlord elects, the explration date of this Lease shall remain unchanged. 18. Ear Inept 17omaln. This lease shall be unaffected if a part of the Building (or appurtenant land) Is taken by emlrient domain but the Apartment itself Is not made untenantable. If the entire Building Is thus taken or the taking makes the Apartment untenantable, this Lease shall automatically terminate. Landlord shall be entitled to all condemnation awards and proceeds. In this regard, Tenant hereby waives any claim to any part of any reward or compensation paid In connection with a taking by eminent domain. 19. Ouiet.Enloyment. As long as Tenant commits no default under this Lease or breach of It, he shall have quiet enjoyment of the Apartment for the duration of this Lease's term from all parties claiming by, through or under Landlord, subject, however, to the other provisions In this Lease, and the rights, rules and regulations of the Landlord. 20. Holdlno Over grid urrender. Unless -Landlord specifically agrees In writing to extend the term of this Lease past the termination date specified in paragraph 1, Tenant's occupancy of the Apartment past that date shall constitute an unlawful holding over. No agreement by Landlord to accept a surrender of the Apartment shall. be valid unless It Is written and signed by Landlord. In the event of any holdover, Tenant shall be liable for all damages caused to Landlord and shall be obligated to pay DOUBLE RENT. 21. Me or Encumbrance by Landigrd, Tenant acknowledges that Landlord is free to sell or euncumber the Building bsfore or after the end of the term of this Lease (subject to the right of Tenan!, If any, to extend the- ter m of this Lease). Landlord may, In Its sole discretion, elect to Improve or alter the Apartment and other areas of the Building (to the extent Landlord may do so) In connection with the sale or refinancing of the Bullding. Tenant acknowledges and agrees not to obstruct or Interfere In any manner with any of the aforesaid activitles and that such activhles shall not be deemed to constitute an eviction of Tenant or a breach 'of this Lease by Landlord. Landlord agrees that the aforesaid activities shall be conducted In such a manner, if at all, as not to unreasonably Interfere with Tenant's use and enjoyment of the Apartment or appurtenant facilities. 22. AAIgnment by Landlord. Landlord may sell the Building at any time. If Landlord sells the Building to a purchaser who assumes Landlord's obligations under this Lease, Landlord shall have no further liability to Tenant.. 23. Identificatlon of Parties. The term "Landlord" Includes the successors and assigns of Landlord. The term 'Tenant' Includes each and every person or entity named above as Tenant (notwithstanding the use In this Lease Agreement of mascullne, neuter and singular pronouns and adjectives in referring to Tenant) and the heirs, executors, personal representatives, successors and assigns of each. 24. LI$blilty. If Tenant consists of more than one party, all such parties shall be jointly and severally liable for the performance of Tenant's obligations, and a default by or notice to one of them shall 3 _ - - emu.%a inc.a inl, 10005 constitute a default by or notice to all of them. This Lease shall be binding on Tenant's heirs, personal representatives, executors, successors and assigns, and his obligations under this Lease shall not be considered purely his personal obligations. 25. Performance byLandlor of Tenant's if . If Tenant falls to perform any obligation it has under this Lease, Landlord may (but need not) perform it for him and charge Tenant the cost of Its doing so provided Tenant shall first be given written notice of such obligation and a reasonable opportunity (not to exceed three (3) days) to comply with the same. 26. Charaes..AII charges owed by Tenant to Landlord under this Lease shall be payable on demand and considered additional rent. 27. Brokeraoe. Tenant represents and warrants that It has dealt with no broker, salesman, agent or other person In connection with this transaction and that no broker, salesman, agent or other person brought about this transaction, other than and Tenant agrees to Indemnify and hold landlord harmless from and against any claims by any other broker, salesman, agent or' other person claiming a commission or other form of compensation by virtue of having dealt with Tenant wlth regard to this leasing transaction. The provisions of this paragraph shall survive the termination of this Lease. 28. Nollces. Any notice which Landlord or Tenant desires to give to the other must, to be effective, be In writing and'be either hand delivered or sent by certified or registered mail. If It Is delivered by hand to Landlord, It mast be delivered during normal business hours to the address of Landlord where rent Is then payable and be. duly recelpted for by Landlord; and, If It Is delivered by hand to Tenant, It must be either handed to Tenant or a member of his family (and recelpted for by,the person to whom It Is handed) or placed In the mailbox provided for In the Building or in the Apartment Itself. If It Is mailed to Landlord, It may be addressed to the address of Landlord where rent Is then payable (or whatever other address or post office box. address Landlord may have specifled to Tenant at least We (5) days before the date the notice Is given), and It It Is mailed to Tenant, it may be addressed to the Apartment or to such other address as may be designated by Tenant In writing. If sent by certified or registered mail, any notice shall be deemed given three (3) days after being placed In the United States mall, postage prepaid and addressed as provided above. 29. Walygr of :fury Trial. LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER ONE AGAINST THE OTHER IN CONNECTION WITH THE NON-PAYMENT OF RENT ONLY. 30. Attorneys'Fees. If either party defaults in the performance of any of the terms or provisions of this Lease and by reason thereof the other party employs the services of an attorney to enforce performance of the covenants, or to perform any service based upon defaults, then in any of said events the prevailing party shall Abe entitled to receive from the other party reasonable attorneys fees and all expenses and costs Incurred by the prevailing party pertaining thereto (Including costs and fees relating to any appeal) and In enforcement of any remedy. 31. goveMing Law, Construction. This Lease shall be governed by, and construed and enforced in accordance with the laws of the State of Florida. in the event of any litigation between the parties under this Agreement, (I) the parties shall and hereby submit to the Jurisdiction of the state and federal courts of the State of Florida, and (iQ venue shall be laid In Dade County, Florida. All of the parties to this Lease have particlpated fully In the negotiation and preparation hereof, and, accordingly, this Lease shall not be more strictly construed against any one of the parties hereto. In construing this Lease, the singular shall be held to include the plural, the plural shall be held to Include the singular and the use of any gender shall be held to include every other gender. The captions of the varlous paragraphs of this Lease are Inserted for the purpose of convenient reference only and shall not affect the construction or Interpretation to be given any of the provisions hereof or rbe deemed In any manner to define, limit, modify cr prescribe the scope or Intent of this Lease or any provision hereof. 32. Severabila . In the event any term or provision of this Lease shall be determined by appropriate Judicial authority to be Illegal or otherwise Invalid, such provision shall be given Its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Lease shall be construed In full force and effect. 33. No Recardlna. Neither this Lease nor any memorandum of lease hereof shall be recorded in the Public Records. 34. &_Fleproentatlgns. Tenant acknowledges that neither Landlord nor any employee or agent of Landlord has made any promises, any representations or any warranties in connection with this Lease that are not contained In this Lease. This Lease Is the entire agreement between the parties, and once it Is signed, It can only be amended by a written Instrument executed by both Landlord and Tenant which specifically states that It is amending this Lease. 4 —% f�\ ter.• 16006 35. Radon. TENANT IS HEREBY ADVISED THAT 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. (NOTE: THIS NOTICE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY PURSUANT TO SECTION 404.056(7), FLORIDA STATUTES (1988).j 36. Entire Aareement. This Lease constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to such subject matter. This Lease may not be modified In any way, unless by a written Instrument executed by both Landlord and Tenant. EXECUTED as of the day and year first above written. Witnesses as to Landlord: Witnesses as to Tenant: i1M M4��M U f 1 % 1.1.0162 5 Landlord: SUN AND FUN, INC., a Florida corporation By: Tenant: ll�vri :JJ AU: JI �ysu„� oaa �[,fy C;UIti"a'lh��'1'AL (6007. Schedule c slrt/w as h e-►r! b� s, 3v ,�� �e �w �S erafa r +0 0 - Wous 211 COLLINS AVENUE Residential Lease THIS LEASE Is made this (day of':Ur , 192r oy and between SUN AND FUN, INC., a Florida c rporatl n,'whose'address is 446 Collins venue, Miami Beach, Florida 33139 ("Landlord" and CA 'C4- ('Tenant'), whose address Is *114 S& !4 L 3 for Apartment No.2'W— (the ' parimant') In 211 COLLINS AVENUE (the "Building"), located at 211 Collins Avenue, Miami Beach. Florida 33139. The Apartment and the Building are sometimes herein referred to as the "premises Landlord hereby agrees to lease the Apartment to Tenant on the terms and conditions set forth below, and Tenant hereby agrees to lease the Apartment from Landlord on those terms and conditions. J 1. Term, T e term this Lease shall commence on _?, /' and terminate on U� ��K& .unless termini tad sooner In accordance with the terms hereof. Under no cl umstances shall Landlord be liable to Tenant for damages If the Apartment Is unavailable for occupancy because the previous tenant of the Apartment refused to vacate when Its lease terminated; provided, however, Landlord agrees to use Its best efforts to evict such previous tenant at the earnest possible time; If a previous tenant shall holdover, the term hereof shall not commence until one (1) day following the.date that the prior tenant shall vacate the Apartment, except that If the previous tenant still has not vacated. wlthln forty-five (45) days after the commencement date specified above, either Landlord or Ter►ant may cancel this Lease by giving notice to the other. Under no circumstances shall the expiration date hereof be extended by reason of the said holding over. 25 :. The tal r the t (which Tenant hereby agrees to pay to Landlord) shall be r lit and 100 Dollars (s is zamj payable In advance In monthly Installments of �' and"100 Dollars ($Rso01 due on.the first day of each month during 1ha erg hereof. The payment of rent :s an Independent obligation and covenant of Tenant and shall be made without offset or deductionpf any kin Upon execution of this Lease, Tenant shall pay to Landlord �� i- ����St./JAra/� and, U01100 Dollars ($ 172Q i as rent for the first monthly Installment and last monthly Installment of rental due hereunde?1't' Rent payments shall be made to Landlord at 448 Collins Avenue, Miami Beach, Florida 33139, or at such other address as Landlord specifies In writing to Tenant. If any check of Tenant Is returned on account of"Insufflefent funds or other fault of Tenant, Landlord may require future payments to be In the form of cash; money order or cashler's checks. Rent payments that are more than five (5) days overdue (time being of the essence) must be accompanied by a late charge equal to eighteen percent (18%) af'the amount of the overdue payment, but no acceptance of a late charge by landlord shall be considered a waiver of Its other remedies for Tenant's default. _ rily a I . Upon a ecuting this Lease, Tenant shall deposit with Landlord �~ " and A0100 Dollars R=I ) as security for Tenant's pe ormance of all oft obligatlons under this Leastl6ftzridiord shall hold the security deposit until Tenant has vacated the Apartment and Landlord shall have fifteen (15) days to return said security deposit or in which to give Tenant written notice by certified mail of Its Intentlon to impose a claim thereon. Under no circumstances shall Landlord be required to apply the security deposit as rent and under no circumstances shall Tenant be entltled to remain In possession of the Apartment while In default In the payment of rent or other money due Landlord on the theory that the security deposit should be applied to remedy the default. Landlord shalt pla If ecur ty epo Its and advance -rent payments in a separate account for Tenant's benefit In �xr(a]` _ and shall not commingle security deposits or advance rentals of Tenant with other,funds of Landlord, but Landlord may deposit security deposits and advance rental payments from othet.tenants In such account, 4. P Itt . The Apartment shall be used exclusively as a private residence for Tenant and the members of his immediate family and In no event shall the number of persons occupying the Apartment exceed the maximum occupancy provided for by law. The Tenant at all times during the tenancy shall comply with all obligations imposed upon tenants by applicable provisions of building, housing, and health codes; shall keep the Apartment clean and sanitary; shall use and operate In a reasonable manner all electrical. plumbing, sanitary, heating, ventilating, alrconditloning and other facilities and appliances, Including elevators; shall not destroy, deface, damage, Impair or remove any part of thi pre- mises or property therein belonging to the Landlord nor permit any person to do so, and shall conduct him• self and require othat-persons on the premises with his consent to conduct themselves In a manner that does not unreasonably disturb neighbors or constitute a breach of the peace. Tenant understands and agrees that no pets may be maintained In the Apartment. 5. Ullhtlis..Tenant shall be responsible for paying the charges (Including any deposits requlred) for electric *service, telephone service and any other utilities separately metered to the Apartment before they become overdue. 6, personal Progeny and Fixtures. Tenant acknowledges that the Apartment Is equipped with those appliances, fixtures and furnishings described on Schedule "A' attached hereto and made a part hereof, all of which ba)ong to Landlord. Tenant agrees to use and maintain all such equipment, and plumb- Ing fixtures and all other equip • ent �w�th`bfil'ch th part e tisfrurnlshed In ac.�c,00�rndar)ce h man GfVrsttudre�r�s�' Y 7,24' �o 0AJc . G - .i jv- T 13e- P4=d *n (lemon AeX IJ 009 specifications and th4. regulations of Landlord now or hereafter provided, and to be responsible for all repairs and any damage brought about by misuse or neglect of such equipment by Tenant. Landlord shall be responsible for repairing mechanical defects or failures of these appliances that are not caused by Tenant's misuse or negllgence, but Tenant shall' be responsible for otherwise maintaining them In good condition and repair acid for yielding them up to Landlord when this Lease terminates In the same condition (excepting only reasonable wear and tear) they were In when this Lease commenced. Landlord shall not be required to make any repair to an appliance unless Landlord first receives written notice of the failure or defect to be repaired, and no reasonable delay in making a repair shall constitute a default by Landlord or a constructive eviction of Tenant. Tenant acknowledges having Inspected said appliances, fixtures and furnishings, and agrees that, at the commencement of this Lease, all such appliances are In good working order and condltion. 7. Tenant's Addlllonsand IterAtions. Tenant shall not make any additlons or alterations to the Apartment or the Bullding without first receiving Landlord's written consent to them. This prohibition shall extend without lln)ltation to creating holes In walls or countertops, changing or Installing additional bolts or locks, Installing lighting or other fixtures, painting and wallpapering, removing window tinting and affixing or attaching any tape, slgn .or decoration on or to a window, balcony or exterior door. Landlord may remove or change any addition or alteration made by Tenant that Landlord did not consent to and may charge Tenant the reasonable cost of Landlord's doing so. Landlord shall accept the Apartment at the end of the term subject to any decorations that it consented to In writing and that conform to whatever conditions and requirements were set forth In Landlord's consent. a. far . There Is absolutely no parking provided by Landlord. Tenant acknowledges that it Is Tenant's resnon§tbillty to provide Tenant's parking and at Tenant's own convenience and expense.X- • 4 r 9. Cgoidltloh and Mafntenanc9 gf the_Apgrtment. Tenant shall keep the Apartment and the balcony adjoining It, If -any, in a clean, safe and tenantable condition throughout the term of this Lease and shall yield them up to,Llsndlord when this Lease terminates In the same condition they were In when this Lease commenced (excepting onlyformal wear and tear), If Tenant falls to carry out the obligations under this section In any respfect, Landlord may carry them out for Tenant and charge Tenant the reasonable cost of doing so, provided tenant shall have first been given written notice of said obligation and a reasonable opportunity (but not to exceed seven (7) days) to comply with same. 10. Lan=&q Rlahtf Entry. The Tenant shall not unreasonably withhold consent from the Landlord to enter the Apartment from time to lime In order to Inspect the premises, to make necessary or needed repairs, decorations, alterations, or Improvements. to supply agreed services or to exhibit the Apartment to prospective or actual purchasers, mortgagees, tenants, workmen or contractors. The Landlord shall not abuse' the right of access nor use It to harass the Tenant. 11. No asslaorneElt or Sublenlng. Tenant shall not, directly or Indirectly, assign, transfer, mortgage, pledge or otherwise encumber or dispose of this Lease or sublet the Apartment or any part thereof or permit the -Apartment to be occupied by other persons. 12. Compliance with Rules and Regulations, ons. Tenant shall strictly comply with all Rules and Regulations adopted by Landlord (Including any modifications of or additions to them that may be made In the future, none of. which Tenant has any right to object to), and any breach of them by Tenant, a member of Tenant's famlly or a guest or Invitee of Tenant shall be considered a material default under this Lease entitling Landlord to the remedies provided herein. Tenant shall promptly pay to Landlord, upon demand, any fines assessed against the Apartment or Landlord as a result of Tenant's failure to comply with any of these rules: However, nothing In this paragraph shall be construed to give Landlord any rights It would not otherwlse have. 13. Defaglt. If Tenant falls to make any payment of rent when due, or If Tenant breaches any covenant, rule or condition provided In this Lease, then (1) Tenant's right to possession of the Apartment shall terminate, (II) If Landlord so elects, this Lease shall terminate, (111) If Landlord so elects, the entire amount of rent for the then -remaining term of this Lease shall be accelerated and Immediately due and payable, and (Iv) iandlord shall be entitled to any and. all remedies available to It under Florida law. If Tenant's right to possession terminates, Landlord shall be entitled to Immediately expel or remove Tenant or any other person In.possession of the Apartment. and its doing so shall not be considered a trespass or forcible entry. a waiver or forfeiture of Landlord's right to rents then or thereafter due It, or a waiver or release of any of Tenant's obligations under this Lease. In no event shall Landlord's retaking of possession of the Apartment be deemed to have been done for the purpose of reletting the Apartment on Tenant's behalf or as an acceptance of a surrender of the Apartment In Ileu of any other rights of Landlord. No failure by Landlord to enforce Its rights under this Lease In one instance shall be considered a waiver of its right to dd so In any other Instance. All Landlord's rights and remedies under this Lease are cumulative, so that its resort to one remedy shall not preclude its resort to another or other remedies. Anything herein to the contrary notwithstanding, Landlord shall have no right to terminate this Lease or seek any other rerriedy.agalnst Tenant unless Tenant shall have first been given written notice of the alleged default and a reasonable period of time (not to exceed three (3) days If the default is a failure to pay . ':dave Acze;3 tj_ teJ V J.0 rent when due or sevon (7) days H the default is other than a failure to pay rent when due) within which to cure the same. .11 14. Subordinatlon. This Lease and Tenant's rights hereunder shall be subject and subordinate to any and all mortgages (and all renewals, modifications and extensions of them) that may now or hereafter encumber the Apartment or the Building. This provision Is self-executing Insofar as It relates to bona fide mortgages, but, upon Landlord's request, Tenant shall execute and deliver to Landlord an Instrument expressly subordinating Tenant's rights under this Lease to any such mortgage specified by Landlord. 1s. Taxes and, Assessments. Tenant shall .pay any sales, use or similar tax that may be Imposed by any governmental authority with respect to monies received by Landlord from Tenant tinder this Lease. Landlord shall pay any ad valorem real estate taxes relative to the Apartment. 16. EstjlinforMatlonWithin tan (1 0) days after Landlord requests It, Tenant shall sign and deliver to Landlord a statement acknowledging that this Lease is In full force and effect and has not been modlfied (or, If It Is nof in full force and effect or has been modified, stating why It is not In full force or effect or the substance of the modification), that Landlord is not In default hereunder and containing specific answers to whatever questions concerning this Lease's status Landlord may have posed In his request for the statement. Tenant's failure to sign and deliver this statement within the ten (10) day period shall constitute a representation by Tenant, upon which a prospective purchaser or mortgages of the Apartment may rely, that this Lease Is In good standing, free from any default by Landlord and that there are no oral or written modifications, hereof. Any false statement by Tenant that Landlord Is In default under this Lease or that this Lease Is otherwise not In good standing shall constitute a default by Tenant under this Lease. 17. De-strugtionbYQasualty. if the Apartment Is made untenantable by a fire or other casualty, Landlord may elect in Its sole discretion, either to repair the damage so as to make the Apartment tenant• able again within sixty (tip) days or to terminate this Lease. Such election mast be made within fifteen (15) days after the occurrenca of such casualty. In the event that no election shall be made or Landlord shall not have repaired such damages within sixty (60) days after Its occurrence, this Lease shall be deemed terminated as of the date of such casualty and Tenant shall have no further claim against Landlord. Tenant's rent shall be -justly abated during the period the Apartment Is untenantable as a result of casualty. If Landlord elects, the explratlon date of this Lease shall remain unchanged. 18. SminOnt Domain. This lease shall be unaffected If a part of the Building (or appurtenant land) Is taken by emirisnt domain but the Apartment Itself Is not made untenantable. If the entire Building Is thus taken or the taking makes the Apartment untenantable, this Lease shall automatically terminate. Landlord shall be entitled -to all condemnation awards and proceeds. in this regard, Tenant hereby waives any claim to any part of any reward or compensation paid In connection with a taking by eminent domain. 19. Qu1et:EQ1Qyment. As long as Tenant commits no default under this Lease or breach of it, he shall have quiet enjoyment of the Apartment for the duration of this Lease's term from all parties claiming by, through or under Landlord, subject, however, to the other provisions In this Lease, and the rights, rules and regulations of the Landlord. 20. H i Iha' Over andr n r. Unless Landlord specifically agrees in writing to extend the term of this Lease past the termination date specified In paragraph 1, Tenant's occupancy of the Apartment past that date shall constitute an unlawful holding over. No agreement by Landlord to accept a surrender of the Apartment shall be valid unless It Is written and signed by Landlord. In the event of any holdover, Tenant shall be Ilable for all damages caused to Landlord and shall be obligated to pay DOUBLE RENT. 21. ,5ale or Encumbrance by Landlord. Tenant acknowledges that Landlord Is free to sell or euncumber the Building before or after the end of the term of this Lease (subject to the right of Tenant. If any, to extend the•term of this Lease), Landlord may, In Its sole discretion, elect to Improve or alter the Apartment and other areas of the Building (to the extent Landlord may do so) In connection with the sale or refinancing of the 6611ding. Tenant acknowledges and agrees not to obstruct or Interfere In any manner with any of the aforesald-activltles and that such activities shall not be deemed to constitute an eviction of Tenant or a breach of this Lease by Landlord. Landlord agrees that the aforesaid activities shall be conducted In such a manner, If at all, as not to unreasonably Interfere with Tenant's use and enjoyment of the Apartment or appurtenant facilities. 22. As9gnment by Landlord. Landlord may sell the Building at any time. If Landlord sells the Building to a purchaser who assumes Landlord'& obligations under this Lease, Landlord shall have no further liablllty to Tenant. 23. Idenlyl-Cation of Parties. The term 'Landlord" Includes the successors and assigns of Landlord. The term `Tenant' Includes each and every person or entity named above as Tenant (notwithstanding the use in this LeaseAgreement of masculine. neuter and singular pronouns and adjectives In referring to Tenant) end the heirs, executors, personal representatives, successors and assigns of each. 24. L! f t . If Tenant consists of more than one party, all such parties shall be jointly and severally liable for the performance of Tenant's obligations, and a default by or notice to one of them shall 3 a1L..11.�L LQ1.11t V constitute a default by or'notice to all of them. This tease shall be binding on Tenant's heirs, personal representatives, executors, successors and assigns, and his obligations under this Lease shall not be considered purely his personal obligations. 25. Perforaianeq by LA nd lord f n nt's Ii n . If Tenant falls to perform any obligation ft has under this Lease, Landlord may (but need not) perform it for him and charge Tenant the cost of its doing so provided Tenant shall first be given written notice of such obligation and a reasonable opportunity (not to exceed three (3) days) to comply with the same. 26. -Char . All charges owed by Tenant to Landlord under this Lease shall be payable on demand and considered addltlonai rent. 27. Brokeraoe. Tenant represents and warrants that it has dealt with no broker, salesman, agent or other person In connection with this transaction and that no broker, salesman, agent or other person brought about this transaction, other than C_(Z 1M_ and Tenant agrees to Indemnify and hold Landlord harmless from and against any claims by any other broker, salesman, agent or other person claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to this leasing transaction. The provisions of this paragraph shall survive the termination of this Lease. 28. Notices Any notice which Landlord or Tenant desires to give to the other must, to be effective, be in writing and be either hand delivered or sent by certified or registered mall. if It Is delivered by hand to Landlord, It must be delivered during normal business hours to the address of Landlord where rent Is then payable and be.duly recelpted for by Landlord; and, If It Is delivered by hand to Tenant. It must be either handed to Tenant or a member of his family (and recelpted for by.tha person to whom It Is handed) or placed In the mailbox provided for in the Building or In the Apartment Itself. If It Is malled to Landlord, h may be addressed to the address of Landlord where rent is then payable (or whatever other address or post office box address Landlord may have specified to Tenant at least five (5) days before the date the notice Is given), and If It Is malted to Tenant, it may be addressed to the Apartment or to such other address as may be designated by Tenant In writing. If sent by certlfIed or registered mall, any notice shall be deemed given three (3) days after being placed In the United States mall, postage prepaid and addressed as provided above. 29. Valvgr of Jury Trial. LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER ONE AGAINST THE OTHER IN CONNECTION WiTH THE NON-PAYMENT OF RENT ONLY. 30. Attorneys' Fees. -If either party defaults in the performance of any of the terms or provisions of this Lease and by- reason thereof the other party employs the services of an attorney to enforce performance of the covenants, or to perform any service based upon defaults, then In any of said events the prevailing party shall be entitled to receive from the other party reasonable attorneys fees and all expenses and costs Incurred by the prevailing party pertaining thereto (Including costs and tees relating to any appeal) and In enforcement of any remedy. 31. GoverPsg_Law�; Canstrut;tgn. This Lease shall be governed by, and construed and enforced In accordance with the laws of the State of Florida. In the event of any litigation between the parties under this Agreement: (1) the parties shall and hereby submit to the jurisdiction of the state and federal courts of the State of Florida, and (II) venue shall be laid In Dade County, Florida. All of the parties to this Lease have participated fully In the negotiation and preparation hereof, and, accordingly, this Lease shall not be more strictly construed against any one of the parties hereto. In construing this Lease, the singular shall be held to Include the plural, the plural shall be held to include the singular and the use of any gender shall be held to Include every other gender. The captions of the various paragraphs of this Lease are Inserted for the purpose of convenient reference only and shall not affect the construction or interpretation to be given any of the provisions hereof or be deemed In any manner to define, limit, modify or prescribe the scope or Intent of this Lease or any provision hereof. 32. Severabilit , In the event any term or provision of this Lease shall be determined by r " appropriate judicial authority to be Illegal or otherwise Invalid, such provision shall be given Its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Lease shall be construed In full force and effect. 33. No Recording. Neither this tease nor any memorandum of lease hereof shall be recorded In the Public Records. 34. No Representations. Tenant acknowledges that neither Landlord nor any employee or agent of Landlord has made any promises, any representations or any warranties In connection with this Lease that are not contalned In this Lease. This Lease is the entire agreement between the parties, and once h is signed, It can only be amended by a written Instrument executed by both Landlord and Tenant which specifically states that It Is amending this Lease. 4 -.,... a.aL W 012 35. Radon. TENANT IS HEREBY ADVISED THAT RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIOS, 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. (NOTE: THIS NOTICE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY PURSUANT TO SECTION 404.056(7), FLORIDA STATUTES (1998).j 36. Entire Agreement. This Lease constitutes the entire agreement between the parties hereto With respect to the subject matter hereof, and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to such subject matter. This Lease may not be modifled In any way, unless by a written instrument executed by both Landlord and Tenant. EXECUTED as of the'day and year first above written. Witnesses as to Landlord: Landlord: Witnesses as to Tenant: ewMRt•..w � n� us. , � u,.. ru SUN AND FUN, INC., a Florida corporation By: Tenant: r14 211 COLLINS AVENUE Residential Lease THIS LEASE Is made this 12tday of September, 19.b by and between SUN AND FUN, INC., a Florida corporation, whose address Is 446 Collins Avenue, Miami Beach, Florida 33139 ("Landlord") and Ambrosi & Associates, Inc. ("Tenant"), whose address Is 1100 W. Washington Blvd. Chicago, IL 60607 for Apartment No. 203 (the "Apartment") In 211 COLLINS AVENUE (the "Building"), located at 211 Collins Avenue, Miami Beach, Florida 33139. The Apartment and the Building are sometimes herein referred to as the "premises". Landlord hereby'agrees to lease the Apartment to Tenant on the terms and conditions set forth below, and Tenant hereby agrees to lease the Apartment from Landlord on those terms and conditions. 1. Term. The term of this Lease shall commence on November 1, 1994 and terminate on October 31, 1995 , unless terminated sooner In accordance with the terms hereof. Under no circumstances shall Landlord be liable to Tenant for damages If the Apartment Is unavailable for occupancy because the previous tenant of the Apartment refused to vacate when Its lease terminated; provided, however, Landlord agrees to use its best efforts to evict such prdvious tenant at the earliest possible time. If �a previous tenant shall hold over, the term hereof shall not commence until one (1) day following the date that the prior tenant shall vacate the Apartment, except that if the previous tenant still has not vacated within forty-five (45) days after the commencement date specified above, either Landlord or Tenant may cancel this Lease by giving notice to the other. Under no circumstances shall the expiration date hereof be extended by reason of the said holding over. 2. Rent. The total rent for the term (which Tenant hereby agrees to pay to Landlord) shall be Thirteen thousand two hundred and0_/100 Dollars ($13,200 1 payable In advance In monthly Installments of one thousand one hundred and 00/100 Dollars ($ I,100 1 due on the first day of each month during the term hereof. The payment of rent is an Independent obligation and covenant of Tenant and shall be made without offset or deduction of any kind. Upon execution of this Lease, Tenant shall pay to Landlord two thousand two hundred and 00 /100 Dollars ($2 , 200 j as rent for the first monthly Installment and last monthly installment of rental due hereunder. Rent payments shall be made to Landlord at 446 Collins Avenue, Miami Beach, Florida 33139, or at such other address as Landlord specifies. In writing to Tenant. If any check of Tenant Is returned on account of insufficient funds or other fault of Tenant, Landlord may require future payments to be in the form of cash, money order or cashier's checks. Rent payments that are than five (5) days overdue (time being of the essence) must be accompanied by a late charge equal to elghteen percent 1 an annu of the amount of the overdue payment, but no acceptance of a late charge by Landlord shall be considered percent a waiver of Its other remedies for Tenant's default. 3. Security Deposit. Upon executing this Lease, Tenant shall deposit with Landlord one thousand one hundred and00J100 Dollars ($ 1,100 ) as security for Tenant's performance of all of Its obligations under this Lease. Landlord shall hold the security deposit until Tenant has vacated the Apartment and Landlord shall have fifteen (15) days to return said security deposit or In which to give Tenant written notice by certified mall of its Intention to Impose a claim thereon. Under no circumstances shall Landlord be required to apply the security deposit as rent and under no circumstances shall Tenant be entltled'to remain In possession of the Apartment while In default In the payment of rent or other money due Landlord on the theory that the security deposit should be applied to remedy the default. Landlord shall place all security deposits and advance rent payments In a separate account for Tenant's benefit In Sun & Fun' : Inc. Escrow and shall not commingle security deposits or advance rentals [� o enant with other funds of Landlord, but Landlord may deposit security deposits and advance rental payments from other tenants in such account. in UNited National Bank. employees P rmltted' nts and Use. The Apartment shall be used exclusively as a private and residence and In no event shall the number of persons invitees occupying the Apartment exceed the maximum occupancy provided for by law. The Tenant at all times of during the tenancy shall comply with all obligations Imposed upon tenants by applicable provisions of Tenant building, housing, and health codes; shall keep the Apartment clean and sanitary; shall use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and otherfacilitles and appliances, including elevators; shall not destroy, deface, damage, Impair or remove any part of the pre- mises or property therein belonging to the Landlord nor permit any person to do so, and shall conduct him- self and require other persons on the premises with his consent to conduct themselves In a manner that does not unreasonably disturb neighbors or constitute a breach of the peace. Tenant understands and agrees that no pets may be malntalned in the Apartment. S. Utilities. Tenant shall be responsible for paying the charges (including any deposits required) for electric service, telephone service and any other utilities separately metered to the Apartment before they become overdue. 6. Personal Property and Fixtures. Tenant acknowledges that the Apartment Is equipped with those appliances, fixtures and furnishings described on Schedule "A' attached hereto and made a part hereof, all of which belong to Landlord. Tenant agrees to use and maintain all such equipment, and plumb- ing fixtures and all other equipment with which the Apartment is furnished In accordance with manufacturers' specifications and the regulations of Landlord now or hereafter provided, and to be responsible for all repairs and any damage brought about by misuse or neglect of such equipment by Tenant. Landlord shall be responsible for repairing mechanical defects or failures of these appliances that are not caused by Tenant's misuse or negligence, but Tenant shall be responsible for otherwise maintaining them In good condition and repair and for yielding them up to Landlord when this Lease terminates In the same condition (excepting only reasonable wear and tear) they were in when this Lease commenced. Landlord shall not be required to make any repair to an appliance unless Landlord first receives written notice of the failure or defect to be repaired, anid no reasonable delay In making a repair shall constitute a default by Landlord or a constructive eviction of Tenant. Tenant acknowledges having Inspected said- appliances, fixtures and furnishings, and agrees that, at the commencement of this Lease, all such appliances are In good working order and condition. 7. Tenant's Additions and Alterations. Tenant shall not make any additions br alterations to the Apartment or the Building without first receiving Landlord's written consent to them. This prohibition shall extend without llmitation to creating holes In walls or countertops, changing or Installing addillonai bolts,except to or locks, Installing lighting or other fixtures, painting and wallpapering, removing window tinting and affixing hang pict or attaching any tape, sign or decoration on or to a window, balcony or exterior door. Landlord may remove or change any addition or alteration made by Tenant that Landlord did not consent to and may charge Tenant the reasonable cost of Landlord's doing so. Landlord shall accept the Apartment at the end of the term subject to any decorations that it consented to In writing and that conform to whatever conditions and requirements were set forth In Landlord's consent. 8. Parking. • There is absolutely no parking provided by Landlord. Tenant acknowledges that It Is Tenant's responslbliiry to provide Tenant's parking and at Tenant's own convenience and expense. 9. Condition and Maintenance of the Apartment. Tenant shall keep the Apartment and the balcony adjoining it, If any, In a clean, safe and tenantable condition throughout the term of this Lease and shall yield them up to Landlord when this Lease terminates in the same condition they were in when this Lease commenced (excepting only fiormal wear and tear). If Tenant fails to carry out the obligations under this section in any respect, Landlord may carry them out for Tenant and charge Tenant the reasonable cost of doing so, provided Tenant shall have first been given written notice of said obligation and a reasonable opportunity (but not to exceed seven (7) days) to comply with same. 10. Landlord'A Right of Entry. The Tenant shall not unreasonably withhold consent from the Landlord to enter the Apartment from time to time In order to Inspect the premises, to make necessary or needed repairs, decorations, alterations, or improvements, to supply agreed services or to exhibit the Apartment to prospective 'or actual purchasers, mortgagees, tenants, workmen or contractors. The Landlord shall not abuse the right of access nor use it to harass the Tenant. 11. No Assignment or Sublettlna. Tenant shall not, directly. or Indirectly, assign, transfer, mortgage, pledge or otherwise encumber or dispose of this Lease or sublet the Apartment or any part thereof or permit the Apartment to be occupied by other persons. feasonable.----12----CQmr)llange with RuIgs and Regulations. Tenant shall strictly comply with all Rules and Regulations adopted by Lan or modffications of or additions to them that may be made In the future, none of which. Tenant has any right to object to), and any breach of them by Tenant, a member of Tenant's family or a guest or Invitee of Tenant,shall be considered a material default under this Lease entitling Landlord to the remedies provided herein Tenant shall promptly pay to Landlord, upon eman , any fines assessed against the Apartment or Landlord as a result of Tenant's failure to comply with any of these rules. However, nothing In this paragraph shall be construed to give Landlord any rights it would not Otherwise h Provided such modifications do not increase any economic or other material obligations of 'Tenant. 13. Default. if Tenant falls to make any payment of rent when due, or If Tenant breaches any covenant, rule or condition provided In this Lease, then (1) Tenant's right to possession of the Apartment shall terminate, (11) If Landlord so elects, this Lease shall terminate, (111) If Landlord so elects, the entire amount of rent for the then-remalning term of this Lease shall be accelerated and Immediately due and payable, and (Iv) Landlord shall be entitled to any and all remedies available to it under Florida law. If Tenant's right to possession terminates, Landlord shall be entitled to Immediately expel or remove Tenant or any other person In possession of the Apartment, and its doing so shall not be considered a trespass or forcible entry, a walver or forfeiture of Landlord's right to rents then or thereafter due it, or a waiver or release of any of Tenant's obllgations under this Lease. In no event shall Landlord's retaking of possession of the Apartment be deemed to have been done for the purpose of reletting the Apartment on Tenant's behalf or as an acceptance of a surrender of the Apartment In Ileu of any other rights of Landlord. No failure by Landlord to enforce its rights under this Lease In one Instance shall be considered a waiver of its right to do so In any other Instance. All Landlord's rights and remedies under this Lease are cumulative, so that its resort to one remedy shall not preclude its resort to another or other remedies. Anything herein to the contrary notwithstanding, Landlord shall have no right to terminate this Lease or seek any other remedy against Tenant unless Tenant shall have first been given written notice of the alleged default and a reasonable period of time (not to exceed three (3) days if the default Is a failure to pay 2 rent when due or seven (7) days if the default Is other than a failure to pay rent when due) within which to cure the same. 14. Subordination. This Lease and Tenant's rights hereunder shall be subject and subordinate to any and all mortgages (and all renewals, modifications and extensions of them) that may now or hereafter encumber the Apartment or the Building. This provision is self-executing Insofar as It relates to bona fide mortgages, but, upon Landlord's request, Tenant shall execute and deliver to Landlord an Instrument expressly subordinating Tenant's rights under this Lease to any such mortgage specified by Landlord. 15. Taxes and .Assessments. Tenant shall pay any sales, use or similar tax that may be imposed by any governmental authority with respect to monies received by Landlord from Tenant under this Lease. Landlord shall pay any ad valorem real estate taxes relative to the Apartment.. 16. Estoppel Information. Within ten (10) days after Landlord requests It, Tenant shall sign and deliver to Landlord a statement acknowledging that this Lease Is In full force and effect and has not been modified (or, If it Is not in full force and effect or has been modified, stating why It is not in full force or effect or the substance of the modification), that Landlord Is not In default hereunder and containing spec c if true answers to whatever questions concerning this Lease's status Landlord may have posed In his request for the statement. Tenant's failure to sign and deliver this statement within the ten (10) day perlod ,shall constitute a representation by Tenant, upon which a prospective purchaser or mortgagee of the Apartment may rely, that this Lease Is In good standing, free from any default by Landlord and that there are no oral or written modifications hereof. Any false statement by Tenant that Landlord Is In default under this Lease or that this Lease is otherwise not in good standing shall constitute a default by Tenant under this Lease. 17. Destruction by Casualty. If the Apartment Is made untenantable, by a fire or other casualty, Landlord may elect in its sole discretion, either to repair the damage so as to make the Apartment tenant- able again within sixty (60) days or to terminate this Lease. Such election must be made within fifteen (15) days after the occurrence of such casualty. In the event that no election shall be made or Landlord shall not have repaired such damages within sixty (60) days after its occurrence, this Lease shall be deemed terminated as of the date of such casualty and Tenant shall have no further claim against Landlord. Tenant's rent shall be justly abated during the period the Apartment Is untenantable as a result of casualty. If Landlord elects, the expiration date of this Lease shall remain unchanged. 18. Eminent Domain. This lease shall be unaffected If a part of the Building (or appurtenant land) Is taken by eminent domain but the Apartment itself Is not made untenantable. If the entire Building 1s thus taken or the taking makes the Apartment untenantable, this Lease shall automatically terminate. Landlord shall be entitled to all condemnatlon awards and proceeds. In this regard, Tenant hereby waives any claim to any part of any reward or compensation paid In connection with a taking by eminent domain. 19. Quiet Enjoyment. As long as Tenant commits no default under this Lease or breach of it, he shall have quiet enjoyment of the Apartment for the duration of this Lease's term from all parties claiming by, through or under Landlord; subject, however, to the other provisions In this Lease, and the rights, rules and regulations of the Landlord. 20. Holding Over and Surrender. Unless Landlord specifically agrees In writing to extend the term of this Lease past the termination date specified In paragraph 1, Tenant's occupancy of the Apartment past that date shall constitute an unlawful holding over. No agreement by Landlord to accept a surrender of the Apartment shall be valid unless' it is written and signed by Landlord. In the event of any holdover, Tenant shall be liable for all damages caused to Landlord and shall be obligated to pay DOUBLE RENT. 21. Sale or Encumbrance by Landlord. Tenant acknowledges that Landlord Is free to sell or euncumber the Building before or after the end of the term of this Lease (subject to the right of Tenant, if any, to extend the term of this Lease). Landlord may, In Its sole discretion, elect to Improve or alter the Apartment and other areas of the Building (to the extent Landiord may do so) In connection with the sale or refinancing of the Building: Tenant acknowledges and agrees not to obstruct or Interfere In any manner with any of the aforesaid activities and that such activities shall not be deemed to constitute an eviction of Tenant or a breach of this Lease by Landlord. Landlord agrees that the aforesaid activities shall be conducted In such a manner, If at all, as not to unreasonably Interfere with Tenant's use and enjoyment of the Apartment or appurtenant facilities. 22. Assignment b� Landlord. Landlord may sell the Building at any time. If Landlord sells the Building to a purchaser who assumes Landlord's obligations under this Lease, Landlord shall have no further liability to Tenant. 23. IdentificatIgn gf Parties. The term "Landlord" Includes the successors and assigns of Landlord. The term "Tenant" Includes each and every person or entity named above as Tenant (notwithstanding the use In this Lease Agreement of masculine, neuter and singular pronouns and adjectives in referring to Tenant) and the heirs, executors, personal representatives, successors and assigns of each. 24. Llabll . If Tenant consists of more than one party, all such parties shall be jointly and severally liable for the performance of -Tenant's obligations, and a default by or notice to one of them shall 3 constitute a default by or notice to all of them. This Lease shall be binding on Tenant's heirs, personal representatives, executors; successors and assigns, and his obligations under this Lease shall not be considered purely his personal obligations. 25. Ped rmange by Landlord of Tenant's Obligations. If Tenant falls to perform any obligation h has under this Lease,.Landlord may (but need not) perfprm it for him and charge Tenant the cost of Its doing so provided Tenant 'shall first be given written notice of such obligation and a reasonable opportunity (not to exceed three (3) days) to comply with the same. ' 26. Char . All,charges owed by Tenant to Landlord under this Lease shall be payable on demand and considered additional rent. 27. Brokerage. Tenant represents and warrants that It has dealt with no broker, salesman, agent or other person in connectlon with this transaction and that no broker, salesman, agent or other person brought about this transaction, other than Portofino Realty, Inc. and Tenant agrees to Indemnify and hold Landlord harmless from and against any claims by any other broker, salesman, agent or other person claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to this leasing transaction. The provisions of this paragraph shall survive the termination of this Lease. Landlord (not Tenant) shall be'responsible for paying the Real Estate Commission due to Portofino Realty, Inc. which shall be 102 of the total rer 28. No, tices. Any notice which Landlord or Tenant desires to give to the other must, to be of the to effective, be in writing and be either hand delivered or sent by certified or registered mail. If It Is delivered by hand to Landlord, it must be delivered during normal business hours to the address of Landlord where rent Is then payable and be duty recelpted for by Landlord; and, if It is delivered by hand to Tenant, It must be either handed to Tenant or a member of his family (and recelpted for by,the person to whom It Is handed) or placed In the mailbox provided for In the Building or In the Apartment Itself. If it Is mailed to Landlord, it may be addressed to the address of Landlord. where rent Is then payable (or whatever other address or post office box address Landlord may have specified to Tenant at least five (5) days before the date the notice Is given), and If 1t. Is mailed to Tenant, it may be addressed to the Apartment or to such other address as may be designated by Tenant In writing. If sent by certified or registered mall, any notice shall be deemed given three (3) days after being placed in the United States mail, postage prepaid and addressed as provided above. 29. Walyer of Jul Trial. LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER ONE AGAINST THE OTHER IN CONNECTION WITH THE NON-PAYMENT OF RENT ONLY. 30. Attorneys'F60. if either party defaults In the performance of any of the terms or provisions of this Lease and by reason thereof the other party employs the services of an attorney to enforce performance of the covenants, or to perform any service based upon defaults, then In any of said events the prevailing party shall be entitled to receive from the other party reasonable attorneys fees and all expenses and costs incurred by the prevailing party pertalning thereto (including costs and fees relating to any appeal) and in enforcement of any remedy. 31. Govgrnlna taw: Construction. This Lease shall be governed by, and construed and enforced In accordance with the laws of the State of Florida. In the event of any litigation between the parties under this Agreement: (1) the parties shall and hereby submit to the jurisdiction of the state and federal courts of the State of Florida, and (11) venue shall be laid In Dade County, Florida. Ali of the parties to this Lease have participated fully In the negotiation and preparation hereof, and, accordingly, this Lease shall not be more strictly construed against any one of the parties hereto. In construing this Lease, the singular shall be held to Include the plural, the plural'shall be held to Include the singular and the use of any gender. shall be held to include every other gender.'- The captions of the various paragraphs of this Lease are Inserted for the purpose of convenient reference only and shall not affect the construction or Interpretation to be given any of the provisions hereof or be deemed In any manner to define, limit, modify or prescribe the scope or intent of this Lease or any provision hereof. 32. Severabifity. In the event any term or provision of this Lease shall be determined by appropriate judicial authority to be Illegal or otherwise Invalid, such provision shall be given -Its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Lease shall be construed In full force and effect. 33. No Recordina. Neither this Lease nor any memorandum of lease hereof shall be recorded in the Public Records. 34. No Representatlonns. Tenant acknowledges that neither Landlord nor any employee or agent of Landlord has made any promises, any representations or any warranties In connection with this Lease that are not contained in this Lease. This Lease Is the entire agreement between the parties, and once it Is signed, it can only be amended by a written Instrument executed by both Landlord and Tenant which specifically states that It is amending this Lease. 