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HomeMy WebLinkAboutUIA Management LLC - Pedestrian Mall on 1100 Block of Lincoln Rd - Development Agreement IncJG07--z6,49c/ � �ttlli tlltt iltll ltt�t itil� Ittt1 f itA ifs! Itti CFN 2007RO379718 OR 8k 25537 Pss 1882 — 19791 (98vss) RECORDED 04/16/2007 11-49,18 14ARVEY RUVIWv CLERK OF COURT HIAtiI—DARE COUNTYP FLORIDA This instrument prepared by and after recording return to: Adam D. Lustig, Bsq. Bilzin Sumberg Baena Price &c Axelrod LLP 200 South Biscayne Blvd., Suite 2500 Miami, Florida 33131-5340 DEVELOPMENT AGREEMENT Between CITY OF MIAMI BEACH, FLORIDA and UTA MANAGEMENT, LLC for PEDESTRIAN MALL ON 1100 BLOCK OF LINCOLN ROAD • D COVNl .'.; Cult �O CJ G o N . � NI C1i0 Mti jpW} �� • o��FCOUt+R'l F� MIAMI1287157.17713726901 �� 6 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is entered into as of the day of April, 2007, by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida (the "City") and UTA MANAGEMENT, LLC, a Delaware limited liability company ("Developer"). RECITALS: A. The City is the owner of certain land located on Lincoln Road between Lenox Avenue and Alton Road, in Miami Beach, Florida, more particularly described in the attached Exhibit "A" (the 'Project Site"). B. MBeachl, LLLP, a Delaware limited liability limited partnership, authorized to transact business in Florida as MBeachl, LLLP, Ltd. ("MBeachl") is an affiliate of Developer and is the owner of certain land adjacent to the Project Site, located at I I I I Lincoln Road, Miami Beach, Florida, and more particularly in the attached Exhibit "B-1" (the "MBeachl Property"). C. MBeach3, LLC, a Delaware limited liability company ("MBeach3") is an affiliate of Developer and is the owner of certain land adjacent to the Project Site, located at 1665 Alton Road, Miami Beach, Florida, and more particularly described in the attached Exhibit "B-2" (the "MBeach3 Property", and together with the MBeachl Property, the "1111 Lincoln Road Property") D. The Design Review Board of the City approved the renovation of the existing office building located on the MBeachl Property and the construction of a new two story mixed - use building on the MBeach3 Property and a new seven story mixed -use parking structure on the MBeachl Property (collectively, the "1111 Lincoln Project"), pursuant to an Order dated February 7, 2006, under DRB File No. 19018 (the "DRB Order"). E. The Board of Adjustment of the City approved the I I I I Lincoln Project pursuant to an Order dated March 3, 2006, under File No. 3178 (the 'BOA Order"). F. As a condition under each of the DRB Order and the BOA Order, the owner of the I I I I Lincoln Road Property was required to enter into discussions with the City to explore the possibility of closing the block of Lincoln Road between Lenox Avenue and Alton Road to vehicular traffic and extending the Lincoln Road pedestrian mall west to Alton Road. G. The Historic Preservation Board of the City issued a certificate of appropriateness granting approval of the closing of the block of Lincoln Road between Lenox Avenue and Alton Road to vehicular traffic and the extension the Lincoln Road pedestrian mall west to Alton Road, pursuant to an Order dated November 14, 2006, under File No. 4161. MIAMI 1287157.1 7713726901 H. On November 26, 2006, the Finance and Citywide Projects Committee of the City approved Developer's conceptual plan for the closure of Lincoln Road from Lenox Avenue to Alton Road and the construction of a new pedestrian mall (the "Conceptual Plan"). I. On December 6, 2006, the City Commission approved the Conceptual Plan pursuant to the schematic and design development drawings in the form attached as Exhibit 11CIT J. The City administration staff and Developer met several times to develop design concepts, construction schedules, costs estimates and terms and conditions for a negotiated development agreement between the City and Developer. K. The Mayor of the City and the City Commission in Resolution No. 2007-26493, adopted after two duly noticed public hearings held pursuant to the Development Agreement Act, determined that it is in the best interest of the City to enter into this Agreement with Developer for the closure of Lincoln Road from Lenox Avenue to Alton Road and the construction of a new pedestrian mall. NOW, THEREFORE, in consideration of the mutual terms and conditions, promises, covenants and payments hereinafter set forth, the City and Developer agree as follows: ARTICLE 1 DEFINITIONS AND IDENTIFICATIONS For the purposes of this Agreement and the various covenants, conditions, terms and provisions which follow, the DEFINITIONS and IDENTIFICATIONS set forth below are assumed to be true and correct and are agreed upon by the parties. The above recitals are true and accurate and incorporated into this Agreement by reference. Whenever the following terms or pronouns in place of them appear in this Agreement the intent and meaning shall be interpreted as follows: 1.1 Agreement: Agreement shall mean this Agreement and all addenda, exhibits, and amendments thereto between the City and the Developer for the Project, all as defined herein. 