4 35. Radon. TENANT 1S HEREBY ADVISED THAT 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. [NOTE: THIS NOTICE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY PURSUANT TO SECTION 404.056(7), FLORIDA STATUTES (1968).] 36. Entire Agreement, This Lease constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to such subject matter. This Lease may not be modified In any :way, unless by.a written Instrument executed by both Landlord and Tenant. EXECUTED as of the day and year first above written. Witnesses as to Landlord: Landlord: Witnesses as to Tenant: C1M\1�yrwM6j,L{1s.1%1 stosoll SUN AND FUN, INC., a Florida corporation By: Tenant: 5 Schedule "A" Personal Property and Fixtures Stove, refrigerator, dishwasher, range hood, mini. -blinds (on ALL windows), smoke alarms and security access phone. H. 211 COLLINS AVENUE Residential lease THIS LEAST~ Is made this �Y'day of must _ . 19-2§by and between SUN AND FUN, INC., it Florida corporation, whose address is 446 Collins Avenue, Miami Beach, Florida 33139 ("Landlord") and Jurg, 5chiid ("Tenant"), whose address Is Chesa Bauzina Arosa Suisse 7050 for Apartment No. 3nA (the "Apartment") In 211 COLLINS AVENUE (the "Building"), located at 211 Collins Avenue, Miami Beach, Florida 33139. The Apartment and the Building are sometimes herein referred to as the 'premises". Landlord hereby agrees to lease the Apartment to Tenant on the terms and conditions set forth below, and Tenant hereby agrees to lease the Apartment from Landlord on those terms and conditions. 1. Term. The term of this Lease shall commence on Anguat_ 0 19914 , and terminate on July 31, 1995 , unless terminated sooner In accordance with the terms hereof. Under no circumstances shall Landlord be liable to Tenant for damages If the Apartment Is unavailable for occupancy because the previous tenant of the Apartment refused to vacato'when Its lease terminated; provided,. however, Landlord agrees to use Its best efforts to evict such previous tenant at the earilest possible time, if a previous tenant shall hold over, the term hereof shall not commence until one (1) day following the date that the prior tenant shall vacate the Apartment, except that If the previous tenant still has not vacated within forty-five (45) days after the commencement date specified above, either Landlord or Tenant may cancel this Lease by giving notice to the other. Under no circumstances shall the expiration date hereof be extended by reason of the said holding over. 2. BgnS. The total rent for the term (which Tenant hereby agrees to pay to Landlord) shall be Ten thousand two hundred andoiL/100 Dollars ($mpg) payable In advance In monthly Installments of eight hundred fifty and U0/100 Dollars ($ 850 due on the first day' of each month during the term hereof. The payment of rent Is an Independent obligation and covenant of Tenant and shall be made without offset or deduction of any kind. Upon execution of'this Lease, Tenant shall pay to Landlord one thousand seven hundred ancPa /100 Dollars ($ 1 > 700 j as rent for the first monthly installment and last monthly Installment of rental due hereunder. Bent payments shall be made to Landlord at 446 Collins Avenue, Miami Beach, Florida 33139, or at such other address as Landlord specifies In writing to Tenant. If any check of Tenant Is returned on account of insufficient funds or other fault of Tenant, Landlord may require future payments to be In the form of cash, money order or cashier's checks. Rent payments that are more than five (5) days overdue (time being of the essence) must be accompanied by a late charge equal to eighteen percent (18%) of the amount of the overdue payment, but no acceptance of a late charge by Landlord shall be considered a waiver of Its other remedies for Tenant's default. 3. Security Deboslt. Upon executing this Lease, Tenant shall deposit with Landlord ei ht hundred fifty and 92,,/100 Dollars ($_8�0 l as security for Tenant's performance of all of Its obligations under this Lease. Landlord shall hold the security deposit until Tenant has vacated the Apartment and Landlord shall have fifteen (15) days to return said security deposit or In which to give Tenant written notice by certifled mail of its Intention to Impose a claim thereon. Under no circumstances shall Landlord be required to apply the security deposit as rent and under no circumstances shall Tenant be entitled to remain In possession of the Apartment while in default In the payment of rent or other money due Landlord on the theory that the security deposit should be applied to remedy the default. Landlord shall place all security deposits and advance rent payments In a separate account for Tenant's benefit sun & Fun Escrow and shall not commingle security deposits or advance rentals o enant with other funds of Landlord, but Landlord may deposit security deposits and advance rental payments from other tenants In such account. in United National Bank. 4. Permitted QccUt)anls. The Apartment shall be used exclusively as a private residence for Tenant and the members of his Immedlate family and In no event shall the number of persons occupying the Apartment exceed the maximum occupancy provided for by law. The Tenant at all times during the tenancy shad comply with all obligations Imposed upon tenants by applicable provisions of building, housing,.and health codes; shall keep the Apartment clean and sanitary; shall use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, Including elevators; shall not destroy, deface, damage, Impair or remove any part of the pre- mises or property therein belonging to the Landlord nor permit any person to do so, and shall conduct him- self and require other persons on the premises with his consent to conduct themselves In a manner that does not unreasonably disturb neighbors or constitute a breach of the peace. Tenant understands and agrees that no pets may be maintained In the Apartment. 5.Utilities. Tenant shall be responsible for paying the charges (including any deposits required) for electric service, telephone service and any other utilities separately metered to the Apartment before they become overdue. 6. -Rersonal r0P=pindFixtWres, Tenant acknowledges that the Apartment Is equipped with those appliances, fixtures and furnishings described on Schedule 'A' attached hereto and made apart hereof, all of which belong to Landlord. Tenant agrees to use and maintain all such equipment, and plumb- ing fixtures and all.other equipment with which the Apartment Is furnished In accordance with manufacturers' specifications and the regulations of Landlord now or hereafter provided, and to be responsible for all repairs and any damage brought about by misuse or neglect of such equipment by Tenant. Landlord shall be responsible for repairing mechanical defects or failures of these appliances that are not caused by Tenant's misuse or.negilgence, but Tenant shall be responsible for otherwise maintaining them In good Condition and repair and for yielding them up to Landlord when this Lease terminates In the same condition (excepting only reasonable wear and tear) they were In'when this Lease commenced. Landlord shall not be required to make any repair to an appliance unless Landlord first receives written notice of the failure or defect to be repaired, and no reasonable delay in making a repair shall constitute a default by Landlord or a constructive eviction of Tenant. Tenant acknowledges having Inspected said appliances, fixtures and furnishings, and agrees that, at the commencement of this Lease, all such appliances are In good working order and condition. 7. Tenant's AJUItlons and Alterations. Tenant shall not make any additions or alterations to the Apartment or the Building without first receiving Landlord's written consent to them. This prohibition shall extend without Ilmitation to creating holes In walls or countertops, changing or installing additional bolts or locks, Installing lighting or other fixtures, painting and wallpapering, removing window tinting and affixing or attaching any tape, sign or decoration on or to a window, balcony or exterior door. Landlord may remove or change any addition or alteration made by Tenant that Landlord -did not consent to and may charge Tenant the reasonable cost of Landlord's doing so. Landlord shall accept the Apartment at the end of the term subject to any decorations that it consented to In writing and that conform to whatever conditions and requirements were set forth In Landlord's consent. 8. Pgrklna. There Is absolutely no parking provided by Landlord. Tenant acknowledges that It Is Tenant's responsibility to provide Tenant's parking and at Tenant's own convenience and expense. 9. Condition aMMAIntenance of the ApErtm-ant. Tenant shall keep the Apartment and the balcony adjoining It, If any, in a clean, safe and tenantable condition throughout the term of this Lease and shall yield them up to Landlord when this Lease terminates In the same condition they were In when this Lease commenced (excepting only normal wear and tear). If Tenant falls to carry out the obligations under this section In any respect, Landlord may carry them out for Tenant and charge Tenant the reasonable cost of doing so, provided Tenant shall have first been given written notice of said obligation and a reasonable opportunity (but not to exceed seven (7) days) to comply with same. 10. Undlord's Right of Ent The Tenant shall not unreasonably withhold consent from the Landlord to enter the Apartment from time to time In order to Inspect the premises, to make necessary or needed repairs, decorations, alterations, or Improvements; to supply agreed services or to exhibit the Apartment to prospective or actual purchasers, mortgagees, tenants, workmen or contractors. The Landlord shall not abuse the right of access nor use it to harass the Tenant. 11. iNo Assfgnmnt�or %Itletting. Tenant shall not, directly or Indirectly, assign, transfer, mortgage, pledge or otherwise encumber or dispose of this Lease or sublet the Apartment or any part thereof or permit the Apartment to be occupied by other persons. 12, S M1211ange with Rules gnu Re ulatiga. Tenant shall strictly comply with all Rules and Regulations adopted by Landlord (including any modifications of or additions to them that may be made In the future, none of which Tenant has any right to object to), and any breach of them by Tenant, a member of Tenant's family or a guest or invltee of Tenant shall be considered a material default under this Lease entitling Landlord to the remedies provided herein. Tenant shall promptly pay to Landlord, upon demand, any fines assessed against the Apartment or Landlord as a result of Tenant's failure to comply with any of these rules. However, nothing In this paragraph shall be construed to glve Landlord any rights It would not otherwise have. 13. Default. If Tenant falls to make any payment of rent when due, or if Tenant breaches any covenant, rule or condition provided In this Lease, than (1) Tenant's right to possession of the Apartment shall terminate, (11) if Landlord so elects, this'Lease shall terminate, (ill) if Landlord so elects, the entire amount of rent for the then-remalning term of this Lease shall be accelerated and Immediately due and payable, and (Iv) Landlord shall be entitled to any and all remedies available to n under Florida law. If Tenant's right to possession terminates, Landlord shall be entitled to immedlately expel or remove Tenant or any other person In possession of the Apartment, and its doing so shall not be considered a trespass or forcible entry, a waiver or forfeiture of Landlord's right to rents then or thereafter due It, or a waiver or release of any of Tenant's obligations under this Lease. In no event shall Landlord's retaking of possession of the Apartment be deemed to have been done for the purpose of reletting the Apartment on Tenant's behalf or as an acceptance of a surrender of the Apartment In lieu of any other rights of Landlord. No failure by Landlord to enforce its rights under this Lease In one Instance shall be considered a waiver of its right to do so In any other Instance. Ali Landlord's rights and remedies under this Lease are cumulative, so that Its resort to one remedy shall not preclude Its resort to another or other remedies. Anything herein to the .contrary notwithstanding, Landlord shall have no right to terminate this Lease or seek any other remedy against Tenant unless Tenant shall have first been given written notice of the alleged default and a reasonable period of time (not to exceed three (3) days if the default is a failure to pay N rent when due or seven (7) days If the default Is other than a failure to pay rent when due) within which to cure the same. 14. & In ti . This Lease and Tenant's rights hereunder shall be subject and subordinate to any and all mortgages (and all renewals, modifications and extensions of them) that may now or hereafter encumber the Apartment or the Building. This provisloh Is self-executing Insofar as It relates to bona fide mortgages, but, upon Landlord's request, Tenant shall execute and deliver to Landlord an Instrument expressly subordinating Tenant's rights under this Lease to any such mortgage specified by Landlord. 1s. Taxes and„Awssments. Tenant shall pay any safes, use or similar tax that may be Imposed by any governmental authority with respect to monies received by Landlord from Tenant under this Lease. Landlord shall pay any ad valorem real estate taxes relative to the Apartment, 16. Estoaoel informaflon. Within ten (10) days after Landlord requests It, Tenant shall sign and deliver to Landlord a statement acknowledging that this Lease is In full force and effect and has not been modified (or, If It Is not In full force and effect or has been modified, stating why It Is not In full force or effect or the substance of the modificatlon), that Landlord Is not In default hereunder and containing specific answers to whatever questions concerning this Lease's status Landlord may have posed In his request for the statement. Tenant's failure to sign and deliver this statement within the ten (10) day period shall constitute a representation by Tenant, upon which a prospective purchaser or mortgagee of the Apartment may rely, that this Lease 1s In good standing, free from any default by Landlord and that there are no oral or written modifications hereof. Any false statement by Tenant that Landlord Is In default under this Lease or that this Lease Is otherwise not In gpod standing shall constitute a default by Tenant under this Lease. 17. Dastructloaf y_Qasualty. If the Apartment Is made untenantable. by a fire or other casualty, Landlord may elect In Its sole discretion, either to repair the damage so as to make the Apartment tenant- able again within sixty. (60) days or to terminate this Lease. Such election must be made within fifteen (15) days after the occurrence of such casualty. In the event that no election shall be made or Landlord shall not have repaired such damages V;lthln sixty (60) days after its occurrence, this Lease shall be deemed terminated as of the date of such casualty and Tenant shall have no further claim against Landlord. Tenant's rent shall be justly abated during the period the Apartment Is untenantable as a result of casualty. If Landlord elects, the expiration date of this Lease shall remain unchanged. 18, Eminent Domaln. This lease shall be unaffected If a part of the Building (or appurtenant land) is taken by eminent domain but the Apartment itself Is not made untenantable. If the entire Building Is thus taken or the taking makes the Apartment untenantable, this Lease shall automatically terminate. Landlord shall be entitled to all condemnation awards and proceeds. In this regard, Tenant hereby waives any claim to any part of any reward or compensation paid In connection with a taking by eminent domaln. 19. Quiet E=njgvment. As long as Tenant commits no default under this Lease or breach of It, he shall have quiet enjoyment of the Apartment for the duration of this Lease's term from all parties claiming by, through or under Landlord, subject, however, to the other provisions In this Lease, and the rights, rules and regulations of the Landlord. 20. Holdlog Overr nd r. Unless Landlord speclllcally agrees in writing to extend the term of this Lease past -the termination date specified In paragraph 1, Tenant's occupancy of the Apartment past that date shall constitute an unlawful holding over. No agreement by Landlord to accept a surrender of the Apartment shall be valid unless it is written and signed by Landlord. In the event of any holdover, Tenant shall be liable for all damages caused.to Landlord and shall be obligated to pay DOUBLE RENT. 21. of r Eng raWehy Landlord. Tenant acknowledges that Landlord Is free to sell or euncumber the Building before or after the end of the term of this Lease (subject to the right of Tenant, If any, to extend the term of this Lease). Landlord may, In Its sole discretion, elect to Improve or alter the Apartment and other areas of the Building (to the extent Landlord may do so) in connection with the sale or refinancing of the Building. Tenant acknowledges and agrees not to obstruct or Interfere In any manner with any of the aforesaid activities and that such activities shall not be deemed to constitute an eviction of Tenant or a breach of this Lease by Landlord. Landlord agrees that the aforesaid activities shall be conducted In such a manner, If at all, as not to unreasonably Interfere with Tenant's use and enjoyment of the Apartment or appurtenant facilities. 22. Asalgnment by Landlord. Landlord may sell the Building at anytime. If landlord sells the Building to a purchaser who assumes Landlord's obligations under this Lease, Landlord shall have no further liability to Tenant. 23. i ntlf tl P i . The term "Landlord" Includes the successors and assigns of Landlord. The term "Tenant" Includes each and evey person or entity named above as Tenant (notwithstanding the use In this Lease Agreement of masculine, neuter and singular pronouns and adjectives In referring to Tenant) and the heirs, executors, personal representatives, successors and assigns of each. 24. L_ labllfty. If Tenant consists of more than one party, all such parties shall be jointly and severally liable for the performance of Tenant's obligations, and a default by or notice to one of them shall 3 constitute a default by or notice to all of them. This Lease shall be binding on Tenant's heirs, personal representatives, executors, successors and assigns, and his obligations under this Lease shall not be considered purely his personal obligations. 25. -Perfgrmance byLandigrof Tenant's I tin . If Tenant falls to perform any obligation it has under this Lease, Landlord may (but need not) perform it for him and charge Tenant the cost of its doing so provided Tenant shall first be given written notice of such obligation and a reasonable opportunity (not to exceed three (3) days) to comply with the same. 26. Charges. All charges owed by Tenant to Landlord under this Lease shall be payable on demand and considered additional rent. 27. Brrgkeraae. Tenant represents and warrants that It has dealt with 6o broker, salesman, agent or other person In connection with this transaction and that no broker, salesman, agent or other person brought about this transaction, other than Portofino Realty, Inc; and Tenant agrees to Indemnify and hold Landlord harmless from and against any claims by any other broker, salesman, agent or other person claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to this leasing transaction. The provisions of this paragraph shall survive the termination of this Lease. Landlord (not tenant) is responsible for paying the Re Commission due to Portofino Realty, Inc. which shall be 10% of the total rent for 28. Notices. Any notice which Landlord or Tenant desires to give to the other must, to be effective, be In writing and be either hand delivered or sent by certified or registered mall. If It Is delivered by hand to Landlord, it must be delivered during normal business hours to the address of Landlord where rent is then payable and be duly reeelpted for by Landlord; and, if It Is delivered by hand to Tenant, It must be either handed to Tenant or a member of his family (and recelpted for by the person to whom It Is handed) or placed In the mailbox provided for in the Building or In the Apartment itself. if It is mailed to Landlord, It may be addressed to the address of Landlord where rent Is then payable (or whatever other address or post office box address Landlord may have specified to Tenant at least five (5) days before the date the notice Is given), and If It Is mailed to Tenant, it may be addressed to the Apartment or to such other address as may be designated by Tenant In writing. If sent by certified or registered mall, any notice shall be deemed given three (3) days after being placed In the United States mall, postage prepaid and addressed as provided above. 29. Waiver of Jury Trial. LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER ONE AGAINST THE OTHER IN CONNECTION WITH THE NON-PAYMENT OF RENT ONLY. 30. Attorneys'Fe92. If either party defaults In the performance of any of the terms or provisions of this Lease and by reason thereof the other party employs the services of an attorney to enforce performance of the covenants, or to perform any service based upon defaults, then in any of said events the prevailing party shall be entitled to receive from the other party reasonable attorneys fees and all expenses and costs Incurred by the prevailing party pertaining thereto (Including costs and fees relating to any appeal) and In enforcement of any remedy. 31. Govgrnlna Law: Construgtlon. This Lease shall be governed by, and construed and enforced in accordance with the laws of the State of Florida. In the event of any litigation between the parties under this Agreement: (i) the parties shall and hereby submit to the jurisdiction of the state and federal courts of the State of Florida, and (11) venue shall be laid In Dade County, Florida. All of the parties to this Lease have participated fully in the negotiation and preparation hereof, and, accordingly, this Lease shall not be more strictly construed against any one of the parties hereto. In construing this Lease, the singular shall be held to Include the plural, the plural shall be held to Include the singular and the use of any gender Shall be held to Include every other gender. The captions of the various paragraphs of this Lease are inserted for the purpose of convenient reference only and shall not affect the construction or Interpretation to be given any of the provisions hereof or be deemed In any manner to define, limit, modify or prescribe the scope or intent of this Lease or any provision hereof. 32. Severability. in the event any term or provision of this Lease shall be determined by appropriate judicial authority to be Illegal or otherwise Invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of thls Lease shall be construed In full force and effect. 33. No Rgggrdino. Neither this Lease nor any memorandum of lease hereof shall be recorded In the Public Records. . 34. No- BpQresentatlons. Tenant acknowledges that neither Landlord nor any employee or agent of Landlord has made any promises, any representations or any warranties in connection with this Lease that are not contained In this Lease. This Lease Is the entire agreement between the parties, and once It Is signed, it can only be amended by a written Instrument executed by both Landlord and Tenant which specifically states that It Is amending this Lease. 4 s� 35. Radon. TENANT IS HEREBY ADVISED THAT 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. (NOTE: THIS NOTICE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY PURSUANT TO SECTION 404,056(7), FLORIDA STATUTES (1988).] 36. Entire Aareement. This Lease constitutes the entire agreement between the parties hereto with respect to the sub]ect matter hereof, and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to such subject matter. This Lease may not be modified In any way, unless by a written Instrument executed by both Landlord and Tenant. EXECUTED as of the day and year first above written. Witnesses as to Landlord: Witnesses as to Tenant: 6 wµw"-smus s. It Islsi/p Landlord: SUN AN UN, INC.,,a Florida corporation By: l h le "Aw Personal Property and Fixtures Stove, refrigerator, dishwasher, range hood, mini -blinds, smoke alarms, sprinklers, and security access phone. L 1-1 .. . � 211 COLLINS AVENUE Residential Lease THIS LEASE Is made this day of , 1955'by and between SUN AND FUN, INC., a Fl rida jorporatlon, whose address Is 446 Collins Avenue, Miami Beach, Florida 33139 ("Landlord') and L A, Go Cu_ b _ ("Tenant"), whose address Is oL (I [,o t (r n c A v_e— _ for Apartment No. 301 (the 'Apartment") In 211 COLLINS AVENUE (the "Building"), located at 211 Collins Avenue, Miami Beach, Florida 33139. The Apartment and the BUIlding are sometimes herein referred to as the "premises". Landlord hereby agrees to lease the Apartment to Tenant on the terms and conditions set forth below, and Tenant hereby agrees to lease the Apartment from Landlord on those terms and conditions. 1. ?erm. The term of this Lease shall commence on fflQ+r_C4j 1 IRRS , and terminate on f-h rQ_a.r, Pcf, t- dQ unless terminated sooner In accordance with the terms hereof. Under -no circums races shall Landlord be liable to Tenant for damages If the Apartment Is unavailable for occupancy because the previous tenant of the Apartment refused to vacate when its lease terminated; provided, however, Landlord agrees to use Its best efforts to evict such previous tenant at the earliest possible time: If a previous tenant shall hold over, the term hereof shall not commence until one (1) day following the date that the prior tenant shall vacate the Apartment, except that If the previous tenant still has not vacated 'I within forty-five (45) days after the, commencement date specified above, either Landlord or Tenant may cancel this Lease by giving notice to the other. Under no circumstances shall the explratlon date hereof be extended by reason of the said holding over. 2. $gam. The total rent for the term (which Tenant hereby agrees to pay to Landlord) shall be _NbLS,±L6u51'X hu v\C-r-Pd andW100 Dollars ($ oa payable In advance in monthly Installments of ,S! and Qr.a/100 Dollars due on' the first day of each oath during the term hereof. The payment of rent Is an Independent obligation and covenant of Tenant and shall be made without offset or deduction of any kind. Upon execution of this Lease, Tenant shall pay to Landlord 5 i;c�2en hyn�r��f _ and 9L>/100 Dollars ($__ l�ro0_u_j as rent for the first monthly Installment and last monthly Installment of rental due hereunder. Rent payments shall be made to Landlord at 446 Collins Avenue, Miami Beach, Florida 33139, or at such other address as Landlord specifies In writing to Tenant. If any check of Tenant is returned on account of. Insufficient funds or other fault of Tenant, Landlord may require future payments to be In the form of cash, money order or cashier's checks. Rent payments that are more than five (5) days overdue (time being of the essence) must be accompanied by a late charge equal to eighteen percent (18%) of the amount of the overdue payment, but no acceptance of a late charge by Landlord shall be considered a waiver of Its other remedies for Tenant's default. 3. lfv D It. Upon executing this Lease, Tenant shall deposit with Landlord and ^/100 Dollars ($ _) as security for Tenant's performance of all of Its obligations under this Lease. Landlord shall hold the security deposit until Tenant has vacated the Apartment and Landlord shall have fifteen (15) days to return said security deposit or In which to give Tenant written notice by certlfled man of Its Intention to Impose a claim thereon. Under no circumstances shall landlord be required to apply the security deposit as rent and under no circumstances shall Tenant be entitled to remain In possession of the Apartment while In default In the payment of rent or other money due Landlord on the theory that the security deposit should be applied to remedy the default. Landlord shall place .all security deposits and advance rent payments In a separate account for Tenant's benefit In and shall not commingle security deposits or advance rentals of Tenant with other•funds of Landlord, but Landlord may deposit security deposits and advance rental payments from other. tenants In such account. R4 5e(,u r i +k CL og'r #� L ►, +k a cAem ou r.- o 4- be— tt (CL to, f I t orct n ms�l ti, ,►� a e- - zoo pee- r'�an-Fh Fr -t-ti oe er r 4.�rtLtlLted�ccupantU�e. The Apartment shall be used exclusively as a private residence for Tenant,and the members of his immediate family and In no event shall the number of persons occupying the Apartment exceed the maximum occupancy provided for by law. The Tenant at all times during the tenancy shall comply with all obligations Imposed upon tenants by applicable provisions of building, housing, and health codes; shall keep the Apartment clean and sanitary; shall use and operate In a reasonable manner'all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, Including elevators; shall not destroy, deface, damage, Impair or remove any part of the pre- mises or property therein belonging to the Landlord nor permit any person to do so, and shall conduct him- self and require other persons on the premises with his consent to conduct themselves In a manner that does not unreasonably disturb neighbors or constitute a breach of the peace. Tenant understands and agrees that no pets may be maintained in the Apartment. 5, tilitf . Tenant shall be responsible for paying the charges (Including any deposits required) for electric service, telephone service and any other utilities separately metered to the Apartment before they become overdue. 6. PQrsohal EjQpMy and Fixtures. Tenant acknowledges that the Apartment Is equipped with those appliances, fixtures and furnishings described on Schedule 'A' attached hereto and made a part hereof, all of which belong to Landlord. Tenant agrees to use and maintain ail such equipment, and plumb- Ing fixtures and all other equipment with which the Apartment Is furnished In accordance with manufacturers' 4 specifications and the regulations of Landlord now or hereafter provided, and to be responsible for am repairs and any damage brought about by misuse or neglect of such equipment by Tenant. Landlord shag be responsible for repalring mechanical defects or failures of these appliances that are not caused by Tenant's misuse or negllgence, but Tenant shall be responsible for otherwise maintaining them in good condition and repair and for yielding them up to Landlord when this Lease terminates In the same condition (excepting only reasonable wear and tear) they were in when this Lease commenced. Landlord shall not be required to make any repair to an appliance unless Landlord first receives written notice of the (allure or defect to be repaired, and no reasonable delay In making a repair shall constitute a default by Landlord or a constructive eviction of Tenant. Tenant acknowledges having Inspected said appliances, fixtures and furnishings, and agrees that, at the commencement of this tease, all such appliances are In good working order and condition. ` 7. ]'sjbt's_Addalons and AfteratfoMs. Tenant shall not make any additions or alterations to, the Apartment or the Building without first receiving Landlord's written consent to them. This prohibition shall extend without tlmitatlon to creating holes In walls or countertops, changing or Installing additional bolts or locks, Installing ilgntlng or other fixtures, painting and wallpapering, removing window tinting and affixing or attaching any tape, 'sign or decoration on or to a window, balcony or exterior door. Landlord may remove or change any addition or alteration made by Tenant that Landlord did not consent to and may charge Tenant the reasonable cost of Landlord's doing so. Landlord shall accept the Apartment at the end of the term subject to any decorations that it consented to In writing and that conform to whatever conditions and requirements were set forth In Landlord's consent, B. Parklng..There Is absolutely no parking provided by Landlord. Tenant acknowledges that it Is Tenant's responsibility to provide Tenant's parking and at Tenant's own convenience and expense. 9. Condltlon ancf Mafntgnangg gf Jhg ,Apgrrtment. Tenant shall keep the Apartment and the balcony adjoining It, If�Any, In a clean, safe and tenantable condition throughout the term of this Lease and shall yield them up to'Landlord when this Lease terminates In the same condition they were In when this Lease commenced (excepting only normal wear and tear). If Tenant falls to carry out the obligations under this sectlon in any respect, Landlord may carry them out for Tenant and charge Tenant the reasonable cost of doing so, provided Tenant shall have first been given written notice of said obligation and a reasonable opportunity (but not to exceed seven (7) days) to comply with same. 10. Landlord's Riglit-ot Entry. The Tenant shall not unreasonably withhold consent from the Landlord to enter the.Apartment from time to time In order to Inspect the premises, to make necessary or needed repairs, decorations, alterations, or Improvements; to supply agreed services or to exhibit the Apartment to prospective or actual purchasers, mortgagees, tenants, workmen or contractors. The Landlord shall not abuse the right of access nor use It to harass the Tenant, 11. No Assig_nmeig or _Sublettlna. Tenant shall not, directly or Indirectly, assign, transfer, mortgage, pledge or "otherwise encumber or dispose of this Lease or sublet the Apartment or any part thereof or permit the Apartment to be occupied by other persons. 12. Qgmdllance wlth Rglg5 god PeoUlatlons. Tenant shall strictly comply with all (Rules and Regulations adopted by Landlord (including any modifications of or additions to them that may be made In the future, none of .whlch Tenant has any right to object toy, and any breach of them by Tenant, a member of Tenant's family or a guest or Invitee of Tenant shall be considered a material default under this Lease entltiing Landlord to the remedies provided herein. Tenant shall promptly pay to landlord, upon demand, any fines assessed against the Apartment or landlord as a result of Tenant's failure to comply with any of these rules. However, nothing In this paragraph shall be construed to give Landlord any rights it would not otherwise. have. 13. Default. If Tenant falls to make any payment of rent when due, or if Tenant breaches any covenant, rule or condition provided In this Lease, then (1) Tenant's right to possession of the Apartment shall terminate, (11) If Landlord so elects, this Lease shall terminate, QIQ If Landlord so elects, the entire amount of rent for the then -remaining term of this tease shall be accelerated and immediately due and payable, and (lv) Landlord shall be entitled to any and all remedies available to it under Florida taw. If Tenant's right to possession terminates, Landlord shall be entitled to Immediately expel or remove Tenant or any other person In possession of the Apartment, and its doing so shall not be considered a trespass or forcible entry, a waiver or forfeiture of Landlord's right to rents then or thereafter due it, or a waiver or release of any of Tenant's obligations under this Lease, In no event shall Landlord's retaking of possession of the Apartment be deemed to have been done for the purpose of reletting the Apartment on Tenant's behalf or as an acceptance of a surrender of the Apartment in lieu of any other rights of Landlord. No failure_ by Landlord to enforce its rights under this Lease in one Instance shall be considered a waiver of its right to,do so In any other Instance. All Landlord's rights and remedies under this Lease are cumulative, so that Iis,.resort to one remedy shall not preclude its resort to another or other remedies. Anything herein to the contrary notwithstanding, Landlord shall have no right to terminate this lease or seek any other remedy against Tenant unless Tenant shall have first been given written notice of the alleged default and a reasonable period of time (not to exceed three (3) days If the default Is a failure to pa) 2 rent when due or seven (7) days if the default Is other than a failure to pay rent when due) within which to cure the same. 14. Subordination. This Lease and Tenant's rights hereunder shall be subject and subordinate to any and all mortgages (and all renewals, modifications and extensions of them) that may now or hereafter encumber the Apartment or the Building. This provision Is self-executing Insofar as It relates to bona fide mortgages, but, upon Landlord's request, Tenant shall execute and deliver to Landlord an Instrument expressly subordinating Tenant's rights under this Lease to any such mortgage specified by Landlord. is. Taxes and Assessments. Tenant shall pay any sales, use or similar tax that may be imposed by any governmental authority with respect to monles received by Landlord from Tenant under this Lease. Landlord.'shall pay any ad valorem real estate taxes relative to the Apartment. 16. ElnformAtlon. Within ten (10) days after Landlord requests It, Tenant shall sign and deliver to Landlord a statement acknowledging that this Lease is in full force and effect and has not been modified (or, If it Is not In full force and effect or has been modified, stating why it is not In full force or effect or the substance of the modification), that Landlord Is not In default hereunder and containing specific answers to whatever questions concerning this Lease's status Landlord may have posed In his request for the statement. Tenant's failure to sign and deliver this statement within the ten (10) day perlod shall constitute a representatlon by Tenant, upon which a prospective purchaser or mortgagee of the Apartment may rely, that thls Lease Is In good standing, free from any default by Landlord and that there are no oral or written modifications hereof. Any false statement by Tenant that Landlord is In default under this Lease or that this Lease Is otherwise not In good standing shall constitute a default by Tenant under this Lease. 17. Dwr�pby,Gssualty. If the Apartment Is made untenantable, by a fire or other casualty, Landlord may elect In Its sole discretion, either to repair the damage so as to make the Apartment tenant- able again within sixty (60) days or to terminate this Lease. Such election must be made within fifteen (15) days after the occurrence of such casualty. In the event that no election shall be made or Landlord shall not have repalred such damages within sixty (60) days after Its occurrence, this Lease shall be deemed terminated as of the date of such casualty and Tenant shall have no further claim against Landlord. Tenant's rent shall be justly abated during the period the Apartment Is untenantable as a result of casualty. If Landlord elects, the expiration date of this Lease shall remain unchanged. 18. -EMInent Domain, This lease shall be unaffected if a part of the Building (or appurtenant land) is taken by eminent domain but the Apartment Itself Is not made untenantable. If the entire Building Is thus taken or the taking makes the Apartment untenantable, this Lease shall automatically terminate. Landlord shall be entitled to all condemnatlon awards and proceeds. In this regard. Tenant hereby waives any claim to any part of any reward or compensation paid In connection with a taking by eminent domain. 19. QUIet Enlgyment. As long as Tenant commits no default under this Lease or breach of It, he shall have quiet enjoyment of the Apartment for the duration of this Lease's term from all parties claiming by, through or under Landlord, subject, however, to the other provisions In this Lease, and the rights, rules and regulations of the Landlord. 20. Hglding_ Over gnd Surrender. Unless Landlord specifically agrees in writing to extend the term of this Lease past the termination date specified In paragraph 1, Tenant's occupancy of the Apartment past that date shall constitute an unlawful holding over. No agreement by Landlord to accept a surrender of the Apartment shall be valid unless It is written and signed by Landlord. In the event of any holdover, Tenant shall be liable for all damages caused to Landlord and shall be obligated to pay DOUBLE RENT. 21. .Sglg gr Encumbrance by Landlord. Tenant acknowledges that Landlord is free to sell or euncumber the Building- before or after the end of the term of this Lease (subject to the right of Tenant, if any, to extend the term of this Lease). Landlord may, In Its sole discretion, elect to Improve or alter the Apartment and other areas of the Building (to the extent Landlord may do so) in connection with the sale or refinancing of the Building. Tenant acknowledges and agrees not to obstruct or Interfere In any manner with any of the aforesaid activities and that such activities shall not be deemed to constitute an eviction of Tenant or a breach of this Lease by Landlord. Landlord agrees that the aforesaid activities shall be conducted In such a manner, if at all, as not to unreasonably Interfere with Tenant's use and enjoyment of the Apartment or appurtenant facilities. 22. Assignment by Land lord. Landlord may sell the Building at anytime. If Landlord sells the Building to a purchaser who assumes Landlord's obligations under this Lease, Landlord shall have no further liability to Tenant. 23. ..0@ntlfication of Eartles. The term "Landlord" Includes the successors and assigns of Landlord. The term "Tenant" Includes each and every person or entity named above as Tenant (notwithstanding the use In this Lease Agreement of masculine, neuter and singular pronouns and adjectives In referring to Tenant) and the heirs, executors, personal representatives, successors and assigns of each. .24. LIgbIll If Tenant consists of more than one party, all such parties shall be jointly and severally liable for the'performance of Tenant's obligations, and a default by or notice to one of them shall constitute a default by or notice to all of them. This Lease shall be binding on Tenant's heirs, personal representatives, executors, successors and assigns, and his obligations under this Lease shall not be considered purely his personal obligations. 25. Eerforma-nce ly Landlord gf Tenant's Obllaations. If Tenant falls to perform any obligation It has under this Lease, Landlord may (but need not) perform It for him and charge Tenant the cost of Its doing so provided Tenant shall first be given written notice of such obligation and a reasonable opportunity (not to exceed three (3) days) to comply with the same. 26. ChaMes. All charges owed by Tenant to Landlord under this Lease shall be payable on demand and considered additional rent. 27. Brokerage. Tenant represents and warrants that It has dealt with no broker, salesman, agent or other person in connection with this transaction and that no broker, salesman, agent or other person brought about'this transaction, other than and Tenant agrees to Indemnify and hold Landlord harmless from and against any claims by any other broker, salesman, agent or other person claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to this leasing transaction. The provisions of this paragraph shall survive the termination of this Lease. 28. Notices. Any notice which Landlord or Tenant desires to give to the other must, to be effective, be In writing and be either hand delivered or sent by certified or registered mail. If It is delivered by hand to Landlord. It must be delivered during normal business hours to the address of Landlord where rent Is then payable and be duly recelpted for by Landlord; and, If It Is delivered by hand to Tenant, It must be either handed to Tenant or a member of his family (and recelpted for by the person to whom It Is handed) or placed In the mailbox provided for In the Building or in the Apartment Itself. If it Is malted to Landlord, it may be addressed to the address of Landlord where rent Is then payable (or whatever other address or post office box address Landlord may have specified to Tenant at least five (5) days before the date the notice Is given), and If It Is mailed to Tenant, It may be addressed to the Apartment or to such other address as may be designated by Tenant in writing. if sent by certified or registered mail, any notice shall be deemed given three (3) days after being placed In the United States mall, postage prepaid and addressed as provided above. 29. Waiver of Jury Trial. LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER ONE AGAINST THE OTHER IN CONNECTION WITH THE NON-PAYMENT OF RENT ONLY. 30. Attorneys' Fees. If either party defaults in the performance of any of the terms or provisions of this Lease and by reason thereof the other party employs the services of an attorney to enforce performance of the covenants, or to perform any service based upon defaults, then In any of said events the prevailing party shall be entitled to receive from the other party reasonable attorneys fees and all expenses and costs Incurred by the prevailing party pertaining thereto (Including costs and fees relating to any appeal) and In enforcement of any remedy. 31. Qoverning Law: Con§trugtlon. This Lease shall be governed by, and construed and enforced In accordance with the laws of the State of Florida. In the event of any litigation between the parties under this Agreement: (1) the parties shall and hereby submit to the Jurisdiction of the state and federal courts of the State of Florida, and (11) venue shall be laid in Dade County, Florida, Al of the parties to this Lease have participated fully In the negotiation and preparation hereof, and, accordingly, this Crease shall not be more 'strictly construed against any one of the parties hereto. In construing this Lease, the singular shall be held to Include the plural, the plural shall be held to Include the singular and the use of any gender shall be held to Include every other gender. The captions of the various paragraphs of this Lease are Inserted for the purpose of convenient reference only and shall not affect the construction or Interpretation to be given any of the provisions hereof or be deemed In any manner to define, limit, modify or prescribe the scope or Intent of this Lease or any provision hereof. 32. Severability. In the event any term or provision of this Lease shall be determined by appropriate Judicial authority to be Illegal or otherwise Invalid, such provision shall be given Its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Lease shall be construed In full force and effect. 33, _Ng Recording. Neither this Lease nor any memorandum of lease hereof shall be recorded In the Public Records. 34. No-Represgntatigns. Tenant acknowledges that neither Landlord nor any employee or agent of Landlord has made any promises, any representations or any warranties In connection with this Lease that are not contained In this Lease. This Lease Is the entire agreement between the parties, and once it Is signed, it can only be amended by a written Instrument executed by both Landlord and Tenant which specifically states that it is amending this Lease. 4 35. Ra�on. TENANT IS HEREBY ADVISED THAT 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. (NOTE: THIS NOTICE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY PURSUANT TO SECTION 404.056(7), FLORIDA STATUTES (1988).j 36. Entire Aareement. This Lease constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to such subject matter. This Lease may not be modified In any way, unless by a written Instrument executed by both Landlord and Tenant. EXECUTED as of the day and year first above written. Witnesses as to Landlord: Witnesses as to Tenant: i 4R.%Kk#~%kl 17111, 1\I4161111 Landlord: SUN AND FUN, INC., a Fiorlda corporation By: Tenant: 5 -Sched i " " � re�rt 9 e-rcc�-W ! s-�v ►tee � � c s h w � Imo,,,. p r0 � � ci.-e_. �. . A rZI Atyltbp+1Y140LL r t>secomes apart of Apartment L e Contk. _I) PLEASE NOTE: Pets area serious responsibility and risk foreachresidentInsheapa tmem.Ifnotpropeelycontrolkdandearedfor,petsandisturbthe rights of others and cause damages running into MARY hundreds of dollars for which residents may be hold liable. 1. APT. No. Apt. Complex ,.a iAS Date of Pet AsrearseDate of Loose-i._1E7C RESIDENTS: �`'' Go I L4 2. CONDITIONAL AUTHORIZATION FOR PET.Residonisareher+ebyeutherizedInkeepapct,whichIsdescribedbelow,anthepremlretoftho above apartment until the lase (entered into this date or heretofore) oseplros. Authorisation maybe sermloated sooner if realdenu'rlght *(occupancy Is lawfully terminated or If the pet rules Riled below, are violated in any way by lutdcnts or residettts'family, guests, or invitees. 3. ADDITIONAL SECURITY DEPOSIT, iQ�Qo. 6m. The total security deposit as required in the kasa shall be increased by the foregoing it mount. Such additional security deposit shall be considered as a general security deposit forany and all purposes. Refund of the security deposit shall be subject to all of the terms and conditions act forth In the lease and she security deposit agmement attached thereto. Owner acknowledges that the following amount has been received toward such additional security deposit: li The additional wearily deposit Is not refundable prior to surrender of the promises by all residcnts, even It the pet has been removed. 4. ADDITIONAL MONTHLY RENT. S . The total monthly rent ss stated in the Imo shall be Increased by the foregoing amount. S, ADDITIONAL FBE. $ . Residents shall pay the foregoing amount as a one-time fee in order to have the pet In the apart- ment. This fee shall be in addition to any increase in the security deposit or the monthly rent, above. 6. NO LIM IT ON LIABILITY. Tha additional monthly not and/or additional security deposit under this Pet Agreement Is not a limit on residents' liability for property damages, cleaning, deo4oriulion, defksin& replacements and/or personal lnjur ao as act forth below. 7. MULTIPLE RESIDENTS. Each resident who signed thelcascghallsignthis petagreemem. Residents, omupanls,and ruestsshaAabidcbyallpet rules. Each resldcnt shall ba Jointly and severally liable for damages and all other obligations set forth hcrefn, even If such resident does not own the pct. _. DESCR I PTION OF PET. Only the following described pet is authorised to be kept in raidcnti apartment. No substilutiuns arc allowed. No other pet shall be permitted on the premises by residents, resldents'guests or occupants, This prohibition Ineludas mammals. reptiles, birds, fish, rodents. and Insects. Type: " Breed: LAb -- —Color.' 22�Weight: Agc: License number: Ilouscbroken: -1/ �/' Dateoflaserabiesshog: Namcofpct:_ _De -clawed'[ Neuteredorepaiedl 4. SPECIAL PROVISIONS. 10. LIABILITY FOR DAMAGES, CLEANING, ETC. Residents shall be liable for the entire amount of all detnales caused by ouch pct and all eleaning, d0uing sod deodorising re4uired boeause of such pct. This applies to carpets. doors, walls. drapes, will paper, windows, screens, furniturc, appliances and any other part of the apartment or the apartment complex, including landsoaping. If such items cannons be satisfactorily cleaned or repstred, residents must pay for complete replacement byowner. Payment fordamages, repair$.eieanlrts. replacements.ete.shall bedue immediately upon demand. Residents shall be strictly liable for the enalre amount orany injury to the person or property of others, uuscd by such pct: and residcnt shall ldernnify owner for all costs of litigation and attorney); fees resulting from same. H. MOVE -OUT. Upon move -out of residents, the carpet must be professionally shampooed and delleaed in order to protect future residents from possible health hazards, regardiess of how long the pci occupied the premises. Residents shall also be liable for deodorization or the apartment, irsuch is neceatary in the judgement of owner. Such shampooing, dcllcaing, and/or deodorization will be arranged for by the owner and paid for by ruldents. 12. PET RULES. RcAdcnls are responsible for the Actions of the pet at all timer and agree to aide by the following rules, (a) Residents agree that the pet will not ditturb the rights, comforts and cavenienC4U of the other resldents in she apartment eomplox. This applies whether the pet Is Inside or outside the residents'spartment, (b) Residents shall not permit tho pet in swImming pool areas, other spa nments.laundry rooms, offices, club rooms or othcrrcrreat(anal facilities. (c) When the pet is.outside the apartment, the pet shall be kept on a leash and under residenls'supervidort at all times. Owner or owner's represcntallve shall have the right to pick tip loose pets and/or report them to the proper autheritles. Owner troy impose rearonable charges for picking up and/or keeping loose pets. (d) The pet shall not be tied to any fixed object anywhere on the apartment complex, Including the patio areas, walkways. stain, stairwells, parking lots, grassy areal, of any other place within the apartment eomplea, (c) Unless owner has designated a particular area of the apartment complex for pet defecation, residents must sake the pct off [tic premises of the ■panment complex rat tl•at purpose, Resldcnes will not permit the per to defecate anywhere on the apartment complex. Including patio areas, walkways, stairs, stairwells, parking lots, grassy areas, or any oshar place within the aparinsent complex, lfsuch should occur, residents will be responsible for the immediate removal of watt. Notwithstanding any provision herein, residents shall comply with local city ordinaners regarding pct dcfeeatlan. (1) Dogs and cats mutt be housebroken. All other pets must bra eased at all times. No pet offspring arc allowed. 13. ADDITIONAL RULES. Owner shall(romtime totime havcthcright tomake rouonabloehsnguandadditlonetorhepeIrules hercin,lflnwriting and distributed to all residents who am permitted to have pens. 14. VIOLATION OFRULES.Ifany rule orprovisionorlhisPctAgrecmcntIsviolatedbyresidents.elheroaupants,guesU.orinvitees,raidentsshalL at owner) option, Immediately and permanently remove the pet from the premises upon written notice by owner or owner's represcntalive.'and owner shall have all other rights and remedies set forth In paragraph 16 of the lease, Including damages. eviction and/or altorneyls fees. 13. COMPLAINTS ABOUT PET. Residents agree to immediately and permanently remove the pet from the premises if owner roceives rusonable complaints from othcrresidenu orif owner, in owner's solcdiscretloft, determines that she pct has disturbed the rights, comforts. oreonvcnienca of other residents and/or neighbors. , 16 GENERAL Rcsidentsacknowladgeth■tnootheroralorwrittenagreemcn,existsregardingthisPatAgmemene.EAecpsforreasonableruleehangcs (+unuanl to paragraph 13 hereof. this Pet Agreement may be modified only In wilting; signed by all parties, READ CAREFULLY BEFORE SIGNING Real s is Ma 211 COLLINS AVENUE Residential Lease THIS LEASE is made this �t_) day of afi.,A .19t y and between SUN AND FUN, INC., a Fl rlda-corpor tion, whose'address Is 446 Collins genue, Miami Beach, Florida 33139 ("Landlord"] and f A S ("Tenant"), whose address Is t i + W s for Apartment No. .2U (the "Apartment) In 211 COLLINS AVENUE (the "Buiiding"), located at 211 Collins Avenue, Miami Beach, Florida 33139. The Apartment and the Building are sometimes herein referred to as the "premises". Landlord hereby agrees to lease the Apartment to Tenant on the terms and conditions set forth below, and Tenant hereby agrees to lease the Apartment from Landlord on those terms and conditions. 1. Term. The term of this Lease shall commence on tAGM [ 5' _ tgii:� _, and terminate on Lgd4 31 112 G , unless terminate sooner in accordance with the terms hereof. Under no c rcums ances shall Landlord be liable to Tenant for damages If the Apartment is unavailable for occupancy because the previous tenant of the Apartment refused to vacate when Its lease terminated; provided, however, Landlord agrees to use Its best efforts to evict such previous tenant at the earliest possible time: If a previous tenant shall hold over, the term hereof shall not commence until one (1) day following the date that the prior tenant shall vacate the Apartment, except that if the previous tenant still has not vacated, within forty-five (45) days after the commencement date specified above, either Landlord or Tenant may cancel this Lease by giving notice to the other. Under no circumstances shall the expiratlon date hereof be extended by reason of the said holding over. 2. ASS. The total rent for the term (which Tenant hereby agrees to pay to Landlord) shall be t !u , 4bnus0A r 4 11 t - h 11'-14"0 [ an100 Dollars ($0 payable In adva�pe In monthly Installments of E" 4' jj'� and qV100 Dollars ($_ 2S • 1 due on the first day' of eacK month during the term hereo . The payment of rent Is an Independent obligation and covenant of Tenant and shall be made without offset or deduction of any kind. Upon execution of this Lease, Tenant shall pay to Landlord ,Q �. JaIr' T ZD i3OMCI r Cl 11t,fer�� and W100 Dollars ($. j as rent for the first monthly Installment and last monthly Installment of rental due hereunder. Rent Oayments shall be made to Landlord at 446 Collins Avenue, Miami Beach, Florida 33139. or at such other address as Landlord specifies in writing to Tenant. If any check of Tenant Is returned on account of insufficient funds or other fault of Tenant, Landlord may require future payments to be In the form of cash, money order or cashier's checks. Rent payments that are more than five (5) days overdue (time being of the essence) must be accompanied by a late charge equal to eighteen percent (18%) of the amount of the overdue payment, but no acceptance of a late charge by Landlord shall be considered a waiver of Its other remedies for Tenant's default. 3. purity 3eao,2i . Upon executing this Lease, Tenant shall deposit with Landlord _ and _,/100 Dollars ($ l as security for Tenant's performance of all of Its obligations under this Lease, landlord shall hold the security deposit until Tenant has vacated the Apartment and Landlord shall have fifteen (15) days to return said security deposit or In which to give Tenant written notice by certified mall of its Intention to Impose a claim thereon. Under no circumstances shall Landlord be required to apply the security deposit as rent and under no circumstances shall Tenant be entitled to remain In possession of the Apartment while In default In the payment of rent or other money due Landlord on the theory that the security deposit should be applied to remedy the default. Landlord shall place all security deposits and advance rent payments In a separate account for Tenant's benefit In f 4 N 6 - e_SG*"&-X g9ia 11-and shall not commingle security deposits or advance rentals of Tenant with other funds of Landlord, but Landlord may deposit security deposits and advance rental payments from other tenants In such account. .j� �-et.Zli,yL-� shhot{ tv L Gard ZS Gt S S GC c,i r t �( p�QS t f Ol^ G r' t D Ye s. of . I 4. rmlttO Qapupantsn . The Apartment shall be used exclusively as a private residence for Tenant and the members of his Immediate family and In no event shall the number of persons occupying the Apartment exceed the maximum occupancy provided for by law. The Tenant at all times during the tenancy shall comply with all obligations Imposed upon tenants by applicable provisions of building, housing, and health codes; shall keep the Apartment clean and sanitary; shall use and operate In a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, Including elevators; shall not destroy, deface, damage, Impalr or remove any part of the pre- mises or property therein belonging to the Landlord nor permit any person to do so, and shall conduct him- self and requlre other persons on the premises with his consent to conduct themselves In a manner that does not unreasonably disturb neighbors or constitute a breach of the peace. Tenant understands and agrees that no pets may be maintained In the Apartment. 5. t,U 1MIgs. Tenant shall be responsible for paying the charges (including any deposits required) for electrlc service, telephone service and any other utilities separately metes to the Apartment before they become overdue. 6.. Personal f rooerty a6d Flxtures. Tenant acknowledges that the Apartment is equipped with those appliances, fixtures and furnishings described on Schedule "A' attached hereto and made a part hereof, ail of which belong to Landlord. Tenant agrees to use and maintain all such equipment, and plumb- ing fixtures and all other equipment with which the Apartment Is furnished In accordance with manufacturers' specifications and thd.regulations of Landlord now or hereafter provided, and to be responsible for all repairs and any damage brought about by misuse or neglect of such equipment by Tenant. Landlord shall be responsible for repairing mechanical defects or failures of these appliances that are not caused by Tenant's misuse or, negligence, but Tenant shall be responsible for otherwise maintaining them In good condition and repair and for yielding them up to Landlord when this Lease terminates in the same condition (excepting only reasonable wear and tear) they were In when this Lease commenced. Landlord shall not be required to make any repair to an appliance unless Landlord first receives written notice of the failure or defect to be repaired, and no reasonable delay In making a repair shall constitute a default by Landlord or a constructive eviction of Tenant. Tenant acknowledges having Inspected said appliances, fixtures and furnishings, and agrees that, at the commencement of this Lease, all such appliances are In good working order and condition. 7. Tenant's A�ditions and Alterations. Tenant shall not make any additions or alterations to the Apartment or the Building without first receiving Landlord's written consent to them. This prohibition shall extend without Ilmitatlon to creating holes In walls or countertops, changing or Installing additional bolts or locks, Installing lighting or other fixtures, painting and wallpapering, removing window tinting and affixing or attaching any tape, sign or decoration on or to a window. balcony or exterlor door. Landlord may remove or change any addition or alteration made by Tenant that Landlord did not consent to and may charge Tenant the reasonable cost of Landlord's doing so. Landlord shall accept the Apartment at the end of the term subject to any decorations that it consented to in writing and that conform to whatever conditions and requirements were set forth In Landlord's consent. 8. Par lna. There Is absolutely no parking provided by Landlord. Tenant acknowledges that it Is Tenant's responsibility to provide Tenant's parking and at Tenant's own convenience and expense. 9. -Condition and Maintenance of thg Apartment. Tenant shall keep the Apartment and the balcony adjoining It, If any, In a clean, safe and tenantable condition throughout the term of this Lease and shall yield them up to.Landford when this Lease terminates In the same condition they were In when this Lease commenced (excepting only normal wear and tear). If Tenant fails to carry out the obligations under this section In any respect, Landlord may carry them out for Tenant and charge Tenant the reasonable cost of doing so, provided Tenant shall have first been given written notice of said obligation and a reasonable opportunity (but not to exceed seven (7) days) to comply with same. 10. LUJILrg's1 ht of Entry. The Tenant shall not unreasonably withhold consent from the Landlord to enter the Apartment from time to time In order to Inspect the premises, to make necessary or needed repairs, decorations, alterations, or Improvements; to supply agreed services or to exhibit the Apartment to prospective or actual purchasers, mortgagees, tenants, workmen or contractors. The Landlord shall not abuse the right of access nor use It to harass the Tenant. nt enant shall not, directly or Indirectly, assign, transfer, mortgage, pledge se encum er o sublet the Apartment or any part there mit the ApartmenkP- t to be occupied by other persons. 12. Comgilance with Mies grid Regulations. Tenant shall strictly comply with all Rules and Regulations adopted by Landlord (including any modifications of or additions to them that may be made In the future, none of which Tenant has any right to object to), and any breach of them by Tenant, a member of Tenant's family or a guest or Invitee of Tenant shall be considered a material default under this Lease entitling Landlord to the remedies provided herein. Tenant shall promptly pay to Landlord, upon demand, any fines assessed against the Apartment or Landlord as a result of Tenant's failure to comply with any of these rules. However, nothing In this paragraph shall be construed to give Landlord any rights It would not otherwise have. 13. Default. If Tenant falls to make any payment of rent when due, or If Tenant breaches any covenant, rule or condition provided In this Lease, then (1) Tenant's right to possession of the Apartment shall terminate, (11) If Landlord so elects, this Lease shall terminate, (Ili) if Landlord so elects, the entire amount of rent for the then-remalning term of this Lease shall be accelerated and Immediately due and payable, and (iv) Landlord shall be entitled to any and all remedies available to it under Florida law. if Tenant's right to possession terminates, Landlord shall be entitled to Immediately expel or remove Tenant or any other person In possession of the Apartment, and its doing so shall not be considered a trespass or forcible entry, a waiver or forfeiture of Landlord's right to rents then or thereafter due it, or a waiver or release of any of Tenant's obligations under thls,Lease. In no event shall Landlord's retaking of possession of the Apartment be deemed to have been done for the purpose of reletting the Apartment on Tenant's behalf or as an acceptance of a surrender of the Apartment In lieu of any other rights of Landlord. No failure by Landlord to enforce Its rights under this Lease In one Instance shall be considered a waiver of Its right to do so In any other Instance. All Landlord's rights and remedies under this Lease are cumulative, so that its resort to one remedy shall not preclude Its resort to another or other remedies. Anything herein to the contrary notwithstanding, Landlord shall have no right to terminate this Lease or seek any other remedy against Tenant unless Tenant shall have first been given written notice of the alleged default and a reasonable period of time (not to exceed three (3) days If the default Is a failure to pay E rent when due or seven'(7) days 9 the default Is other than a failure to pay rent when due) within which to cure the same. 14. SUlgtdlnatlon. This Lease and Tenant's rights hereunder shall be subject and subordinate to any and all mortgages (and all renewals, modifications and extensions of them) that may now or hereafter encumber the Aparlment or the Building. This provision Is self-executing Insofar as It relates to bona fide mortgages, but, upon Landlord's request, Tenant shall execute and deliver to Landlord an Instrument expressly subordinating Tenant's rights under this Lease to any such mortgage specified by Landlord. 15, TTgxes_and Assessments. Tenant shall pay any sales, use or similar tax that may be Imposed by any governmental authority with respect to monles received by Landlord from Tenant under this Lease. Landlord shall pay any ad valorem real estate taxes relative to the Apartment. 16. ' Estop ael Information. Within ten (10) days after Landlord requests It, Tenant shall sign and deliver to Landlord a statement acknowledging that this Lease Is In full force and effect and has not been modified (or, If It Is not In full force and effect or has bean modified, stating why it is not In full force or effect or the substance of the modification), that Landlord Is not In default hereunder and containing specific answers to whatever questions concerning this Lease's status Landlord may have posed In his request for the statement. Tenant's failure to sign and deliver this statement within the ten (10) day period shall constitute a representation by Tenant, upon which a prospective purchaser or mortgagee of the Apartment may rely, that this Lease Is In good standing, free from any default by Landlord and that there are no oral or written modifications hereof. Any false statement by Tenant that Landlord is In default under this Lease or that this Lease Is otherwise not In good standing shall constitute a default by Tenant under this Lease. 17. Destruction by Casualty. 1f the Apartment Is made untenantable, by a fire or other casualty, Landlord may elect In Its sole discretion, either to repair the damage so as to make the Apartment tenant- able again within sixty (60) days or to terminate this Lease. Such election must be made within fifteen (15) days after the occurrence of such casualty. In the event that no election shall be made or Landlord shall not have repaired such damages within sixty (60) days after Its occurrence. this Lease shall be deemed terminated as of the date of such casualty and Tenant shall have no further claim against Landlord. Tenant's rent shall be justly abated during the period the Apartment is untenantable as a result of casualty. If Landlord elects, the expiration date of this Lease shall remain unchanged. 18. Eminent Domain. This lease shall be unaffected if a part of the Building (or appurtenant land) Is taken by eminent domain but the Apartment Itself Is not made untenantable. If the entire Building Is thus taken or the taking makes the Apartment untenantable, this Lease shall automatically terminate. Landlord shall be entliled to all condemnation awards and proceeds. In this regard. Tenant hereby waives any claim to any part of any reward or compensation paid In connection with a taking by eminent domain. 19. Quiet Enjoyment. As long as Tenant commits no default under this Lease or breach of it, he shall have quiet enjoyment of the Apartment for the duration of this Lease's term from all parties claiming by, through or under Landlord, subject, however, to the other provisions In this Lease, and the rights, rules and regulations of the Landlord. 20. HQldlna Over and Wrrgndef. Unless Landlord specifically agrees In writing to extend the term of this Lease past the termination date specified In paragraph 1. Tenant's occupancy of the Apartment past that date shall constitute an unlawful holding over. No agreement by Landlord to accept a surrender of the Apartment shall, be valid unless it is written and signed by Landlord. In the event of any holdover, Tenant shall be liable for all damages caused to Landlord and shall be obligated to pay DOUBLE RENT. 21 dale or Encumbrance by Landlord. Tenant acknowledges that Landlord Is free to sell or euncumber the Building before or after the end of the term of this Lease (subject to the right of Tenant, If any, to extend the term of this Lease). Landlord may, In Its sole discretion, elect to Improve or alter the Apartment and other areas of the Building (to the extent Landlord may do so) In connectlon with the sale or refinancing of the Building. Tenant acknowledges and agrees not to obstruct or interfere In any manner with any of the aforesaid activities and that such activities shall not be deemed to constitute an eviction of Tenant or a breach 'of this Lease by Landlord. Landlord agrees that the aforesaid activities shall be conducted in such a manner, It at all, as not to unreasonably Interfere with Tenant's use and enjoyment of the Apartment or appurtenant facilities. 22. mIgnment�y Landlord. Landlord may sell the Building at any time. If Landlord sells the Building to a purchaser who assumes Landlord's obligations under this Lease, Landlord shall have no further liability to Tenant. 23. Identification. of Parties. The term "Landlord" Includes the successors and assigns of Landlord. The term "Tenant" includes each and every person or entity named above as Tenant (notwithstanding the use in this Lease Agreement of masculine, neuter and singular pronouns and adjectives in referring to Tenant) and the heirs, executors, personal representatives, successors and assigns of each. 24. LlabllIt . If Tenant consists of more than one party, all such partles shall be jointly and severally liable for the performance of Tenant's obligations, and a default by or notice to one of them shall 3 constitute a default by or notice to all of them, This Lease shall be binding on Tenant's helrs, personal representatives, executors, successors and assigns, and his obligations under this Lease shall not be considered purely his personal obligations. 25. Pgkrmance by Landlord of Tenant's 001gatloni. If Tenant falls to perform any obligation it has under this Lease. Landlord may (but need not) perform it for him and charge Tenant the cost of its doing so provided Tenant shall first be given written notice of such obligation and a reasonable opportunity (not to exceed three (3) days) to comply with the same. 26. -CharM. All charges owed by Tenant to Landlord under this Lease shall be payable on demand and considered additional rent. 27. Brokg= . Tenant represents and warrants that It has dealt with no broker, salesman, agent or other person In connection with this transaction and that no broker, salesman, agent or other person brought about this transaction, other than and Tenant agrees to indemnify and hold Landlord harmless from and against any claims by any other broker, salesman, agent or other person claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to this leasing transaction. The provisions of this paragraph shall survive the termination of this Lease. 28. Notices. Any notice which Landlord or Tenant desires to give to the other must, to be effective, be in writing and be either hand delivered or sent by certified or registered mail. If It Is delivered by hand to Landlord, It must be delivered during normal business hours to the address of Landlord where rent is then payable and be duly recelpted for by Landlord; and, if It Is delivered by hand to Tenant, It must be elther handed to Tenant or a member of his family (and recelpted for by.the person to whom It Is handed) or placed In the mailbox provided for In the Building or In the Apartment Itself. If It Is mailed to Landlord, It may be addressed to the address of Landlord where rent Is then payable (or whatever other address or post office box address Landlord may have specified to Tenant at least five (5) days before the date the notice Is given), and if It Is mailed to Tenant, it may be addressed to the Apartment or to such other address as may be designated by Tenant In writing. If sent by certified or registered mall, any notice shall be deemed given three (3) days after being placed In the United States mall, postage prepaid and addressed as provided above. 29. W iv rIal. LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER ONE AGAINST THE OTHER IN CONNECTION WITH THE NON-PAYMENT OF RENT ONLY. 30.-4tlorOW Fees. If either party defaults in the performance of any of the terms or provislons of this Lease and by reason thereof the other party employs the services of an attorney to enforce performance of the covenants, or to perform any service based upon defaults, then In any of said events the prevailing party shall be entitled to receive from the other party reasonable attorneys fees and all expenses and costs Incurred by the prevailing party pertaining thereto (Including costs and fees relating to any appeal) and In enforcement of any remedy. 31. Governing Law, Construction. This Lease shall be governed by, and construed and enforced In accordance with the laws of the State of Florida. In the event of any litigation between the parties under this Agreement: (1) the parties shall and hereby submit to the jurisdiction of the state and federal courts of the State of Florida, and (II) venue shall be laid In Dade County, Florida. All of the parties to this Lease have participated fully In the negotiation and preparation hereof, and, accordingly, this Lease shall not be more strictly construed against any one of the parties hereto. In construing this Lease, the singular shall be held to Include the plural, the plural shall be held to Include the singular and the use of any gender shall be held to Include every other gender. The captions of the various paragraphs of this Lease are Inserted for the purpose of convenient reference only and shall not affect the construction or Interpretation to be given any of the provisions hereof or be deemed in any manner to define, limit, modify or prescribe the scope or Intent of this Lease or any provision hereof. 32. SeveraWllty. In the event any term or provision of this Lease shall be determined by appropriate Judicial authority to be illegal or otherwise Invalid, such provision shall be given Its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Lease shall be construed In full force and effect. 33. No Recording., Neither this Lease nor any memorandum of lease hereof shall be recorded in the Public Records. 34. No RegrgjQntatlons, Tenant acknowledges that neither Landlord nor any employee or agent of Landlord has made any promises, any representations or any warranties In connection with this Lease that are not contained in this Lease. This Lease Is the entire agreement between the parties, and once It is signed, It can only be amended by a written Instrument executed by both Landlord and Tenant which specifically states that It Is amending this Lease. 4 35. Radgn. TENANT IS HEREBY ADVISED THAT 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 FROKYOUR COUNTY PUBLIC HEALTH UNIT. [NOTE: THIS NOTICE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY PURSUANT TO SECTION 404.056(7), FLORIDA STATUTES (1988).] 36. Entire Agregm#�nt, This Lease constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to such subject matter. This Lease may not be modified In any way, unless by a written Instrument executed by both Landlord and Tenant. EXECUTED as of the day and year first above written. Witnesses as to Landlord: Landlord: SUN By: FUN, INC., a Florida corporation Witnesses as to Tenant: Tenant: �....._. yc: cMµ�arewr,�Hlgf. 1% HIOfHi 6 e Sr,hedule "A" 5' ire, rcPrL" e rdk.,.fo Y � b c,�� GQts� c.s �•cr 211 COLLINS AVENUE Residential Lease THIS LEASE Is made this L day of Tane - ,�PTz y and between SUN AND FUN, INC., a Flo Ida corporatl , who e*address Is 446 Collins AvenuBeach, Florida 33139 {"Landlord") nd Orr [ll nant"), whose address is r 0 A a4h.i for Apartment No. tCa—_ (the "Apartment") In 211 COLLINS AVENUE (the "Building"), located at 211 Collins Avenue, Miami Beach, Florida 33139. The Apartment and the Building are sometimes herein referred to as the "premises". Landlord hereby agrees to lease the Apartment to Tenant on the terms and conditions set forth below, and Tenant hereby agrees to lease the Apartment from Landlord on those terms and conditions. 1. r The term of this Lease shall commence on T, 0j)& 1 Z W5 , and terminax ny ��. !�f�, unless terminated sooner In accordance with the terms hereonder no circumstances shall Landlord be liable to Tenant for damages If the Apartment Is unavailable for occupancy because the previous tenant of the Apartment refused to vacate when Its lease terminated; provided, however, Landlord agrees to use Its best efforts to evict such previous tenant at the earnest possible time. If a previous tenant shall hold over, the term hereof shall not commence until one (1) day following the date that the prior tenant shall vacate the Apartment, except that If the previous tenant still has not vacated, within forty-five (45) days after the commencement date specified above, either Landlord or Tenant may cancel this Lease by giving notice to the other. Under no circumstances shall the expiration date hereof be extended by reason of the said holding over. 2. T e total re for the t ( ch Tenant hereby agrees to pay to Landlord) shall be and ^j1 0 Dollars ($ & ZM. payable In advance in monthly Installments of U and _j100 Dollars {$- 195'012� due on the first day of eacK month during the IeA hereof. The payment of rent Is an Independent obligation and covenant of Tenant and shall be made wltho offset qr deductl n of ny Id.t// Upon execution of this Lease, Tenant shall pay to Landlord Q and z:�/100 Dollars t��Q0 ] as rent for the first monthly Installment and last monthly Installment of rental due hereunder. Rent payments shall be made to Landlord at 446 Collins Avenue, Miami Beach, Florida 33139, or at such other address as Landlord specifies in writing to Tenant. If any check of Tenant Is returned on account of Insufficient funds or other fault of Tenant, Landlord may require future payments to be In the form of cash, money order or cashier's checks. Rent payments that are more than five (5) days overdue (time being of the essence) must be accompanied by a late charge equal to eighteen percent (18%) of the amount of the overdue payment, but no acceptance of a late charge by Landlord shall be considered a waiver of Its other remedies for Tenant's default. writ D i . Upon executing this Lease, To ant shall deposit with Landlord D.yz T�iv i > 2�t lkc __F' and „,J- 100 Dollars ($ 5C as security for Tenant's performance of all of 'Its obligations under this Lease. Landlord s all hold the security deposit until Tenant has vacated the Apartment and Landlord shall have fifteen (15) days to return said security deposit or In which to give Tenant written notice by certified mall of Its Intention to Impose a claim thereon. Under no circumstances shall Landlord be required to apply the security deposit as rent and under no circumstances shall Tenant be entitled to remain In possession of the Apartment while In default In the payment of rent or other money due Landlord on the theory that the security deposit should be applied to remedy the default. Landlord shall place an se rlty deposits and advance rent payments in a separate account for Tenant's benefit In �r IQdu� U.ti1 and shall not commingle security deposits or advance rentals of Tenant with otherlunds of Landlord, but Landlord may deposit security deposits and advance rental payments from othat.tenants in such account. 4. PerMItted Occupants -and Use. The Apartment shall be used exclusively as a private residence for Tenant and the members of his Immediate family and In no event shall the number of persons occupying the Apartment exceed the maximum occupancy provided for by law. The Tenant at all times during the tenancy shall comply with all obligations Imposed upon tenants by applicable provisions of building, housing, and health codes; shall keep the Apartment clean and sanitary, shall use and operate In a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, alrcondltloning and other facilities and appliances, Including elevators; shall not destroy, deface, damage, Impair or remove any part of the pre- mises or property therein belonging to the Landlord nor permit any person to do so, and shall conduct him- self and require other persons on the premises with his consent to conduct themselves In a manner that does not unreasonably disturb neighbors or constitute a breach of the peace. Tenant understands and agrees that no pets may be maintained In the Apartment. 5, Qtllltl6s. Tenant shall be responsible for paying the charges (Including any deposits required) for electric service, telephone service and any other utilities separately metered to the Apartment before they become ..overdue. 6. Personal f rowty and Fixtures. Tenant acknowledges that the Apartment is equipped with those appliances, fixtures and furnishings described on Schedule "A" attached hereto and made a part hereof, all of which belong to Landlord, Tenant agrees to use and maintain all such equipment, and plumb- 1'� Ing fixtures and all other equipment with which the Apartment Is furnished In accordance with ma ac ur rs' r ti t' T r',,� cM4-1 � i`t�e - 0 L e c} Co,,, ce Cl2' � P1 v'r t//.s4 specifications and the.reguiations of Landlord now or hereafter provided, and to be responsible for all repairs and any damage brought about by misuse or neglect of such equipment by Tenant, Landlord shall be responsible for repairing mechanical defects or failures of these appliances that are not caused by Tenant's misuse or negligence, but Tenant shall be responsible for otherwise maintaining them In good condition and repair and for yielding them up to Landlord when this Lease terminates in the same condition (excepting only reasqnable wear and tear) they were In when this Lease commenced. Landlord shall not be required to make any repair to an appliance unless Landlord first receives written notice of the failure or defect to be repaired, and no reasonable delay in making a repair shall constitute a default by Landlord or a constructive eviction of Tenant. Tenant acknowledges having inspected said appliances, fixtures and furnishings, and agrees that, at the commencement of this Lease, all such appliances are In good working order and coridltlon. 7, Tenant's Additions and AlteratiQas. Tenant shall not make any additions or alterations to the Apartment or the Building without first receiving Landlord's written consent to them. This prohibition shall extend without Ilrrtltatlon to creating holes In walls or countertops, changing or Installing additional bolts or locks, installing lighting or other fixtures, painting and wallpapering, removing window tinting and affixing or attaching any tape, sign or decoration on or to a window, balcony or exterior door. Landlord may remove or change any addition or alteration made by Tenant that Landlord did not consent to and may charge Tenant the reasonable cost of Landlord's doing so. Landlord shall accept the Apartment at the end of the term subject to any decorations that It consented to In writing and that conform to whatever conditions and requirements were set forth In Landlord's consent. ©. Parking. There Is absolutely no parking provided by Landlord. Tenant acknowledges that it Is Tenant's responsibility to provide Tenant's parking and at Tenant's own convenience and expense. 9, Conditlon and-MgIntgoAnce gf the Apariment. Tenant shall keep the Apartment and the balcony adjoining it, If any, In a clean, safe and tenantable condition throughout the term of this Lease and shall yield them up to.taandlord when this Lease terminates In the same condition they were In when this Lease commenced (excepting only normal wear and tear). If Tenant falls to carry out the obligations under this section in any respect, Landlord may carry them out for Tenant and charge Tenant the reasonable cost of doing so, provided Tenant shall have first been given written notice of said obligation and a reasonable opportunity (but not to exceed seven (7) days) to comply with same. 10. LandfoW'a Bight of Entry. The Tenant shall not unreasonably withhold consent from the Landlord to enter the Apartment from time to time In order to Inspect the premises, to make necessary or needed repairs, decorations, alterations, or Improvements; to supply agreed services or to exhibit the Apartment to prospective or actual purchasers, mortgagees, tenants, workmen or contractors. The Landlord shall not abuse the right of access nor use It to harass the Tenant. 11, N,Q Aulgnmenl or Subletting. Tenant shall not, directly or Indirectly, assign, transfer, mortgage, pledge or otherwise encumber or dispose of this Lease or sublet the Apartment or any part thereof or permit the Apartment to be occupied by other persons. 12. with les gnd Roaulgtlgns. Tenant shall strictly comply with all Rules and Regulations adopted by landlord (including any modifications of or additions to them that may be made In the future, none of.whlch Tenant has any right to object to), and any breach of them by Tenant, a member of Tenant's family or a guest or Invltea of Tenant shall be considered a material default under this Lease entitling Landlord to the remedies provided herein. Tenant shall promptly pay to landlord, upon demand, any (Ines assessed against the Apartment or Landlord as a result of Tenant's failure to comply with any of these rules. However, nothing In this paragraph shall be construed to give Landlord any rights It would not otherwise have. 13. Default. If Tenant falls to make any payment of rent when due, or If Tenant breaches any covenant, rule or condition provided In this Lease, then (1) Tenant's right to possession of the Apartment shall terminate, (il) If Landlord so elects, this Lease shall terminate, (111) If Landlord so elects, the entire amount of rent for the then-remalning term of this Lease shall be accelerated and Immediately due and payable, and (Iv) Landlord shall be entitled to any and all remedies available to it under Florida law. If Tenant's right to possession terminates, Landlord shall be entitled to Immediately expel or remove Tenant or any other person In possession of the Apartment, and its doing so shall not be considered a trespass or forcible entry, a waiver or forfeiture of Landlord's right to rents then or thereafter due it, or a waiver or release of any of Tenant's obligations under this Lease. In no event shall Landlord's retaking of possession of the Apartment be deemed to have been done for the purpose of reletting the Apartment on Tenant's behalf or as an acceptance of a surrender of the Apartment In Ileu of any other rights of Landlord. No failure by Landlord to enforce its rights under this Lease In one Instance shall be considered a waiver of Its right to do so In any other Instance. All Landlord's rights and remedies under this Lease are cumulative, so that Its resort to one remedy shall not preclude Its resort to another or other remedies. Anything herein to the contrary notwithstanding, Landlord shall have no right to terminate this Lease or seek any other remedy against Tenant unless Tenant shall have first been given written notice of the alleged default and a reasonable period of time (not to exceed three (3) days If the default Is a failure to pay K rent when due or seven (7) days ff the default Is other than a failure to pay rent when due) within which to cure the same. 14. �OQfdlnatlon- This Lease and Tenant's rights hereunder shall be subject and subordinate to any and all mortgages (and all renewals, modifications and extensions of them) that may now or hereafter encumber the Apartrpent or the Building. This provision Is self-executing insofar as it relates to bona fide mortgages, but, upon Landlord's request, Tenant shall execute and deliver to Landlord an instrument expressly subordinating Tenant's rights under this Lease to any sdch mortgage specified by Landlord. 15. Taxes and Assessments. Tenant shall pay any sales, use or similar tax that may be Imposed by any governmental authority with respect to monles received by Landlord from Tenant under this Lease. Landlord.shall pay any ad valorem real estate taxes relative to the Apartment. 16. ' Estaooel Information, Within ten (10) days after Landlord requests It, Tenant shall sign and deliver to Landlord a statement acknowledging that this Lease Is In full force and effect and has not been modified (or, If It Is not In full force and effect or has been modified, stating why It Is not In full force or effect or the substance of the modification), that Landlord Is not In default hereunder and containing specific answers to whatever questions concerning this Lease's status Landlord may have posed In his request for the statement. Tenant's failure to sign and deliver this statement within the ten (10) day period shall constitute a representation by Tenant, upon which a prospective purchaser or mortgagee of the Apartment may rely, that this Lease Is In good standing, free from any default by Landlord and that there are no oral or written modifications hereof. Any false statement by Tenant that Landlord is In default under this Lease or that this Lease Is otherwise not In good standing shall constitute a default by Tenant under this Lease. 17. QgaUuctllonn y Casualty, If the Apartment Is made untenantable, by afire or other casualty, Landlord may elect In its sole discretion, either to repair the damage so as to make the Apartment tenant- able again within sixty (60) days or to terminate this Lease. Such election must be made within fifteen (15) days after the occurrence of such casualty. In the event that no election shall be made or Landlord shall not have repaired such damages within sixty (60) days after Its occurrence, this Lease shall be deemed terminated as of the date of such casualty and Tenant shall have no further claim against Landlord. Tenant's rent shall be Justly abated during the period the Apartment is untenantable as a result of casualty. Jf Landlord elects, the explration date of this Lease shall remain unchanged. 18. Eminent Domg1a. This lease shall be unaffected if a part of the Building (or appurtenant land) Is taken by eminent domain but the Apartment Itself Is not made untenantable. If the entire Building Is thus taken or the taking makes the Apartment untenantable, this Lease shall automatically terminate. Landlord shall be entitled to all condemnation awards and proceeds. In this regard, Tenant hereby waives any claim to any part of any reward or compensation paid In connection with a taking by eminent domain. 19.-Quiet. As long as Tenant commlts no default under this Lease or breach of It, he shall have quiet enjoyment of the Apartment for the duration of this Lease's term from all parties claiming by, through or under Landlord, subject, however, to the other provisions In this Lease, and the rights, rules and regulations of the Landlord. 20. Holding Qver. Unless Landlord specifically agrees in writing to extend the term of this Lease past the termination date specified In paragraph 1, Tenant's occupancy of the Apartment past that date shall constitute an unlawful holding over, No agreement by Landlord to accept a surrender of the Apartment shall be valid unless It Is written and signed by Landlord. In the event of any holdover, Tenant shall be liable for all damages caused to Landlord and shall be obligated to pay DOUBLE RENT. 21. .�alp or EncumbrgriceLa . Tenant acknowledges that Landlord Is free to sell or euncumber the Building before or after the end of the term of this Lease (subject to the right of Tenant, If any, to extend the•term of this Lease). Landlord may, In Its sole discretion, elect to Improve or alter the Apartment and other areas of the Building (to the extent Landlord may do so) In connection with the sale or reflnancing of the Building. Tenant acknowledges and agrees not to obstruct or interfere In any -manner with any of the aforesaid activities and that such activities shall not be deemed to constitute an eviction of Tenant or a breach 'of this Lease by Landlord, Landlord agrees that the aforesaid activities shall be conducted in such a manner, If at all, as not to unreasonably Interfere with Tenant's use and enjoyment of the Apartment or appurtenant facllltles. 22. 6sslgnment by Landlord. Landlord may sell the Building at anytime. If Landlord sells the Building to a purchaser who assumes Landlord's obligations under this Lease, Landlord shall have no further liability to Tenant: 23. J¢gntlficatlon of Parties. The term "Landlord" Includes the successors and assigns of Landlord. The term 'Tenant" Includes each and every person or entity named above as Tenant (notwithstanding the use In this Lease Agreement of masculine, neuter and singular pronouns and adjectives In referring to Tenant) and the heirs, executors, personal representatives, successors and assigns of each. 24: Li if t , If Tenant conslsts of more than one party, all such parties shall be Jointly and severally liable for lheyerformance of Tenant's obligations, and a default by or notice to one of them shall 3 constitute a default by or notice to all of them. This Lease shall be binding on Tenant's heirs, personal representatives, executors, successors and assigns, and his obligations under this Lease shall not be considered purely his personal obligations. 25. Pgrformgnce by Lan igrf, gf Te„ ant's Obllgations. If Tenant falls to perform any obligation it has under this Lease, Landlord may (but need not) perform it for him and charge Tenant the cost of Its doing so provided Tenant shall first be given written notice of such obligation and a reasonable opportunity (not to exceed three (3) days) to comply with the same. 26. Qaraes. All charges owed by Tenant to Landlord under this Lease shalt be payable on demand and considered additional rent. 27. Br„_ _okgragg. Tenant represents and warrants that It has dealt with no broker, salesman, agent or other person In connection with this transactiqn and that no broker, salesman, agent or other person brought about this transaction, other than L-Cc-- and Tenant agrees to Indemnify and hold Landlord harmless from and against any claims by any other broker, salesman, agent or other person claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to this leasing transaction. The provisions of this paragraph shall survive the termination of this Lease. 28. &Ilces. Any notice which Landlord or Tenant desires to give to the other must, to be effective, be In writing and be either hand delivered or sent by certified or registered mall. If It Is delivered by hand to Landlord, It must be delivered during normal business hours to the address of Landlord where rent Is then payable and be duly recelpted for by Landlord; and, If It Is delivered by hand to Tenant, It must be either handed to Tenant or a member of his family (and recelpted for by the person to whom It Is handed) or placed In the mailbox provided for In the Building or In the Apartment Itself. If It Is mailed to Landlord, It may be addressed to the address of Landlord where rent Is then payable (or whatever other address or post office box address Landlord may have specified to Tenant at least five (5) days before the date the notice Is given), and If It Is mailed to Tenant, It may be addressed to the Apartment or to such other address as may be designated by Tenant In writing. If sent by certified or registered mail, any notice shall be deemed given three (3) days after being placed In the United States mail, postage prepaid and addressed as provided above. 29. Waiver of Jury Trial. LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER ONE AGAINST THE OTHER IN CONNECTION WITH THE NON-PAYMENT OF RENT ONLY. 30. ttn y§' Fggg. If either party defaults In the performance of any of the terms or provisions of this Lease and by reason thereof the other party employs the services of an attorney to enforce performance of the covenants, or to perform any service based upon defaults, then In any of said events the prevailing party shall be entitled to receive from the other party reasonable attorneys fees and all expenses and costs Incurred by the prevailing party pertalning thereto (including costs and fees relating to any appeal) and In enforcement of any remedy. 31. governing Law,_Constructlon. This Lease shall be governed by, and construed and enforced In accordance with the laws of the State of Florida. In the event of any Iltigatlon between the partles under this Agreement: (i) the parties shall and hereby submit to the Jurisdiction of the state and federal courts of the State of Florida, and (11) venue shall be laid In Dade County, Florida. All of the parties to this Lease have participated fully In the negotlation and preparation hereof, and, accordingly, this Lease shall not be more strictly construed against any one of the parties hereto. In construing this Lease, the singular shall be held to Include the plural, the plural shall be held to Include the singular and the use of any gender shall be held to Include every other gender. The captions of the various paragraphs of this Lease are Inserted for the purpose of convenient reference only and shall not affect the construction or interpretation to be given any of the provisions hereof or be deemed In any manner to deflne, limit, modify or prescilbe the scope or Intent of this Lease or any provision hereof. 32. S�verabiiity. In the event any term or provision of this Lease shall be determined by appropriate Judicial authority to be Illegal or otherwise Invalid, such provision shall be given Its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Lease shall be construed In full force and effect. 33. N-o FIgggrding. Neither this Lease nor any memorandum of lease hereof shall be recorded in the Public Records. 34. No 89gresentatlons. Tenant acknowledges that neither Landlord nor any employee or agent of Landlord has made any promises, any representations or any warranties In connection with this Lease that are not contained In this Lease. This Lease is the entire agreement between the parties, and once ft 1s signed, 1t can only be amended by a written instrument executed by both Landlord and Tenant which specifically states that It Is amending this Lease. 4 35. Radon. TENANT IS HEREBY ADVISED THAT 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 POBLIC HEALTH UNIT. (NOTE: THIS NOTICE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY PURSUANT TO SECTION 404.056(7), FLORIDA STATUTES (1988).j 36. Entire Agreement. This Lease constitutes the entire agreement between the parties hereto With respect to the subject matter hereof, and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to such subject matter. This Lease may not be modified In any way, unless by a written Instrument executed by both Landlord and Tenant. EXECUTED as of the day and year first above written. Witnesses as to Landlord-, Landlord: 1tnesses as to Tenant: 4%Moft f-Y1U//41/•IS IyMN7 By: Tenant: D FUN, INC., a Florida corporation 5 Schedule W. EXHIBIT " to - Portofino Property COMMitlinit AMERICAN LAND TITLE ASSOCIATION COMMITMENT -- 1966 CHICAGO TITLE INSURANCE COMPANY FL-001-10-13-95-7120 COMMITMENT FOR TITLE INSURANCE CHICAGO TITLE 1NSUR.,k C£ COMPANY, a corporation of Missouri, herein called the Company, fc:: valuable consideration, hereby commits to issue its policy or policies of title insurance, as identified in Scbedule A. in favor of the proposed Insured named in Schedule A. as owner or mortgagee of the estate or interest covered hereby in the land described or referred to in Schedule A, upon payment of the premiums and charges zherefo:: all subject to the provisions of Schedules A and B and to the Conditions and Stipulations hereof. This Commitment shall be effective only when the identity of the proposed Insured and the amount of the policy or policies committed for have been inserted in Schedule A hereof by the Comparzy, either at the time of the issuance of this Commitment or by subsequent endorsement_ This Commitment is preliminary to the issuance of such policy or policies of title insurance and al] liabIty and obligations hereunder shall cease and terminate six months after the effective date hereof or when the policy or policies committed for sball issue, whichever fast occurs, provided that the failure to issue such policy or policies is not the fault of the Company. IN WITNESS WHEREOF, Chicago Title Insurance Company bas caused this Commitment to be signed and sealed as of the effective date of Commitment shown in Schedule A, the Commitment to become valid when countersigned by an authorized signatory. Issued by: CHICAGO TITLE INSURANCE COMPANY 6303 Blue Lagoon Drive, Suite 100 Rliami, Florida 33126 (305) 363-7000 Authorized Signatory ALAN S.W-ISSNIA..r TITLE OPrIRATIONS OFFICER CHICAGO TITLE INSURANCE COMPANY By: 07��- President. ATit?sT. A: I Copyright 1546 A=AMCMA t.aad TIUm AAmoaRt7m Office File Number 1. FA A.L.T.A. COMMITMENT CHICAGO TITLE INSURANCE COMPANY SCHEDULE A Policy or Policies to be issued: Effective Date June 7, 1995 at 2:30 P.M. ALTA OWNER'S POLICY, Form B (amended 10/17/70 anc 10/17/84) Proposed Insured: The C:- of b'_a-_ Beat: ALTA LOAN POLICY (amended IOil 7/70 and 10l17;84): Pro cosed Insured: WA Commitment Number FL-001-10-13-95-7120 $To be dete=ined $5/A The estate or interest in the land described or referred to in this Commitment and covered herein is a fee simple, and title thereto is at the effective date hereof vested in: t e3-Wa del e6.-r - ---.a ---- ar, to P+aree! ^s; Beachwa-'k Deve_czre:- c=oratic- a F:crida corporation, as to Parcels I:, IV, V, VI and VII; and Sua & _ .. , I_c , a '_cr_da cor: crat,o-., as to Parcel No. III The Land is described as follows: G Parcel II: Lots 3 and 4, in Block 81, of OCEAN BEACEI ADDITION NO. 3, according to the Plat thereof, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida. Parcel .--: Lot 10, in Block 3, of OCEAN BFACH, according to the Plat thereof, as recorded in Plat Book 2, at Page 38, of the Public Records of Dade County, .lor;da. Parcel -V; Lot 5, in Block 82, of OCEAN BEACn ADDITION No. 3, according to the Plat thereof, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida. Parcel V: Lot 4, in Block 82, of OCEAN BEACH ADDITION NO. 3, according to the Plat thereof, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade Count , Florida. Par_el VT_: Lot 11 a.^_d 12, -^ Block 82, of CCEAN BEACH ADDITION No. 3, according to the Plat thereon as recorded in Plat Book 2, at Pace 81, of the Public Recc_is of Dade Count; Florida. Note: This Commrrnent consists of insert pages labeled in Schedule A. Schedule $•Section 1, and Schedule B-Secticn 2. This Commsunem is of no force and effect unless all schedules are included. along wCh any Rider pages incorporated by reference in the insert pages. A.L.T.A. COMMITMENT CHICAGO TITLE INSURANCE COMPANY SCHEDULE A. continued Commitment Number FL-001-10-13-95-7120 Parcel VII: Lot 1, in Block 81, of OCEAN BEACH ADDITION NO. 3, according to the Plat thereof, as recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida. - Nate: This Commirnent caruists of inse.rt pages labeled in Schedule A, Schedule E-Section 1, and Schedule B-Sec:,cn 2. This Comment is of no force and effect unless all schedules are included, alon; with ant Rides pages incorporated by reference in the insert pages. 2 A.L.T.A. COMMITMENT CHICAGO TITLE INSURANCE COMPANY SCHEDULE B - Section 1 Cornaftmern Number FL-001-10-13-95-7120 L The following are the requirements to be complied with: 1. Instruments necessary to create the estate or interest to be insured must be properly executed, delivered and duty filed for record. SQcc a t a. Warra:ty Deed from the present titleholder to the proposed owner insured. b. The Cermany will req-_ire a Certificate of Incorporation and Good Standings for each of. the present titleholder together with Corporate Resolution, sigr.�d by the Secretaries of said corporation, under seal, authorizing the corporations to transfer title to the property in favor of the Proposed Oa=.er _ assured, together with Incurnbencv Certificate setting forth the corporate officers existing at the present time. C. !te Cormany will rec-.:ire ar. epinien from the City of Miam_- Beach City „tt= =ev's Office verifying that all state and local law corce-4=g the acquisition of t e rear, property contained in schedule A hereof, has been corrnlied with. .,aya _ be provided with proof of its original �'F' oget:er with proof of -ts orici^al star— r — in the State of Florida as a limited 2. Payment of the full consideration to, or for - account of, the grantors or mortgagors. 3. Payment of ail taxes, charges, assessments, levied and assessed against subject premises, which are due and payable. a. Satisfactory evidence should be had that improvements and/or repairs or alterations thereto are completed; that contractor, subcontractors and material men ar all paid. S. Proof of payment of any/all municipal liens, including liens for water, sewer, gas and waste. 6. Proof of payment of 1994 real property taxes and all years prior thereto. Note: No taxes for the years 1993 and 1994 are presently due and payable. 7. The following mortgage appear of record on the land described in Schedule A hereof, crust be partially released from said mortgage: A Mortgage Deed in favor of United National Bank, dated July 1, 1994, filed July B, 1994, in Official Records Book 16432, at Page 1452, said mortgage was spread to the land described in Schedule A hereof by Mortgage Spreader Agreement, filed Jaruar;f 30, 1995, in Official Records Book 16663, at Pace 3013, together With Receipt of Future Advance filed May 25, 1995, in Official Records Book 16794, at Pace 3247, all of the Public Records of Dade County, Florida. 9. 7yeRe acnears of record a Notice of violation as to Parcel 7, filed November 5, 195: Cf___wa: Records Scek 157.3, at Pace 256. The C---pm zy w_ll regale car.ce::ac_cn of said Notice cf Vic:ation. 3 A.L.T.A. COMMITMENT CHICAGO TITLE INSURANCE COMPANY SCHEDULE B - Section 1, Continued CommitTnent Number FL-001-10-13-95-7120 P. The actual value of the estate or interest to be iasured must be disclosed to the Company, and subject to approval by the Company, entered as the amount of the police to be issued. This Commitment is not effective until the amount of i=su arce is entered as the amount of the policy to be issued. Until the amount of the policy to be issued is determined, and entered as aforesaid, it is agreed that as between the Company, the applicant for this commitment, and every person relying on this commitment, the Company cannot be required to approve any such evaluation in excess of $100,000.00 and the total liability of the Company on account cf this co=itment shall not exceed said amount. 4 k A.L.T.A. COMMITMENT CHICAGO TITLE INSURANCE COMPANY SCHEDULES -Section 2 Cmnn*bnent Number FL- 0 01-10 -13 - 9 5 - 712 0 >L Schedule S of the policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company. 1. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereto but prior to the date the proposed Insured acc-_ ires for value of record the estate or interest or mortgage thereon covered by this Commitment. 2. Standard Exceptions: a. Rights or claims of parties in possession not shown by the public records. b. Easements. or claims of easements, not shown by the public records. C. Encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey and inspection of the premises. d. Any lien, or right to a lien, for serr;ce, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. e. Taxes or special assessments which are not shown as existing liens by the public records. f. Any claim that any portion of said lands are sovereign lands of the State of Florida, including submerged, filled or artificially exposed lands and lands accreted to such lands. g. Taxes and assessments for the year 1995 and subsequent years, not yet due and payable. 3- Standard exceptions (b) and (c) may be removed from the policy when a satisfactory survey and surveyor's report and inspection of the premises is made. 4. Standard exceptions (a) and (d) may be removed upon receipt of a satisfactory affidavit -indemnity from the parry shown in title and in possession stating who is in possession of the lands and whether there are improvements being made at date of commitment or contemplated to commence prior to the date of closing which will not have been paid for in full prior to the closing. wri • .. Florida _.chiding submerged, filled or artificially exposed lands ds accreted to such lands. 6. Restric_rons, limitations and easements contained a Plat of OCEAN BEACS, according to the Plat thereof, as recorded ' at Bcok 2, at Page 38, of the Public Records of Dade County, Florid 7. The _'ccw_na matters se _ _th in that certain Sur.ey prepared by Zu-welle, Whittaker, Inc., '_ evised February 3, 1995, as follows: a. � , , : foct encroach-Lne nt of that certai- column cn the Ncrtheast comer of NOTE: Cn loan r;olic:es. junior anc subcrdinate matters, if any, will not be ►eflec.ed in Schedule a. 5 A.L.T.A. COMMITMENT CHICAGO TITLE INSURANCE COMPANY SCHEDULE B - Section 2, continued Commitment Number FL-001-10-13-95-7120 the insured property. c. 0.05 foot encroachment of stucco -on face of b g along North side of the insured property. d. 0.15 foot encroachm t e one story CBS building along the Easterly side of the e_ property. a. l e- of violation., filed June 15, 1994, in Official Records Book 16441, at Page As to Pare' Ir. 9- Matters as show-: on that Survey No. 79955-95, dated February 1, 1995, prepared by Zurwe'_le, Whittaker, Inc., as follows: a. r3nce encroachments onto concrete sidewalk along the Southeasterly side of the s•ib: ect _ roYerty. b. Concrete walkway encroachment onto sidewalk onto the Northeasterly side of the s:.._; ect : r pe_ =y. C. Concrete encroachments upon 25 foot alley along the Northwesterly side of the s%it:ect arcperty. As tt7, Par!::e ID. T'e-- rs and _ ro'• isic ns contained in the Plat of OCEAN BEACH, ac; . -ding to the Plat thereof, asreccr4_ed'i: Plat Book 2, at Page 38, of the Public Records of Dade Count- y, ._orlda. 11. An order before the Board of Adjustments of the City of Miami Beach, filed August 3, 1993, in Official Records Book 16003, at Page 3386, of the Public Records of Dade County, Florida. 3.2. Agreement between Sun & Fun, Inc. and Miami Beach Redevelopment Agency, filed June 10, 1993, in Official Records Book 15945, at Page 749, of the Public Records of Dade County, Florida. 33. Matters as showy: on that Survey No. 79958-95, dated February 2, 1995, prepared by Zurwelle, Whittaker, Inc., as follows: a. Encroachments of concrete into asphalt alley way located on the ncrtheasterly corner of the property. b. Encroac_-ent of concrete patio into adjoining property located on the Northwesterly corner of the subject property. As to Parcel TV: 14. Restrictions, lir:_tations-and easements contained in the Plat of OCEAN BEAC:i ADDIT_C:: NO. 3, according to the Plat thereof, as recorded in Plat Book 2, at Page 8_, of the Public Records of Dade County, Florida. NOTE. On loan colic:es, junior and subordinate matters, it any, will not be reflected in Schedule B. 6 A.L.T.A. COMMITMENT CHICAGO TITLE INSURANCE COMPANY SCHEDULE B - Section 2, continued Commitment Number FL-001-10-13-95-7120 As to Parcel V : 15. Restrictions, limitations and easements contained in the Plat of OCEAN BEACH ADDITION No. 3, according to the Plat thereof, as recorded in Plat Book 2, at Pace 91, of the Public Records of Dade County, Florida. 16. Matters as sho,.— on that Survey No. 79945-95, dated January 23, 1995, prepared by Z.:r.:el l e , Whittaker, inc., as follows: a. Encroachment of a garage by 0.65 feet into the adjoining property in the Ncrthwest corner of the subject property. As to Parcel V_ 17. Restrictions, lititations and easements contained in the Plat of OCEAN BEACH DI.aC:7 NC. 3, according to the Plat thereof, as recorded in Plat Book 2, at Pate 81, of t e r .,�_.. Records of Dade County, Florida 18. -Matters as s carp cn that Suz-rey No. 79956-95, dated January 30, 199S, prepared by Zuraelle, Whittaker, Imc., as follows: a. : . encrcachmen t of a fence into the subject property 0.9 feet along the Easterly boundary of- the property. A:-. encrcac nient by 1.0 feet of concrete into the alley way in the Northeast corner of the subject property. 19. Easements, ' i:t_tations and Easements contained in the Plat of OCEAN BEACH ADD_._01ti No 3, according to the Plat thereof, as recorded in Plat Book 2, at Pace Bi, of the Public Records of Dade County, Florida. As to Parcel V11- 20. Restrictions, limitations and easements contained in the Plat of OCEAN BEACH ADDITION No. 3, according to the Plat thereof, as recorded in Plat Book 2, at Pace 81, of the Public Records of Dade County, Florida. 21. Matters as shown on that Survey No. 79943-95, dated January 23, 1995, prepared by Zu_-welle, Whittaker, Inc., as follows: a. Encroachment onto the subject property of the concrete walkway 9.05 feet along the Southwesterly corner of the subject property. As to All Parcels: 22. Rights to parties in possession as lessees only. 23. Agreement Re: Portofino Holdings, filed May 19, 1995, in Official Records Book 16788, at Page 3089, of the Public Records of Dade County, Florida. NOTE: On loan policies, junior and subordinate matters. if any, will not be reflected in Schedule B. 7 STANDARD EXCEPTIONS FOR OWNER'S POLICY The owner's policy will be subject to the mortgage, if any. noted under item one of Section 1 of Schedule B hereof and to the following exceptions: (1) Nights or claims of parties in possession not shown by the public records; (2) encroachments, overlaps. boundary line disputes, and any matters which would be disclosed by an accurate survey and inspection of the premises; (3) easements, or claims of easements, not shown by the public records; (4) any lien. or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records: (S) taxes or special asses menu which are not shown as existing liens by the public records. CONDITIONS AND STIPULATIONS 1. The term "mortgage," when used herein, shall include deed of trust, trust deed, or other security instrument. 2. If the proposed Insured has or acquires actual knowledge of any defect, lien, encumbrance, adverse claim or other matter affecting the estate or interest or mortgage thereon covered by this Commitment other than those shown in Schedule B hereof, and shall fail to disclose such knowledge to the Company in writing, the Company shall be relieved from Iiability for any loss or damage resulting from any act of reliance hereon to the extent the Company is prejudiced by failure to so disclose such knowledge. If the proposed Insured shall disclose such knowledge to the Company, or if the Company otherwise acquires actual knowledge of any such defect, lien, encumbrance, adverse claim or other marten, the Company at its option may amend Schedule B of this Commit- ment accordingly, but such amendment shall not relieve the Company from liability previously incurred pursuant to paragraph 3 of these Coodidon.a and Stipulations 3. Liability of the Company under this Commitment shall be only to the named proposed Imurad and such parties included under the definition of Insured in the form of policy or policies committed for and only for actual loss incurred in reliance hereon in undertaking in good faith (a) to comply with the requirements hereof. or (b) to eliminate exceptions shown in Schedule B, or (c) to acquire or create the estate or interest or mortgage thereon covered by this Commitment. In no event shall such liability exceed the amount stated in Schedule A for the policy or policies committed for and such liability is subject to the insuring provisions, the Exclusions from Coverage and the Conditions and Stipulations of the form of policy or policies committed for in favor of the proposed Insured which are hereby incorporated by reference and are made a part of this Commitment except as expressly modified herein. 4. Any action or actions or rights of action that the proposed Insured may have or may bring against the Company arising out of the status of the title to the estate or interest er foe status of the mortgage thereon covered by this Commitment must be based on and are subject to the provisions of this Commitment. EXHIBIT "C" Covenant Not to Convey This instrument prepared by, and after reoording return to; Name: Address: CQVENM NOT TO CONVEY THIS COVENANT NOT TO CONVEY ("Covenant") is made as of the day of , 19_, by the CITY OF MIAMI BEACH, a Florida munic1pal corporation ("City") and the MIAMI BEACH REDEVELOPMENT AGENCY, a Florida public agency organized and existing pursuant to the Community Redevelopment Act of 1969 (Chapter 163, Part III, Florida Statutes, as amended) ("Redevelopment Agency") in favor of West Side Partners, Ltd., a Florida limited partnership ("West Side"). W I T N E S S E T H: A. The City, Redevelopment Agency, West Side and certain affiliates of West Side are parties to a certain Agreement dated It 1995, recorded in Official Records Book at Page , of the Public Records of Dade County, Florida (the "Development Agreement"). B. Unless otherwise indicated, all initial capitalized terms as used herein shall have the same meaning as set forth in the Development Agreement. C. Pursuant to the terms and provisions of the Development Agreement, the City and Redevelopment Agency have agreed not to convey certain property located in the City of Miami Beach, Dade County, Florida and more particularly described in Exhibit "All attached hereto and by this reference made a part hereof ("SSDI North Parcel") until such time as the City and Redevelopment Agency have timely paid to West Side the full Release Price, together. with all interest accrued thereon. .NOW, THEREFORE, in consideration of the premises, the execution and delivery of the Development Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in further consideration of the mutual covenants and agreements hereinafter set forth, the parties hereto hereby agree as follows: 1. RECITALS. The foregoing recitals are true and correct and are incorporated herein by this reference. 2. COVENANT. The City and Redevelopment Agency hereby covenant with West Side that until such time as the full Release Price, together with all accrued interest thereon, has been timely paid to West Side in accordance with Section 6 of the Development Agreement, the City and Redevelopment Agency shall not be permitted tc. and shall not: (i) sell, convey, alienate or transfer all or any portion of the legal, equitable or beneficial title to all or any port-Dn of the SSDI North Parcel, (ii) mortgage, pledge,, encu....oer, or hypothecate the SSDI North r rcel, or (iii) lease the SSD; North Parcel (excep- only for the existing lease with the Marina lessee). 3. SUCCESSORS AND ASSIGNS. This Covenant shall be deemed a covenant running with title to the SSDI North Parcel. This Covenant shall be binding upon the City and Redevelopment Agency and their respective successors, and shall inure to the benefit of West Side and West Side's successors and assigns. 4. MISCELLANEOUS. (a) Severability. In the event. any term or provision of this Covenant is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authorit% determines, and the remainder of this Covenant shall be construed in full force and effect. (b) Governing Law. This Covenant shall be construed and enforced in accordance with the laws of the State of Florida. (c) Amendment and Termination. This Covenant may not be changed, modified or terminated except by instrument signed by the City, Redevelopment Agency and West Side. IN WITNESS WHEREOF, the parties hereto have executed this Covenant as of the day and year first above written. Witnessed by: THE CITY OF MIAMI BEACH, a Florida municipal corporation By: Name: Title: MIAMI BEACH REDEVELOPMENT AGENCY, a Florida public agency By: Name: Title: STATE OF FLORIDA ) SS: COUNTY OF DADE ) The foregoing instrument was acknowledged before me this _ day of , 19_ by I as Mayor of the CITY OF MIAMI BEACH, a municipal corporation, on behalf of the corporation. He/she/they personally appeared before - me, is/are personally known to me or produced as ir3Pntifir_atinn. [NOTARIAL SEAL] Notary: Print Name: _ Notary Public, My commission State of expires: STATE OF FLORIDA ) SS: COUNTY OF DADE ) The foregoing instrument was acknowledged before me this day of 19 _ _ by as of the MIAMI BEACH REDEVELOPMENT AGENCY, a public agency organized pursuant to the Community Redevelopment Act of 1969, as amended, on behalf of the agency. He/she/they personally appeared before me, is/are personally known to me or produced as identification. Notary: [NOTARIAL SEAL] Print Name: Notary Public, State of My commission expires: 3 MMISIT "H" Proposed Urban Design Guidelines for Property Impacted by the Proposed Transaction between the City at Miami Beach and the Portofino Group November T, IM Proposed Urban Design Guidelines for Property Impacted by the proposed City of Miami Beach/Portoiino Land Transaction The following proposed urban design guidelines apply to the $$DI South Parcel and Alaska Assemblage. They are designed to compliment the existing zoning (or the zoning which may be proposed) on these properties. Existing zoning regulations will govern unless otherwise noted in these design guidelines. The proposed urban design guidelines will be administered by the City's Planning, Design and Historic Preservation Division In Its review of project design submittals. The City may grant exceptions to these guidelines for archhootural and site design merit through the design review process. Those proposed urban design guidelines address three principal urban design factors which control the quality of development of the SSDI South Parcel and Alaska Assemblage. These three factors are: • View Corridors: Site planning which allows visual access to Biscayne Bay, Government Cut and the Atlantic Ocean. • Pedestrian Passages; Site planning which allows public access to the shorelines with their marina, parka and beaches from the Interior streets. • Pedestrian Friendly Streets: Character of public space which supports the goal of a vital urban resort neighborhood. A. View Corridors shall be created by: (see the appendix attached for definitions of terms) • Continuatlon of the vehicular travel -way and pedestrian ways of the Washington Avenue corridor south of Biscayne Street as shown on the Urban Design Master Plan (UDMP); • One view oorddor between Alton Road and the baywalk located between Rebecca Towers and Biscayne Street internal to the property north of Biscayne Street. • Continuation of Biscayne Street corridor west to the marina coinciding with Sunset Plaza; • Continuation of Biscayne Street corridor east of Ocean Drive toward the ocean coinciding with Sunrise Plaza; S. Pedesbw Passages • From Alton Road to the baywalk between Rebecca Towers and Biscayne Street, (coinciding with the view corridor); • From the extension of Biscayne Street west to the marina (ooinciding with Sunset Plaza); • From the extension of Washington Avenue south to South Pointe Park (coinciding with the view corridor); • From the extension of Biscayne Street east toward the ocean (Sunrise Plaza). 2 ffL-., I t.-.n. M • t, • : ,i. T M : �t r-rim u:-, •I� a -n: Buildings shall be placed as follows: • Minimum Width to the street: Buildings and related building elements such as courtyard garden wails should be built to a build to line (required setback line) for a minimum of 80 percent of their length. • Facade lntert,I,jptnn: The build -to line may be Interrupted by courtyard gardens whose width parallel to the street does not exceed 50 percent of the build -to line. • : The principal pedestrian entrance of buildings should be accessible to the public from the street or a courtyard garden. • Bridges: Buildings shall be allowed to bridge pedestrian public spaces and view corridors. Bridges shah be detailed as an Integral part of the building, Buflimag Height am Massing • Minimum Height: No building should be leap than two stories or 25 feet In height, measured from the sidewalk to the top of the parapet or roof pave. Minor ancillary structures shall be excepted. • kdaAmum Height Typo One Bulldings. High-rise buildings of unlimited height Type Two Buildings: Mid -rise buildings with a maximum height of 132' or 12 stories, whichever Is lees. • OrientdMa There shall be no restriction as to the orientation of buildings. • Floor Height A floor above the building pedestal shall not have a floor to ceiling height exceeding fourteen (14) feet in order to be considered a single floor, a floor exceeding fourteen (14) feet in height shall be permitted, but shall be counted as two floors. • Flood Cfria: Street level retail shall be encouraged. However, where flood criteria mandates a first floor level above the street level such that ramp access is required, a continuous pedestrian passage of a minimum width of 12 feet including supporting structures parallel to the sklewalk/bulkding interior shall be provided with stains and ramps to street level. Such a raised passage In front of retell shall be encouraged to be no more than 2' - e' above the street level. Where such a passage Is inside the property line, it shall be a colonnade. Ramps shall be easements within private or public property and may be shared by several properties. Shared floor criteria access shall be coordinated with the assistance of the City's Planning, Design and Historic Preservation Division. • Transition ones: For buildings taller than two stories, a transition line shall be provided at the top of the second story. • Buifdino Pedestal: For buildings tatfer than 5 stories, the building pedestal shall be a minimum of 2 stories and a maximum of 50 feet above the public pedestrian space. 3 • fetbaoks Above Pedestal: 'hype One: All portions of buildings above the pedestal and below 100 feet in height facing principal streets, the baywaik, the SSDI South Pedestrian Passage, the Washington Avenue Extension and Sunset Plaza shall be set back from the face of the pedestal so that the Improvements remain behind a theoretical line drawn at a 45 degree angle upwards from the top of the maximum allowable pedestal to the 100-foot level. All portions above the 100-foot level shall be set back a minimum of So feet from the face of the pedestal, except that, anything to the contrary notwithstanding, portions of any buildings with a width of 100 feet or less need only set back 25 feet from the face of the pedesttal. Type Two: All portions of such buildings above the pedestal and below the roof shall be set back from the face of the pedlestal behind a theoretical line drawn at a 45 degree angle upwards from the top of the maximum allowable pedestal to the maximum allowable height. For Both Building Types: In the event that the City Is unable to convey the Federal Triangle Parcel to West Side (or Its designees), then no setback shall be required along the Federal Triangle/Hinson property line and the Federal Triangle/Alaska property line. The 7S-foot height restriction for the Goodman Terrace Parcel shall only be applicable to the northern 50 feet of the parcel. These setbacks shall be in lieu of setbacks in the existing zoning. All other setbacks, including sideyards, shall be pursuant to the existing CPS-3 zoning with the exception that the maldmum setback will be limited to 50 feet. • Building Bulk: The Pedestal (up to 50'): Parking, housing, retail and mixed use within the pedestal shall be within the areas -designated as development parcel and/or line of habitable space in the Urban Design Master Plan. For Type One Buildings: For floors between W and 100' in height, a maximum floor plate of 45,000 gross square feet per floor. For floors above 100' In height, average floor platel of 17,000 square feet per floor. For Type Two Buildings: For the floors above 50' to 13Z maximum height or twehre stories, whichever Is lose, there shall be no maximum floor plate. • TgWar Distance Separation: The minimum tower (Floors a and above for the SSDI South Parcel, and Floors 20 and above for the Alaska Assemblage) distance separation between any two tower: shall be 100 feet and shall be measured between the closest points of buildings whose perimeters are defined by City F.A.R. definitions. Mlnirnum tower distance separation is not required for a multiple lower composition on either the SSDI South or Alaska Assemblage parcels. The Aggregate Tower Distance Separation for the combined SSDI South Parcel and the Alaska Assemblage shall be at least 400 feet and shad be measured as the aggregate separation distance remaining between all buildings within the two extreme property boundary lines which shall be the Northam property line of the SSDI South Parcel and the Sout wmmost comer of the Alaska Parcel, Building distance separation Is the average distance of separation of the closest sides of any two buildings. Retail Space: The amount of retail space shall be limited to twenty percent (20°A) of the total maximum floor area of the SSDI South Parcel and Alaska Assemblage combined. 1 Average Floor Plate: For ali floors above 100' In Type One Sulldings, the average floor plate shall be the average floor area used to calculate floor am ratio. No Individual floor plate shall exceed 20% of the maximum average, up to 20,000 square feet SRWAI Sites BuiklIngs at the Intersection of Alton Road and Biscayne Street, Washington Avenue and Biscayne Street, and Ocean Drive and Biscayne Street should be recognized as special altos and should receive architectural treatment recognizing their special position. • Q n ace: In addition to the baywalk, plazas, view corridors and pedestrian passages, courtyard and rooftop gardens are encouraged. For rats with a frontage greater than 100 feat, a minimum of one 450 square foot landscaped courtyard with no dimension less than 15 feet shall be provided for each building. These open space standards are in Ileu of the city's existing zoning requirements. • HabS ba le Ste: Stmetwalls on principal streets (Alton Road, Biscayne Street, Washington Avenue, Collins Avenue and Ocean Drive), the baywalk and along Washington Avenue and Biscayne Street view corridors shall have continuous habitable space for a minimum of 80 percent of facade width for each building, at least two stories In height. • Entrances: 8treetwalls on principal streets shall have at least one principal pedestrian entrance per block •Sude Building facades (excluding colonnades) on principal streets shall be a minimum 30 percent glazed for those portions of facades requiring continuous habitable space. Glazing shall be clear or very light tinting for the pedestal area, except where used for screening garages above the second floor where It may be translucent. • mad: The minimum bulkhead height at pedestrian levels for retell uses shall be 18 Inches, and the ma)dmum of 36 Inches, above the sidewalk, except for entrance doors. • Parking Oar ; Architectural expression of parking garages facing principal streets and the baywalk and along Washington Avenue and Biscayne Street view corridors shall be harmonious and oonslstent with that of the first two ffoors. Ramping may be expressed on facades facing Interior service courts and alleys. Exposed roofs of parking structures shall have landscaped shade structures covering the parking stalls. Shade structures may be above pedestal height limit. Drop Off Arr'os: Vehicular drop off areas and rotated ports cocheres for hotels and high density residential or other large scale developments may be on -street, off-street from garden courtyards, pedestrian passages or view corridors. Drop off areas adjacent to public streets shall minimize conflict with the public pedestrian environment adjacent to the streets. Loading and -Service Entries: Loading and service entries shall be allowed only on pedestrian passages, alleys and within parking lots and structures. For those properties with frontages only on rights -of -way and public pedestrian spaces, loading and servicing shall be allowed on the frontage. •Vehicular Principal vehicular entries from Afton Road, Washington Avenue and Biscayne Street shall have a maAmum width of 30 feet with a minimum separation of 75 feet between entries. 5 Daslgn ContinuHv: To ensure maximum continuity and aesthetic result, the design and selection of trees, street lighting and all other public space furnishings In public pedestrian spaces as defined by the agreement shall be coordinated with the ClWs Planning, Design and Historic Preservation Division. • ,AWa: Building design, Including the building character, building configuration, scale and building materials, shall be designed to promote the CIVs specific character and shall be compatible with Mediterranean, Art Deco and Modeme styles. An architecture of our time shall be encouraged. Building design shall promote self -shading, natural ventilation, outdoor circulation and reduos dependence on artificial tfghting and sir conditioning as an Integral part of fhe building's architectural character. 6 APPENDIX Ddflwaa Fulld to Line: The line at the required setback as defined by the Urban Design Master Plan (UDMP) on principal streets, view corridors and pedestrian passages on any development parcel. Blecsyno Street:; Biscayne Street shall be renamed South Pointe Drive. Colonnadw.. A roofed apace, extending over the pedestrian passage, open to the street with supporting columns or plers. At the edge of Public Pedestrian Space, Colonnades shall be Pedestrian accessible and have a minimum dear height of 10 feet and a minimum of 12 foot depths, Including supporting structure, and the depth shall not exceed the height. HabliaNe Space. Gross building space whose use involves human presence with direct view of the fronting Public Pedestrian Space. Parking garages and display windows separated from retail activity are not habitable Spats. Pedastdenr Passage: An open air passage open to the sky more than 76 paroent of its length, which, as an easement, allows public pedestrian access including ADA standards traversing prtvate property from one public right-of-way or Pedestrian Pasaage to another. Pedestrian Passages may allow the passage of service and emergency vehicles and access to parking garages and private dwellings along the passage. Principal Smeeta Principal streets are Afton Road, Biscayne Street (to be renamed South Pointe 00"), Washington Avenue, Collins Avenue and Ocean Drive. Publk Pedestrian Spacsc An open air space which Is accessible to the public all or soma of the time. Including public right-of-ways, streets and alleys. parks, plazas, squares, baywalks, as well as private property Colonnades, arcades, Pedestrian Passages and other easements. Public pedestrian spaces Including the baywalk and Sunset Plaza shall allow vehicle access for service, emergency and any housing and retail facilities fronting on such spaces. Retail A+antages: Frontages designated on the Urban Design Master Plan, which are required to have storefronts facing Pedestrian Public Space. Retail shall be defined to include commercial retail uses, service businesses and restaurants. Courtyard Garden: A grade level garden enclosed on at least three sides, at least two sides by building walls and on Its remaining side(s) by garden walls, with a minimum 30 percent of its area landscaped. Landscaping may Include plantings, fountains and hardscape areas that typically are found In courtyard gardens and vehicular oouriyerd entries. Garden Walt A wall separating a Courtyard garden from a Public Pedestrian Space, with 60 percent of its vertical surface void. This can be lattice work, fence rails, pickets, open masonry - work or other screening. Termhrated Wetaw A building or a portion thereof which frames or terminates the view along a thoroughfare. 7 Shade Sxrotum. An open air structure without a permanent roof or permanent walls. Story. A floor level within a building shall be as defined by the City of Miami Beach zoning code and the South Florida Building Code. St>eehmil. The vertical surface of a building which faces principal streets and Public Pedestrian Space. TnmsNm Una: A horizontal lime or lints, the width of a facade expressed by a material change or by a continuous setback, projection or a balcony which Is no more than 3 feet deep. View Carddor. An open air passage between buildings, at street level, at least 20 feet wide and 25 feet high dear and which allows a view clear through to the waterfront and which allows public access to the baywalk. r EXHIBIT "I" URBAN DESIGN MASTER PLAN (n C t4 � o�� � x rD CD �n o � a Om o� z rn rr I�r I�RR ljt`Yri Vf a G1 a A � a 10 a in 9� m A 4 Za ��n 4 Y� f Y ' ! •f�/q/y (k x i 1r (/r FJ rtx Yt i°i r yi Q, -4pFl- at'1k 1_ 4 {OS p � ✓ 4 t (IFh v cke Iv i Z ' • O'" 1 1 2 !W.1t 0( . IF \ 1-4 Fit nn T�i� { l�, � / �✓J aft e '�� �.'' ' � - °Q'-',° 1 � },' ". a� ±�����`r irk £ c •`� ! � b: r x Y' vtu is �'! I�A.�i� -to��' ..+✓" 7 ` 04110_#'i � 50, t y xl c3� � 1 all I -M1 f•' R r� .� ��1,\'Tk �V ` � ? E � � : T'�� t ems. �+. , f QA11 "g:;Yy 1%t w r-rk Rf 600rtJ� p�' vi z s t 10C. r f FY i x? f ♦ h i'.0 Y S.'Y° a e o Y S✓tit p ` Z,1. .,.•� f4S\A A A tt 4 ,. t � O rx'c,..,a'::3,3'i 3 ..Wl-_ _. ....,zi¢85��`v�e+1i'S'Y.rr..S;LFt�.._ a. eN. •.:...e .. . ,! _ n .,. m 9 v% 3 J�1 J-•. 'ef 00 AC P A A R S41*' II J �rry !yI I' I JI r K s ry� ^" r r m c QQ Z rm i R a z z a r c Q Im z n tA 0 c s G Z V1 T M 0 m a z a r- O O z 0 T. —1 0 c. i� O 4 m O a C m m W. 0 AI 1 { Q x �- m � c o g n GI] � y o gig z t m P wins iFa W 0 c 0 z -I m v mm r O O m z n 5" EKHIBIT "J" DRB Review Standardig s of Date of Agreement SECTION 18 DESIGN REVIEW BOARD 18-1 DESIGN REVIEW BOARD POWERS AND DUTIES A. Powers and Duties 1. To promote excellence in urban design. 2. To review all applications requiring Design Review. 3. To prepare and recommend adoption of design plans pertaining to Neighborhood Studies. 4. To promote reduced crime and fear of crime through the use of Crime Prevention Through Environmental Design Guidelines and Strategies, as approved by the City Commission. 5. To hear and decide appeals of the Historic Preservation and Urban Design Director when deciding matters pursuant to Section 18-2,H. S1 B. Msmbe rsh i r) Composition - The Design Review Board shall bt composed of seven (7) regular members and one (1) ex-officio members. The seven (7) regular members shall consist of two (2) registered architects, one (1) registered landscape architect,one (1) professional engineer, one (1) professional land planner and two (2) citizens at -large. The one (I) ex-officio members shall be the Historic Preservation and Urban Design Director. The City Attorney's office shall provide legal counsel. al 2. Appointment - The two (2) architects, one (1) landscape architect, one (1) professional engineer, and one (1) professional land planner shall be appointed by the City Manager in consultation with the Planning Board from an eligibility list solicited from their representative professional associations as listed below: a. American Institute of Architects, local chapter b. American Society of Landscape Architects, local chapter C. Florida Engineer Socicty,local chapter d. American Planning Association, local chapter The two (2) citizens at -large members shall be appointed by the Planning Boa rd. 3. Rcsldcn,-1' and Place of Business - All rciular members shall reside in or h3vc their primary place of business in Dade Count}; however, three (3) professional members shall not reside in or have their place of business in the Cite of Miami Beach, The two (2) citizen -at -large members shall be residents of the City, C. Terms of Office The term of service on the Design Review Board shall be two (2) years. 61 D. Removal Removal of appointed members shall be by the City Manager for cause. Failure to attend three (3) consecutive meetings shall be considered cause for removal. E. Qugrpm and Voting A quorum shall consist of four (4) regular members. An affirmative vote of four (4) regular members shall be required to approve an application for Design Review. Prior to a decision of the board, the ex-officio members shall submit a recommendation for each item on the agenda, in addition, the City Attorney shall determine whether a request is properly before the Board. If an application is denied, the Board shall provide a written statement in support of its finding. F. Nicetings The Board shall meet within a reasonable t::-:e upon receipt of an application, at the call of the Chairperson or the Historic Preservation and Urban Design Director. All meetings shall be open to the public and shall be conducted in accordance with the rules and regulations adopted by the Board. 61 G. Conflict of Interest Members of the Board shall abide by the applicable provisions of Fla. Statutes Ch. 112 (1987), as amended, Metropolitan Dade County, Fla., Code Ch. 2 (1987), and Code of the City of Miami Beach Ch. 2, Art. III (1964), regarding voting conflicts and disclosures of financial interests. 18-2 DESIGN REVIEW PROCEDURES A. 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 in relation to the Site, adjacent Structures and surrounding community. The Board and the Historic Preservation and Urban Design Department shall review plans based upon the below stated criteria and criteria listed in Neighborhood Plans. Recommendations of the Historic Preservation and Urban Design Department shall include, but not be limited to, comments from the Planning and Zoning Department and the Public Works Department. If floor area ratio bonuses are requested and allowed in the district in which the property is located, criteria listed in Section 6-24B shall apply. If the Board determines that an application is not consistent with the criteria, it shall set forth in writing the reasons substantiating its finding. S: The existing and proposed conditions of the Lot, including but not necessarily limited to topography, vegetation, trees, drainage, and Watcrways. 18.2 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. 3. The dimensions of all Buildings, Structures, setbacks, parking spaces, Floor Area Ratio, height, Lot Coverage and any other information that may be reasonably required to determine compliance with this Ordinance. 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 Subsection B of this Section. S. The proposed Structure is in conformity with the standards of this Ordinance and other applicable ordinances, architectural and design guidelines, and plans insofar as the location and appearance and design of the Buildings and Structures are involved. 6. The proposed Structure indicates a sensitivity to and is compatible with the environment and adjacent Structures, and enhances the appearance of the surrounding properties. 7. The design and layout of 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. 8. Pedestrian and vehicular traffic movement within and adjacent to the Site shall be reviewed to ensure that all parking spaces are usable and are .safely and conveniently arranged. 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. 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 adjacent properties. 10. • Landscape and paving materials shall be reviewed to ensure an adequate relationship with and enhancement of the overall Site Plan design. H. Buffering materials shall be reviewed to ensure that headlights of vehicles, noise, and light from Structures arc adequately shielded from public view and pedestrian areas. 12. Storm drainage, sanitary waste disposal, and water supply shall be reviewed and considered in terms of the adequacy of existing systems, and the need for improvements, both on -Site and off -Site. to adequately carry runoff and sewage, and to maintain an adequate supply of water at sufficient pressure. 13. Garbage disposal shall be rc%,-icwcd to ensure freedom from vermin and rodent infestation. All disposal systems shall meet municipal sf+c.ifications as to installation and construction. I e. ; Developer in its discretion but subject to the design criteria provided herein above. (2) An access easement providing vehicular and pedestrian access from Alton Road directly to the Marina baywalk, together with a drive-in dropoff area (including short term parking for at least five cars) to be located in the general vicinity of the northern terminus of the Property as determined by Developer in its discretion but subject to the design criteria provided herein above. The foregoing easements shall be in form and substance reasonably acceptable to Grantee, Marina Lessee and Developer. The foregoing access easements shall also be required to provide appropriate fire and emergency vehicle access to the baywalk and Marina. B. Purchase Price. The City shall pay to Developer the sum of One Million Six Hundred Twenty -Five Thousand and No/100 Dollars ($1,625,000.00) as the purchase price for the City Unit ("Purchase Price") in accordance with Paragraph 9 below. Notwithstanding the foregoing, in the event Developer does not provide 150 parking spaces to Grantee pursuant to paragraph 3 above, the Purchase Price shall be reduced by $10,000 per parking space not so provided. 9. Payment of Purchase Price and Conditions to Construction of City Unit. The Purchase Price shall be paid to Developer as follows: (a) Simultaneously with Grantee's approval of the Plans and specifications in accordance with Paragraph 6 above, Grantee shall deliver to Developer an executed purchase agreement which is consistent with the terms of this Agreement ("Purchase Agreement") pursuant to a Condominium Offering Plan issued by Developer, if permissible under applicable laws, or an executed lease of the type referred to in Paragraph 5 above. (b) Promptly upon commencement of construction of the City Unit (as evidenced by obtaining a building permit therefore and commencement of the construction work under the building permit) and each month thereafter until paid in full, the Grantee shall make sixteen (16) consecutive monthly installment payments to Developer of $100,000 each (with the last monthly installment payment(s) being reduced by the aggregate amount of $10,000 per parking space under 150 not provided) provided, anything to the contrary notwithstanding, that: (i) no payments shall be due prior to April 1, 1996; (ii) the percentage of the Purchase Price paid shall not exceed the percentage of completion of the City Unit improvements as certified to Grantee by Developer's architect or engineer. (c) The remaining balance of the Purchase Price shall be paid by Grantee to Developer upon the closing of the sale of the City Unit to Grantee, which closing shall occur on the Possession Date or Completion Date, whichever occurs first (the "Closing") provided that to the extent the Closing occurs prior to August 1, 1997, then any remaining balance due on the Purchase Price exceeding $100,000 may be deferred and continue to be paid to the Developer in consecutive monthly installments of $100,000 per month until the Purchase Price is paid in full (the last installment being for such lesser amount as required to satisfy the full Purchase Price obligation). All payments shall be made by cashier's check or wire transfer of cleared U.S. funds. -6- To secure and pay the obligations of the Grantee to pay the Purchase Price under this paragraph 9, the City and Agency, as applicable, pledge, agree, and covenant as follows: (a) the Agency pledges, agrees and covenants to utilize all tax increment revenues available and necessary from the Redevelopment Area (as defined in the Development Agreement) pursuant to Section 163.387, Florida Statutes, as amended (subject only to any prior pledge of these revenues made before the date of this Agreement and the pledge set forth in Section 6 of the Development Agreement, the pledge hereunder being junior, inferior and subordinate in all respects to the pledge in favor of bonds issued under the provisions of Resolution No. 81-89, as amended, adopted by the Agency on June 21, 1989, as to lien on and source and security for payment and in all other respects) to pay the monthly installments required herein (and provided that the foregoing shall not be deemed to prohibit a subordinate pledge); and (b) to the extent the tax increment revenues under subparagraph (a) above are insufficient or for any other reason are unavailable, the City agrees to appropriate in its annual budget, by amendment, if necessary, from Non -Ad Valorem Funds (as hereinafter defined) lawfully available in each fiscal year, amounts sufficient to satisfy the monthly installments required herein. Such covenant and agreement on the part of the City to budget and appropriate such amounts of Non -Ad Valorem Funds shall be cumulative to the extent not paid, and shall continue until such Non -Ad Valorem Funds or other legally available funds in amounts sufficient to make all such required payments shall have been budgeted, appropriated and actually paid. Notwithstanding the foregoing covenant of the City, the City does not covenant to maintain any services or programs, now provided or maintained by the City, which generated Non -Ad Valorem Funds. Such covenant to budget and appropriate does not create any lien upon or pledge of such Non -Ad Valorem Funds, nor does it preclude the City from pledging in the future its Non -Ad Valorem Funds, nor does it require the City to levy and collect any particular Non -Ad Valorem Funds, nor does it give Developer a prior claim on the Non -Ad Valorem Funds as opposed to claims of general creditors of the City. Such covenant to appropriate Non -Ad Valorem Funds is subject in all respects to the payment of obligations secured by a pledge of such Non -Ad Valorem Funds heretofore or hereinafter entered into (including the payment of debt service on bonds and other debt instruments). However, the covenant to budget and appropriate in its general annual budget for the purposes and in the manner, stated herein shall have the effect of making available in the manner described herein Non -Ad Valorem Funds and placing on the City a positive duty to appropriate and budget, by amendment, if necessary, amounts sufficient to meet its obligations hereunder; subject, however, in all respects to the restrictions of Section 166.241(3), Florida Statutes, which provides, in part, that the governing body of each municipality make appropriations for each fiscal year which, in any one year, shall not exceed the amount to be received from taxation or other revenue sources; and subject further, to the payment of services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of the City or which are legally mandated by applicable law. The term "Non -Ad Valorem Funds" shall mean all revenues of the City derived from any source other than ad valorem taxation on real or personal property, which are legally available to make the payments required herein, but only after provision has been, made by the City for the payment of all essential or legally mandated services. -7- 10. Operational Standards. (a) Subject to subparagraph (b) below, the parties shall, in accordance with the Standard (as hereinafter defined), reasonably determine initial systems of ingress and egress, and minimum standards for security (but which in any event shall require 24 hour security), traffic movement within the Parking Garage, maintenance and repair of the City Unit (but which in any event shall require that the City Unit be maintained and repaired in a first class, clean manner) and similar operational, maintenance and repair matters (which operational, maintenance and repair matters are herein individually and collectively referred to as "Operational. Standards"); provided, however, that the Operational Standards shall at all times be at least comparable to those in other indoor parking garages located in the area known as the South Shore of Miami Beach comparable to the Parking Garage or then represent customary standards of operation of comparable garages or parking lots, as applicable (the "Standard"). As of the date hereof, the parties have not determined the specific Operational Standards for the Parking Garage. The parties acknowledge and agree that the City Unit is intended to and shall be operated, maintained and repaired in a first class manner and otherwise consistent with the standard of development on the Property. Developer shall propose initial Operating Standards at least forty-five (45) days prior to Closing. Any such Operating Standards shall take into account the reasonable needs of the Marina and otherwise be consistent with the requirements of this Agreement. Developer shall deliver the initial proposed Operational Standards to Grantee. Grantee shall have thirty (30) days to reasonably review and approve the proposed Operating Standards in writing. In the event Grantee disapproves the proposed Operating Standards, Grantee shall provide Developer with specific written reasons therefor within said thirty (30) day period. In the event Grantee fails to respond to Developer in writing within said thirty (30) day period, the proposed Operating Standards shall be deemed approved. Any dispute as to Operational Standards which the parties are unable to resolve within the forty-five (45) day period prior to Closing shall, pursuant to paragraph 9.7 of the Development Agreement, be submitted for resolution to the Circuit Court of the 11th Judicial Circuit, Dade County, Florida. (b) Developer shall not have any affirmative obligation to provide any security at the Parking Garage. It is acknowledged and agreed, however, that if Developer elects to provide or attempts to provide security to the Parking Garage or the buildings in which the City Unit is located in general, Developer cannot and does not hereby or thereby guarantee the safety of any person, including, without limitation, licensees or invitees of Grantee, the Marina Lessee, the Licensees or any other user of the City Unit or the Parking Garage, or the protection of automobiles parked in the Parking Garage (or other property left in such automobiles), and that Developer shall, notwithstanding anything to the contrary set forth herein, have no liability or obligation with respect thereto. Grantee shall provide 24 hour per day, every day security, including, without being limited to, measures to insure the security of lavatories, showers and laundry rooms located within the City Unit, and shall install appropriate security devices with respect to the City Unit, adopt measures or install devices to control the use, manner of use, access, traffic movement or assignment of parking spaces with respect to the portion of the Parking Garage within which the City Unit is located and erect barriers to the extent necessary to physically separate the City Unit from the parking spaces in the remainder of the Parking Garage. All of the foregoing shall be installed, monitored, operated and maintained in a manner consistent with the Standard and subject to such Rules and Regulations (as defined in Paragraph# 12 hereof). In the event Developer elects to institute security measures for the overall Parking Garage or the building in which the Parking Garage is located in general, then Grantee shall cooperate fully with Developer in instituting and maintaining such -8- security measures and coordinating such measures with the security Grantee is obligated to provide within the City Unit pursuant hereto. Grantee shall pay its proportionate share of the costs and expenses incurred in connection with such security measures to the extent such measures instituted by Developer benefit the City Unit; provided, however, that to the extent that the nature and use of the City Unit reasonably require security measures in excess of those provided in other areas of the Parking Garage and Developer incurs additional costs and expenses in respect thereof, Grantee shall pay the total cost of such additional security measures to Developer within ten (10) days after demand therefor. 11. Parking Privileges, (a) The Licensees parking in the City Unit shall have so-called self -park "in -and -out" privileges, meaning that, subject to Excusable Delays (as defined in Paragraph 18 hereof), Grantee, the Marina Lessee and the Licensees shall have unlimited rights of ingress and egress to and from the City Unit for parking automobiles and for use of the lavatories, showers and laundry rooms 24 hours a day, seven days a week, from the entrance to the Parking Garage designated by Developer, for such purpose, without any charge or fee being due or payable by such parties to the Developer, other than the Maintenance Costs (as defined in Paragraph 16 hereof). Developer shall provide and maintain (or cause to be provided and maintained) personnel and related facilities suitable in Developer's reasonable judgment for the proper care and management of the Parking Garage (excluding the City Unit), and Developer shall have no responsibility to Grantee to provide personnel to park any automobiles, it being acknowledged and agreed that Grantee and the Licensees shall park their own automobiles. Entry to the Parking Garage by Grantee and the Licensees shall be in accordance with the Rules and Regulations. Developer shall have no liability or responsibility to Grantee in the event the City Unit is used by parties other than Grantee or the Licensees at any time and from time to time. Grantee shall have no liability or responsibility to Developer in the event the Private Parking Spaces are used by parties other than Developer. To the extent feasible, the City Unit shall have its own separate entrance which shall be under the control of the Grantee and Grantee shall be entitled (at Grantee's expense) to install appropriate signage (consistent with the design of the improvements on the Property and aesthetically approved by the Developer). (b) Grantee shall take all steps necessary to insure that the City Unit is maintained in a manner consistent with that of a first-class parking garage, including, without being limited to, providing cleaning, repair and other maintenance services for the City Unit and any lavatory, shower or laundry room facilities located therein. (c) Developer shall have the right to take whatever measures it may deem necessary to maintain the Parking Garage as two separate, physically distinct Units, including, without lim- itation, adoption of security measures or installation of security devices, installation of devices to control the use, manner of use, access, traffic movement or assignment of parking spaces, install- ation of barriers and establishment of separate means of ingress and egress, all for the benefit of users of the Private Unit. The exercise of such right shall not be deemed a violation of Developer's obligations to Grantee hereunder. 12. Rules and Regulations. The Grantee shall establish and publish reasonable rules and regulations for the day-to-day operation and function of the City Unit that are consistent with the Operational Standards (the "Rules and Regulations"), and the Grantee shall at all times during the term of this Agreement, causef the Licensees to comply with the Rules and Regulations. 13. Liability and Indemnitx. (a) Neither Developer nor Developer's agents, officers, directors, shareholders, partners or ME principals (disclosed or undisclosed) shall be liable to Grantee, or anyone claiming by, through or under Grantee, including, without being limited to, the Licensees, or their respective agents, employees, contractors, invitees or licensees, for any loss, cost, liability, claim, damage, expense, penalty or fine incurred in connection with or arising from any injury or death of any person or for any damage to, or loss (by theft or otherwise) of, any of the property of any person, irrespective of the cause of such injury, damage or loss (including the acts or negligence of any other user of or person present at the Parking Garage or of any owners or occupants of adjacent or neighboring property or caused by operations in construction of any private, public or quasi - public work) unless due to the negligence or misconduct of Developer or Developer's agents, servants or employees. (b) Neither any (i) performance by Developer or others of any repairs, improvements, alterations, additions, installa- tions, substitutions, betterments or decorations in or to the Parking Garage or the Property, (ii) failure of Developer or others to make any such repairs, improvements, alterations, additions, installations, substitutions, betterments or decorations, (iii) damage to the Parking Garage or the Property, (iv) injury to any persons, caused by other users of or persons at the Parking Garage or the Property, or by operations in the construction of any private, public or quasi -public work, or by any other cause, (v) latent defects in the Parking Garage nor (vi) inconvenience or annoyance to Grantee or anyone claiming by, through or under Grantee or injury to or interruption of the business of any of the foregoing by reason of any of the events or occurrences referred to in the foregoing subdivisions (i) through (v), shall impose any liability on Developer, other than such liability as may be imposed upon Developer by law for Developer's negligence or the negligence of Developer's agents, servants or employees or for the breach by Developer of any express covenant of this Agreement on Developer's part to be performed. No representation, guaranty or warranty is made or assurance given that the communications or security systems, devices or procedures of the Parking Garage, if any, will be effective to prevent injury to Grantee or any other person or damage to, or loss (by theft or otherwise) of, the property of any person, and Developer reserves the right to discontinue or modify at any time such communications or security systems or procedures without liability to Grantee or anyone claiming by, through or under Grantee. (c) To the fullest extent permitted by applicable law, Grantee agrees to indemnify, defend and save Developer harmless of and from all loss, cost, liability, damage and expense including, without being limited to, reasonable attorneys' fees and court costs, penalties and fines incurred in connection with or arising from (i) any default by Grantee or anyone claiming by, through or under Grantee, including, without being limited to, the Licenses, in the observance or performance of any of the terms, covenants or conditions of this Agreement on Grantee's or the Licensees' part to be observed or performed, or (ii) the manner of use or occupancy (as opposed to mere use or occupancy) of the Parking Garage by Grantee or any person claiming by, through or under Grantee, including, without being limited to, the Licensees, or (iii) any acts, omissions or negligence of Grantee or any such person, or the contractors, agents, servants, employees, visitors or licensees of Grantee or any such person, in or about the Property or the Parking Garage; provided, however, that in no event shall Grantee be obligated under clause (ii) and/or (iii) above in respect of third party claims for amounts in excess of the greater of (A) the insurance coverage carried by Grantee covering such matters or (B) those limits to waiver of sovereign immunity provided for under, Florida Statute § 768.28 (or any successor statute thereto). If any action or proceeding shall be brought against Developer or Developer's agents, servants or employees based upon any such claim and if Grantee, upon notice from Developer, shall cause such action or proceeding to be defended at Grantee's expense by counsel acting for Grantee's insurance carriers in connection with such defense or by other counsel reasonably satisfactory to Developer, without any disclaimer of liability by Grantee in connection with such claim, Grantee shall not be required to indemnify Developer or Developer's agents, servants or employees for counsel fees in connection with such action or proceeding. (d) If Grantee shall default in the observance or performance of any term, covenant or condition of this Agreement on Grantee's part to be observed or performed beyond any applicable grace period set forth herein, Developer shall have all rights permitted hereunder and at law or equity. 14. Insurance. (a) Grantee shall not do or suffer or permit anything to be done in or in connection with the City Unit or the Parking Garage which would (i) subject Developer to any liability for injury to any person or property by reason of any such activity being conducted in or in connection with the City Unit or by Grantee or those claiming by, through or under Grantee, (ii) cause any increase in the rates for the fire and other types of insurance applicable to the Parking Garage or any structure appurtenant thereto, or (iii) result in the cancellation or the assertion of any defense by the insurer to any claim under any policy of insurance maintained by or for the benefit of Developer with respect to the Parking Garage or any structures appurtenant thereto. (b) Grantee shall be responsible to pay either as part of the monthly condominium maintenance fee, if the City Unit is conveyed as part of a condominium, or as additional rent if the City Unit is leased, its proportionate share (equitably allocated) of any fire, windstorm, flood and extended casualty policies if insurance is maintained for the benefit of the building as a whole. (c) Grantee shall give notice to Developer, promptly after Grantee learns thereof, of any accident, emergency or occurrence for which Developer might be liable, fire or other casualty and all damages to or defects in the City Unit, the Parking Garage or any structures appurtenant thereto. Such notice shall be given by facsimile or personal delivery to the address of Developer then in effect for notices. 15. Subordination of Agreement. (a) This Agreement and all rights of Grantee under this Agreement shall be and remain subject and subordinate in all respects to all mortgages which may, from time to time, hereafter affect the Property, the Parking Garage or any structures appurtenant thereto, and to all advances to be made under such Developer's mortgages, and to all renewals, modifications, consolidations, correlations, replacements and extensions of, and substitutions for, any such mortgages provided that (i) the applicable mortgagee shall execute and deliver an agreement to Grantee substantially to the effect that, in the event of any foreclosure of such mortgage, such holder or holders will not make Grantee a party defendant to such foreclosure unless required to do so by law in order to make such proceeding effective nor, whether or not so joined, disturb its possession under this Agreement so long as there shall be no default by Grantee of its obligations hereunder (any such agreement or any agreement of similar import is referred to as a "Non -Disturbance Agreement") or (ii) such Developer's mortgage shall contain provisions substantially to the same effect as those contained in a Non -Disturbance Agreement (any such provisions are referred to in this Agreement as "Non -Disturbance Provisions"). Notwithstanding the foregoing, to the extent the Property is condominiumized, upon# Closing, the City Unit shall be conveyed to the City free and clear of all mortgages and underlying leases (if any) and also free of all liens other than liens for real estate taxes and assessments not then due and payable (but pro rated as of Closing) and the -11- maintenance obligations and assessments required by the condominium documents. (b) This Agreement and all rights of Grantee under this Agreement shall be and remain subject and subordinate in all respects to all future ground or underlying leases of the Property, the Parking Garage or any structure appurtenant thereto and to all renewals, modifications, replacements and extensions of, and substitutions for, such ground or underlying leases, provided that (i) the applicable ground or underlying lease shall contain provisions or (ii) the lessor under any such ground or underlying lease shall execute and deliver to Grantee an agreement, in either case substantially to the effect that, in the event of the termination of such ground or underlying lease by reason of the default or insolvency of the lessee thereunder (or by reason of any other cause, provided such other cause would not result in the termination of this Agreement absent such ground or underlying lease), such lessor will permit Grantee to attorn to such lessor and will not disturb its possession under this Agreement so long as there shall be no default by Grantee of its obligations hereunder, with the effect that this Agreement shall constitute a direct Agreement between such lessor and Grantee (any such provisions or agreement, or any provisions or agreement of similar import are referred to in this Agreement as "Grantee Recognition Provisions" or as a "Grantee Recognition Agreement"). (c) If, at any time prior to the expiration of the term of this Agreement, any ground or underlying lease under which Developer shall then be the lessee shall expire or be terminated for any reason, Grantee agrees at the election and upon demand of any owner of the Property, the Parking Garage or any structures appurtenant thereto, or if the holder of mortgages in possession of the same, or of any lessee under any other ground or underlying lease covering premises which include the City Unit, to attorn, from time to time, to any such owner, holder or lessee upon the then executory term and conditions of this Agreement, for the remainder of the term of this Agreement, provided that such owner, holder or lessee, as the case may be, shall then be entitled to receive Maintenance Costs (as hereinafter defined). The foregoing provisions of this Paragraph 15(c) shall inure to the benefit of any such owner, holder or lessee, shall apply notwithstanding that as a matter of law, this Agreement may terminate upon the expiration or termination of any such ground or underlying lease, shall be self -operative upon any such demand, and no further instrument shall be required to give effect to said provisions. Grantee, however, upon demand of any such owner, holder or lessee, agrees to execute from time to time, instruments in confirmation of the foregoing provisions of this Paragraph 15(c), satisfactory to any such owner, holder or lessee acknowledging such attornment and setting forth the terms and conditions of its use and occupancy of the City Unit. Nothing contained in this Paragraph 15(c) shall be construed to impair any right otherwise exercisable by any such owner, holder or lessee. (d) The subordination provisions of this Paragraph 15 shall be self -operative and no further instrument of subordination shall be required. In confirmation of such subordination, Grantee shall execute and deliver promptly any certificate or other instrument evidencing such subordination which Developer, or any lessor under any ground or underlying lease, or any holder of any mortgage to which this Agreement is subordinate, may reasonably request. (e) Nothing contained in this Paragraph 15 or in any Non -Disturbance Provision, Non -Disturbance Agreement, Grantee, Recognition Provision or Grantee Recognition Agreement shall, however, affect the prior rights of the holder of any existing or future mortgage or of the lessor under any future ground or underlying lease with respect to the proceeds of any award in -12- condemnation or of any insurance policies affecting the Property, Parking Garage or any structure appurtenant thereto, or impose upon any such holder or lessor any liability (i) in the event of damage or destruction to the Parking Garage or the City Unit for any repairs, replacements, rebuilding or restoration except as can reasonably be accomplished from the net proceeds of insurance actually received by or made available to, such holder or lessor in respect of such damage or destruction to the extent any such existing or future mortgage or ground or underlying lease provides that such net proceeds are to be made available for such repairs, replacements, rebuilding or restoration, or (ii) for any default by Developer under this Agreement occurring prior to any date upon which such holder or lessor shall become Grantee's landlord or (iii) for any credits, offsets or claims against Maintenance Costs under this Agreement as the result of any acts of any prior Developer, and any such Provision or Agreement may so state. Any such Provision or Agreement may also be conditioned upon the existence of any one or more of the following circumstances at the time of the commencement of any foreclosure of any such mortgage or at the time of the termination of any such ground or underlying lease, as the case may be: (1) This Agreement shall be in full force and effect; (2) Grantee shall not be in default in the observance or performance of any of the covenants of this Agreement on the part of Grantee to be observed or performed beyond any applicable grace period provided in this Agreement for the curing of any default; (3) Grantee shall have agreed that, notwithstanding that Grantee may have paid for Maintenance Costs in advance beyond the then current payment period, Grantee shall not be entitled to any credit for such payment against the holder of any such mortgage after foreclosure or against the lessor under such ground or underlying lease after termination, as the case may be and no such Maintenance Costs payment shall be binding upon such holder or lessor; (4) There shall be no offsets then accrued against future Maintenance Costs chargeable against the holder of any such mortgage after foreclosure or against the lessor under any such ground or underlying lease after termination, as the case may be; (5) Any circumstances substantially similar to (2), ( 3 ) or (4) ; and ( 6 ) Grantee shall have furnished to the then holder of any such mortgage or the then lessor under any such ground or underlying lease, as the case may be, a statement, in writing, as to the status of this Agreement with respect to the above circumstances (1), (2), (3) and (4) or any circumstances substantially similar to (2), ( 3 ) or (4), within ten (10 ) days after such holder or lessor shall have made written demand for such statement by registered or certified mail addressed to Grantee. (f) At the request of Developer, Grantee shall promptly execute and deliver any instrument or instruments requested by Developer for the benefit of the holder of any mortgage to which this Agreement shall then be subordinate or for the benefit of the lessor under any ground or underlying lease to which this Agreement shall then be subordinate, in which Grantee shall covenant and agree with such holder or lessor that (1) Grantee will not enter into any agreement to cancel or modify this Agreement without the written approval of such holder or lessor and (ii) Grantee will not -13- take any action or institute any proceeding against Developer to cancel or modify this Agreement by reason of the default of Developer without giving to such holder or lessor at least thirty (30) days' prior written notice of such action or proceeding and a reasonable opportunity for such holder or lessor to cure or cause to be cured, such default by Developer (including such reasonable period of time as shall be required for such lessor or holder to obtain possession of the Parking Garage if possession of the same shall be needed to cure such default), except that the provisions of any such instrument shall not apply to any modifications of this Agreement contemplated in any of the provisions of this Agreement or to any right or option to cancel or modify this Agreement expressly reserved or granted to Grantee pursuant to any of the provisions of this Agreement not involving the default of Developer. (g) If required by the holder of any such mortgage or by the lessor under any such ground or underlying lease, Grantee shall promptly join in any Non -Disturbance Agreement or Grantee Recognition Agreement to indicate its concurrence with the provisions thereof provided such agreement shall comply with the provisions of this Paragraph 15. 16. Maintenance and Repair Costs. (a) At Developer's option, but in any event within no more than one (1) year following the Completion Date of the City Unit, Developer shall turn over all maintenance and repair obligations for the City Unit to Grantee, which shall be maintained and repaired in a first class manner and consistent with Developer's maintenance of the Private Unit and the Operational Standards, by the Grantee at the Grantee's expense. Prior to turn over, Grantee shall reimburse Developer from time to time on a monthly basis all out-of-pocket expenses incurred by Developer in maintaining or repairing the City Unit (other than the expense of correcting the punch list items and any latent defects in construction). (b) Grantee shall pay to the appropriate taxing authorities any and all taxes, assessments and charges of every description levied upon Grantee and/or the Licensees' occupation of the City Unit or Grantee's payment of Maintenance Costs pursuant to this Agreement. (c) Any repairs of a structural nature or otherwise impacting portions of the Parking Garage (or building in which the Parking Garage is situated) other than just the City Unit, shall be undertaken either by the Developer or the Condominium Association, and the costs thereof apportioned as provided in the condominium documents (or if no condominium is created) otherwise equitably apportioned based upon the nature and scope of the repair work. Any dispute as to the apportionment of such repair work that cannot be resolved within thirty (30) days shall pursuant to paragraph 9.7 of the Development Agreement be submitted for resolution to the Circuit Court of the 11th Judicial Circuit Dade County, Florida. Developer shall also be entitled to make any emergency repairs (not being undertaken by Grantee) as necessary and be equitably reimbursed for same pursuant to the foregoing. (d) In the event that the Parking Garage is condominiumized pursuant to Paragraph 4 of this Agreement, Grantee shall pay to the Condominium Association its pro rats share of "Co=on Expenses" (as that term is defined in the Act) which expenses shall include, by way of example only and without being limited to, the maintenance, repair, replacement, management, operation, regulation and insuring of the common elements and limited common elements of or relating to the Parking Garage (which, elements shall not include common elements and limited common elements which relate solely to the dwelling units in the Development and not to the Parking Garage), all fees, assessments and expenses incurred in connection therewith, all as shall be more DEC fully described in the Declaration of Condominium as well as all costs associated with the maintenance and repair of the dropoff areas; however, in preparing the Declaration of Condominium, Developer shall provide that day-to-day maintenance and operation of the City Unit shall be within the control of the Grantee as otherwise provided herein; and if no condominium is created, the foregoing shall be paid as additional rent under the lease. (e) All amounts payable by Grantee pursuant to this Paragraph 16, and any other sums payable by Grantee pursuant to this Agreement, shall be deemed maintenance costs (the "Maintenance Costs"), and, if not paid when due, shall, to the extent lawful, be deemed liens upon the City Unit prior in all respects to all other liens then or thereafter placed thereon and, without limiting any other rights or remedies available to Developer in respect thereof, may be foreclosed by Developer in the same manner as mortgage liens may be foreclosed thereon. 17. Use. (a) Grantee will use the City Unit solely for the purpose of providing parking for automobiles (including vans and so-called "utility vehicles" but excluding trucks and oversized vehicles that do not fit within standard vehicular parking spaces) of (i) persons employed in connection with the operation, management, maintenance or repair of the Marina and the Marina Lessee, (ii) occupants or users of the Marina, including their guests or invitees and exhibitors in and visitors to any boat shows that may be held at the Marina from time to time, (iii) the public generally (all such users being herein referred to as "Permitted Users"), and for no other purpose; provided, however, that to the extent that there is located within the City Unit lavatory, shower and laundry room facilities, the use of such facilities solely by occupants or users of the Marina shall be a permitted use hereunder and the users of such facilities shall be included within the definition of Permitted Users. Grantee will be entitled to sublease the City Parking Spaces to the Permitted Users at such rates as are set by Grantee in its sole discretion, and on other terms and conditions established by Grantee in its sole discretion, provided that such terms and conditions are not inconsistent with the terms of this Agreement (the Permitted Users subleasing from or otherwise granted a right to use such City Parking Spaces by Grantee are herein collectively referred to as the "Licensees"). (b) Grantee will not use or permit the use of the City Unit for any purpose other than as set forth in Paragraph 17(a) hereof. Grantee shall not use or occupy or suffer or permit the use or occupancy of any part of the City Unit in any manner which would adversely affect (i) the use and enjoyment of any part of the Parking Garage by any other user thereof or (ii) the appearance, character or reputation of the Parking Garage as part of a first- class development. (c) Grantee shall assist and cooperate with Developer with respect to the use by the Licensees of the Parking Garage. Grantee acknowledges that, to some extent, the profitability of the operation of the Parking Garage, exclusive of the City Unit, and the appurtenant improvements depends upon Developer's ability to control the use of the Parking Garage by anyone other than the Licensees and to control the manner of use of the Parking Garage by the Licensees. Grantee agrees to cooperate with Developer and to take, and to cause the Licensees to take, such actions as may from time to time be reasonably required by Developer to permit or assist Developer in so controlling the use and/or manner of use of the Parking Garage, the dropoff areas or the City Unit and identifying the Licensees, including, without being limited to the installation and monitoring of such control and security systems or,, mechanisms as Developer shall reasonably specify from time to time. 18. Developer's Default. (a) In the event of any default by Developer hereunder not caused by Excusable Delays (as -15- hereinafter defined), Grantee shall give Developer and each of Developer's mortgagees written notice specifying such default with particularity and Developer agrees to promptly commence the curing of such default and to cure such default within thirty (30) days after receipt of the aforesaid notice; provided, however, that if such default cannot reasonably be cured within said thirty (30) day period, then Developer shall cure any such.default diligently and as quickly as reasonable practicable under the circumstances and shall have a reasonable period of time within which to cure such default so long as Developer is so proceeding. If Developer fails to cure any default during the applicable curative period, Grantee, at any time after the expiration of such curative period (as long as such default remains uncured), shall have the right, subject to Paragraph 23 hereof, to seek damages against Developer and/or to exercise any other remedy provided in this Agreement or available to Grantee at law or in equity. As used herein, the term "Excusable Delay" shall mean Developer's failure to complete construction of the Parking Garage or to perform any other obligation of Developer hereunder, as applicable, by reason of one or more of the following causes, to -wit, governmental restrictions, regulations or ordinances, strikes, shortages of labor or essential materials, lockouts, acts of God, war, riots or civil commotion, fire or other casualty, negligence or the willful misconduct of Grantee or any Licensee, failure of the parties hereto to approve amendments of or changes to the Plans and Specifications, or any other cause, similar or dissimilar to the foregoing and whether or not now in the contemplation of the parties hereto, beyond the reasonable control of Developer, other than the financial inability of Developer to perform, provided that Developer takes reasonable steps to so minimize the effect of any such circumstance, but such steps shall not include the acquiescence in the demands of the other side in any labor dispute or the payment of money or the employment of labor at overtime or premium rates, in which event the date upon which Developer is so required to complete construc- tion of the Parking Garage (or the required time period for Developer's performance of any other obligation hereunder, as applicable) shall be extended for a period equal to the length of the delay caused by such Excusable Delays. Developer agrees to make a good faith effort to notify Grantee of any Excusable Delays affecting the performance by Developer of its obligations under this Agreement and the estimated delay to result therefrom, but the failure to give such notice shall not affect Developer's rights under this Paragraph 18. (b) Grantee's Default. In the event of any default by Grantee hereunder, not caused by Grantee Excusable Delays (as hereinafter defined), Developer shall give Grantee written notice specifying such default and Grantee agrees to promptly commence the curing of such default and to cure such default within thirty (30) days after receipt of the aforesaid notice; provided, however, that if such default cannot reasonably be cured within said thirty (30) day period, then Grantee shall cure any such default diligently and as quickly as reasonably practicable under the circumstances and shall have a reasonable period of time within which to cure such default so long as Grantee is so proceeding. If Grantee fails to cure any default during the applicable curative period, Developer, at any time after the expiration of such curative period, shall have the right to seek damages against Grantee and/or to exercise any other remedy provided in this Agreement or available to Developer at law or in equity. As used herein, the term "Grantee Excusable Delays" shall mean Grantee's failure to perform any obligation of Grantee hereunder by reason of one or more of the following causes, to -wit, governmental restrictions, regulations or ordinances (other than those restrictions, regulations or ordinances over which Grantee, as a governmental entity, exercises, control), strikes, lockouts, acts of God, war, riots, gross negligence or the wilful misconduct of Developer, or any other cause, similar or dissimilar to the foregoing and whether or not now in the contemplation of the parties hereto, beyond the -16- reasonable control of Grantee, other than the financial inability of Grantee, provided that Grantee takes reasonable steps to so minimize the effect of any such circumstance, in which event the required period for Grantee's performance for any obligation hereunder shall be extended for a period equal to the length of the delay caused by such Excusable Delays. Grantee agrees to make a good faith effort to notify Developer of any Excusable Delays affecting the performance by Grantee of its obligations under this Agreement and the estimated delay to result therefrom. Notwithstanding the foregoing, any failure of Grantee to timely pay the Purchase Price as required by Paragraph 9 above, shall if the same continues more than sixty (60) days after written notice to Grantee and the Marina Lessee (and without releasing the Grantee for all damages caused thereby) , fully excuse and release Developer from any obligation to deliver the City Facilities hereunder (provided in such event Developer shall remain obligated to provide the two (2) drive-in dropoffs together with the remaining temporary non -parking facilities described in paragraph 2 above). 19. Change in Facilities. (a) Developer reserves the right, at any time, without incurring any liability to Grantee therefor, to make such changes in or to the City Unit, the Parking Garage (including, without being limited to, reducing the size of the Parking Garage) and any structures appurtenant thereto, as well as in the entrances, doors, corridors, elevators, stairs, landings, if any, and other public parts of the same, as it may deem necessary or desirable, provided any such change to the City Unit or the Parking Garage (but not of any structures appurtenant to the Parking Garage exclusive of the Parking Garage) (i) does not deprive Grantee of access to the City Unit, (ii) does not interfere with the use of any portions of the City Unit for an unreasonable length of time under the circumstances then prevailing and (iii) does not reduce the number of parking spaces in the City Unit below the number of parking spaces Developer is obligated to provide Grantee in the City Unit pursuant to this Agreement and (iv) meets all of the other criteria for design, review and approval otherwise required for a change in the Plans and Specifications as set forth in paragraph 6 above. (b) Grantee shall permit Developer to install, use and maintain pipes, ducts, wires and conduits within or through the City Unit, or through the walls, columns and ceilings or under the floor therein, provided that the installation work is performed at such times and by such methods as will not unreasonably interfere with Grantee's use and occupancy of the City Unit or damage the appearance thereof. (c) All parts of all walls, doors or barriers bounding the City Unit, all stairs, landings and roofs adjacent to the City Unit, all space in or adjacent to the City Unit used for shafts, stacks, stairways, conduits, air conditioning rooms, fan rooms, heating, ventilating, air conditioning, plumbing, electrical and other mechanical facilities, service closets and other equipment serving the Parking Garage or other parts of the building in which the Parking Garage is located, and the use thereof, as well as access thereto through the City Unit for the purposes of operation, decoration, cleaning, maintenance, safety, security, alteration and repair, are hereby reserved to Developer. Developer reserves the right, at any time, to make such changes in or to the Parking Garage and the equipment, including the entrances, doors, corridors, elevators, stairs, landings and other public parts of the equipment serving the Parking Garage, as it may deem necessary or desirable, provided any such change W shall not deprive Grantee of access to the City Unit, (ii) shall not materially interfere with the use of any portions of the City Unit for any unreasonable length of time and (iii) shall be made in the manner as necessary to meet all of the criteria for design, review and approval otherwise required for a change in the Plans and Specifications as set forth in paragraph 6 above. The Grantee -17- further recognizes that the City Unit may be located within or as part of a larger structure; and, in that regard, there shall be no air rights available to Grantee, all such rights as well as all necessary easements for support below and adjacent to the City Unit being reserved to Developer. The Grantee shall make no material alterations to the City Unit without the consent of the Developer. (d) Developer shall have the right to enter the City Unit at all reasonable times upon reasonable notice to Grantee (except in an emergency in which case no notice shall be required) for any of the purposes specified in this Paragraph 19 and (i) to examine the City Unit or to perform any obligation of Developer or to exercise any right reserved to Developer in this Agreement; (ii) to inspect any improvements in the City Unit or the making thereof; (iii) to exhibit the City Unit to others; (iv) to make repairs, including repairs of damage resulting from fire or other casualty or eminent domain, or improvements, or to perform such maintenance, including the maintenance of equipment serving the Parking Garage, as Developer may deem necessary or desirable; and (v) to take into and store upon portions of the City Unit any materials that may be reasonably required for repairs, improvements or maintenance to the City Unit. Any holder or a mortgage or any ground lessor under any ground or underlying lease to which this Agreement is subject and subordinate shall have right to enter the City Unit at all reasonable times to examine the City Unit or exercise any right reserved to Developer under this Paragraph 19. (e) Developer or Developer's agents shall have the right to permit access to the City Unit at any time, whether or not Grantee shall be present, to any receiver, trustee, marshal or other person entitled to, or reasonably purporting to be entitled to, such access for the purpose of taking possession of or removing any of Grantee's property or property of any other occupant of the City Unit, or for any other lawful purpose, or by any representative of the fire, police, building, sanitation or other department or instrumentality of the borough, city, state or federal governments. Nothing contained in, and no action taken by Developer under, this Paragraph 19 shall be deemed to constitute recognition by Developer that any person other than Grantee has any right or interest in this Agreement or the City Unit. (f) The exercise of any right reserved to Developer in this Paragraph 19 shall be without liability of Developer to Grantee. 20. EstoDRel Certificates. Developer and Grantee shall execute and deliver to each other, at such time or times as either party may request, a certificate in recordable form stating: U) Whether or not this Agreement is in full force or effect; (ii) Whether or not this Agreement has been modified or amended in any respect, and submit copies of such modifications or amendments, if any. (iii)Whether or not there are any existing defaults under this Agreement to the knowledge of party executing the certificate, and specifying the nature of such defaults, if any; and (iv) Such other information as may be reasonably requested by such other party. The aforesaid certificate(s) shall be delivered to Grantee orq Developer, as the case may be, promptly upon receipt of the written request therefor, but in no event more than ten (10) days following receipt of such request. -18- 21. Non -Waiver. The failure by either party hereto to complain of any action, non -action or default of the other party hereto shall not constitute a waiver of any of such party's rights hereunder. Waiver by either party hereto of any right or any default of the other party hereto shall not constitute a waiver of any right for either a prior or subsequent default of the same obligation or for any prior or subsequent default of any other obligation. No right or remedy of either party hereunder or covenant, duty or obligation of either party hereunder shall be deemed waived by the other party hereto unless such waiver be in writing, signed by the other party or such other party' s agent duly authorized in writing. 22. Parking Garage Name. The Parking Garage may be designated and known by any name or address Developer may choose and such designated name or address may be changed from time to time in Developer's sole discretion provided that, to the extent feasible, the City Unit shall have its own separate entrance which shall be under the control of the Grantee and Grantee shall be entitled (at Grantee's expense) to install appropriate signage (consistent with the design of the improvements on the Property and aesthetically approved by the Developer). Grantee agrees not to refer to the Parking Garage by any name or address other than as designated by Developer. 23. Miscellaneous. (a) Subject to the other provisions of this Paragraph 23, Developer and Grantee may each restrain or enjoin any breach or threatened breach of any covenant, duty or obligation of the other party (as applicable) herein contained without the necessity of proving the inadequacy of any legal remedy or irreparable harm. Subject to the other provisions of this Paragraph 23, the remedies of Developer and Grantee shall be deemed cumulative and no remedy of Developer or Grantee whether exercised by Grantee or Developer or not exercised by such party shall be deemed to be in exclusion of any other remedy unless otherwise expressly so stated in this Agreement. (b) The term "Developer" shall mean only the owner at the time in question of the present developer's interest. in the Parking Garage (and any building of which it is a part) and in the event of a sale or transfer of the same (by operation of law or otherwise), or in the event of the making of a lease of all or substantially all of the same, or in the event of a sale or transfer (by operation of law or otherwise) of the leasehold estate under any such lease, the grantors, transferor or lessors, as the case may be, shall be and hereby is (to the extent of the interest or portion of the Parking Garage or leasehold estate sold, transferred or leased) automatically and entirely released and discharged, from and after the date of such sale, transfer or leasing, of all liability in respect of the performance of any of the terms, covenants or conditions of this Agreement on the part of Developer thereafter to be performed; provided that the purchaser, transferee or lessee (collectively, "Transferee") shall be deemed to have assumed and agreed to perform, subject to the limitations of this Paragraph 23(b) and Paragraphs 23(c) and (d) below (and without further agreement between the then parties hereto, or among such parties and Transferee) and only during and in respect of Transferee's period of ownership of Developer's interest, under this Agreement, all of the terms of this Agreement on the part of Developer to be performed during such period of ownership, which terms, covenants or conditions shall be deemed to "run with the land", it being intended that Developer's obligations hereunder shall, as limited by this Paragraph 23(b) and Paragraphs 23(c) and (d) below, be binding on Developer, its successors and assigns, only during and in respect of their respective successive periods% of ownership; and provided further that in the event of a condominiumization of such Parking Garage and building, the Condominium Association shall be deemed the Transferee and succeed to all interests of the Developer (save and except payment of any -19- deferred Purchase Price or other cost to be reimbursed which accrued prior to the creation of the condominium.) (c) No recourse shall be had on any of Developer's obligations hereunder or for any claim based thereon or otherwise in respect thereof against any incorporator, subscriber to the capital stock, shareholder, officer of director, past, present or future, of any corporation or any partner or joint venturer which shall be Developer or included in the term "Developer" or of any successor of any such corporation, partner or joint venturer, or against any principal, disclosed or undisclosed, or any affiliate of any party which shall be Developer or included in the term "Developer", whether directly or through Developer or through any receiver, assignee, trustee in bankruptcy or through any other person, firm or corporation, whether by virtue of any constitution, statute or rule of law or by enforcement of any assessment or penalty or otherwise, all such liability being expressly waived and released by Grantee. (d) Grantee shall look solely to Developer's estate and interest in the Parking Garage (and the building of which it is a part, if any) and the proceeds thereof for the satisfaction of any right of Grantee for the collection of a judgment or other judicial process or arbitration award requiring the payment of money by Developer and no other property or assets of Developer, Developer's agents, incorporators, shareholders, officers, directors, partners, venturers, principals (disclosed or undisclosed) or affiliates, shall be subject to levy, lien, execution, attachment or other enforcement procedure for the satisfaction of Grantee's rights and remedies under or with respect to this Agreement, the relationship of Developer and Grantee hereunder or under law, or Grantee's use and occupancy of the City Unit or any other liability of Developer to Grantee. (e) In any circumstances where Developer is permitted to enter upon the City Unit during the term hereof, whether for the purpose of curing any default of Grantee or repairing damage resulting from fire or other casualty or eminent domain or as otherwise permitted hereunder or by law, no such entry shall constitute an eviction or disturbance of Grantee's use and possession of the City Unit or breach by Developer of any of its obligations. hereunder or render Developer liable for damages or entitle Grantee to be relieved from any of its obligations hereunder or grant Grantee any right of recoupment or other remedy; and in connection with any such entry incident to performance of repairs, replacements, maintenance or construction, all of the aforesaid provisions shall be applicable notwithstanding that Developer may elect to take building materials in, to or upon the City Unit that may be required to be utilized in connection with such entry by Developer. (f) The Maintenance Costs shall bear interest at a rate which is three (3) percentage points in excess of the "base" rate quoted from time to time by Citibank, N.A. in New York, New York (not, however, to exceed the maximum lawful rate) or, if no such "base" rate is quoted, 15V per annum from the date due (beyond all applicable notice and grace periods) until actually received by Developer. (g) In the event that the Parking Garage shall be destroyed by any cause whatsoever, or if the Parking Garage shall be taken for any public or quasi -public use or improvement by virtue of the power of eminent domain, Developer shall have no obligation to rebuild the Parking Garage or damaged portion thereof, but to the extent the Developer reconstructs the remaining, portions of the Parking Garage and the City provides the Developer with sufficient funds for the rebuilding of the City Unit (whether by insurance proceeds, condemnation awards, or otherwise) then the Developer shall rebuild the City Unit at the same time. If the -20- City Unit is not rebuilt, then Developer shall be obligated to provide to the Marina Lessee the two (2) drive-in dropoffs together with the other temporary non -parking facilities required by paragraph 2 above. Nothing set forth herein is intended to prohibit the City from its right to seek a condemnation award for its interest in the City Unit in the event of a taking of the City Unit. (h) The terms "liability" or "liable" as used herein shall include, without being limited to, any loss, cost, claim, damage, fine, penalty or expense. 24. Assi nabilit . (a) Except as otherwise herein expressly provided in this Agreement, neither Grantee nor its successors -in - interest by operation of law or otherwise shall sell, convey, transfer or assign this Agreement or sublease the City Unit or any part thereof, or permit the same to be used or occupied by anyone, or mortgage, pledge or hypothecate its estate or grant any concession or license within the Parking Garage and any attempt to do any of the foregoing shall be void and of no force or effect. Notwithstanding the foregoing, Grantee shall be permitted to mortgage or pledge or otherwise hypothecate its interest in the City Unit, to the extent permitted by law, for the purpose of obtaining the funds necessary to pay the Purchase Price for the City Unit. In the event Grantee shall propose to sell, convey, transfer of assign its interests in this Agreement or sublease the City Unit, Developer shall have a "right of first refusal" in respect of such transaction. With Developer's prior reasonable approval, Grantee shall have the right to grant a concession or management agreement to a concessionaire or managing agent with experience in operating parking garages for the purpose of operating of the City Unit on behalf of Grantee; provided, however, that any such concessionaire or managing agent approved by Developer shall be bound by the terms and conditions of this Agreement and any failure by such concessionaire or managing agent to perform strictly in accordance with the terms hereof shall be deemed to be a default by Grantee hereunder. (b) The parties hereto acknowledge that the Developer will require financing to obtain the funds necessary for the construction of the Development, including the Parking Garage. In the event any such lender shall require modifications of this Agreement as a condition precedent to such funding, Grantee agrees to reasonably consent to same provided the requested modifications will not increase the obligations of Grantee nor diminish the rights of Grantee hereunder. 25. Term of Agreement. It is intended and agreed that this Agreement be recorded in the Public Records of Dade County, Florida, and be a covenant running with the title to the Property, for an initial term of twenty (20) years and shall thereafter automatically renew for consecutive twenty (20) year periods unless terminated in writing by all of the parties hereto. 26. Entire Agreement. The Development Agreement and this Agreement represent the entire agreement of the parties hereto and no other prior or present agreements or representations shall be binding upon any of the parties hereto, unless specifically incorporated herein by reference, whether such prior or present agreements have been made orally or in writing. No modification, change, amendment or extension of the terms or provisions of this Agreement shall be valid or binding upon any of the parties unless in writing and executed by the parties to be bound thereby. 27. Notices and Demands. All notices, demands,q correspondence and communications between the City, the Agency and Developer shall be deemed sufficiently given under the terms of this Agreement if dispatched by registered or certified mail, postage prepaid, return receipt requested, addressed as follows: -21- If to the Agency: Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: Executive Director with a copy to: Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: General Counsel If to the City: The City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Manager With a copy to: The City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Attorney If to West Side Partners, Ltd.: West Side Partners, Ltd. c/o Portofino Group 446 Collins Avenue Miami Beach, Florida 33139 Attention: Heinrich von Hanau With a copy to: Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. 1221 Brickell Avenue Miami Florida 33131 Attention: Matthew B. Gorson, Esq. if to Marina Lessee: Tallahassee Building Corp. c/o Heller Financial, Inc. 500 W. Monroe, 15th Floor Chicago, Illinois 60661 With a copy to: Eckert, Seamans, Cherin & Mellott 701 Brickell Avenue, Suite 1850 Miami, Florida 33131 Attention: Carter McDowell, Esq. or to such other address and to the attention of such other person as to the City, the Agency or Developer may from time to time designate by written notice to the others. 28. Captions. The captions of this Agreement are for convenience and reference only, and in no way define, describe, extend or limit the scope or intent hereof. 29. Governing Law - Venue. This Agreement shall be governed in its enforcement, construction and interpretation by the laws of the State of Florida. This Agreement is being executed and -22- delivered in conjunction with the Development Agreement and the resolution of any disputes hereunder shall be under the continuing jurisdiction and authority of, and shall be submitted for resolution to, the Circuit Court of the 11th Judicial Circuit, Dade County, Florida pursuant to paragraph 9.7 of the Development Agreement. The parties hereto waive a trial by jury of any and all issues arising in any action or proceeding between them or their successors or assigns under or in connection with this Agreement or any of its provisions or any negotiations in connection therewith. This Agreement shall not be more strictly construed against either party, both parties having participated in the negotiation and preparation hereof. In the event of any litigation between the parties under this Agreement for a breach hereof, the prevailing party shall be entitled to reasonable attorneys, fees and court costs at trial and all appellate levels. 30. Rel_ ttionphip of Parties. It is specifically understood and agreed by and between the parties hereto that: (1) the subject development is a private development; and (2) the relationship of the parties is contractual in nature, and neither the City nor the Agency is a joint venturer, partner or agent of Developer. No third party, [other than the Marina Lessee as specifically provided herein] shall be deemed a third party beneficiary of this Agreement, nor shall the same be enforceable by any such third party. 31. Time is of the Essence. The parties specifically agree that time is of the essence regarding this Agreement. 32. Parties Bound. The City and the Agency shall be jointly and severally liable and bound under this Agreement, and the Developer shall be bound by this Agreement. 33. Severabi ity. If any term or provision of this Agreement or the application thereof to any persons or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected and the same shall be enforced to the fullest extent permitted by applicable law. 34. Further Assurances. The parties hereto shall forthwith execute and deliver all other appropriate supplemental agreements or other instruments or documents and take any other action required to accomplish the purposes described herein. IN WITNESS WHEREOF, this Agreement has been executed by the parties on the day and year first above written. -23- --. Witness: Witness: APPROVED: CITY ATTORNEY Witness: Witness: Witness: Witness: CITY OF MIAMI BEACH By: Mayor ATTEST: CITY CLERK MIAMI BEACH REDEVELOPMENT AGENCY By: Title: ATTEST: SECRETARY WEST SIDE PARTNERS, LTD., a Florida limited partnership By: West Side Partners, Inc., a Florida corporation, General Partner By: ATTEST: CORPORATE SECRETARY w -24- STATE OF FLORIDA ) } SS: COUNTY OF DADE } The foregoing instrument was acknowledged before me this day of , 19_ by as Mayor of the CITY OF MIAMI BEACH, a municipal corporation, on behalf of the corporation. He/she/they personally appeared before me, is/are personally known to me or produced as identification. Notary: [NOTARIAL SEAL] Print Name: Notary Public, State of My commission expires: STATE OF FLORIDA ) } SS: COUNTY OF DADE ) The foregoing instrument was acknowledged before me this day of 19� by as of the MIAMI BEACH REDEVELOPMENT AGENCY, a public agency organized pursuant to the Community Redevelopment Act of 1969, as amended, on behalf of the agency. He/she/they personally appeared before me, is/are personally known to me or produced as identification. Notary: [NOTARIAL SEAL] Print Name: Notary Public, State of My commission expires: STATE OF FLORIDA SS: COUNTY OF DADE The foregoing instrument was acknowledged before me this day of 19! by as of West Side Partners, Inc., a Florida corporation, the General Partner of WEST SIDE PARTNERS, LTD., a Florida limited partnership, on behalf of the partnership. He/she/they personally appeared before me, is/are personally known to me or produced as identification. Notary: [NOTARIAL SEAL] Print Name: Notary Public, State of My commission expires: s -25- Consent The undersigned Marina Lessee hereby consents to the foregoing Agreement and agrees to be bound to the provisions of paragraph 6 hereof which pertain specifically to the Marina Lessee. TALLAHASSEE BUILDING CORPORATION By: -26- i B. C 14. The overall project shall be reviewed for compliance with the City's Comprehensive Plan or Neighborhood Plans that apply to or affect the subject property. 15. To promote reduced crime and fear of crime through the use of Crime Prevention Through Environmental Design Guidelines and Strategies. A 212&ability and Exemptions, I. Annlicability, All Building Permits for new construction, Alterations, or additions to existing Buildings, including fences, Parking Lots, walls and Signs, whether new or change of copy, shall be subject to review under the Design Review procedures except as provided herein. No Building Permit shall be issued without the written approval by the Design Review Board or staff as provided for in these regulations. 62 Exemptions. Exemptions to these regulations include all of the following provided no new construction or additions to existing Buildings are required: a. all permits for plumbing, heating, air conditioning, elevators, fire alarms and extinguishing equipment, and all other mechanical and electrical equipment when such work is entirely within the interior of the Building; however, the Historic Preservation and Urban Design Director may approve such Building Permit applications for minor work on the Exterior of Buildings. 62 b. any -permit necessary for the compliance with a lawful order of the Building Official, Fire Marshall or Public Works Director related to the immediate public health or safety. C. all permits for interior Alterations and repairs not affecting a Building listed as a Historic Structure in the City's Historic Property Database. d. all permits for Demolition or wrecking. C. all single Family Dwellings are exempt from the Design Review regulations. However, all Building Permits for new construction. alterations or additions to existing Structures shall be subject to compliance with Section 6-1,B.1. (Development Regulations). 62,77 f. Municipal Buildings, Uscs and Sites exempted by the City Commission pursuant to Section 6-12 BA of this Ordinance. Al2rilication for Design Review The Applicant shall obtain a Design Review application from the Historic Preservation and Urban Design Department which shall be responsible for the overall coordination and administration of the Design Review Process. When the application is complete, the Historic Preservation and Urban Design Department shall place the application on the agenda and prepare a recommendation to the Design Review Board. The Historic Prescrvation and Urban Design Department shall dctcrminc the date on which the application will be heard by the Board; howcvcr, the Board shall consider the application and Historic Preservation and L'rtan Dcsign Department recommendation within fart%-t i%c (45)da\.s from the date of submission of a completed application to the Planning and Zoning Department. 52 D. Decision of Board The Historic Preservation and Urban Design Department shall provide the Applicant with advance notice of the hearing date and time, including a copy of the agenda and the recommendation of the Department. The Board shall approve, approve with conditions or deny applications. 62 The Board may require such changes in said plans and specifications as in its judgment may be requisite and appropriate to the maintenance of a high standard of architecture, as established by the standards contained in this Ordinance and as specified in the City's Comprehensive Plan and other specific plans adopted by the City of Miami Beach pertaining to the areas identified in Section 18-2,13.1. Upon approval of an application by the Board, the Historic Preservation and Urban Design Director or his authorized representative shall stamp and Sign three (3) sets of plans. Two (2) sets of plans shall be returned to the Applicant who may then submit an application for a Building Permit. The remaining approved plans shall be part of the Board's official record and shall be maintained on file with the Historic Preservation and Urban Design Department. 52 The Historic Preservation and Urban Design Department shall issue a letter informing the Applicant of the Board's decision. If approval is denied, the letter shall specify the reasons for denial. 52 E. F_ ccs An Applicant shall pay, upon the submission of an application to the Historic Preservation and Urban Design Department, a fee based upon the following schedule: 52 1. An application requiring a hearing before the Board shall require a base fee of $400.00 plus 50.005 per square feet of floor area. 2. An application requiring staff review only shall require a fee of $50.00 3. An application pertaining only to Signs shall require a fee of $50.00. 4. An application pertaining only to paint shall require a fee of $15.00. 5. If a deferment or clarification hearing is requested by the Applicant, an additional $50.00 fee shall be assessed. b. If a deferment or clarification of conditions is requested by the Board, there will be no additional fee. �. If the Applicant removes his file from the agenda after it has been accepted by the Historic Preservation and Urban Design Dcpartment, the Cite shall retain 50% of the application fee. 8. An application pertaining to extensions of time shall require a fee of 5 100.00. 18.5 9. Any "after the fact" application shall incur double fees. 10, Revisions to previously approved plans shall require a fee of $25.00 for reviews conducted by staff and one-half (1/2) of the original fee for plans which were approved by the Board. 98 I I. Appeal of a staff decision to the Board shall require a fee of S25.00 and an appeal of a Board decision to the City Commission shall require a fee of one-half (I/2) of the original application fee. The fee shall be refunded if the applicant prevails in the appeal. Qa The above fee schedule is provided to defray the costs associated with the Administration of this Section. F. Clarification H arin Should a question arise as to compliance with the conditions as outlined by the Board, a clarification hearing before the Board may be called at the request of the Historic Preservation and Urban Design Department or by the Applicant. 52 G. Building Permit Application The Applicant or his authorized agent shall make application for a Building Permit. The application shall include, at a minimum, the two (2) sets of plans which were approved by the Board and stamped and Signed by the Historic Preservation and Urban Design Director or his authorized representative. 52 No Building Permit, Certificate of Occupancy, Certificate of Completion, or Occupational License shall be issued unless all of the plans, including amendments, notes, revisions, or modifications, have been approved by the Historic Preservation and Urban Design Director. Minor modifications to plans that have been approved by the Board shall be permitted when approved by the Historic Preservation and Urban Design Director. 62 3. No Building Permit shall be issued for any plan subject to Design Review except in conformity with the approved plans. The Applicant shall have up to one (1) year from the date of design plan approval to obtain all necessary Building Permits required to proceed with construction. If the Applicant fails to obtain said Building Permits) within the time period, all staff and Board approvals shall be null and void and the Applicant shall be required to rc-initiate the Design Review process, however, an extension for cause, not to exceed one (1) year, may be granted by the Board. An Applicant may submit an application for a Building Permit simultaneously with a design plan review in ord--r to cxpeditc processing, ho,Acvcr, no Building Permit shall be issued until the final design plan has been stamped and signed by the Historic Preservation and Urban Design Director or his authorized representative in accordance with this Ordinance- 5= lib H. Special Review Procedure For minor work that is visible from a public way or work which affects the Exterior of the Building which is associated with rehabilitations and additions to existing Buildings, or the construction, repair, or rehabilitation of new or existing walls, At -Grade Parking Lots, fences, and Signs including change of copy, the Historic Preservation and Urban Design Director or his designated representative, upon the written authorization of the Chairperson of the Design Review Board, shall have the authority to approve, approve with conditions or deny an application on behalf of the Board. The Director's decision shall be based upon the criteria listed in Section 18-2. Any appeal of the Historic Preservation and Urban Design Director's decision shall be considered by the Board at the next regular meeting date. ss ADpgal of Design Review _Decisions The Applicant or the City Manager may appeal any decision of the Design Review Board to the City Commission. The appeal shall be in writing and submitted to the Historic Preservation and Urban Design Director within twenty (20) days of the date on which the Board reached a decision on an application. The Historic Preservation and Urban Design Director shall place the appeal on the City Commission agenda within thirty (30) days of receipt of the appeal. az In order to reverse, amend, or modify any decision of the Design Review Board, the City Commission shall find that the Design Review Board acted arbitrarily and capriciously in a` -use of its discretionary powers. The vote to reverse, amend or modif- .all require five (5) votes from the City Commission. Appeal from a decision of the City Commission shall be to a court of competent jurisdiction by petition for writ of certiorari. s= j5_ EXHIBIT ""K" This Instrument prepared by, and after recording return to: Name: Address: {Space roaarved for Clark of Court} MAINTENANCE AND OPERATING AGREEMENT THIS MAINTENANCE AND OPERATING AGREEMENT is made and entered into as of the day of , 19_, by and among: (1) the CITY OF MIAMI BEACH, a Florida municipal corporation ("City"); (2) the MIAMI BEACH REDEVELOPMENT AGENCY, a Florida public agency organized and existing pursuant to the Community Redevelopment Act of 1969 (Chapter 163, Part III, Florida Statutes, as amended) ("Redevelopment Agency"); and (3) the following entities, including their respective successors and assigns, which are sometimes hereinafter referred to collectively as the "Portofino Entities"): A. West Side Partners, Ltd., a Florida limited partnership ( "Went Side"); B. East Coastline Development, Ltd., a Florida limited partnership ("East Coastline"); C. Azure Coast Development, Ltd., a Florida limited partnership ("Azure"); and D. Portofino Real Estate Fund, Ltd., a Florida limited partnership ("Portofino Real Estate Fund"). N X I N F S SA E I A: A. The City, Redevelopment Agency, Portofino Entities and certain affiliates of the Portofino Entities are parties to a certain Agreement dated , 1995, recorded in Official Records Book , at Page , of the Public Records of Dade County, Florida (the "Development Agreement") . B. Unless otherwise indicated, all initial capitalized terms as used herein shall have the same meaning as set forth in the Development Agreement. C. Pursuant to the terms and provisions of the Development Agreement, the following public improvements (together with the Washington Avenue Extension) are to be constructed and installed in accordance with the terms and provisions of the Development Agreement and the Urban Design Master Plan, with the cost of such construction and installation to be funded in accordance with the terms and provisions of the Development Agreement: (1) a baywalk (including necessary seawall construction and/or renovation) along the SSDI South Parcel, the Alaska Assemblage and Alaska Parcel; (2) Sunrise Plaza; (3) Sunset Plaza; and (4) SSDI South Pedestrian Passage. The foregoing public improvements described in (1) - (4) above are sometimes hereinafter individually referred to as a "Phase" and collectively referred to as the "Public Improvements". D. Simultaneously herewith, the Portofino Entities and the City are conveying to the City, all of their ownership interests, as applicable, in and to the lands underlying the Public Improvements, as such lands are more particularly described in Exhibit "All attached hereto (the "Public Lands") for the purposes and as provided in Section 5 of the Development Agreement. E. Pursuant to the terms and provisions of the Development Agreement, upon completion of the construction and installation of each Phase of the Public Improvements, the Portofino Entities shall have the option to operate and maintain such Phase for a period of up to one (1) year thereafter. F. Following each such operational and maintenance period by the Portofino Entities (or if the Portofino Entities elect not to so operate and maintain, then immediately upon such completion) and in consideration of the construction of the Public Improvements and their dedication of the Public Lands, the City and the Redevelopment Agency have agreed to be responsible for the perpetual operation and maintenance of each such Phase of the Public Improvements in accordance with the terms, provisions and standards get forth below. G. The City, Redevelopment Agency and Portofino Entities desire to enter into this Agreement to set forth the terms and conditions upon which the Public Improvements shall be operated and maintained. NOW, THEREFORE, in consideration of the premises, the execution and delivery of the Development Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in further consideration of the mutual covenants and agreements hereinafter set forth, the parties hereto hereby agree as follows: 1. RE ITAL.. The foregoing recitals are true and correct and are incorporated herein by this reference. 2. TERM. This Agreement shall commence on the date hereof and shall continue in perpetuity, unless terminated sooner by an instrument in writing executed by all of the parties to this Agreement, 3. OPERATIQNS AND MAINTENANCE BY ,THE ,PORTOFINQ ENTITIES: The parties acknowledge and agree that for a period of up to one (1) year following completion of any Phase, the Portofino Entities, at their option, may, at their sole cost and expense, be the sole and exclusive manager and operator of such Phase of the Public Improvements. In this regard, during such management and operational term, the Portofino Entities shall, at the Portofino Entities, sole cost and expense, perform the following services as, when and if needed, or as otherwise specified herein: (a) Supervise the maintenance, repair and replacement of the Public Improvements, as necessary to maintain the Public Improvements in a first class condition and consistent with the high standard of development on the properties located adjacent to the Public Improvements which are owned by the Portofino Entities and the highest standards in the City, but mindful of the need for durability and ease of repair and maintenance. P6 (b) Engage all persons (but no less than one, which person or persons, however, may be engaged on a part-time basis) necessary to properly maintain and operate the Public Improvements as required herein. (c) Enter into any construction contracts, maintenance contracts or other contracts for services and materials as the Portofino Entities deem reasonably necessary to maintain and operate the Public Improvements as required herein and subject to the City's reasonable review; provided any such contract shall not extend beyond the time that the Portofino Entities are managing such phase of the Public Improvements. (d) Enter into agreements with duly licensed and bonded security companies to provide a level of security reasonably acceptable to the Portofino Entities and the City (provided that the City agrees that 24-hour per day security shall be maintained for all such areas). The foregoing security shall be in addition to City police protection, provided that any such agreements shall not extend beyond the time that the Portofino Entities are managing such phase of the Public Improvements. (e) Cause to be prepared and filed all necessary forms relating to the maintenance and operation of the Public improvements required by any federal, state, county or municipal authority, and obtain any licenses or permits required for the operation of the Public Improvements. (f) Set up and maintain, orderly tiles, insurance policies, (if any), receipted bills and all other documentation pertaining to the maintenance and operation of the Public Improvements (and make the same available to the City for its review on reasonable notice). (g) Pay all costs reasonably and necessarily incurred to manage, operate and maintain the Public Improvements as required herein, including, without limitation, all utility costs and expenses. (h) Generally, do all things deemed reasonably necessary to attend to the proper maintenance, operation and management of the Public Improvements in a first class manner and as otherwise required herein, including without limitation, the Operating Standards (as defined below) . Notwithstanding the foregoing, the City and the Redevelopment Agency acknowledge and agree that except as otherwise expressly provided in the Development Agreement, the Portofino Entities shall not be liable for the performance of any environmental remediation with respect to the Public Improvements and the Public Lands, which shall be the City's and Redevelopment Agency's sole responsibility, unless such environmental contamination is caused by the negligence or misconduct of the Portofino Entities. 4. OPERATING STANDARDS. The parties acknowledge and agree that the Public Improvements are intended to be operated and maintained in a first class manner and otherwise consistent with the high standard of development on the properties located adjacent to the Public Improvements which are owned by the Portofino Entities and the highest standards in the City. The parties shall reasonably determine standards of operation and maintenance consistent with the foregoing sentence (and which at a minimum will include 24-hour a day security, daily refuse removal, and first class maintenance and repair). The Portofino Entities shall propose to the City reasonable initial operating and maintenance standards, including rules and regulations, at least 45 days prior to completion of each Phase, and the City shall have 30 days to 3 reasonably review and approve these operating standards in writing. In the event the City disapproves the proposed operating standards, City shall provide the Portofino Entities with specific written reasons therefor within said 30-day period. In the event the City fails to respond to the Portofino Entities in writing within said 30-day period, the proposed operating standards shall be deemed approved. The parties agree to use good faith efforts to mutually agree to these operating standards prior to completion of each Phase. Any dispute as to operational standards which the parties are unable to resolve within the 45-day period prior to completion shall, pursuant to paragraph 9.7 of the Development Agreement, be submitted for resolution to the Circuit Court of the 11th Judicial Circuit, Dade County, Florida. The operational standards, including rules and regulations, as so promulgated and approved are hereinafter collectively referred to as the "Operational Standards." 5. OPERATIONS AND MAINTENANCE 'ENANCE BYTHE _ CITY AND REDEVELOPMENT AGENCYY. Following any period of operation by the Portofino Entities, as provided above, the City shall assume full responsibility, at its sole cost and expense, for the operation and maintenance of each such Phase of the Public Improvements in accordance with the Operating Standards as previously established, provided that, the City shall be permitted to make non -material modifications to such Operating Standards provided further such modifications do not materially reduce the overall standard of quality established by the Operating Standards. In addition to the foregoing, the City shall operate and maintain the Washington Avenue Extension in substantial accordance with the Operating Standards. Any failure by the City to properly operate, manage and maintain any Phase of the Public Improvements and the Washington Avenue Extension in substantial accordance with the Operating Standards shall be deemed a default hereunder. 6. DEFAULT. In the event of a default hereunder, the non - defaulting party shall be entitled to seek all remedies available at law or in equity. 7. C_(7MPLIANCE WITH LAWS. The parties shall at all times observe in the performance of their duties hereunder all applicable municipal, county, state and federal laws, ordinances, codes, statutes, rules and regulations. 8. MECHANICS' LIENS. The parties hereto shall keep the Public Lands free of mechanics' liens and any other liens for labor, services, supplies, equipments or materials purchased or procured. 9. INDEMNIFICATION. The City and Redevelopment Agency, to the fullest extent permitted by applicable law, shall (during any time that the Portofino Entities are managing the operation and maintenance of the Public Improvements hereunder) indemnify, defend and hold the Portofino Entities harmless of and from all loss, cost, liability, damage and expense (including attorney's fees and court costs, at trial and all appellate levels, penalties, and fines) incurred in connection with or arising out of the operation, maintenance or ownership of the Public Lands other than as a result of the negligence or misconduct of the Portofino Entities. 10. NOTICES. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: If to the City or Redevelopment 1700 Convention Center Drive Agency at: Miami Beach, Florida 33139 Attn: City Manager 4 With a copy to: If to the Portofino Entities or any one or more of them: With a copy to: 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Attorney 446 Collins Avenue Miami Beach, Florida 33139 Attn: Heinrich Hanau Notices hand delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U.S. mails. The terms of this paragraph 10 shall survive the termination of this Agreement. 11. COOPERATION. The parties hereunder shall cooperate in good faith with each other in the performance of their respective obligations hereunder. 12. SU{;CESSORS AND ASSIGNS. This Agreement shall be recorded in the public records of Dade County, Florida and deemed a covenant running with title to the Public Lands. The City and the Redevelopment Agency shall not be permitted to assign their respective rights and obligations under this Agreement. Each of the Portofino Entities shall be entitled to assign their respective rights and obligations under this Agreement at any time to any entity which owns fee simple title to properties located adjacent to the Public Improvements or any condominium association, homeowner's association, master association or similar association established to govern all or any portion of the properties located adjacent to the Public Improvements. In the event of any such assignment, the applicable Portofino Entities shall be automatically released of all further obligations under this Agreement upon the assignee's assumption of all obligations under this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 13. MISCELLANEOUS. (a) Ssverability. In the event any term or provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed in full force and effect. (b) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida, and shall not be more strictly construed against any party, all parties having fully participated in the negotiation hereof. (c) Representative _of Portofino _Entities. The Portofino Entities hereby acknowledge and agree that this Agreement may only be modified or terminated on behalf of the Portofino Entities by an instrument duly executed by West Side. In this regard, the Portofino Entities hereby irrevocably appoint West Side as their representative and agent hereunder, and hereby grant to West Side a power of attorney, coupled with an interest, as necessary, to execute all such modifications and terminations on their behalf. 5 (d) Amendment and Termination. This Agreement may not be changed, modified or terminated except by instrument signed by all of the parties hereto (subject to the provisions of subparagraph 13(c) above). (e) Time of Esaen_ce. Time shall be of the essence for each and every provision of this Agreement. (f) Prevailing Party. In the event of any litigation for a breach under this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and court costs at trial and all appellate levels (g) Entire Agreement. This Agreement and the Development agreement contain the entire agreement of the parties with respect to the subject matter hereof, and there are no other agreements between them with respect thereto, except as set forth herein and in the Development Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. Witnessed by: THE CITY OF MIAMI BEACH, a Florida municipal corporation By: Name: Title: MIAMI BEACH REDEVELOPMENT AGENCY, a Florida public agency By: Name: - Title: WEST SIDE PARTNERS, LTD., a Florida limited partnership By: West Side Partners, Inc., a Florida corporation, General Partner By: Name: Title: 6 EAST COASTLINE DEVELOPMENT, LTD., a Florida limited partnership By: a Florida corporation, General Partner By: Name: Title: [CORPORATE SEAL] AZURE COAST DEVELOPMENT, LTD., a Florida limited partnership By: a Florida corporation, General Partner By: Name: - Title: [CORPORATE SEAL] PORTOFINO REAL ESTATE FUND, LTD., a Florida limited partnership By: Portofino Group, Inc., a Florida corporation, General Partner By: Heinrich von Hanau, vice President [CORPORATE SEAL] STATE OF FLORIDA ) SS: COUNTY OF DADE ) The foregoing instrument was acknowledged before me this day of , 19_ by as Mayor of the CITY OF MIAMI BEACH, a municipal corporation, on behalf of the corporation. He/she personally appeared before me, is personally known to me or produced as identification. Notary: [NOTARIAL SEAL] Print Name: Notary Public, State of My commission expires: 7 STATE OF FLORIDA SS: COUNTY OF DADE The foregoing instrument was acknowledged before me this _ day of , 19` by as of the MIAMI BEACH REDEVELOPMENT AGENCY, a public agency organized pursuant to the Community Redevelopment Act of 1969, as amended, on behalf of the agency. He/she personally appeared before me, is personally known to me or produced as identification. [NOTARIAL SEAL] STATE OF FLORIDA COUNTY OF DADE Notary: Print Name: _ Notary Public, My commission ) } SS: ) State of expires: The foregoing instrument was acknowledged before me this day of 19_ by I as of West Side Partners, Inc., a Florida corporation, the General Partner of WEST SIDE PARTNERS, LTD., a Florida limited partnership, on behalf of the partnership. He/she personally appeared before me, is personally known to me or produced as identification. [NOTARIAL SEAL] Notary: Print Name: _ Notary Public, My commission STATE OF FLORIDA ) SS: COUNTY OF DADE ) State of expires:. The foregoing instrument was acknowledged before me this day of 19_ by as of a Florida corporation, the General Partner of EAST COASTLINE DEVELOPMENT, LTD., a Florida limited partnership, on behalf of the partnership. He/she personally appeared before me, is personally known to me or produced as identification. Notary: [NOTARIAL SEAL] Print Name: Notary Public, State of My commission expires: 8 STATE OF FLORIDA ) SS: COUNTY OF DADE ) The foregoing instrument was acknowledged before me this — day of 19_ by as of a Florida corporation, the General Partner of AZURE COAST DEVELOPMENT, LTD., a Florida limited partnership, on behalf of the partnership. He/she personally appeared before me, is personally known to me or produced as identification. Notary: [NOTARIAL SEAL] Print Name: Notary Public, State of My commission expires: STATE OF FLORIDA } SS: COUNTY OF DADE } The foregoing instrument was acknowledged before me this _ day of , 1995, by Heinrich von Hanau as Vice President of Portofino Group, Inc., a Florida corporation, which corporation is a general partner of PORTOFINO REAL ESTATE FUND, LTD., a Florida limited partnership, on behalf of said corporation and partnership. He personally appeared before me, is personally known to me or produced as identification. Notary: [NOTARIAL SEAL] Print Name: Notary Public, State of My commission expires: 10 EXHIBIT "Ln COLOR CODE EXPANSION T e Miami Beach Facade Review Chart shall be expanded to the Benjamin Moore colors listed below o equal or lighter in shade than any color Exterior of a Building shall be painted the range of colors listed below. 011 018 046 075 144 180 186 221 227 234 243 297 298 318 325 472 480 501 591 605 682 696 745 800 808 829 836 1046 1242 1283 1319 1333 1361 1382 1431 1438 1495 1599 1669 r any color which is listed below. 65% in a color which is include either of the within EXHIBIT '"M'" NEW PARKING AGREEMENT Prepared By: PARKING AGREEMENT reserved for THIS AGREEMENT is made and entered into as of this day of , 1995 between the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation ("City"), the MIAMI BEACH REDEVELOPMENT AGENCY, a Florida public agency organized and existing pursuant to the Community Redevelopment Act of 1969 (Chapter 163, Part III, Florida Statutes, as amended) ("Agency"), and WEST SIDE PARTNERS, LTD., a Florida limited partnership ("Developer"). W I T N E S S E T H: WHEREAS, the City, Developer and the Agency are, among others, parties to that certain Agreement dated t 1995, recorded on 199_, in Official Records Book , at Page , of the Public Records of Dade County, Florida (the "Development Agreement"); WHEREAS, pursuant to the Development Agreement, Developer has agreed, among other things, to provide the City and the Agency (collectively, "Grantee"), with certain temporary and permanent parking facilities, as well as laundry, lavatory and shower facilities and drive-in dropoff access areas for the benefit of the Marina (as defined in the Development Agreement) to be located upon certain property in Miami Beach, Dade County, Florida and more fully described in Exhibit "A" attached hereto and by this reference incorporated herein ("Property"), for use by the Marina Lessee (as defined in the Development Agreement) and the public generally, subject to the terms and provisions set forth herein; WHEREAS, the parties hereto wish to set forth their respective rights and obligations relating to the construction, cost, purchase, maintenance and operation of these facilities. NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, it is agreed as follows: 1. Recitals The foregoing recitals are true and correct and are incorporated herein by this reference. 2. Temporary Facilities. From and after the date hereof until such time as Developer delivers to Grantee the permanent facilities described in Paragraph 3 below, Developer shall provide (at Developer's expense) the Grantee space for fifty (50) temporary parking spaces, together with temporary laundry, lavatory and shower facilities (similar in scope to those laundry, lavatory and shower facilities currently existing on the Property), for use by the Marina Lessee, the parking spaces to be located on the Property or within three hundred (300) feet thereof as determined in they sole discretion of Developer and the laundry, lavatory and shower facilities to be located within the Property or on a barge adjacent to the seawall abutting the Property as determined in the sole discretion of Developer; and, to relocate same from time to time as necessary in Developer's discretion. From and after the date hereof and prior to the completion of the development of the Property by Developer, Developer shall also provide (at Developer's expense) a temporary accessway and dropoff parking area (for at least five cars) for the benefit of the Marina Lessee within the general vicinity of the southern terminus of the Property. Developer shall be permitted to relocate the access and dropoff parking area from time to time as necessary for the completion of any environmental remediation and/or other construction upon the Property; provided there always remains direct access to the baywalk near the southern terminus of the Property. In performing environmental remediation and/or other construction upon the Property, Developer shall make reasonable efforts to minimize the disturbance to the operations of the Marina provided that such efforts do not materially delay Developer nor materially increase Developer's expenses as a result thereof. Developer shall provide copies of all plans for temporary facilities in advance to the Marina Lessee and review the same with the Marina Lessee in a spirit of mutual cooperation so as to minimize the disruption of operation of the Marina and of the construction activities of Developer. Anything to the contrary notwithstanding, temporary lavatory, shower and laundry facilities shall be located as close as reasonably convenient to the Marina without disrupting Developer's construction work (either within the Property or on a barge adjacent to the seawall abutting the Property), and there shall be continuous baywalk access, no interruption of utility services, and continuous access to these temporary facilities subject only to emergency interruption and other brief access interruption as required for seawall installation and repair. 3. Permanent Facilities. The development to be constructed upon the Property (the "Development") as permitted by the Development Agreement shall include, inter alia, the following (collectively, the "City Facilities"): (i) 150 permanent parking spaces, subject to reduction as provided below (the "City Parking Spaces"); permanent laundry, lavatory and shower facilities; and (iii) two drive-in dropoffs with short term parking areas to accommodate approximately 10 additional cars in the aggregate. The City Parking Spaces shall be located within the northerly 2/3rds portion of the Property as determined in the sole discretion of Developer within a parking garage structure or structures (the "Parking Garage") to be designed in the sole discretion of Developer, but which structure or structures shall contain: (i) parking spaces for use by the owners, tenants and invitees of the residential, commercial and/or retail portions of such Development ("Private Parking Spaces"), the number of such Private Parking Spaces to be determined by Developer in its sole discretion but, in combination with any surface parking provided by Developer with respect to such Development in no event to be fewer than the number of parking spaces required under applicable zoning regulations unless the City otherwise consents thereto in writing; and (ii) the City Parking Spaces, together with the permanent laundry, lavatory and shower facilities. The two drive-in dropoffs shall be located one in the general vicinity of the south terminus of the Property, and the other in the general vicinity of the northern terminus of the Property as determined in the sole discretion of Developer., Notwithstanding the foregoing, the Developer shall design these facilities in a manner to afford convenience and practicality for the Marina and shall consult with the Marina Lessee (and receive comments from the Marina Lessee) as provided in paragraph 6 below. -2- To the extent feasible, the City Parking Spaces shall be located at ground level and near the baywalk. In this regard, Developer agrees, subject to complying with the "Design Guidelines" described in the Development Agreement, to use its good faith efforts to maximize the number of the City Parking Spaces located on the ground level of the Parking Garage so as to provide no fewer than 115 parking spaces to Grantee in addition to the permanent laundry, lavatory and shower facilities. In the event Developer does not provide 150 parking spaces to the Grantee on the ground level of the Parking Garage, the number of City Parking Spaces shall be reduced from 150 to the actual number of parking spaces located in the Parking Garage provided by Developer and the Purchase Price shall be reduced as provided in paragraph 8 below. For each parking space below 150 parking spaces provided to Grantee, the City shall either: W pay the Marina Lessee $10,000.00 per space, or (ii) provide additional parking to make up such short fall at the City owned parking lot at the northeast corner of Alton Road and 4th Street or other site solely acceptable to the Marina Lessee. In addition, the City agrees to modify the Marina Lease (as defined in the Development Agreement) to reduce the "Additional Rent" (as defined in the Marina Lease) otherwise payable by the Marina Lessee to the City for the "Area 3 Parking Garage" (as defined in the Marina Lease) by the same proportion as the reduction in the number of parking spaces below 150 spaces. The baywalk (as shown on the "Urban Design Master Plan" described in the Development Agreement) will include appropriate fire access and utilities to service the Marina. The dropoff areas shall connect directly to the baywalk and shall be designed in a manner to at all times afford reasonable access to the Marina. 4. Unit; Private Unit. The Parking Garage shall., subject to the provisions of paragraph 5 below, consist of two separate "Units", as that term is defined in The Florida Condominium Act (as amended from time to time, the "Act") , which Units shall be created pursuant to a Declaration of Condominium in accordance with the Act and which shall contain, inter alia, the substance of the terms and conditions set forth in Paragraphs 6(c) and 9 through 22, inclusive, of this Agreement. One Unit shall be comprised of the City Facilities (other than the drive-in dropoff areas) ("City Unit") and the other Unit shall be comprised of Private Parking Spaces ("Private Unit"), which Private Unit may be created as a single Unit which is further subdivided by condominiumization or otherwise, or, alternatively, the Private Parking Spaces may be created, used, sold or assigned as limited common elements or in combination with such other elements in the Development as Developer, in Developer's sole discretion, shall determine. As used herein the term "parking space" shall mean spaces designed, as to length and width, in accordance with Section 7-5A of the current City Zoning Ordinance ("Zoning Ordinance"), and, as to height, in accordance with the applicable provisions of the South Florida Building Code, as the same may be amended from time to time. 5. Lease of the City Unit. Notwithstanding the provisions of Paragraph 4 above, in the event Developer shall determine in the Developer's sole discretion that it is not feasible to condo- miniumize the Parking Garage in the Development because W legal impediments under the Act preclude condominiumization of the Parking Garage or prohibit the condominium association from liening the City Unit for unpaid assessments, (ii) the costs of condominiumizing the Parking Garage are materially in excess of those usually incurred for condominiumization, unless Grantee shall agree to pay the excess cost of such condominiumization, (iii) the sale of the City Unit as provided for in this Agreement would violate the Act or (iv) condominiumization would impact adversely on the design, economics, marketability or development of the, Property, Developer shall lease the City Unit to Grantee pursuant to a lease for a term of 101 years (with one renewal option for an additional term of 101 years) on terms and conditions reasonably satisfactory to Developer and Grantee, which terms shall include, -3- inter a i , a prepaid rent charge equal to the Purchase Price, determined in accordance with Paragraph 9 hereof, fixed base rent of $1.00 per annum in addition to such prepaid rent, standard default provisions, and the substance of the terms and conditions set forth in Paragraphs 6(c) and 9 through 22 of this Agreement. 6. Construction of Parking Garage (a) The Parking Garage shall be constructed in accordance with the Design Guidelines and Urban Design Master Plan (as defined in the Development Agreement). Except for any required environmental remediation work, baywalk and bulkhead work, or foundation and site work, prior to commencement of any further construction of the Development, Developer shall deliver to Grantee and Marina Lessee, for their joint approval, plans and specifications and drawings for the City Unit and the dropoff areas (as the same may hereinafter be amended, the "Plans and Specifications"). Within thirty (30) days after receipt of the Plans and Specifications, Grantee and Marina Lessee shall by written notice to Developer, approve or disapprove the Plans and Specifications and, if disapproving the Plans and Specifications, Grantee and Marina Lessee (as applicable) shall also provide Developer with specific written objections thereto stated with reasonable particularity. Grantee and Marina Lessee shall not unreasonably withhold or delay their approval and shall grant their approval if the Plans and Specifications are consistent with the Design Guidelines and Urban Design Master Plan and otherwise meet the criteria set forth in paragraph 3 above. Failure to respond, in writing and with the particularity required above, within such thirty ( 3 0 ) days period shall conclusively be deemed to be approval of the Plans and Specifications. (b) Developer, in its sole discretion, may make changes in the Plans and Specifications, without the approval of Grantee or Marina Lessee, provided that such changes do not materially and adversely affect the proposed use of the City Unit for the parking requirements of the Marina Lessee, decrease the number of parking spaces in the City Unit or materially alter their location, or materially change the scope or location of the laundry, lavatory, shower and/or dropoff facilities. Developer shall deliver to Grantee and Marina Lessee any Plans and Specifications containing changes materially affecting the proposed use of the City Unit, decreasing the number of parking spaces in the City Unit or materially altering their location or the scope or location of the laundry, lavatory, shower and/or dropoff facilities, for the approval or disapproval of Grantee and Marina Lessee (solely as to such changes) prior to incorporating such changes into the construction of the Parking Garage and permanent dropoff areas. Within fifteen (15) days after receipt of such revised Plans and Specifications, Grantee and Marina Lessee shall, by written notice to' Developer, approve or disapprove the revised Plans and Specifications and, if disapproving the revised Plans and Specifications, Grantee and Marina Lessee shall also provide Developer with specific written objections thereto stated with reasonable particularity. Grantee and Marina Lessee shall not unreasonably withhold or delay their approval of such proposed changes. Failure of Grantee and Marina Lessee to respond, in writing and with the particularity required above, within such f if teen (15 ) day period shall conclusively be deemed to be approval of any such proposed changes. Nothing herein shall relieve Developer from the obligation to obtain the requisite City building permits and design review board approvals (consistent with the Development Agreement). (c) Developer agrees that, to the extent possible, all, utilities serving the City Unit shall be provided through systems which are separate from the remainder of the Parking Garage and any structures appurtenant thereto. To the extent such utilities are separately metered, Grantee shall pay the cost of all such -4- utilities directly to the authority or utility providing the same. The cost of repair and maintenance of all utility systems serving the City Unit shall be the sole responsibility of Grantee. (d) Not less than thirty (30) days prior to Developer's anticipated date for the completion of the Parking Garage, Developer shall give notice to Grantee of its anticipated completion. The Parking Garage shall be deemed to have been °completed" (the "Completion Date") so long as U) the Parking Garage has been constructed in substantial accordance with the Plans and Specifications, as modified, if applicable, in accordance with subparagraph (b) above, (ii) the City Unit is fully operational and ready to be opened for business on a normal business basis in a manner consistent with the Operational Standards (as hereinafter defined), without undue danger to users, and (iii) Developer has received a certificate of occupancy from the City permitting the operation of the City Unit and (iv) the "Punch list" items referred to in subparagraph (e) below have been substantially completed. (e) Entry into possession of the City Unit by Grantee or the Marina Lessee, as evidenced by the use of the City Unit by the Marina Lessee or the Licensees (as defined in Paragraph 16 hereof) (the date such possession first occurs being the "Possession Date"), will constitute acknowledgment by Grantee that the City Unit is in the condition in which Developer was required to place the City Unit under the terms of this Agreement and that Developer has performed all of its obligations relating to construction of the City Unit, except for (i) those defects, if any, in construction from the Plans and Specifications, other than latent defects therein, set forth on a written list ("punch list") to be delivered by Grantee to Developer within thirty (30) days after the date Developer advises Grantee that the City Unit is ready for possession, and (ii) those latent defects therein as to which Grantee notifies Developer, in writing, within twelve (12) months of the Possession Date. With respect to the City Unit, at the expiration of such 12-month period, Developer shall assign to the Grantee any warranty rights obtained from contractors, sub- contractors and suppliers which remain outstanding at such time. Developer shall, upon receipt of the list referred to in subpara- graph W hereof, commence to correct all such defects which require correction in order for the construction of the City Unit to comply in substantial accordance with the Plans and Specific- ations, as modified, if applicable, in accordance with subparagraph (b) above, and the applicable provisions of this Agreement. (f) The construction of the City Unit described in the Plans and Specifications, as modified, if applicable, in accordance with subparagraph (b) above, shall be deemed to have been completed in substantial accordance with the Plans and Specifications, as modified, if applicable, in accordance with subparagraph (b) above, notwithstanding that minor adjustments may be required by Developer or minor errors or omissions of Developer may require correction, provided that, subject to subsection (e) above, such adjustments and corrections are made within a reasonable amount of time after discovery of the same. 7. Dropoff „Areas, Temporary „Parking _and Pedestrian Easements. Simultaneously with and as part of the delivery of the City Unit, Developer agrees to provide the following for the benefit of the Marina Lessee; (1) An access easement providing vehicular and pedestrian access from Alton Road directly to the Marina baywalk, together with a drive-in dropoffg area (including short term parking for at least five cars) to be located in the general vicinity of the south terminus of the Property as determined by -5- STATE OF FLORIDA SS: COUNTY OF DADE The foregoing instrument was acknowledged before me this day of , 1.9_ by as of TALLAHASSEE BUILDING CORPORATION, a corporation, on behalf of the corporation. He/she/they personally appeared before me, is/are personally known to me or produced identification. [NOTARIAL SEAL] GTNIGORSONM\341438.1f111 US$ Notary: Print Name: _ Notary Public, My commission State of expires:, as -27- 4 EXHIBIT "N" MARINA SLIP AGRE THIS AGREEMENT dated this day of , 199 , between TALLAHASSEE BUILDING CORPORATION, a Florida corporation ("Lessee"), and the CITY OF MIAMI BEACH, a Florida municipal corporation ("City"). RECITALS WHEREAS, Carner Mason Associates, a Florida limited partnership ("Carner Mason"), and the City entered into a Lease Agreement ("Marina Lease") dated June 24, 1983 for the lease to Carner Mason of the Miami. Beach Marina ("Marina"); and _ WHEREAS, Lessee acquired the interest in the Marina Lease previously owned by Carner Mason, and the City and Lessee entered into the following amendments to the Marina Lease: (i) a first Amendment to Marina Lease Agreement dated October 23, 1991 ("First Amendment"); (ii) a second amendment to Marina Lease Agreement dated August 11, 1994 ("Second Amendment"); and (iii) a third amendment to Marina Lease Agreement dated 1995 ("Third Amendment"); and WHEREAS, pursuant to Article XXXIV, Paragraph 3 of the Marina Lease, as modified by Section 2.4 of the First Amendment and Section of the Third Amendment, Lessee agreed to execute an agreement relating to the use of Marina slips by occupants of the SSDI South Parcel, Alaska Assemblage, Diamond C Parcel, 101 and 155 Parcels and Ocean Parcel (all as defined in that certain Development.Agreement dated , 1995 by and among the City, the City of Miami Beach Redevelopment Agency, West Side Partners, Ltd., a Florida limited partnership ("West Side") and certain other related entities ("Development Agreement") and sometimes collectively referred to herein as the "Benefitted Parcels") and providing the City (or its designee) with a right of first refusal for 50% less one of the wetslips and dry stack storage slips, if any (as more particularly described in the First Amendment and Third Amendment), or such other number as may be required to ensure that the Marina shall always be considered a public marina; and WHEREAS, the purpose of the agreement contemplated by Article XXXIV, Paragraph 3 of the Marina Lease, as modified by Section 2.4 of the First Amendment and Section of the Third Amendment, is to enable the City to integrate the operation of the Marina with development of the Benefitted Parcels, in order to protect both the right of Lessee to operate the Marina and lease slips at the Marina and the rights of owners of neighboring properties and occupants thereof; and WHEREAS, Rule 18-21.011.(1)(b)2 of the Florida Administrative Code provides that there shall be a discount of thirty percent (30%) in the lease fees payable to the State of Florida for sovereignty submerged land leases that are open to the public on a first come, first served basis, and, further, that marinas constructed in conjunction with multi -family residential buildings shall be considered open to the public on a first come, first served basis if no less than fifty percent (50%) of their berths are made available to the general public on a rental basis; and WHEREAS, City and Lessee wish to insure the preservation of the public nature of the Marina and to implement the first refusal rights described in Article XXXIV, Paragraph 3 of the Marina Lease, as modified by Section 2.4 of the First Amendment and Section _ of the Third Amendment, by setting forth in this Agreement the terms of the rights of first refusal as to the marina slips which are connected with the residential development of the Benefitted Parcels. NOW,. THEREFORE, in consideration of the foregoing recitals, the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, it is agreed as follows: 1. Recitals. The foregoing recitals are true and correct, and are hereby specifically incorporated by reference into this Agreement. 2. Grant of Right of First Refusal. Lessee hereby grants to the City or one Qualified Entity (as defined below) , a right of first refusal for the lease by any Qualified Occupant (as defined below) of (i) 50%- less one of the aggregate of the wet slips constructed at the Marina as .identified on Exhibit "A" attached hereto, together with all wet slips to be constructed at the Marina, which number shall be no greater than fifty percent less one of the total number of wet slips, and (ii) 50% less one of the dry slips which may ever be constructed on the Core Parcel or SSDI North Parcel (as defined in the Development Agreement) (collectively, the "First Refusal Slips"); [provided that the inclusion of (ii) above is not meant to create any implication among the parties either way as to whether or not a dry stack facility will ever be built or is required to be built if the "Final Approvals" under the Development Agreement are not obtained]. Notwithstanding the foregoing, the number of First Refusal Slips may be reduced by the Lessee only as required in order to ensure that the Marina shall at all times maintain its status as a public marina, provided that in such event the Lessee shall provide the City or the Qualified Entity (as applicable) with a detailed description of the specific First Refusal Slips which are to be eliminated prior to eliminating such slips. Within thirty (30) days following receipt of the description of the First Refusal Slips to be eliminated, the City or the Qualified Entity, as applicable, shall by written notice to Lessee, approve or disapprove the plan for the elimination of certain First Refusal Slips and, if disapproving such plan, the City or the Qualified Entity, as applicable, shall provide Lessee with specific written objection thereto stated with reasonable particularity. Neither the City or the Qualified Entity shall unreasonably withhold or delay its respective approval. Failure to respond, in writing and with the particularity required above, within such thirty (30) day period shall conclusively be deemed to be approval of the proposed elimination of First Refusal Slips. 3. Effective Date. The grant to the City (or the Qualified Entity) of the right of first refusal described in Paragraph 2 of this Agreement shall become effective on the date on which the first Qualified Occupant commences actual occupancy of a residential apartment or condominium unit within a building constructed on the Benefitted Parcels for which a certificate of occupancy allowing use of the residential unit has been duly issued. 4. Qualified occulpant. The term "Qualified Occupant" means any natural person or entity which is (i) the owner of a residential condominium unit within any building constructed on the. Benefitted Parcels for which a certificate of occupancy allowing use of the unit has been duly issued, or (ii) the tenant under a lease with a term of one year or longer of a residential rental apartment or residential condominium unit within any building constructed on the Benefitted Parcels for which a certificate of occupancy allowing use of the unit has been duly issued. Notwithstanding the foregoing, the term "Qualified Occupant" shall specifically exclude W any person who is the owner of a rental apartment building located on the Benefitted Parcels, and (ii) any person who is deemed a developer of a condominium building located - 2 - s on the Benefitted Parcels pursuant to applicable statutes and regulations, as the same may be amended from time to time. 5. Qualified Entity. The term "Qualified Entity" means West Side or a condominium association, property owner's association, homeowner's association, master association, or similar not -for - profit entity organized and operated in conjunction with the operation and/or management of any residential building(s) constructed on the Senefitted Parcels for which a certificate of occupancy has been duly issued, which entity is selected and designated by West Side. 6. Available for Lease. The term "Available for Lease" refers to any First Refusal Slip which is then available for lease, i.e., not then subject to a written slip lease, or with respect to which the then existing slip lease will expire in the next succeeding thirty (30) days, and which has not, within the three (3) calendar months preceding the date in question, been offered to the City or its designated Qualified Entity for lease to a Qualified Occupant; provided, however, that if a slip lease will expire but the then lessee thereunder (or a member of his immediate family) elects to extend the term of such lease at any time prior to the expiration date thereof, such slip shall not be deemed Available for Lease for purposes of this Agreement. 7. Method of Implementing Right of First Refusal. (a) The right of first refusal granted hereunder shall be exercisable only as to every other wet slip within the Marina from time to time (and every other dry stack slip hereafter built, if any) that becomes Available for Lease from time to time excluding one wet slip (and one dry stack slip, if any). Notwithstanding the foregoing, the parties agree to cooperate in good faith to attempt, to the extent the public nature of the Marina is not invalidated, as a convenience to the Qualified Occupants, to make more slips available to the Qualified Occupants in the southern portion of the Marina. Notwithstanding anything to the contrary set forth above, in no event shall the Qualified Occupants be entitled to lease more than fifty percent (50t) less one of the total number of wet slips and fifty percent (50t) less one of the total number of dry slips, if any, constructed or to be constructed in the future. (b) The leasing of First Refusal Slips to Qualified Occupants shall be at then prevailing market rates to the public established by Lessee pursuant to, and subject to all the terms and conditions of, Lessee's standard form slip lease. The City acknowledges that Lessee shall have the right to include in its standard form slip lease W a requirement that each slip be leased only to a named person or entity who is to dock only a single vessel named and identified in the slip lease, (ii) a prohibition against subleasing of the slip lease or use or occupancy of the slip by any other party other than the lessee thereunder, and (iii) a provision permitting Lessee or the Marina operator, at any and all times when the lessee under the slip lease is not docking his vessel at the slip, to use or lease the slip to other parties for such transient purposes as Lessee or the Marina operator deems appropriate. The City further acknowledges that the use or leasing of a leased slip for such transient purposes shall not be subject to the right of first refusal described in this Agreement, inasmuch as such slip is not then Available for Lease. (c) Lessee agrees not to lease, except on a transient basis, the First Refusal Slips which are Available for Lease as provided in clause (a) above without first giving the City or the Qualified Entity, as applicable, written notice that such First Refusal Slips are Available for Lease by a Qualified Occupant. Such notice shall be accompanied by a copy of a blank form of the slip lease then being used by Lessee. Lessee may give such notice at any time thirty (30) days or less before a First Refusal Slip - 3 - becomes Available for Lease, but in any event, Lessee must give such notice on or before five (5) days following the date a First Refusal Slip becomes Available for Lease. The City or the Qualified Entity, as applicable, shall give a Qualified Occupant (as selected in accordance with such order of priority as is established by the City or the Qualified Entity, as applicable) written notice that such First Refusal Slip is Available for Lease by such Qualified Occupant. (d) The Qualified Occupant shall have seven (7) business days (i.e., days on which banks generally are open for business in the State of Florida) following receipt by the City or the Qualified Entity, as applicable, of Lessee's notice described in clause (c) above to bring to the Marina office the official notice from the City or the Qualified Entity described in clause (c) above and to execute an actual slip agreement in the same form as the copy that Lessee delivered to the City or the Qualified Entity, as applicable, with Lessee's notice. Lessee shall have no responsibility to verify the authenticity or accuracy of any instrument which Lessee believes in good faith is an official notice from the City or the Qualified Entity. Lessee shall, however, have the right, but not the obligation, not to execute a slip agreement unless and until the authenticity or accuracy of any such instrument is verified. Subject to the provisions of clause (e) below, the actual rental rate for such slip lease shall be determined based on the size or length of the vessel which the Qualified Occupant will be docking in the slip to be leased, or on such other factor or factors as are set forth in the form of slip lease. (e) In the event Lessee, simultaneously with the delivery of the notice set forth in clause (c) above, provides the City or the Qualified Entity, as applicable, with a true, correct and complete copy of an executed offer from a bonafide third party natural person who is not a Qualified Occupant to lease a First Refusal Slip for a vessel of a particular size or length ("Offer"), the Qualified Occupant shall be required to pay the greater of (i) the rental rate which the Lessee would have received if the Lessee had accepted the Offer, or (ii) the actual rental rate as set forth in clause (d) above if the Qualified Occupant elects to lease the First Refusal Slip. (f) The City shall have the right to originally designate one Qualified Entity, which designation shall thereafter be irrevocable. The Qualified Entity so originally designated by the City may thereafter designate a different Qualified Entity from time to time, so long as there is only one Qualified Entity designated at any time. The City on the first designation and the Qualified Entity, originally designated by the City on all subsequent designations, shall give written notice to Lessee and the City wherever and as often as a new Qualified Entity is so designated. (g) Lessee and the Qualified Entity agree to provide periodically (but not more often than two times per year) to each other, upon written request therefor, reasonably satisfactory evidence as to the party's compliance with this Agreement. 8. Successors and Assigns. This Agreement is assignable by Lessee in conjunction with any permitted assignment by Lessee of the Marina Lease, as modified by the First Amendment, Second Amendment and Third Amendment. This Agreement is assignable by the City only to the initial Qualified Entity, however, the Qualified Entity designated by the City may reassign this Agreement to a different Qualified Entity from time to time, so long as there is only one Qualified Entity under this Agreement at any single time. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties hereto, including, without limitation, any subsequent lessee under the Marina Lease. - 4 - 9. Term of Agreement. The term of this Agreement shall be coexistent with the term of the Marina Lease (as modified by the First Amendment, Second Amendment and Third Amendment), as such term may be extended pursuant to the terms and conditions of the Marina Lease (as modified by the First Amendment, Second Amendment and Third Amendment). In the event the Marina Lease terminates earlier than the expiration date provided therein, the City agrees to provide the Qualified Entity with the benefits set forth herein for the balance of the term of the term of the submerged land lease with the State of Florida underlying the Marina Lease and all extensions of such submerged land lease. 10. Agreement'Fulfills Lessee Obligation. The City hereby agrees that this Agreement fulfills the obligation of Lessee to provide the City with a plan under Article XXXIV, Paragraph 3 of the Marina Lease and also fulfills the obligations of Lessee under Section 2.4 of the First Amendment and Section _ of the Third Amendment, and hereby releases Lessee from any further obligation or liability with respect to Article XXXIV, Paragraph 3 of the Marina Lease, Section 2.4 of the First Amendment and Section _ of the Third Amendment, all subject to Lessee's compliance with the terms of this Agreement. 11. Compliance with Publi Marina Requirements,. It is specifically understood that the parties intend to comply with Rule 18-21.011(l)(b)(2) of the Florida Administrative Code, as amended from time to time ("Public Marina Requirements"), which Rule sets forth the requirements for a public marina to be eligible for a 30* discount on lease fees payable to the State of Florida under a sovereignty submerged land lease. Notwithstanding any other provision of this Agreement, if any provision of this Agreement conflicts with the Public Marina Requirements, as they may exist now or as they may be amended from time to time, then the parties agree to amend this Agreement appropriately so that the Marina will always qualify as a public marina. 12. Entire Agreement. The parties agree that this Agreement, and not the Marina Lease, represents the entire agreement among the parties hereto with respect to the subject matter hereof and that no other prior or present agreements or representations with respect to such matter shall be binding upon any of the parties hereto, their successors and permitted assigns, whether such prior or present agreements have been made orally or in writing. No modification, change, amendment, or extension of the terms or provisions of this Agreement shall be valid and binding upon any of the parties unless in writing and executed by the Lessee and the City or Qualified Entity, as applicable. 13. Notices and Demands. All notices, demands, correspondence, and communications between the City and Lessee shall be deemed sufficiently given under the terms of the Agreement if given by hand delivery, overnight delivery, or facsimile, or if dispatched by registered or certified mail, postage prepaid, return receipt requested, addressed as follows: If to Lessee: Tallahassee Building Corp. c/o Heller Financial, Inc. 500 W. Monroe, 15th Floor Chicago, Illinois 60661 Attn: With a copy to: Eckert, Seamans, Cherin & Mellott 701 Brickell Avenue, Suite 1850 Miami, Florida 33131 Attn: Carter McDowell, Esq. If to the City: The City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager With a copy to: The City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Attorney or to such other address and to the attention of such other person as City or Lessee may from time to time designate by written notice to the other. In the event the City designates a Qualified Entity under this Agreement, the City shall notify the Lessee of the address of the Qualified Entity for purposes of this paragraph 13. 14. Captions. The captions of the Agreement are for convenience and reference only, and in no way define, described, extend, or limit the scope or intent hereof. 15. Governing Law. The Agreement shall be governed in its enforcement, construction, and interpretation by the laws of the State of Florida. This Agreement shall not be more strictly construed against either party, both parties having participated in negotiation and preparation hereof. 16. Time is of the Essence. The parties agree that time is of the essence regarding this Agreement. 17. Severability. In the event any term or provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed in full force and effect. 18. Prevailing Party. In the event of any litigation under this Agreement for a breach hereunder, the prevailing party shall be entitled to reasonable attorneys' fees and court costs at trial and all appellate levels. 19. Exhibits. All exhibits attached to this Agreement are by this reference incorporated herein. 20. Third Party Beneficiary_. The parties acknowledge and agree that this Agreements intended to run to the benefit of the Qualified Entity. in this regard, the parties further acknowledge and agree that once the initial Qualified Entity has been designated by the City, all of the first refusal rights, designation and approval rights and all other rights under this Agreement which run to the benefit of the "City or Qualified Entity" shall be deemed to run only to the benefit of the Qualified Entity. IN WITNESS WHEREOF, this Agreement has been executed by the parties on the day and year first above written.. WITNESS: TALLAHASSEE BUILDING CORPORATION, a Florida corporation By:_ Its: [Corporate Seal] - 6 - WITNESS: M%GOLDWIJ%U7616.61OR/ 27195 CITY OF MIAMI BEACH, a Florida municipal, corporation By: Its: 7 - WJ003/003 0 fit.; x " I At big, gat., 1115 -gall wag.. ATTACHMENT A�/� PAGE 7 OF 30 PAGES SSLL No. 130765469 -..._...... _.........�....... EXHIBIT 10011 PRESENTLY PERMITTED DEVELOPMENT Development on the properties is restricted by the provisions in the Miami Beach Zoning Code. Attached as Exhibit 110.1." is the City of Miami Beach Zoning Map (the "Map") . The properties subject to this Agreement have been shaded on the Map. As indicated on the map, the respective properties presently have the following zoning designations: GU; MR; CPS - 1; CPS -- 2; CPS -- 3; CPS - 4; RPS -1; RPS - 4. Attached as Exhibit 110.2." are the applicable provisions of the Miami Beach Zoning Code which presently regulate development of these properties. i M\ 4113 t a %S5.1. $.1 \.1 /=. /.f -1 IMZi.71t 110..1.11 mmI W{r :u� a.q. flies f[a um is■ WAR 1C R �ownN��I� WA1 6 4U: VZA IM ri JIM J:riri �ii.+ Q IF o .1 3wm! =ems �1 r r>_ 91L ryrfiy}� +iT3f; .i� 1�0 Eli11- a se r i y�'o+�'iw� a� t. � � •�ai��rza�t{�' �4. ors 4 .= � rrr#nrs�ar � � � LT.• .rrrnriri It 3.•AR- • ^t~ ' 4q ��Ta TI, , -- _ City of Miami Beach Zoning Map October 1, 1989 0 as � n�c� Prsar� �C9p , r •..Aa©p EXHIBIT 110.2. is Y SECTION 4 ZONING DISTRICTS 4-1 DISTRI!QTS ESTABLISHED A. To achieve the purposes of this Ordinance and of Part 1, Division 11, Article VI, Related Laws, The Code of the City of Miami Beach, Florida, and regulate the Use of land, water and Buildings, height and bulk of Buildings and other Structures, and population density and Open Space, the City is hereby divided into the following districts: tS YMB L DISTRICT RS-I Single Family Residential RS-2 Single Family Residential RS-3 Single Family Residential RS-4 Single Family Residential RM-I Residential Multi -Family, Low Intensity RM-2 Residential Multi -Family, Medium Intensity RM-3 Residential Multi -Family, High Intensity RM-PRD Multi -Family, Planned Residential Development CD -I Commercial, Low Intensity CD-2 Commercial, Medium Intensity CD-3 Commercial, High Intensity CCC Convention Center District GC Golf Course District GU Government Use HD Hospital District I-1 Industrial, Light MR Marine Recreational MXE Mixed Use Entertainment RO Residential/Office TH Townhome Residential WD-1 Waterway District WD-2 Waterway District R-PSI Residential Medium -Low Density R-PS2 Residential Medium Density R-PS3 Residential Medium -High Density R-PS4 Residential High Density C-PS l Commercial Limited Mixed Use C-PS2 Commercial General Mixed Use C-PS3 Commercial Intensive Mixed Use C-PS4 Commercial Intensive Phased Bayside RM-PSI Residential Mixed -Use Development 4.1 SECTION 20 PS -PERFORMANCE STANDARD DISTRICT 20-1 ESTABLISHMENT OF DISTRICT AND DIVISIONS The PS - Performance Standard District is hereby established as shown on the map designated as the City of Miami Beach Zoning District Map. The PS district consists of all land in the Redevelopment Area and consists of five (5) districts including: a Residential Performance Standard (R-PS) District,a Commercial Performance Standard (C-PS) District, a Residential Limited Mixed Use Performance Standard (M-PS) District (each of which is further subdivided based upon the type and density or intensity of permitted Uses) a GU Government Use District and MR Marine Recreation District. 20 2 DISTRICT PURPOSE -AND SLIBDI, TRICTS A. Residential Performance Standards. The Residential -Performance Standards Districts are designed to accommodate a broad spectrum of medium -low to high density residential Development including Townhome Development and multiple -Family Development pursuant to 'performance standards" which control the permissible type and density of residential Development. Performance standards development will allow for modification of requirements affecting certain individual Lots, greater flexibility, particularly for large-scale Development, and incentives for provision of certain amenities and for conformance with specified objectives, thereby encouraging more flexible and innovative design and Development, in accordance with the goals and objectives of the Comprehensive Plan and the Redevelopment Plan. In order to adequately and properly distinguish among the permissible types and densities of residential Development, the Redevelopment Area is divided into the following residential districts: R-PS 1 Medium - Low Density R-PS 2 Medium Density R-PS 3 Medium - High Density R-PS 4 High Density B. Commercial_ Performance Standards. The Commercial Performance Standards Districts are designed to accommodate a range of business, Commercial, office and Hotel Uses, as well as medium to. high density residential Development pursuant to"performance standards" which control the permissible type, density or intensity, and mix of Development. Performance standards Development will allow For modification of requirements affecting certain individual Lots; greater f lexibility, particularly for large-scale Development; large commercial, medium to high density residential and mixed Use Developments in phases over time where the overall Development at a single point in time or in a single instance by private owners would not be practical; providing incentives for provision of certain amenities and for conformance with specified objectives, thereby encouraging more flexible and innovative design and Development in accordance with the goals and objectives of the Comprehensive Plan and the Redevelopment Plan. 20.1 In order to adequately and properly distinguish between types, densities and intensities of Uses and mix of permitted commercial Development in the `-- Redevelopment Area, districts are divided as follows: C-PSI Limited Mixed -Use Commercial C-PS2 General Mixed-Usc Commercial C-PS3 Intensive Mixed-Usc Commercial C-PS4 Intensive Mixed -Use Phased Bayside Commercial C. Residential Limitrd Mixed Performancg Standards, The Residential Limited Mixed Use Performance Standards District is designed to accommodate the new construction of light Commercial. office and public uses, as well as low density residential Development pursuant to 'performance standards' which control the permissible type, density or intensity, and mix of Development. Performance standards Development will allow for modification of requirements affecting certain individual Sites; greater flexibility, particularly for large-scale Development; light commercial, low density residential and mixed Use Developments in phases over time where the overall Development at a single point in time or in a single instance by private owners would not be practical; providing incentives for provision of certain amenities and for conformance with specified objectives, thereby encouraging more flexible and innovative design and Development in accordance with the goals and objectives of the Comprehensive Plan and the Redevelopment Plan. In order to adequately and properly distinguish between types, densities and intensities of Uses and mix of permitted mixed Development in the Redevelopment Area the RM-PS1 Residentail Limited Mixed Use Development is established 20-3 JJSE REGULATIONS A. Uses Permitted By Ripht, Uses Permitted nditional Use Permit and Uses Not Permitted, No Building, Structure or land shall be Used'or occupied except as a main permitted Use, a Conditional Use. or an Accessory Use to a main permitted Use, in accordance with the Table and text of Permitted Uses. A Use in any district denoted by the letter 'P' is a Use permitted by right in such district or subdistrict, provided that all requirements and performance standards applicable to such Uses have been met. A Use in any district denoted by the letter 'C' is permissible as a Conditional Use in such district or subdistrict, provided that all requirements and performance standards applicable to such Use have been met and provided that all requirements of Section 17-3 of the Zoning Ordinance have been met. A Use in any district denoted by the letter 'N', or specifically listed as a use not permitted in the text of Section B below, is not permitted in such district or subdistrict. Uses permitted by right, as a Conditional Use, or as an Accessory Use shall be subject to all Use regulations and performance standards contained herein and to such other regulations as may be applicable. including Site Plan review and design review. Uses not listed in the Table of Permitted Uses arc not permitted in the district or subdistrict. Notwithstanding any provision of this Section, no Use is permitted on a parcel. whether listed by right, as a Conditional Use or as an Accessory Use in such district, unless it can be located on such parcel in full compliance with all of the performance standards and other requirements of the Zoning Ordinance applicable to the specific Use and parcel in question. 120 20.2 B. Table of Permitted Uses General Use R-PS 1.2 R-PS 3,4 C-PS 1,2,3,4 RM-PS 1 Category Single Family; P P P P Townhome; ' . Apt/Hotel not Apartment; permitted A t Hotel Hotel N P P N Commercial N N P P 8% of Floor Area Institutional C C C C 1.25% of Floor Area Accessory P P P P P - Main Permitted Use C - Conditional Use N - Not Permitted Floor Area in the RM-PS 1 District refers to total Floor Area in project. Commercial Uses in RM-PSI limited to stores and restaurants. For purposes of this Section, a Car Wash, Filling Station and any Use that sells gasoline. automobiles or automotive or related regir Uses are considered as industrial Uses and are not permitted in the Redevelopment Area. .120 • For purposes of this Section, Pawn shops and Nightclubs are not permitted as a Main Permitted or Accessory Uses in the Redevelopment Area; however, in the C-PS3 and C-PS4 Districts a Nightclub shall be permitted as an Accessory Use within a hotel of 250 rooms or more with access to the Nightclub only from the interior lobby and not from the street. 120,124 Commercial and non-commercial Parking Lots and Garages shall be considered as a Conditional Use in the R-PS1,2,3 and 4 Districts. 57 C. Non -Conforming Uses. Lots and Structures 1. Non -conforming Uses, Lots and Structures shall be subject to the regulations contained in Section 13 of this Ordinance. 20-4 PERFQRMANCE STANDARD REGULATIONS A. General Reouircment. No Building, Structure or land shall be used or occupied except in conformance with the performance standards applicable to the Use and subdistrict as set forth in the applicable Table of Performance Standards. The purpose of the performance standards are: 1. to provide detailed regulations by means of minimum criteria which must be met by all Uses in order to ensure Development consistent with the goals and objectives of the Comprehensive Plan and the Redevelopment Plan; 20.3 i 2. to protect the integrity. of the Comprehensive Plan and the r'*. Redevelopment Plan and the relationships between Uses and densities. that are essential to the viability of these Plans and the Redevelopment Area; and, 3. to promote and protect the public health, safety, and general welfare by requiring all Development to be consistent with the land Use, circulation and amenities components of the redevelopment element of the Comprehensive Plan and the capital improvements program for the area, as specified in the Comprehensive Plan. B. 'fable of Residential Performance Standards 120 Residential Subdistrict& Petformaaae Standard R-PSI R-PS2 R-P'SS R-PS4 1. Minimum Lot Area 6.750 sq. R. 5,750 sq. ft. S.750 sq. ft. 5,750 sq. ft. 2. Minimum Lot Width soft So ft s0 ft So R 3. Required Open Space Ratlo .60, See Sec 20-4,1 .65. See Sec 20-4.3 .70, See See 20-4.1 .70. See Sec 20-4.1 4. Mudmum Building Hei&t 45 ft 4S ft 60 ft Non -oceanfront -80 Lots 50' wide or less Lots 50' wide or less Lots 50' wide or tt; - 3S ft - s5 ft less'- 35 ft Oceanfront -100 ft Lots 50' wide or leis - s5 ft S. Base FAR (without bonus) .75 1.0 1.25 1.5 S. Max FAR (with bona e 1.5 1.75 2.00 2.25 7. Minimum Floor Area Per New Constructior000 New ConstructioiS50 New ConstructiorSW New Constructior5SO Apartment Unit (squae feet) Rehabilitated Rehabilitated Rahabilitata$uildings Rehabilitated Buildings400 '- Buildingv400 400 Buildinga400 >L Minimum Average Floor Area New Comtrue-tlor950 New ConstructiorOW New Constructior850 New Constructiore00 Per Apartment Unit (square feet) Rehabilitated Rehabilitated Rehabilitateffluildings Rehabilitated Buildingz5W Buildings550 $50 Buitdinga5SO 9. Mnimum Floor Area Per Hotel NJt. NA 15% = 300-335 sq.n. 15% w SW-335 sqft. Unit (square feet) 85% = 335+ sq.ft. 1 85% = 33S+ sq-ft. 10. Minimum Parking Pursuant to Section Tot Zoning Ordinance and Section 20-4,K Requirement herein. ' 11. Minimum Off -Street Loading Pursuant to Section 7-5 of Zoning Ordinance. 12. Signs Pursuant to Section 9 of Zoning Ordinance. 13. 1 Suites Hotel Pursuant to Section 6-22 of Zoning Ordinance. The maximum FAR increase above the base Floor Area Ratio is achieved by using the Design Bonus provisions as listed in Section 6-24 of this Ordinance. 20.4 C. Setback Requirements R-PS1,2,3,4 58,120 1. Front 2. side, s. side. 4. Rear or Interi Fadng a street ft. At Crs6& 6' 6' 6' Non -oceanfront Parung Lot Lots -6 feet (blow Buuidinc) Oceanfront Lots - 60 feet from Bulkhead Line. b. Subterranean 5' 6' 6' Non -oceanfront Lots -0 feet Oceanfront Lots - 60 feet from Bulkhead Line. a Pedestal 5' 7.5' 5' Non -oceanfront Lots 60' ride or Lots -10% of Lot less - 6ft Depth. Oceanfront Lots - 20% of Lot Depth. 50' minimum from Bulkhead Line. d. Tower so' The required The required Non-0ce=front Pedestal setback Pedestal setback Lots -IS% of Lot plus .10 the plus .10 the Depth. height of the height of the Oceanfront Building. Building. Lots - 2S% of Lot Depth, 75' minimum from ' Bulkhead Line. 5. All required setbacks shall be considered as minimum requirements except for the pedestal front yard setback and pedestal side yard facing a street setback which shall be considered as both a minimum and maximum requirements. 6. For lots greater than 100 feet in width the front setback shall be extended to include at least one open court with a minimum area of three (3) square feet for every linear foot of lot frontage. 20.5 D. T ] f mm r ial Perf rm nc tandard 120 Cou:==,dal Subdistt"scta Perfarasasaea C-PSI C-P32 C-PS3 -T C-PS 4 Standard 1. Miaimum Lot 6,000 sq. ft. 6,000 sq. ft. 6,006 sq. it. 6.000 sq. ft. Area 2. Minimum Lot 6o ft 60 ft SO A 60 ft Width 3. Maximum 76 ft T5 it None None Building Height 4. Base FAR 1.0 2.0 2.6 2.5 S. Maadmum FAR 2.0 2.6 3.5 3.5 (with bonus s 6. Residential sad Pursuant to all R- Pursuant to all R- Pursuant to all R- Pursuant to all R- Hotel PS2 district PS3 district PS4 district PS4 district Development regulation, except regulations, except regulations except regulations, except maximum building maximum building maximum Floor maximum Floor height for height for residential Area Ratio shall be Area Ratio shall be residential and and mixed use 3.5, no height 3.5, no height mixed use buildings buildings sha11 be 7S restriction and Open restriction and shall be 75 ft. ft. Space Ratio .60 Open Space Ratio measured at or .60 measured at or above Grade. above Grade. 7. Minimum Apt. New Construction New Construction New Construction New Construction Unit Size (sq.ft.) 650 600 6S0 S50 Rehabilitated Rehabilitated Rehabilitated Rehabilitated Buildings 400 Buildings 400 Buildings 400 Buildings 400 a. Average Apt. New Construction New Construction New Construction New Construction Unit Size (sq.ft.) 900 85o 800 80o Rehabilitated Rehabilitated Rehabilitated Rebabilitated Buildings 550 Buildings 550 Buildings 550 Buildings Ss0 9. Minimum Floor Area Per Hotel Unit square feet 15% = 300-335 sq.ft.; 85% = 335+ sq.ft. in all districts. 10. Minimum Parking Requirements Pursuant to Section 7 of Zoning Ordinance and Section 20-4, H Requirement herein. 11. Minimum Off -Street Loading Pursuant to Section 7 of Zoning Ordinance. 17. Signs Pursuant to Section 9 of Zoning Ordinance. * The maximum FAR increase above the base Floor Area Ratio is achieved by using the Design Bonus provisions as listed in Section 6-24 of this Ordinance. 20.6 Setback Requirements C-PS1,2,3,4 58,120 L Praat 2. Side, 3. Side, L Raar Interior Facing a Street a Svbierrsaeso 0 feet 0 feet 0 feet 0 feet 1,. Pade" as,d 0 feet TX when 0' 10' when TOWW abutting a Residential Uses abutting a (oaovat) residential shall follow the residential district, R-PS1,2,3,4 district, otherwise none. setbacks (See otherwise - 6' Residential Section 20-4_C). Uses shall unless separated follow the by a Waterway R-PSI,2,3,4 otherwise - setbacks (See none. Section 20-4.C). e redmtal and Pedestal - 16' Comm User - Comm Uses - 10' 2s% of Lot Tower Tower - 20'} 1' 10, Depth, 75' (oceaof —0 for every 1' Residential Uses minimum. increase in Residential shall follow the height above 50'. Uses shall R-PS1,2,3,4 to a maximum of follow the setbacks (See 50', then &hall R-PS1,2,3,4 Section 20-4.C). remain constant. setbacks (See Section 20-4.C). d. Parking Lots and If located on the same Lot as the main Structure the above setbacks Garters shalt apply, If primary Use the setbacks are listed in Section 6-24, B.14. 5. All required setbacks shall be considered as minimum requirements except for the pedestal front yard setback and the pedestal side yard facing a street setback which shall be considered as both a minimum and maximum requirements. 6. For lots greater than 100 feet in width the front setback shall be extended to include at least one open court with a minimum area of three (3) square feet for every linear foot of lot frontage. 120 F. Mixed Use Buildings: Calculation of Setbacks and Floor Area Ratio 1. Setbacks - When more than 25% of the total area of a Building in a C-N District is used for residential or Hotel Units, any floor containing suet units shall follow the R-PS1,2,3,4 setback regulations. 2. FAR -When at least 75%of the linear frontage of the Building at the grounc floor level is used for commercial uses, the Floor Area Ratio shall follow th( range of the commercial district in which the Building is located. In all othei instances the FAR range shall follow the Floor Area Ratios as follows: in tht C-PS] District, the FAR as set forth in the R-PS1 District; in the C-PS: District, the FAR as set forth in the R-PS2 District; in the C-PS3 District, thi 20.7 FAR as set forth in the R-PS3 District; in the C-PS4 District, the FAR as"' forth in the R-PS4 District. 120 G. Table Residential Limited Mix -Performance Stn r 84,120 Mixed Subdistricts Performance Standard RM-PS1 1. Minimum Site Area 120,000 2. Minimum Site Width 350 ft. 3. Required Open S ace Ratio .60 4. Maximum Building Height 60 feet above ground or above enclosed parking. 5. Base FAR &without bonus .75 6. Maximum FAR with bonus 1.5 ' 7. Minimum Floor Area Per Apartment Unit (square feet 600 8. Minimum Average Floor Area Per Apartment Unit square feet 1000 9. Minimum Floor Area Per Hotel Unit(square feet N/A 10. Minimum Parking Pursuant to Section 7 of Zoning Ordinance and Section 20-4 L.3 Requirement herein. 11. Minimum Off -Street Loading Pursuant to Section 7-5 of Zoning Ordinance. 12. Signs Pursuant to Section 9 of Zoning Ordinance. 13. Suites Hotel N/A H. Setback Reouirements RM-PSI 1. Front, Rear, Sideyard Facing Street 2 feet when approved by the Design Review Board otherwise Section 20-4,C applies. 2. Side Interior See Section 20-4,C. I. Performance Standard Bonuses. Floor Area Ratio bonuses may be accumulated by meeting one or more of the criteria as set forth in Section 6-24; provided that in no event shall any Use be permitted an increase in Floor Area Ratio so as to exceed the' maximum Floor Area Ratio specified in the applicable Table of Residential, Commercial Performance Standards or Residential Limited Mixed 20.8 ` Use Performance Standards, except through the Use of Transfer of Development Rights as set forth in Subsection 6-29 herein. J. Minimum Reguirgd Yards in Relation Minimum Q12gn apace Ratio. In all cases, except as otherwise provided herein, an Applicant shall comply with both minimum Required Yard and minimum Open Space requirements. 1. The Open Space Ratio may include Open Space on roof top decks which are fifty (50) feet or less above Grade. At least 25% of the roof top deck shall constitute living landscape material. 2. Required Yards and Open Space, whether'at or above Grade in the C- PS4 and RM-PS1 Districts may also'be utilized for drives and Off-Strect Parking Spaces, except that if drives are ramped, they shall be at least seven and one half (7 k)_ feet from the front property line and, not more than ten (10) feet or one level above Grade at their highest point; the total length of an elevated drive shall not exceed forty percent (40%) of that portion of the Lot facing the adjacent Street. 3. Required Yards adjacent to Biscayne Bay in the C-PS4 District may be utilized for open and unenclosed decks, platforms, planters, canopies. canvass type Awnings, baywaiks or removable furniture such as tables and chairs. Required Side Yards in the C-PS4 District may have public walkways that arc partially covered. 4. Up to fifty percent (50%) of the Open Space required by this Ordinance may be fulfilled by payment of an in -lieu -of fee into the South Pointe Strectscape Fund. Notwithstanding the above, in no case shall the Open Space provided at grade be less than the total area resulting from the required setbacks. a. The in -lieu -of payment as described above shall be made at the rate of $1.00 per square foot of Open Space not provided. Said fcc shall be paid in full at the time of application for the Building Permit. The fee shall be refunded if construction does not commence prior to the expiration of the Building Permit. 5. No variances shall be granted from the requirements of this Sub -Section. 120 K. Alternative Parking Requirement for Multi -Family Residential Development in R-PDistricts Pursuant to the Parkin Tm act Fee. See the Parking Impact Fee Program as set forth in Section 7-7. L. Sul2QIcmental Parking Regulations: 1. All Districts All non -oceanfront and non-bayfront Residential development shall be encouraged to have parking with access to and from the Allcy only and such parking shall be rendered not visible from the street by the building's front facade. However, on corner buildings, the side view may be obscured by a wall. 20.9 2. C-PS3 and C-PS4 District " 1.25 parking spaces per Apartment Unit, 1 parking space per Hotel'Unit, and 2.5 parking spaces per 1,000 square feet of commercial space. Required parking for Hotel, Hotel Accessory Uses and club Uses may be satisfied through the provision of valet parking spaces. Twenty percent (20%) of required Apartment Unit parking spaces may be satisfied through the provision of valet parking spaces. 120 3. RM-PSI District 1.65 parking spaces per Apartment Unit, and one (1) parking space per 1,000 square feet of any non-residential use. Up to twelve percent (12%) of the total parking spaces created on the Premises may be for valet parking spaces. 120 . 20.10 9 6-15 b_tR MARINE RECREATION DISTRICT A. Purpose and Uses L Du tict Purpore 2. Main PCMVVItted Uses 3. C`.ondit>onal 4. A xomory Usea User This is a waterfront district Marina; Boat Docks; Piers; etc. for non- None see section 6-21. Any designed to accommodate commercial or Commercial Vessels and Use that is customarily recreational boating activities related upland Structures; Aquarium. associated with a main and services. Restaurants. Commercial Uses. permitted Use. ` B. Development Regulatiotis 1-Base FAR 2. Max rAR S. Min. Lot 4. )AIn. Lot 6. Min. Apt. G. Avg. Apt T. Max. with bonus Area Width Unit Sue Unit Sue DWC (See Sec. C-24) (eq. ft.) (feet) (sq.tt.} (aq. R.) He4bt (fact) 0.25 0.7s N/A N/A N/A N/A 40 C. Setback Requirements Any Yard facing a waterway, Government Cut, ocean or bay shall be setback 50 feet, all other Yards 20 feet; however, walkways are permitted in the setback area. 6.28 -' 6-12 GU GOVERNMENT USE Di T TCT 30 A. Purpose and Us" L District Purpose 2. Main Permitted Uses 3. Conditional Uses 4. Accessory use. Amy land owned by the City Government Buildings and Uses, including Parking Garages; See Section 6.21,C. or other governmental agency Parking Lots, schools, perforating art& and Private or joint City *'hall automatically convert to Cultural facilities, monuments and memorials. and private Us". a GU, Government use See City Commission Resolution No. 86-18491 including air -rights. District. pertaining to properties considered for the sale and/or lease which are owned by the City and Ordinance No. 89-2661 pertaining to Development Agreements. Any Use not listed above shall only be approved after the City Commission holds a public hearing. See Sec 6- 12,B,5 for public notice requirements. B. _ Development Regulations C. The Development regulations (setbacks, Floor Area Ratio, Signs, parking, etc.) shall be the average of the requirements contained in the surrounding zoning districts as determined by the Planning and Zoning Director. f. Upon the sale of public property, the zoning district classification shall be determined by the Planning and Zoning Director whose decision shall be based upon the adjacent districts. The new zoning district classification shall be effective upon the recordation of the property on the public records. g. Setback regulations foi Parking Lots and garages when they are the main permitted Use are listed in Section 6-25,B.14. h. Following a public hearing, the Development regulations and any Design Review process otherwise required by this Ordinance may be waived by a five -sevenths (5/7) vote of the City Commission for Developments pertaining to Municipal Buildings, Uses and Sites which are wholly used by, open and accessible to the general public. In all other cases involving the lease and/or air rights Use of municipal property by the private sector, architectural plans shall conform to the above regulations in addition to the applicable sections contained in the Zoning Ordinance and shall be reviewed under the Conditional Use process set forth in Section 1713. 6.19 EXHIBIT "P" PUBLIC FACILITIES Attached as Exhibit 11P.1a" are relevant parts of the City of Miami Beach Year 2000 Comprehensive Plan (the 111991/1992 Plan"), including the Goals, Objectives and Policies for the Capital Improvement Program Element, the Goals, Objectives and Policies of the Sanitary Sewer, Solid Waste, Drainage, and Potable Water. This 1991/1992 Plan is the presently adopted and binding Comprehensive Plan of the City. Also attached as Exhibit "P.lb" are relevant parts of the City of Miami Beach Year 2000 Comprehensive Plan (the 111994 Plan"), including the Infrastructure Element; the Capital Improvement Element; the Goals, Objectives and Policies for the Sanitary Sewer, Solid Waste, Drainage and Potable Water Infrastructure; the Goals, Objectives and Policies for the Capital Improvement Program Element (including a schedule for proposed Capital Projects 1994-2000). These parts of the Plan identify the provision and improvement of public facilities to serve the proposed development contemplated by the terms of this Agreement. The public facilities addressed in the parts of the Plan in Exhibit "P.1b" include parks, potable water, sewer, solid waste, stormwater, transportation, and schools. This 1994 Plan has been adopted by the City. , All public improvements to the streets, baywalks, and parks lying adjacent to the City/Redevelopment Property, as well as the Ocean Parcel, Diamond C Parcel, Hinson Parcel and Alaska Parcel, as more specifically described in the Development Agreement, shall be funded in the manner provided in Section 7 of the Development Agreement, or otherwise paid for by the City or Redevelopment Agency without special assessment against the foregoing parcels of property, and not otherwise assessed by the City or Redevelopment Agency against, or charged to or required from the Portofino Entities or Marquesa with respect to such properties, except as provided in Section 7 of the Development Agreement. Nothing herein shall be deemed to limit the City's authority, if any, to collect improvement liens or impact fees, if any, properly imposed by the County or State. As to any other public improvements that are not identified above, both the City and the Portofino Entities believe that adequate public facilities exist and will exist to serve the needs of the development identified in the Development Agreement and that these public facilities and their timing are adequately set forth in the relevant Comprehensive Plan documents noted above, including the City's Capital Improvement Element. In the event, however, that such facilities are not available at the required levels of service, pursuant to the adopted Comprehensive Plan, at the time of the request or need for such facilities, then it is the intent of the parties that the Portofino Entities will either, provide such facilities or pay their fair share thereof, in keeping with the same or similar City requirements of any other developer in like circumstance, and without Portofino Entities being treated any differently by the City then any other such developer. Likewise, if the City chooses to provide such improvements for the benefit of Protofino Entities and all other developers in like circumstance, and without Portofino being treated any differently by the City then any other such developer, then and in that event City will provide such facilities. It is anticipated that all required public improvements will be required to be provided for within the term of the Development Agreement. The timing of the provision of these services to the Properties shall be dependent on the time required to obtain all required Final Approvals, as set forth in the Development Agreement. The schedule of the provision of these public services will coincide with the developmental schedule for the various parcels, thereafter, and are dependent on market conditions and availability of financing. During the amendatory process for the Comprehensive Plan and Redevelopment Plan and any required modifications to the DRI, as referred to in the Development Agreement,, the City, the Redevelopment Agency and the Portofino Entities will determine, more specific time lines for the provision of these capital improvements and the same will be provided for therein. rwWuLKAm:%H9352. GI108/2I/95 �"f -:z. ,..- � . LY yl ,y .. n L � �:.t :�47i..� S>�F"�'=^.' '_...... _ . - .! ',� ''1c� � � "S':f„ R F��r� �a 3� �,-' �i•! r, S. -, t - � e; ;'.�-+ E IBIT "P.la" , .CIT Y 4IA MI BEACH X, 6, [i7U jn 5 { a 00 PRE . E U f ADOPTED COMPONENTS PREPARED BY THE CITY OF MIAMI BEACH PLANNING AND ZONING DEPARTMENT OCTOBER, 1989 2 CAPITAL IMPROVEMENT PROGRAM ELEMENT GOALS, OBJECTIVES AND POLICIES GOAL: Ensure that all developments and locations in the City are adequately served by public capital facilities at established levels of service, currently and at all times in the future. OBJECTIVE 1 Maintain all existing potable water, sanitary sewer, storm sewer, transportation, solid waste , and recreational facilities at permitted levels, as of Date of Adoption of this Comprehensive Plan Policy 1.1 The City will maintain a current inventory of all City -owned capital facilities, to include information on type, capacity, location and condition. Policy 1,2 The City will, on or before January 1, 1990, institute a program of regularly scheduled inspections of all capital facilities, coordinated by the Planning and Zoning Department, to monitor and record the condition of each. Policy 1.3 The City will continue to prepare and adopt each year a five-year capital improvements program and one-year capital budget, to include all projects which entail expenditures of at least $10,000 and a life of at least three years. Policy 1.4 - - The City will implement the projects listed in the capital improvement program and in the Implementation Schedule of this capital improvements element according to the schedule listed in this Element. Policy 1.5 When budgeting capital expenditures, the City will evaluate and assign priority to projects according to the following criteria, listed in order of importance: 1. Elimination of existing or impending public hazards; 2, Repair or replacement of damaged capital facilities which do not fit the definition in No.l above; 3. Prevent service from any existing part of a system from falling below the level of service standards established in this Comprehensive Plan, due to failure of any component of the system; 26 .r 4- 4. Accommodatee existing, expanding or new capital facilities within Miami Beach which are provided by other governmental agencies so as to avoid needless repetition of expenditures; 5. Accommodate new construction or rehabilitation projects which are approved by the City pursuant to all applicable development regulations and which are consistent with the elements of this Comprehensive Plan, specifically to include projected growth patterns, level of service standards, and requirements for financial participation by the party seeking development approval in meeting the costs of the capital facilities. 6. Elimination of existing capacity deficits. 7. The projects impact on the local budget. 8. The projects financial feasibility within the City's budget. 9. The project, if applicable, shall be coordinated with DOT plans, Eolicv 1.6 The City Commission will adopt a resolution requesting that all other governmental agencies, including the public school board and public health care providers, deal with their existing capital facilities located in the City in a manner similar to that outlined in Policy 1.1 through 1.5 above. policy 1.71.7 The City shall limit the use of revenue bonds as a percent of total debt. OBJECTIVE 2 The City, as of 1990, shall not issue any building permits or development orders for new developments or redevelopments unless the existing infrastructure (i.e. water, sanitary and storm sewer, transportation and solid waste) meets or is upgraded to meet the permitted level of service to support the increase in demand by the proposed development. Policy 2.1 The City will continue to prepare and adopt a five-year capital improvements program. It will include all capital improvements identified in the comprehensive plan elements, specifically including those to upgrade facilities in the South Pointe Redevelopment Area, Architectural District. and the North Shore Area. Poliqv 22 During the annual preparation of the five-year capital improvements program, the need for additional or revised upgrading projects will be analyzed by the existing Capital Improvement Program Technical Review Committee and those determined to be necessary to fulfill Objective No. 2 above, and which arc found to have an identified funding source , will be added to the capital improvements program. 27 Policy 2.3 In the South Pointe Redevelopment Area, priority for the use of tax increment revenues and the proceeds from a proposed second South Pointe Project bond issue will be given to upgrading capital facilities directly associated with private construction or redevelopment activities that arc consistent with the adopted "South Shore Revitalization Strategy" which addresses the South Pointe Redevelopment Area. The City will continue to implement the improvements underway in Lummus Park and on Ocean Drive in the Architectural District and in Pier Park in the South Pointe Redevelopment Area. The City will pursue the creation of special assessment districts to provide funding for the proposed improvements in the Alton Road, Washington Avenue, Lincoln Road, and Espanola Way areas of the Architectural District, and in the North Shore Area in accordance with the adopted Neighborhood Special Area Studies for each of the specified areas. OBJECTIVE 3 Establish on or before January 1, 1992 a Development Impact Fee Program to secure a financial contribution from any development or redevelopment project that necessitates new or expanded potable water, sanitary and storm sewer, transportation, solid waste and recreation facilities, based on a proportional share of the cost of the improvements. P-H-IM1_1 The City will not give development approval to any new construction, redevelopment or renovation project which creates a need for new or expanded public capital improvement unless the project pays a proportional share of the cost for these improvements in accordance with the Development Impact Fee Program. Policy 3.2 The City will establish on or before January 1, 1990, a schedule showing the percent of the cost of capital improvements a project must pay if the improvements were necessitated by that project. OBJECTIVE 4 Maintain the City's overall general obligation bond rating as established by Moody's Investors Service, Inc. at A or higher. Policy 4.2 The City shall maintain a Department responsibl 28 e 1 The City will limit the total amount of outstanding debt in general obligation bonds to no greater than 15% of the assessed taxable real property value in the City. The ratio of the City's total debt service on general obligation debt shall not be greater than 35% of the City's total ad valorem, real property tax revenue. Policv 4.6 The City will continue to prepare and adopt each year a 5-year capital improvements program and one-year capital budget to, among other things, help assess future needs for debt financing of capital improvements. OBJECTIVE 5 Establish and adopt during the year 1989 level of service standards for capital facilities for which the City has financial responsibility. Level of service standards established in the elements of this comprehensive plan and which are also contained here in the capital improvements clement shall be, upon adoption of the comprehensive plan by the City Commission, the level of service standards for the designated capital improvements. Policy 5.2 The peak hour level of service standards for roads shall be: - Local Roads LOS Standard D - Collector roads LOS Standard D - Principal Arterial LOS Standard D - Minor Arterial._ Policy 5.3 LOS Standard D The following level of service standards for sanitary sewer collection shall be maintained in all areas of the City: - Average gallons per capita per day 130 - Peak gallons per capita per day 144 PoUcy 5A Capacity of Solid Waste Facilities shall have the following level of service standard: 1.275 tons per capita per year i j, Y 29 i 4 0 Level of service standard for storm water drainage in all areas of the City shall be: - 25 year frequency, 24 hour duration Level of service standard for distributing potable water in all areas of the City shall be: v� g& gallons per'capital per day 140 - E ak gallons per capita per day 168 Policy 5.7 The minimum level of service standard for each facility type as defined by the data and analysis in the Recreation and Open Space Element shall be based on a minimum number of units per permanent and seasonal* population, by specific facility type. Facility Tyflc Minimum Numbcr Ro ul uircd Swimming Pool Golf Course (min. 9 holes) Basketball Court Tennis Court Multiple -Use Court's (shufflc,bocee,etc...) Designated Field Area (baseball, softball, soccer,...etc.) Tot Lots Vitacoursc Boat Ramp Outdoor Amphitheater Activity Buildings for Multiple Uses Policy 5.8 l per 50,000 persons l per 50,000 persons 1 per 7,000 persons l per 3,000 persons l per 4,000 persons 1 per 10,000 persons 1 per 10,000 persons 1 per 40,000 persons 1 per 100,000 persons 1 per 50,000 persons l per 10,000 persons The National Recreation and Park Association's suggested minimum requirement for recreation and open space is established as the minimum Level of Service Standard for the entire system to ensure adequate provisions are maintained for the future, projected population. (Ten (10) acres of recreation and open space per one -thousand (1,000) permanent and seasonal` residents.) Policy 5.9 For recreatidnal facilities only, the minimum_Lcvel of Service Standard shall be 6.0 acres of per one -thousand (1,000) permanent and seasonal* residents. (This requirement excludes public landscape open space and the Atlantic beachlront area.) As the seasonal population primarily utilizes private recreation and open space facilities, 20% of the actual total seasonal population is used to determine demand for public recreation and open space facilities. 30 FISCAL IMPLICATIONS OF FACILITY NEEDS AND LAND USE PLAN The needs, deficiencies and replacements identified in each of the plan elements when examined in the context of the Future Land Use Plan, suggest the following issues and priorities; the projects themselves are found in the preceding Data section. 1. Water and Sewer Fees: Water and sewer charges for these enterprise funds are important because of the need to replace components of the water distribution and sewage collection system. 2. Property Tax Base Because the General Fund is the prime source of funds for many of the community revitalization projects, the Future Land Use Plan rightly emphasizes the need to protect and expand the tax base since ad valorem taxes are a large revenue source for this fund. S. Parking Because the need for additional parking facilities is so critical to the City's continued revitalization, the parking enterprise fund is particularly important and must be used only for parking. PUBLIC HEALTH AND EDUCATION PLANS No public health facilities are planned. One new school is planned, the $14,000,000 Nautilus Middle School; it is served by public water and sewer. TIrMNG AND LOCATION OF CAPITAL PROJECTS The City intends to continue the current practice relative to the timing and location of public improvement projects. Essentially, these priorities are two -fold and they support the Future Land Use Element. 1. Replacement 2. Redevelopment 3. Improvement Examples of replacement include refurbishing utility mains and pumps plus park facility upgrading. Redevelopment includes land acquisition and demolition in the South Pointe area. Improvement includes the circle range of streetscape, parking facility and beach improvements that contribute to the vitality of the City. Z-8 FINANCIAL PROJECTIONS Table X-2 shows a projection of the City's revenues and expenditures. This projection is in keeping with recent (1981-1992) patterns. Table X-2 Revenues and Expenditure Projections Actual Projections 1991/92 199Z193 1993194 1994195 1995196 199"7 Revenues: Taxes & Franchise Fees $50,685,271 $53,219,535 $55,880,551 $58,674,637 $61,608,264 $64,688,677 Licenses & Permits 5,029,525 5,281,001 5,545,051 5,822,304 6,113,419 6,419,090 Intergovernmental 7,670,111 8,053,617 8,456,297 8,879,112 9,323,068 9,789,221 Enterprise Fund & Management Fees 5,471,833 5,745,425 6,032,696 6,334,331 6,651,047 6,983,600 Interfund Transfers 7,123,030 7,479,182 7,853,141 8,245,798 8,658,087 9,090,992 TOTAL $75,979,770 $79,778,759 $83,767,696 $87,956,081 $92,353,885 $96,971,580 Expenditures: Public Safety $43,137,159 $45,294,017 $47,558,718 $49,936,654 $52,433,486 $55,055,161 RecJCulturelParks 9,096,491 9,551,316 10,028,881 10,530,325 11,056,942 11,609,684 Administration 6,974,032 7,322,734 7,688,870 8,07.3,314 8,476,979 8,900,828 Public Works 4,334,626 4,51,357 4,778,925 5,017,871 5,268,765 5,532,203 BuildingMevelopmeut Services 4,950,604 5,198,134 5,458,041 5,730,943 6,017,490 6,318,365 Unclassified 8,651,284 9,083,848 9,538,041 10,014,943 10,515,690 11,041,474 TOTAL $77,144,196 $81,001,406 $85,051,476 $89,304,050 $93,769,252 $98,457,715 Source: Robert K. Swarthout, Incorporated. X-9 --ti The 1992-1993 millage rate is 11.847 consisting of 9.302 mills for the general operating budget and 2.545 mills for debt service. This reflects almost no change from 1991-1992 and forms the basis for the ad valorem tax revenue projection in Table X-3. 1 j Table X-3 Ad Valorem Tax Projections Assessed Ad Valorem Fiscal Year Property Value Collection 1992(1) i $3,969,036,299 $3,730,894,121 1993 4,167,488,113 3,917,438,826 1994 4,375,862,518 4,113,310,766 1995 4,594,677,643 4,318,976,304 1996 4,824,388,425 4,534,925,119 1997 5,065,607,845 4,761,671,375 1998 5,318,888,238 4,999,754,943 ' (1) Actual valuations and collection. Source: Robert K. Swarthout, Incorporated. X-10 Table &4 General Obligation Bonds Outstanding Date of Date of Amount Amount Purpose of Issue Issue Maturity of Issue Outstanding 1972 So. Ocean Frnt. Pk. Add. Sept.-72 1993 $42,000,000 $195,000 Sewage Collection Treatment Mar.-72 1995 2,000,000 300,000 Sewage Collection Treatment Mar.-72 1995 8,500,000 2,900,000 1972 Reloca. of Pub. Wks, Yd. Sept.-72 1993 500,000 25,000 Relocation of Public Wks. Yd. Mar.-72 1993 4,400,000 445,000 1972 Data Processing Equip. Sept.-72 1993 300,000 20,000 1973 Open Space Land Project Mar.-73 1993 1,900,000 220,000 1973 Park & Recreational Land Mar.-73 1993 2,600,000 275,000 Park -Recreational Land Mar: 73 1993 2,500,000 425,000 1973 Civic -Cony. Ctr. Complex Mar.-73 1993 1,250,000 110,000 1973 Civ.-Conv. Ctr. & City Hall Mar: 73 1993 1,300,000 120,000 1973 Flam. Stab Div. Pks & Rec. Mar.-73 1993 1,100,000 110,000 1973 So. Shore Comm. Center Mar..73 1993 300,000 25,000 Parka -Recreation -Open Space Mar.-74 1994 3,500,000 560,000 Convention Hall Facilities Mar.44 1994 900,000 145,000 Convention Hall Bridge Mar.-74 1994 500,000 75,000 North Shore Library Mar.-74 1994 250,000 40,000 Community Facility Mar:74 1994 250,000 40,000 Park Develop. Comm. Center Mar.-74 1994 300,000 50,000 Tennis Court Lighting Mar.-74 1994 150,000 20,000 1986 T.O.P.A. Refunding Aug.-86 1999 25,115,000 20,705,000 1986 Pub. Saf. Equip. & Rehab. June-86 1997 11,500,000 11,100,000 1987 G.O. Refunding Bonds Mar.-87 2002 40,395,000 30,935,000 TOTALS $111,410,000 $68,840,000 X-11 INFRASTRUCTURE: SANITARY SEWER, SOLID WASTE, DRAINAGE AND POTABLE WATER GOAL: Provide for Potable Water, Sanitary Sewer, Drainage and Solid Waste Facilities Which Meet the City's Needs in a Manner Which Promotes the Public Health, Sanitation, Environmental Protection, Operational Efficiency, and Beneficial Land Use and Redevelopment Patterns. OBJECTIVE 1: PRIORITIES The City will continue to provide potable water supply, sanitary sewage disposal, solid waste disposal and drainage'services to meet both existing and projected needs as identified in this plan through coordination and implementation of those projects listed in the Capital Improvements Element. All improvements for replacement, expansion of increase in capacity of facilities shall conform with the adopted policies of this Plan including level of service standards for the facilities. Policy 1.1 Continue to participate with Dade County WASD through program cooperation with the Virginia Key Wastewater plant, the Hialeah/Preston Water Treatment Plant and the Resource Recovery Plant. Policy 1.2 Study the City's solid waste collection practices with a view toward implementing more cost effective revisions including a privatization pilot program. Policy 1.3 Continue to monitor established guidelines for private collectors of solid waste; continue to provide for policing, servicing and collecting of oversize wastes. OBJECTIVE 2: INFRASTRUCTURE REPLACEMENT Potable water supply, sanitary sewage disposal, and solid waste disposal services shall continue to be planned and provided (1) in conformance with the future land use element of the comprehensive plan, (2) to serve redevelopment activities in the South Pointe and the City Center areas and (3) to serve infill projects throughout the City on existing vacant land. Policy 2.1 Continue the on -going program to repair and replace existing water, sewer and storm sewer lines through the utilization of bond funds and Community Development Bloch Grant funds, particularly obsolete and undersized water lines. 41 Policy 2.2 Complete second phase bond -funded improvements for South Pointe infrastructure by 1994 and begin street improvements for the interior parcels. Policy 2.3 Use the land development regulations to limit residential density increases so that no significant capacity increases are required when replacing water and sewer lines. OBJECTIVES: DRAINAGE Implement the new program to correct environmentally detrimental storm sewer discharges. Stormwater point source discharges will be handled so as to not have an adverse impact on area surface or groundwater and to not violate water quality standards set by the Florida Department of Environmental Protection; commence in 1994-1995. Policy 3.1 New catch basin construction shall require deep sumps to entrap sediments. Policy 3.2 Rebuild catch basins in problem areas with deep sumps to entrap sediment. Policy 3.3 Construct new catch basins with open bottoms to provide for percolation when deep sumps to entrap sediment is not possible. Policy 3A Maintain a catch basin cleaning program to help prevent roadway pollutants (run-off) from entering Biscayne Bay via the storm sewer system. Policy 3.5 The City will continue compliance with all Federal. State and County regulations concerning land use and development to protect Biscayne Bay- the only natural drainage features. OBJECTIVE 4: FLOODPLAIN MANAGEMENT Enforce minimum floor level building elevations. Policy 4.1 Continue site plan review for new construction with the requirement that the minimum first floor elevation for living quarters be at least 8.8 feet at MLW (U.S.E.D. Bay Datum) allowing for maximum protection during flood conditions. 42 OBJECTIVE 5: LEVEL OF SERVICE STANDARDS The City shall continue to maintain and provide potable water, sanitary sewer, solid waste disposal and drainage facilities at adopted level of service standards to ensure that adequate facility capacity is available for proposed and eidsting commercial and residential developments within its jurisdiction. Policy 5.1 1 The following City-wide bevel of Service Standards shall be used as the basis for determining the availability of facility capacity; the systems shall be able to provide/accommodate at least the minimums specified: Facilityl Service Area Level of Service Standard Sanitary Sewer Facilities* Sewage Generation Standard 140 Average gallons per capita per day Solid Waste Facilities* Solid Waste Generation Standard 1.275 tons per capital per year Drainage Facilities Design Storm Standard 25-year frequency, 24-lour duration; see rainfall intensity curve -zone 10, DOT Drainage Manual, 1987 Potable Water Facilities* Water Consumption Standard 140 Average gallons per capita per day 168 Peak gallons per capital per day * Includes seasonal population estimates, R OBJECTIVE 6: WATER CONSERVATION Cooperate with WASD, to develop and implement, by 1994, a comprehensive water conservation program to insure that a sufficient, economical supply of fresh water is available to meet current and future demand for potable water. Policy 6.1 411 potable water distribution systems shall maintain the unaccounted for water loss to less than 10 percent of the water entering the system. Policy 6.2 Continue to promote the education program for residential, commercial and industrial consumers which will discourage waste and conserve potable water. ti I 43 Policy 6.3 The Parks Department shall continue to install underground irrigation systems thereby, conserving potable water while watering public spaces. Policy 6.4 Consistent with the policies of Metro -Dade County, water shall be delivered for general use at a pressure not to exceed 100 psi. Policy 6.5 •,• • �1 • • # # :.# • • • • 1 • � � .• a �• 1 • : e • 1 ••_ Policy 6.6 The City, through the Building Department, will continue to enforce the requirement to use ultra -low volume water saving devices for substantial rehabilitation and new construction projects as specified in the standard plumbing code. OBJECTIVE 7: INFRASTRUCTURE DEFICIENCIES The City will implement procedures to ensure that existing facility deficiencies are corrected thereby maximizing the use of existing public facilities to maintain the level of service standards as adopted for future needs in accord with the time frames established under Section 163.302, Florida Statutes. Policy 7.1 The City shall continue to inspect and correct any potable water, sanitary sewer and drainage facilities deficiencies to maintain level of service standards; i.e., continue the daily inspection program. Policy 7.2 Cooperate with WASD, to continue programs which address recycling of solid wastes to include such items as paper, aluminum, glass, plastic and potentially metals, tires and waste oils. Policy 7.3 Cooperate with WASD, to promote the reduction of volume of yard and tree waste going into landfills through the program to compost vegetation materials. 44 policy 7.4 dards Of Cooperate the WASD and other oun gaty rbage removal and drainage sysotema within the City to design stan water distribution, sewer collection, b g , that provide maximum efficient operations. a Note: The revised former Objective 8 and related policies are included in Objective 6 and related policies. 45 CAPITAL IMPROVEMENT PROGRAM ELEMENT 101M Ensure that all developments and locations in the City are served by public facilities at established levels of service, currently and at all times in future. OBJECTIVE l Maintain all existing potable water, sanitary sewer, storm water, transportation, and recreational facilities at permitted levels as of Date of Adoption of this Comprehensive Plan Amendment. Policy 1.1 The City will maintain a current inventory of all City -owned capital facilities, to include information on type, capacity, location and condition. N Policy 1.2 The City will, continue its program of regularly scheduled inspections of all capital facilities, coordinated by the Department of Design, Development and Historic Preservation Services, to monitor and record the condition of each. Policy 1.3 The City will continue to prepare and adopt each year a five year capital improvement program and a one- year capital budget, to include all projects which entail expenditures of at least S 10,000 and a life of at least three years. Policy 1.4 The City will implement the projects listed in eh capital improvement program and in the Implementation Schedule of this capital improvement element according tot he schedule listed in this Element. ,o t l Policy 1.5 When budgeting capital expenditures, the City will evaluate and assign priority to projects according tot he following criteria, listed in order of importance: Elimination of existing or impending public hazards; 2. Repair or replacement of damaged capital facilities which do not fit the definition in No. l above; 3. Prevent service from any existing part of a system from falling below the level of service standards established in this Comprehensive Plan, due to failure of any component of the system; 67 ti 4. Accommodate existing, expanding or new capital facilities within Miami Beach which are provided by other governmental agencies so as to avoid needless repetition of expenditures; 5. Accommodate new construction or rehabilitation projects which are approved by the City pursuant to all applicable development regulations and which are consistent with the elements of this Comprehensive Plan and its amendments, specifically to include projected growth patterns, level of service standards and requirements for financial participation by the party seeking development approval in meeting the costs of the capital facility. 6. Elimination of existing capacity deficits. 7, The project's impact on the local budget. 8. The project's financial feasibility within the City's budget. 20( 9. The project, if applicable, shall be coordinated with DOT plans. Policy 1.6 The City will cooperate with all other governmental agencies, including the school board and public health care providers, to treat their existing capital facilities located in the City in a manner similar to that outlined in Policy 1 through 1.5 above. Policy 1.7 The City shall limit the use of revenue bonds as a percent of total debt. OBJECTIVE 2 The City, as of 1990, shall not issue any building permits or development orders for new developments or redevelopments unless the existing infrastructure (i.e. water, sanitary and storm sewer, transportation, to t recreation and solid waste) meets or is upgraded to meet the permitted level of service to support the increase .d in demand by the proposed development. Policy 2.1 The City will continue to prepare and adopt a five year capital improvement program. It will include all capital improvements identified in the comprehensive plan elements, specifically including those to upgrade facilities in the South Pointe Redevelopment Area, Architectural District, the North Beach Area and the Convention Center Village. Policy 2.2 During the annual preparation of the five year capital improvement program, the need for additional or revised upgrading of projects will be analyzed by city staff and those determined to be necessary to fulfil 68 .)bjective No. 2 above, and which are found to have an identified funding source, will be added to the capital mprovements program. Policy 23 in the South Pointe Redevelopment Area, priority for the use of tax increment reveriucs and the proceeds from a proposed second South Pointe Project bond issue will be given to upgrading capital facilities directly associated with private construction or redevelopment activities that arc consistent with the adopted "South shore Revitalization Strategy" which addresses the South Pointe Redevelopment Area. Policy 2A The City will pursue the creation and operation of special assessment districts to provide funding for the proposed improvements in the Alton Road, Washington Avenue, Lincoln Road and Espanola Way areas of the Architectural District, and in the North Beach Area in accordance with the adopted neighborhood Special 20( Area Studies for each of the specified areas. OBJECTIVE 3 Continue to participate in the Dade County Development Impact Fee Program to secure a financial contribution from any development that necessitates new or expanded potable water, sanitary and storm sewer, transportation, and solid waste, based on a proportional share of the cost of the improvements. Establish on or before Jan. 1, 1995 a similar program for recreational facilities and land within the City of Miami Beach. Policy 3.1 The City will not give development approval to any new construction, redevelopment or renovation project which creates a need for new or expanded public capital improvement unless'the project pays a proportional share of the costs of these improvements in accordance with the Development Impact Fee Program. Policy 3.2 to t d The City will establish on or before January 1, 1995 a schedule showing the percent of the cost of capital improvements for recreation and open space a project must pay if the improvements were necessitated by that project. OBJECTIVE 4 Return the City's overall bond rating as established by Moody's Investors Service at A or higher. Policy 4.1 The City shall maintain a function responsible for soliciting Federal and state programs, private contributions and joint venture approaches to be used to reduce costs the City must bear for capital improvements. T- J policy 4.2 Tbe City will limit the total amount of outstanding debt in general obligation bond to no greater than 15% of & assessed taxable real property value in the City. policy 43 me ratio of the City's total debt service on general obligation bonds shall not be greater than 35% of the City's total ad valorem, real property tax revenue. policy 4.4 The City wiII continue to prepare and adopt each year a 5 year capital improvement program and one year Capital budget to, among other things, help assess future needs for debt financing of capital improvements. OBJECTIVE 5 Continue the established level of service standards for capital facilities for which the City has financial responsibility. policy 5.1, Level of service standards established in the elements of this comprehensive plan and which are also contained here in the capital improvements element shall be, upon adoption of the comprehensive plan by the City Commission, the level of service standards for the designated capital improvements. Policy 5.2 The peak hour level of service standards for roads shall be: - Local Roads - Collector Roads - Minor Arterial - Principal Arterial Policy 5.3 LOS Standard D LOS Standard D LOS Standard D LOS Standard D The following level of service standards for sanitary sewer collection shall be maintained in all areas of the City: - Average gallons per capita per day 140 - Peak gallons per capita per day 144 Policy 5.4 Capacity of solid waste facilities shall have the following level of service standard: - 1.275 tons per capita per year 70 -1 Policy 5.5 Level of service standard for storm water drainage in all areas of the City shall be: - 25 year frequency, 24 hour duration Policy 5.6 Level of service standard for distributing potable water in all areas of the City shall be: - Average gallons per capital per day 140 - Peak gallon per capita per day 168 Policy 5.7 As a general guideline, each facility type as defined by the data and analysis in the Recreation and Open Space Element shall be based on a minimum number of units per permanent and seasonal* population, by specific facility type. Facility Tyne Minimum Number Required Swimming Pool 1 per 50,000 persons Golf Course (min. 9 holes) 1 per 50,000 persons Basketball Court 1 per 7,000 persons Tennis Court 1 per 3,000 persons Multiple -Use Courts 1 per 4,000 persons (shuffle, bocrc,...etc.) Designated Field Area I per 10,000 persons (baseball, softball, soccer, etc.) Tot Lots 1 per 10,000 persons Vitacourse t per 40,000 persons Boat Ramp 1 per 100,000 persons Outdoor Amphitheater l per 50,000 persons Activity Buildings for Multiple Uses I per 10,000 persons Policy 5.8 to The National Park Association's suggested minimum requirement for recreation and open space is established as the minimum Level of Service Standard for the entire system to ensure adequate provisions are maintained for the future projected population. (Ten (10) acres of recreation and open space per one -thousand (1,000) permanent and seasonal* residents. (This requirement excludes public landscape open space and the Atlantic beachfront area.) ' As the seasonal population primarily utilizes private recreation and open space facilities, 2016 of the actual total seasonal population is used to determine demand for public recreation and open space facilities. 71 h 1 OBJECTIVE 6 City expenditures for public facilities in the Conservation Protection Area (as designated on the Future Land Use Map) will be limited to maintenance, repair, renewal and replacement or expansion of storm water drainage, recreational, water access, and environmental protection improvements. Policy 6.1 The City will expend no public funds for the construction of any facility in the Conservation Protection areas except as delineated in Policies 6.2 through 6.4 below. Policy 6.2 The City will continue to expend funds as needed to maintain, repair, renew, replace or expand storm water drainage facilities in the high hazard coastal area. policy 6.3 The City will continue to expend funds as needed to maintain, repair, renew, replace or expand recreational beach access and water access facilities in the high hazard coastal area. Policy 6.4 The City will continue to expend funds as needed to maintain, repair, new, replace or expand facilities that protect the dune system or other environmental assets. OBJECTIVE 7 No new development, except those for which a building permit was issued by the City prior to the effective date of the ordinance adopting the Miami Beach Comprehensive Plan, shall begin construction unless the public facilities needed to support the development are at the permitted level of service standards adopted in the Plan and land use decisions will be coordinated with available or projected fiscal resources with a C.I.P. schedule. t+ A Policy 7.1 After adoption of the City's comprehensive plan, the City shall not issue a certificate of occupancy or use for any new development unless the Planning, Design and Historic Preservation Division determines that the needed public facilities are available at the time of issuance, or a legally finding commitment to construct the facilities exists at the time of issuance and it can be demonstrated that construction of the public facilities is both technically and fiscally feasible for the committed party or parties. Policy 7.2 Phasing of a development or phasing the implementation of the needed public facilities shall be permitted to satisfy the requirement that the needed public facilities be available concurrent with the effects of the development. 72 --. Policy 7.3 Developments for which building permits were issued prior to adoption of this comprehensive plan shall be allowed to begin construction without regard to level of service standards established in this capital improvements element, except that if a public hazard would be created, construction of the development shall be prohibited until measures to prevent the public hazard are implemented. Provided, however, that should any permit expire and not be renewable, issuance of a new permit for the development shall be subject to the requirements of a new application. OBJECTIVE 8 Capital improvements will be provided to accommodate future developments and to replace worn out or obsolete facilities, as indicated in the city's annually updated five year Capital Improvement Program. Policy 8.1 The City shall, as a matter of priority, schedule and fund all capital improvement projects in the 5 Year Schedule of Improvements which are designed to correct anticipated deficiencies. OBJECTIVE 9 The City shall require and provide the provision of needed improvements identified in other elements of the Comprehensive Plan and shall manage the land development process (See Future Land Use and Solid Waste, Sanitary Sewer Elements) such that the previous and future developments do not exceed the City's ability to fund and provide the corresponding public facilities necessary to accommodate the development. Policy 9.1 Development and redevelopment projects shall be consistent with public facilities necessary to meed service standards and remain within the proposed municipal budget. Policy 9.2 Recommendations described in the Future Land Use Element are incorporated by reference and shall be implemented as part of the Capital Improvement Element. 73 Future Needs With the permanent population projected to increase by less than 2,500 during both the first five years and the 1997-2002 period, the collection system capacity will continue to be adequate. In terms of the Virginia Key treatment plant, with the demand actually decreasing in the short run due to the flow shift to the south plant, there is not a projected capacity problem during the 10 year planning period. The primary County problem is with collection trunk line capacity. II. POTABLE WATER Existing Facilities Operational Responsibility: The City Public Works Department is responsible for the storage and 157 mile distribution system. The Metro -Dade County Water and Sewer Department is responsible for the water supply and treatment. Service Area: The entire City is served by the City distribution system so the existing land use data in the Future Land Use Element applies. Existing County Plant Capacity and Flow: Two interconnected WASD treatment plants (Hialeah and Preston) serve Miami Beach. Their combined rated capacity is 190,000,000 gallons per day. However, the entire WASD water treatment system is interconnected. The combined capacity is 403,000,000 gallons per day with a 306,000,000 maximum day flow in 1991. WASD allocates 10 percent of this capacity to Miami Beach although this is not specified in the formal user agreement. Existing City Distribution System Capacity and Flow: The City operates two above- ground storage reservoirs on 75th Street with a combined storage capacity of 9,160,000 gallons and two on Dade Boulevard with a combined capacity of 7,800,000 gallons. Two elevated water towers are located in the southern part of the City, each with 1,000,000 gallons of capacity. A booster station is located on each of the four trunk lines entering the City. In 1989 WASD began directly serving four municipalities previously served by Miami Beach. This left only Surfside in the City's service area and means a 15 percent increase in excess capacity became available in the storage and distribution system. The annual average daily flow for 1991-1992 was 20,438,855 gallons with a peak month (December) flow of 24,006,044 gallons. There is no impact of the distribution system upon natural resources. Existing Level of Service: Based on the combined permanent and seasonal population, the current level of service is 134 gallons per person per day based on average flow. Existing Needs: Of the 157 miles of distribution line, over 100 miles are more than 40 years old including eight miles of 2 to 4 inch pipe which is obsolete for fire fighting purposes. The minimum modern standard for residential service lines is 6 to 8 inches in diameter. Therefore, the principal need is to replace obsolete water lines plus normal refurbishment and line replacement VI-3 IIL SOLID WASTE Existing Facilities Operational Responsibility: The City contracts with a private hauler (IWS) for collection of solid waste from lower density residential areas. The City also contracts with private haulers for collection from higher density residential and non-residential areas. The Metro -Dade County Public Works Department operates the collection of recyclable solid waste, the transfer stations and disposal facilities. Service Area: The entire City is served by the above system so the existing land use in Table I-1 applies. Existing County Facility Capacity and Demand: The County's resource recovery facility on N.W. 58th Street near the Turnpike is the disposal facility for Miami Beach. The limiting capacity factor is the amount of landfill capacity remaining, even with a resource recovery plant. The County has projected that there will be adequate landfill capacity remaining at this facility until the Year 2009. The capacity of the other landfills will be reached several years earlier. The daily capacity of the Central transfer station is 4,000 tons with an average daily demand of only 900 tons. Existing City Demand: The City has been able to reduce its landfill -bound solid waste or garbage quantity by 20 percent since 1987 due to recycling. The 1991-1992 average single family garbage generation rats was 623 tons per month. In addition, another 150 tons per month of yard waste is generated by these low density residential areas. Through an interlocal agreement with Dade County, approximately 60 tons of recyclable trash is collected per month. There is no way to determine the City's share of the multifamily and non-residential solid waste picked up by the five private contractors. There is no adverse impact on the natural resources of the City by this collection process. Existing Level of Service: The above numbers indicate that the City is currently generating 3.2 pounds per capita per day based on the population in the lower density residential neighborhoods. For total solid waste generation, including the non- residential uses, the County -wide figure of seven pounds per person per day is appropriate. Existing Needs: No significant improvements are currently required relative to either the County disposal system or the City collection fleet. ' Future Needs The City's projected landfill -destined solid waste volume is expected to decrease by another 15 percent as recycling becomes fully implemented. The landfill at the Resource Recovery Facility {which serves Miami Beach} has 17 years of capacity remaining. The County is about to undertake a solid waste master plan which will determine future disposal strategies since the other landfills will reach full capacity in the 2000-2003 period. VI-4 IV. DRAINAGE Existing Facilities Operational Responsibility and Service Area: The City Public Works Department is responsible for operation of a system of storm sewers that coincides with the curbed streets throughout Miami Beach. This is supplemented by a combination of swales, underground trench or seepage disposal and drainage wells. Design Capacity and Existing Level of Service: The Florida Department of Environmental Regulations (DER) stormwater rule (Chapter 17-25 FAG) requires the detention of the first one inch of rainfall. DER has delegated stormwater permit responsibility to the South Florida Water Management District (SF WKD) which in turn delegated it to the County Department of Environmental Resources Management (DERM). DERM has a more restrictive policy of requiring full retention if feasible, otherwise the one inch rule applies. Although new storm sewers with ocean -bay outfalls are not permitted, the existing system is designed for a 25 year frequency, 24 hour duration storm. Existing Problems: The City faces two kinds of drainage problems. One is that if certain high tide patterns coincide with a heavy rain, backup can occur in sections of the storm sewer system. Secondly, the compacted fill nature of the barrier island's "soil" means that natural infiltration can be slow — five inches of fill are needed to soak up one inch of rain. Therefore, drainage wells are increasingly being used instead of the other drainage options. Future Needs Storm Sewers: The City has just completed a program of identifying all of the atormwater outfalls into -the canals and the bay together with a testing for pollutant loads. Based on these findings, the City is preparing a mitigation capital improvement program that is expected to allocate about $1,200,000 per year for various filtration and deepwell systems. Natural Drainage Features and Aquifer Recharge Areas: There are no true natural drainage features within the City; Biscayne Bay and the ocean receive stormwater runoff. All of the canals are man-made and even the Bay has been drastically altered. There are no aquifer recharge areas on the barrier island. As noted previously, current City and DERM policy prevents any additional structural drainage systems with tidal water outfalls. VI-5 I M CAPITAL IMPROVEMENT ELEMENT INTRODUCTION The purpose of this element is to determine the cost of any major City public facility improvements recommended in the various elements for implementation during the five years following adoption of this plan and demonstrate the ability to fund those improvements. These projects are needed to address existing "deficiencies," achieve facility "replacement" or contribute to the general "improvement" of Miami Beach; since no significant growth is expected, no projects are prompted by future "growth needs." Some other proposed major capital projects are also inventoried to give a full picture of fiscal planning implications. A capital improvement is defined here as a non -recurring City -financed physical improvement project at least $25,000 in magnitude. DATA INVENTORY Public Facility Needs Table X-1 lists those projects identified in the various elements as desirable for Miami Beach. It also indicates the nature of the project, i.e., most of them are improvements to the facilities within the City although a few are replacements of existing facilities. None can be attributed to deficiencies in the level of service. In all cases; the source of the funding estimate is the sponsoring department. Educational and Public Health Facilities Figures X-1 through X-3 show the public schools and their service areas. All of the schools are adequately served by public water and sewer lines. Although four hospitals are located within the City, all are private rather than public facilities. The public hospital complex is located in Miami. ExistingRevenue Sources and Funding Mechanisms 8 .The following is a list of revenue sources which can potentially be used to pay for capital improvements, i.e., they are not earmarked for specific operating budget items: General Frond: • Ad valorem taxes • • Franchise taxes on utilities Utility taxes • Permits and license fees • Cigarette tax • Local option gas tax • Motor fuel tax • Liquor licenses • • 1/2 cent sales tax Charges for services/user fees • Fines • Interest earnings • Rents and leases I i X-2 19 i ■ w 1 . . meo.. �EST*TO 1-95 +a+.Erea+r o �j lt,jrG�f v� Kr..r.r+r.. ri -tOFtTH TO %4W 'Dln jTA NAUTILUS JUNIOR HIGH SCHOOL r •` II H'Li/r CITY OF MIAMI BEACH JUNIOR HIGH SCHOOL DISTRICT BOUNDRIES Fig. x-2 SENIOR HIGH SCHOOL DISTRICT BOUNDRIES Fig X-3 Table %1 l Projects from the Other Elements Public Facilities: Bass Museum expansion Improvement $16,200,000 North Shore activity center Replacement 98,000 Community Revitalization: Cobb project acquisition/demolition Improvement 7,971,000 Sculling facility Improvement 720,000 Beach Wheelway Improvement 150,000 North Shore streetscape project Improvement 5,000,000 Espanola Way extension Improvement 1,680,000 Lincoln Boulevard improvements Improvement 6,000,000 Streetscaping of beachfront streetends Improvement 2.160,000 Parking: 75th Street lot expansion Deficiency 150,000 Parks: Park improvements, misc. Replacement 680,000 Landscaping of 5 streets and 3 parks Improvement 2,057,000 Public Works: 10" sanitary sewer force main, Palm -Star Improvement 137,000 Biscayne Street extension Improvement 3,587,000 10" sanitary sewer force main, subaqueous, Palm -Star Improvement 140,000 10" sanitary sewer force main, subaqueous, Star -loth -West Replacement 240,000 Upgrade mechanical pumps Replacement 2,000,000 8" water main, subaqueous, Sunset Replacement 100,000 Water pump station, Terminal Is. Replacement 910,000 Normandy Isle Barricades Improvement 300,000 20' water main, MacArthur Causeway Improvement 397,000 20" water main, MacArthur Causeway Improvement 1,200,000 16" water main, subaqueous, Biscayne PL Replacement 188,000 8" water main, 24th, 24 Terr, 26th Improvement 378,000 12" water main, Star Isle Improvement 235,000 Sewer force main, Alton, etc. Replacement 239,000 Street light master plan implementation Improvement 4,500,000 12" water main, Washington Replacement 383,000 Sanitary sewer replacement, Michigan and Lenox Replacement 430,000 t X.6 F 11, • Resort tax • Management fees Enterprise Funds: • Parking fund • Sewer fund • Water fund , • Solid waste fund • Stormwater fund Bonds: • General obligation • Revenue State and Federal Grants Current Public Facility Planning Practice Based upon department submittals, a five -yeas capital program is prepared by the Planning and Historic Preservation Division in conjunction with the City Manager's office for review by the Technical Review Committee and the Planning Board (review and public hearing), and then City Commission adoption. The capital program includes proposed projects and revenue sources for five years. A needs assessment process involves the departments which use the facility or improvement, the department which manages the construction of the improvement and City Manager's office. City departments and agencies submit proposed capital projects to the Division for compilation in the capital program. The program includes project descriptions, justification, cost estimates and the year the project is needed. The following criteria are used by the Division and review bodies to select projects for placement in the five-year capital program: 1. Maintain, repair and replace prior infrastructure investments in order to maintain level of service standards. 2. Provide infrastructure concurrent with the impact of development. S. Provide capital improvements to facilitate redevelopment. 4. Undertake projects that improve the economic base and quality of life within the City. %-7 OBJECTIVE 6 City expenditures for public facilities in high hazard coastal areas (as designated in the Coastal Management Element) will be limited to maintenance, repair, renewal and replacement or expansion of storm water drainage, recreational, water access, and environmental protection improvements. Policy 6.1 The City will expend no public funds for the Construction of any facility in the high hazard coastal areas, except as delineated in Policies 6.2 through 6.4 below. Policy 6.2 The City will continue to expend funds as needed to maintain, repair, renew, replace or expand storm water drainage facilities in the high hazard coastal areas. Policy 6.3 The City will continue to expend funds to maintain, repair, renew, replace or expand recreational, beach access and water access facilities in the high hazard coastal areas. ftligy4 The City will continue to expend funds to maintain, repair, renew, replace or expand facilities that protect the dune system or other environmental assets. OBJECTIVE 7 Starting January 1, 1990, no new development, except those for which a building permit was issued by the City prior to the effective date of the ordinance adopting the Miami Beach Comprehensive Plan, shall begin construction unless the public facilities needed to support the development are at the permitted level of service standards adopted in the Plan and land use decisions will be coordinated with available or projected fiscal resources with a C.I.P. schedule. Eoligy 7 After adoption of the City's comprehensive plan, the City shall not issue a building permit or development order for any new development unless the Planning and Zoning Department determines that the needed public facilities are available at the time of issuance, or a legally binding commitment to construct the facilities exists at the time of issuance and it can be demonstrated that construction of the public facilities is both technically and fiscally feasible for the committed party or parties. EgliSY 7,2 Phasing of a development or phasing the implementation of the needed public facilities shall be permitted to satisfy the requirement that the needed public facilities be available concurrent with the effects of the development. Policy 7.2 Developments for which building permits were issue -d prior to adoption of this comprehensive plan shall be allowed to begin construction without regard to level of service standards established in this capital improvements element, except that if a 31 public hazard would be created, construction of the development .shall be prohibited until measures to prevent the public hazard are implemented. Provided, however, that should any such permit expire and not be renewable, issuance of a new permit for the development shall be subject to the requirements imposed on new applications. OBJECTIVE 8 Capital Improvements will be provided to correct existing deficiencies, accommodate future developments and to replace worn out or obsolete facilities, as indicated in Table II-11, Five Year Schedule of Improvements of this Element. The City shall, as a matter of priority, schedule and fund all capital improvement projects in the 5 Year Schedule of Improvements which arc designed to correct existing def iciencies. OBJECTIVE 9 The City shall require and provide the provision of needed improvements identified in the other elements of the Comprehensive Plan and shall manage the land development process (see Future Land Use and Solid Waste, Sanitary Sewer Elements) such that previous and future developments do not exceed the City's ability to fund and provide the corresponding public facilities nccessary to accommodate the development. Policy 9.1 By 1990, all development and redevelopment projects shall be consistent with public facilities necessary to meet service standards and remain within the proposed municipal budget. Pglicv 9.2 _Recommendations described in the .Future Land Use Element and Infra-Structurc Element are incorporated by reference and shall be implemented as part of the Capital Improvement Element. 32 11 SANITARY SEWER, SOLID WASTE, DRAINAGE, AND POTABLE WATER GOALS, OBJECTIVES, AND POLICIES GOAL: Provide for Potable Water, Sanitary Sewer, Drainage, and Solid Waste Facilities Which Meet the City's Needs in at Manner Which Promotes the Public Health, Sanitation, Environmental Protection, Operational Efficiency, And Beneficial Land Use and Redevelopment Patterns, OBJECTIVE 1 . Beginning in 1988/89, the City will provide potable water supply. sanitary sewage disposal, solid waste disposal,and drainage services to meet both existing and projected needs as identified in this plan through coordination and implementation of those projects listed in the Capital Improvements Element. All improvements for replacement, expansion or increase in capacity of facilities shall conform with the adopted policies of this Plan including level of service standards for the facilities. to icy 1.1 Continue to participate with Dade County WASAD through program cooperation with the Virginia Key Wastewater plant, the Hialeah/Preston Water Treatment Plant and the Resources Recovery Plant. Policy 1.2 Study the City's solid waste collection practices with a view toward implementing more cost effective revisions. li Continue to monitor established guidelines for private collectors of solid waste; continue to provide for policing, servicing and collecting of oversize wastes. OBJECTIVE 2 Potable water supply, sanitary sewage disposal, and solid waste disposal services shall be planned and provided in concert and in conformance with the future land use element of the comprehensive plan to redevelopment activities in the South Pointe neighborhood or infill projects through out the City on existing vacant land beginning in 1988/89. Policv2,1 Continue the on -going program to repair and replace existing water, sewer, and storm sewer lines through the utilization of bond funds and Community Development Block Grant funds. Policy 2.2 Encourage second phase bond -funded improvements for South Pointe infrastructure and street improvements for the interior parcels. 33 OBJECTIVE 3 Develop a program to correct environmentally detrimental storm sewer water. Stormwater point source discharges will be handled so as to not have an impact on area surface or groundwater and to not violate water quality standards set by the Florida Department of Environmental Regulation, to commence in 1988/89. New catch basin construction shall require deep sumps to entrap sediments. Policy 3.2 Rebuild catch basins in problem areas with deep sumps to entrap sediment. Construct new catch basins with open bottoms to provide for percolation when deep sumps to entrap sediment is not possible. Policy4 Maintain a catch basin cleaning program to help prevent roadway pollutants (run-off) from entering Biscayne Bay via the storm sewer system. Policy 3.5 The City will continue compliance with all Federal, State and County Regulations concerning land use and development to protect the natural drainage features of the existing island land masses within the City limits. OBJECTIVE 4 Enforce minimum floor level building elevations. PQlicy 41 Continue site plan review for new construction with the requirement that minimum first floor elevation for living quarters be at least 8.8 feet at MLW (U.S.E.D. Bay Datum) allowing for maximum protection during flood conditions. OBJECTIVE 5 The City shall maintain and provide potable water, sanitary sewer, solid waste disposal and drainage facilities at adopted level of service standards beginning in 1988/89 to ensure adequate facility capacity is available for proposed and existing commercial and residential developments within its jurisdiction. Policy 5.1 The following Level of Service Standards shall be used as the basis for determining the availability of facility capacity. , 34 Facility/Service Level of Scrvigg Standard Sanitary Sewer Facilities Sewage Generation Standard Citywide • - 130 Average gallons per capita per day - 144 Peak gallons per capita per day Solid Waste Facilities Solid Waste Generation Rate Citywide • -1.275 tons per capita per year Drainage Facilities Design Storm Standard Citywide -25-year frequency, 24-hour duration; Rainfall intensity curve -zone 10, DOT Drainage Manual, 1987. Potable Water Facilities _ Water Consumption Rate Citywide • 140 Average gallons per capita per day. 168 Peak gallons per capita per day ' Includes seasonal population estimates. OBJECTIVE 6 Cooperate with WASAD, to develop and implement, by 1993, a comprehensive water conservation program to insure that a sufficient, economical supply of fresh water is available to meet current and future demand for potable water. Policy 6.1 All potable water distribution systems shall maintain unaccounted for water loss to less than 10 percent of the water entering the system by 1993. Policy 6.2 By 1993, cooperate with WASAD, by providing City personnel directly or a steering committee, to promote an educational program for residential, commercial, and industrial consumers which will discourage waste and conserve potable water. Ii The Parks Department shall implement underground irrigation program by 1999/1990 thereby, conserving potable water while watering public spaces. OBJECTIVE 7 The City will implement procedures to ensure that existing facility deficiencies arc corrected thereby maximizing the use of existing public facilities to maintain the level of service standards as adopted for future needs in accord with the time frames established under Section 163,302, Florida Statutes. 35 Policy 7.1 By 1989/90 the City shall inspect and correct potable water, sanitary sewer, solid waste disposal, and drainage facilities deficiencies to maintain level of service standards and continue the daily inspection program of potable water, sanitary sewer, solid waste disposal and drainage facilities to replace or correct existing facilities deficiencies thereby maintaining the level of service standards as adopted for future needs. 7 Cooperate with WASAD, to establish complementary systems and/or programs which address recycling of solid wastes to include such items as paper, aluminum, glass, plastic, metals, tires, and waste oils. W icy 7.3 Cooperate with WASAD, to promote the reduction of volume of yard and tree waste going into landfills through the development of a program to compost vegetative materials. Policy 7.4 Cooperate with WASAD, to design standards for improvements and extensions of water distribution, sewer collection, garbage removal, and drainage systems within the City that provide maximum efficient operation. OBJECTIVE 8 The City will implement procedures to promote conservation of potable water resources in accord with the time frames established under Section 163.302, Florida Statues. pglicv 8.1 Consistent with the policies of Metro -Dade County water shall be delivered for general use at a pressure not to exceed 100 psi. Policy 8.2 Water conserving irrigation & other landscape practices such as xeriscape shall be encouraged where public water is used to water lawns, golf courses, & landscaped areas. Policy 8.3 The City, through the Building Department, will investigate the use of water saving devices for substantial rehabilitation & new construction projects. 36 EXHIBIT "P..1b" MODIFICATIONS TO THE 1994 AMENDMENTS TO THE CITY OF MIAMI BEACH YEAR 2000 COMPREHENSIVE PLAN PART I: DATA AND ANALYSTS PART II: GOALS, OBJECTIVES AND POLICIES with Procedures for Public Participation in the Planning Process and Monitoring and Evaluation Procedures This document contains the proposed changes to the 1994 Amendments in response to the State of Florida, Department of Community Affairs Objections, Recommendation and Comments Report of April 1, 1994, Prepared by Robert K. Swarthout, Incorporated Miami Beach Planning, Design and Historic Preservation Division Dean Grandira, Deputy Director VI. INFRASTRUCTURE ELEMENT I. SEWAGE Existing Facilities Operational Responsibility: The Miami Beach Public Works Department is responsible for the collection system. This system includes: 152 miles of lines 24 pump stations The Metro -Dade County Water and Sewer Department (WASD) is responsible for the treatment of the sewage. Although not specified in the joint user agreement, WASD's Virginia Key treatment plant allocates 15 percent of its capacity to the City. The agreement simply assures the City that WASD will meet its treatment needs. Service Area: The system serves the entire City so the existing land use data in the Future Land Use Element applies. All uses must tie into the sanitary sewer system as a matter of City policy. Exzsting County Plant Capacity and Demand: The Virginia Key treatment plant has a design capacity of 133,000,000 gallons per day. The 1991 average daily flow into the plant was 128,870,000 gallons per day which is 96.9 percent of capacity. However, a new transmission line is being constructed that will link some of the current service area of this plant to the south plant which is being expanded. All three County plants are interconnected by the trunk line system. The principal problem with this County system is that of capacity in several key trunk lines including the one under Biscayne Bay. This has caused a County -wide moratorium on new service agreements. This does not have any significant impact on the City. Existing City Distribution System Capacity and Demand. Currently the City is generating a peak month (October) average daily flow of 27,315,890 gallons (annual average daily is 20,518,067). This October 1991 peak is misleading due to a unique storm and tidal situation causing infiltration. Existing Level of Service: This works out to an existing level of service of 135 gallons per person (permanent plus seasonal population) per day. Current Needs: With the mid-1980's construction of a 54 inch force main from the City to the Virginia Key plant plus installation of a new pump station in the South Pointe area, the City collection system has adequate capacity to meet current needs. The 1989 Comprehensive Plan contains a detailed inventory of pump station characteristics. The principal needs of the system are to replace antiquated components of these pump stations and the line collection system. The current collection system has no adverse impact on natural resources; a systematic line monitoring system is used to detect and correct any line leakage. VI-2 I -- Table X-1 ECONOMIC DEVELOPMENT 1997 — 1998 Improvement CONVENTION CTR HISTORIC STREETSCAPE $7,068 L INCOLN ROAD THEATER INCENTIVE 1,000 1995 — 1995 Improvement COBS PROJECT — LAND ACQUISITION 2,800 1994 — 1995 Improvement ALTOS DEL MAR— ACQUISITION FROM STATE 6,600 1995 — 1996 Improvement LINCOLN ROAD IMPROVEMENTS 13,482 1995 — 1997 Replacement LINCOL.N RD DEVELOP PARKINGA%LL ACCESS 4,896 1996 — 1997 Improvement UNCOLN ROAD DEVELOPMENT INCENTIVE 2,082 1995 — 1996 Improvement NORTH SHORE AREA REVITALIZATION 11,772 1994 — 1995 Improvement ROOSEVELT THEATRE — CONVERT TO SHOPS 4,300 1998 — 2000 Improvement TERMINAL ISLAND REDEVELOPMENT 2,000 1998 — 2000 1995 — 1995 Improvement Improvement TOTAL $56 000 ARTS 8 CULTURAL DEVELOPMENT MOSAIC — MUSEUM OF JEWISH HISTORY $520 BASS MUSEUM EXPANSION 17,345 1995 — 1996 Improvement HISTORIC MUSEUKMSITORS CENTER 1,350 19W — 1996 Improvement SMALL THEATER (CITY -S PARTICIPATION) 500 1995 — 1996 Improvement MIAMI CITY BALLET FACILITY (CITY 'S PARTICIPATION) 2,500 1995 — 19% Improvement GARDEN CENTER RENOVATION/EXPANSION 2,000 1995 — 19W 1994 — 19W Improvement Improvement TOTAL I $24 215 TOURISM OCEAN FRONT AUDITORIUM RENOVATIONS $2,200 EQUESTRIAN CENTER 206 1995 — 1995 Improvement OCEAN STREET ENDS -BEACH ACCESS 3,000 1994 — 1999 Replacement RENOVATE BEACH CONCESS STANDS/BATHROOMS 500 1995 — 1996 Deficiency VISITORS CENTERS 50 1995 — 1995 Improvement DEVELOPMENT INCENTIVE — HOTELS 51,042 19% — 1997 Improvement OCEANWALK RECONSTRUCTION 1,000 1996 — 1997 Replacement OCEANVVALK EXTENSION 4,092 19% — 1998 Improvement RIVER WALK — DADE CANAL 3,402 1996 — 1997 Improvement AQUARIUM 506,20 2000 — Improvement TOTAL $116 111 74 Table X--I PERIOD �C&LEGORYJPROJECT NAME _ r COST BEGINS ENDS NEED F QUALJTY COMMUNITY STILLWATER PARK R>HABILITATION CRESPI PARK REHABILITATION FAIRWAY PARK REHABILITATION BRITTANY BAY PARK REHABILITATION NORTH SHORE PARK REHABILITATION NORTH SHORE OPEN SPACE PARK REHAB TATUM PARK REHABILITATION NORMANDY SHORES -- TOT LOT/PARK FISHER PARK REHABILITATION LAGORCE PARK REHABILITATION LUMUS PARK REHABILITATION MUSS PARK REHABILITATION PINETREE PARK REHABILITATION FLAMINGO PARK RENOVATIONS COLLINS PARK RECONSTRUCTION ISLAND VIEW PARK RENOVATIONS PALM ISLAND PARK RENOVATIONS SOUTH POINTE PARK RENOVATIONS WASHINGTON PARK RENOVATIONS PLAYGROUND SAFETY SURFACE CONSTRUCT NO. SHORE YOUTH CENTER YOUTH CENTER RENOVATION/EXPANSION ul QUALITY COMMUNITY $250 199S — 1995 Replacement 225 1995 — 1995 Replacement 530 1996 — 1996 Replacement 100 1994 — 1995 Replacement 1,34S 1995 — 19% Replacement 750 1995 — 1995 Replacement 130 1995 — 1995 Replacement 45 1994 — 199$ Improvement 45 19% — 1996 Replacement 30 1996 — 1997 Replacement 1,050 1996 — 1996 Replacement 75 1996 — 1996 Replacement 265 1995 — 1995 Replacement 1.600 1995 — 1996 Replacement 3,402 1996 — 1997 Replacement IS 19% -- 1996 Replacement 120 19% — 1996 Replacement 255 1996 — 1996 • Replacement 90 19% — 19% Replacement 600 1997 — 1998 Deficiency 1,000 1998 — 1999 Improvement 775 1996 -- 1997 Improvement 3 i00 19% — 1997 Improvement STAR ISLAND LANDSCAPE $200 NORMANDY SHORES — LANDSCAPING 75 PALM/HI B I SCU S LANDSCAPE 250 AWSON ISLAND — MEDtAN LANDSCAPING 250 ESPANOLA WAY -- SIDEWALKS, LIGHTING 80 COLLINS NORTH GRAND BOULEVARD 500 SUNSET HARBOUR STREETSCAPE — PURDY/20TH STREET 1,000 ENTRY —WAY SIGNS TO CITY 500 ALTON ROAD — GRAND BLVD 3.250 TRAFFIC ISLAND LANDSCAPE CITYWIDE 500 BEACH LANDSCAPE IMPROVEMENTS 1,000 ENTRY SIGNSILIGHTING — NORMANDY ISLE 100 41ST STREET — GRAND BOULEVARD 400 CITYWIDE LANDSCAPE 3,000 PINE TREE DRIVE LANDSCAPE 750 QUALITY COMMUNITY BEACH RENOURISHMENT CLEAN UP CITY WATERWE —TOTAL •t, 1994 1995 1996 1995 — 1995 1995 19% — 1996 — 1996 1998 — 1997 19% 1995 -- 1999 1997 Improvement Improvement Improvement Improvement Improvement Improvement Improvement Improvement Improvement Improvement Improvement Improvement Improvement Improvement Improvement $10,000 1994 — 1996 1 Improvement 1 722 1996 — 1998 improvement 75 able x-i TY COMMUNITY CONSTRUCT NORTH POLICE SUB STATION POLICE EMERGENCY POWER LOG CABIN RENOVATE POLICE CRIME SCENE OFFICES NORMANDY ISLE AREA IMPROVEMENTS NORMANDY SHORES AREA IMPROVEMENTS FIRE STATION #t2 RENOVATIONS ADA COMPLIANCE CITY BUILDINGS REDESIGN LAYOUT OF CITY HALL CONSTRUCT MAIN LIBRARY FIRE STATION #E4 RENOVATIONS RESURFACE POLICE GARAGE REHAB SOUTH SHORE. COMMUNITY CENTER CONSTRUCT SOUTH BEACH LIBRARY REHAB BUILDING FOR CITY OFFICES RELOCATE CITY MAINTENANCE OPERATIONS $150 1994 - 1994 Improvement 110 1995 -- 1995 Improvement 193 1994 -- 1994 Improvement 75 1994 - 1994 Deficiency 462 1995 - 1996 Improvement 405 1994 - 1996 Improvernent 119 1995 - 1996 Deficiency 200 1994 - 199S Improvement 100 1995 - 199S Improvement 5,642 1996 - 1996 Improvement 587 1995 - 19% Improvement 60 1995 - 1996 Deficiency 215 1995 - 1995 Improvement 1,070 1996 - 1996 Improvement 1,572 1996 - 1997 Deficiency 4,000 1996 - 1997 Improvement 195 19% - 1996 Improvement QUALITY COMMUNITY - TOTAL $250 B55 INFRASTRUCTURE TRANSPORTATION VENETIAN BRIDGES -- RESTORE/REPLACE BISCAYNE POINTE BRIDGE - DAYTONLA ST W. 47th BRIDGE REPLACEMENT BISCAYNE POINTE BRIDGE - NOREMAC AVE REPLACE PINE TREE/LAGORCE REDESIGN/RESURFACE MACARTHUR- REP LACE ALTO RD FLYOVER BAY DR EAST END ROAD IMPROVEMENTS (KING COLE AREA) STILLWATER DRIVE - HAWTHORNE ROAD IMPROVEMENTS BISCAYNE PT-HAWTHORNE ROAD IMPROVEMENTS FLAMINGO DRIVE - DADE BLVD ROAD IMPROVEMENTS PURDY AVE AND 20TH ST TO DADE BLVD IMPROVEMENTS PALMIHISISCUS ISLANDS ROAD RESURFACE 7TH TO 14TH ST - OCEAN TO WASHINGTON RESURFACE 9TH AND 12 ST COLLINS TO WASHINGTON STREET IMPROVE ESPANOLA WAY - MERIDIAN TO JEFFERSON ROAD IMPROVE MICHIGAN FROM 15 TO 12 ST RESURFACE BELLE ISLE RESURFACE SOUTH POINTE ROAD IMPROVEMENTS WEST AVE - DADE TO 5TH ST RESURFACE FAIRWAY DRIVE IMPROVEMENTS NORMANDY DRIVE IMPROVEMENTS BIARRITZ OR NORMANDY TO NO. SHORE ST IMPROVEMENTS MERIDIAN AVE -- PRAIRlE/DADE BLVD-28TH ST RESURFACE OCEAN PARK IMPROVEMENTS HANDICAP RAMPS TERMINAL ISLAND RESURFACE VENETIAN ISLANDS RESURFACE STAR ISLAND ROAD RESURFACE BISCAYNE POINTE - RESURFACE WEST AVENUE 5TH - 17TH STREETS ROAD IMPROVEMENTS L.INCOLN RD STREET ENO/ROAD IMPROVEMENTS 16.440 1996 - 19W Replacement 483 1995 - 19W Replacement 1,065 1994 - 1995 Replacement 550 1995 - 1996 Replacement 1,880 1996 - 1997 Replacement 2,000 1995 - 1997 Deficeincy 310 1994 -- 19% Replacement 60 1995 - 19W Replacement 300 1995 - 19% Replacement 1,740 1995 - 1996 Replacement 500 1995 - 1996 Replacement 2,400 1995 -- 19% Replacement 1,040 1994 - 1996 Replacement 60 1994 - 1995 Replacement 340 1994 - 1995 Replacement 340 1995 - 1996 Replacement 200 1995 - 1996 Replacement 1,000 1995 - 1996 Replacement 1,200 1995 - 19% Replacement 6W 1995 - 1996 Replacement 1,B00 1995 - 1996 Replacement 210 1994 - 1995 Replacement 115 1994 - 1995 Replacement 18 1994 - 1994 Replacement 38 1994 - 199S Replacement 30 1994 - 1994 Replacement B00 1997 - 1998 Replacement 250 1995 - 19% Replacement 2W 19% - 19% Replacement $00 1996 - 1997 Replacement 450 1995 - 1996 Replacement FL.1 r ROJECT NAME COST PERIOD BEGINS ENDS NEED —GORY INFRASTRUCTURE TRANSPORTATION CONTINUED RTH BAY RD 42ND - 47TH ST ROAD IMPROVEMENTS 200 19% - 1997 Replacement YAL PALM AVENUE 42ND - 47TH STREET RESURFACE 200 1997 - 1998 Replacement AIRIE AVENUE RESURFACE 2$0 19W -- 1997 Replacement OUVWLLE ESPLANADE MEDIAN CURB/RESURFACE 100 19" - 1995 Replacement ;HT -OF -WAY -- ENTRANCE TO SO. POINTE PARK 100 1995 - 1995 Replacement TH ST POST TO JEFFERSON AVE RESURFACE 200 1996 - 1997 Replacement ND ST ABBOT TO DICKENS AVE RESURFACE 200 1996 - 1997 Replacement TH ST HARDING TO DICKENS AVE RESURFACE 200 1996 - 1997 Replacement TH ST OCEAN OR TO DICKENS AVE RESURFACE 2W 19% -- 1997 Replacement TH ST CRESPI TO HAWTHORNE RESURFACE 200 1996 - 1997 Replacement ST ST COLLINS TO THE WATERWAY RESURFACE 200 1996 - 1997 Replacement -86TH ST COLUNS TO HARDING RESURFACE 200 1996 - 1997 Replacement kGORCE OR 51ST TO WRD ST RESURFACE 200 19% - 1996 Replacement OLUNS AVE RECONSTRUCTION 78TH TO 87TH ST 2,120 1,996 - 1,997 Replacement JNSET ISLANDS 1 & 2 RESURFACE 200 1995 -- 1996 Replacement AGORCE BRIDGE REPACEMENT S65 19W - 1997 Replacement 3RD STREET FLYOVER CONVERT - 2 LANES 2,750 1997 - 1998 Deficiency 1A RESURFACE 41ST ST INTERSECTION 211 1996 - 1997 Improvement IIDDLE-BEACH INSTALL CURB AND GUTTER 2,960 19W - 1997 Improvement ULIATUTTLE -RESURFACE B00 19% - 1997 Improvement ,LION ROAD REPAVE 1,570 1995 - 1996 Improvement 3A SIGNAL UPGRADE 3,609 1994 -- IM improvement ;OWNS/IMOING DEVELOPMENT PARCELS 9,742 1997 - 1998 Improvement 311E PATH NETWORK DESIGN 126 19% - 1997 Improvement )ADE BLVD PEDESTRIAN BIKE FACILITY 1,202 19% -- 1997 Improvement 3UNSEf HARBOUR BRIDGE REPLACE 1,772 19% - 1996 Replacement NO. BEACH CURB & GUTTER 63RD TO 87TH 2.592 1996 -- 19% Replacement A1A CONNECTION 42ND & 43RD STREETS 8,700 1996 - 1997 Replacement GOWNS - STH TO 62NO ST IMPROVEMENTS 10,350 19% -- 1997 Replacement BAY DRIVE INSTALL CURB AND GUTTER 110 1996 - 1997 Replacement DADE BLVD/GOWNS CONNECTOR AT 23RD ST 1,970 19% - 1997 Improvement INDIAN CREEK/ DICKENS AVE CONNECTOR 645 19% - 1997 Improvement INTERSECTION IMPROVEMENTS CITYWIDE 1,000 1994 - 1999 Improvement NO.BEACH RECREATIONAL CORRIDOR 1,600 19% - 1997 Improvement CONVENTION CTR MULTI -MODAL TERMINAL 5,540 1997 - 20M Improvement MT, SINAI TERMINAL 3,000 1996 -- 1997 Improvement W.SIDE WASH AVE, 15 ST-ESPANOLA, SIDEWLY, CUB/GUTTER 12,000 1994 - 1994 17 STREET -WEST AVE TO COWNS, RESURFACE 80,000 1994 - 1994 SURFACE TRANSPORTATION SYSTEM 32 5 Mj 1997 - 2000 Improvement SUB -TOTAL $226 773 INFRASTRUCTURE to 77 able X-1 osed Ca ltal Pro ecLs 1994-2000 PERIOD wATEGORYJPROJECT NAME COST BEGINS ENDS NEED PARKING 199S - 1996 Improvement jN4X & 17TH NEW SURFACE LOT $3,000 10TH & COLLINS NEW GARAGE 4,122 1996 - 19W Improvement NEW SURFACE LOTS - FLAMINGO 2,700 1995 - 19% Improvement NEY&OT -- FLAMINGO BASEBALL PARK 750 1994 - 190% Improvement NEW PARKING GARAGE - 5TH & COLLINS 5.000 19% -- 1996 Improvement NEW PARKING GARAGE - 10TH & WASHINGTON 4,400 1995 - 1996 Improvement GARAGE EXPANSION - 13TH & COLLINS 1,982 1995 - 1995 Improvement NEW PARKING GARAGE- 23RD & COLLINS 4,400 1996 - 1996 Improvement BALLETNALET NEW GARAGE - 7TH & COLLINS 4,450 1994 - 1995 Improvement NEW PARKING FACILITY - CARILLON AREA 2,900 1996 - 1996 Improvement NEW PARKING GARAGE - 16TH & COLLINS 6,000 1996 - 1996 Improvement SOUTH SHORE DEVELOPMENT INC. PARKING GARAGE 7,896 1997 - 1998 Improvement NEW PARKING GARAGE- LINCOLN MTV AREA 5,000 1997 - 1998 Improvement NEW PARKING GARAGE - 20TH & COLLINS 3,SW 1997 - 1998 Improvement NEW PARKING LOT - MARINA 5W 19% - 1996 Improvement SUS -TOTAL $S6 600 INFRASTRUSTURE WATER SEWER STQRMWATER 1995 - 1998 Replacement S,ANiTARY SEWER SYSTEM $30,000 WATER MAIN SYSTEM 20,000 1995 - 1998 Replacement 855-86TH ST HAWTHORNE TO COLUNS WATER MAIN/RESURFACI 250 1994 - 1995 Replacement 78 ST TATUM WATERWAY TO CARLYLE WATER MAIN/RESURFACE 300 1994 - 1995 Replacement HAWTHORNE AVE 79-85 ST WATER MAIN /RESURFACE 150 1994 - 1995 Replacement COLLUNS AVE 41-47 ST WATER/SANITARY MAIN 150 1996 - 1997 Replacement PINE TREEAAI<E PANCOAST DR WATER MAIN 150 1994 - 1995 Replacement WASHINTON AVE -1-6TH ST WATER MAIN 200 1994 - 1995 Replacement ROYAL PALM 042 TO 47 ST SANITARY SEINER 2W 19% - 1997 Replacement VENETIAN WATER MAIN 6,000 1996 - 1997 Replacement STORM SEWER SYSTEM 15,0001 1996 - 19W Replacement SUB -TOTAL 572.400 INFRASTRUCTURE OTHER SEAWALL RESTORATION PROJECT $25,000 SUNSET ISLANDS UNDERGROUND UTIUTIES 1,000 UNDERGROUND UTILITIES - CITY --WIDE 10,100 SUB -TOTAL $36 100 INFRASTRUCTURE - TOTAL 3391 873 L99 19% - 1999 Replacement 1995 - 1995 Improvement 1995 - 2000 Improvement to -d 78 FINANCIAL PROJECTIONS Table X-2 shows a projection of the City's revenues and expenditures. This projection is in keeping with recent (1981-1992) patterns. Table X-2 Revenues and Expenditure Projections Actual 1991/92 1992)93 Projections 1993194 1994/95 1995M 1996197 Revenues: Taxes & Franchise Fees $50,685,271 $53,219,535 $55,980,551 $58,674,537 $61,608,264 $64,688,677 Licenses & Permits 5,029,525 5,281,001 5,545,051 5,822,304 6,113,419 6,419,090 Intergovernmental 7,670.111 8,053,617 8,456,297 8,879,112 9,323,068 9,789,221 Enterprise Fund & Management Fees 5,471,833 5,745,425 6,032,696 6,334,331 6,651,047 6,983,600 Int.erfund Transfers 7,123,030 7,479,182 7,853,141 8,245,798 8,658,087 9,090,992 TOTAL $75,979,770 $79.778,759 $83,767,696 $87,956,081 $92,353,885 $96,971,580 Expenditures: Public Safety $43,137,159 $45,294,017 $47,558,718 $49,936,654 $52,433,486 $55,055,161 R.ecJCulture/Parks 9,096,491 9,551,316 10,028,881 10,530,325 11,056,942 11,609,684 Administration 6,974,032 7,322,734 7,688,870 8,073,314 8,476,979 8,900,828 Public Works 4,334,626 4,51,357 4,778,925 6,017,871 5,268,765 5,532,203 Building/Development Services 4,950,604 6,198,134 5,458,041 5,730,943 6,017,490 6,318,365 Unclassified 8,651,294 9,083,848 9,538,041 10,014,943 10,515,690 11,041.474 TOTAL $77,144,196 $81,001,406 $85,051,476 $89,304,050 $93,769,252 $98,457,715 Source: Robert K Swarthout, Incorporated. i !!to the id I 79 EXHIBIT Q PUBLIC RESERVATIONS AND/OR DEDICATIONS See the Urban Design Master Plan and Section 5 of the Development Agreement for a description of the Public Reservations and Dedications. EXHIBIT "R" REQUIRED PERMITS The following constitutes a list of approved local permits: 1. DRI development order The following constitutes a generalized list of local permits anticipated as necessary to be approved by the terms of this Agreement: I. Development of Regional Impact development order and amendments. 2. Comprehensive Plan Amendments. 3. Design Review Approvals, pursuant to § 18 of City of Miami Beach Zoning Code. 4. Rezoning and/or Changes to the Miami Beach Zoning Code. variances. 5. Redevelopment Plan Amendments. 6. subdivision Approval (Plat). 7. Utility Permits. 8. Environmental Permits. 9. Certificates of Occupancy. 10. Special Use Exemptions. All other local governmental approvals as may be applicable to the subject properties from time to time pursuant to the terms of this Development Agreement. EXHIBIT "S" SUBSEQUENT CONDITIONS Subsequent conditions, terms or restrictions that are deemed to be required for the public health, safety or welfare shall be added to the this Agreement after the execution hereof as part of this Exhibit "S" pursuant to Section 9.13 of the Development Agreement.