1.2 AIPP: AIPP means the City's Art in Public Places 1.3 BOA Order: BOA Order shall have the meaning set forth in the Recitals. 1.4 Board of Adjustment or BOA: the Board of Adjustment of the City created and established pursuant to the Land Development Regulations or any board or body which may succeed to its functions. 2 MIAMI 1287157.1 7713726901 1.5 Change Order: A written document ordering a change in the Contract Sum or Contract Time or a material change in the Improvements. 1.6 City: The City shall mean the City of Miami Beach, a Florida municipal corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139, which is a party hereto and/or for which this Agreement is to be performed. In all respects hereunder, City's performance is pursuant to City's position as the owner of the Property. In the event City exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations, laws and ordinances shall be deemed to have occurred pursuant to City's regulatory authority as a governmental body and shall not be attributable in any manner to City as a party to this Agreement. 1.7 City Commission: City Commission shall mean the governing and legislative body of the City. 1.8 City Manager: City Manager shall mean the Chief Administrative Officer of the City. 1.9 Conceptual Plan: Conceptual Plan shall have the meaning set forth in the Recitals. 1.10 Construction Drawings: Construction Drawings shall have the meaning set forth in Section 3.3. 1.11 Construction Phase: The phase of services which constitutes Developer's administration of the construction of the Project and all activities necessary for the completion of the Project. 1.12 Construction Schedule: The schedule for the Project attached as Exhibit "E", as such schedule may be modified from time to time as a result of a Change Order. 1.13 Consultant: The registered architect, professional engineer, professional land surveyor, civil engineer, and/or registered landscape architect who has contracted with Developer to provide professional services for the design and construction of the Project, and who is further licensed by the State of Florida to provide said services. The primary consultant for this Project shall be the firm of Zyscovich, Inc., a professional services firm duly certified, licensed and registered as an architectural firm, located at 100 N. Biscayne Boulevard, 27th Floor, Miami, Florida 33132. When the term "Consultant" is used in this Agreement it shall be deemed to include Zyscovich, Inc. or Kimley-Horn and Associates, Inc. as the primary consultant, or such other consultant selected by Developer and approved by the City in its reasonable discretion. Developer and City herein agree and acknowledge that Developer shall utilize Consultant's Plans and Specifications for the Project for Developer's construction of the Project. Developer further acknowledges and agrees that Consultant shall render as a Cost of the Work certain professional services pursuant to this Agreement, including but not limited to, additional A/E services, as required; Project construction site supervision and/or observations relative to the 3 MIAM I 12 8715 7.1 7713 726901 Improvements; and the rendering of approvals, opinions, and decisions, all as more specifically set forth in the Contract Documents. Developer herein further agrees and shall require any Consultant services, including but not limited to those referenced in the preceding sentence, which will be required pursuant to the Contract Documents, to also be binding upon Developer's Contractor; to the extent as same are binding upon Developer as a party pursuant to this Agreement. It shall further be Developer's sole and absolute responsibility to assure such compliance by its Contractor. Developer and the City agree and acknowledge that the City is an intended third party beneficiary in any contract entered into between Developer and Consultant. Developer shall therefore submit its final agreement with Consultant to the City, for its review and reasonable approval, prior to such agreement being executed by and between Developer and Consultant. Additionally, Developer herein represents to the City that its agreement with Consultant shall incorporate the terms and conditions of this Agreement and the Contract Documents, and Developer shall assume sole and absolute responsibility for binding Consultant to same as if Consultant were a party to this Agreement. The City has approved Developer's selection of Consultant to design the Improvements and the form of the architect's agreement attached as Exhibit "D". 1.14 Contract Administrator: The Director of the Public Works Department of the City, or his designee, shall be designated as the Contract Administrator for matters concerning this Agreement. The City agrees that a single person shall serve as Contract Administrator under this Agreement and the City shall notify Developer of the person who shall serve as Contract Administrator. Developer herein agrees and shall require that any Contract Administrator services which will be required pursuant to the Contract Documents shall also be binding upon Contractor, to the same extent as same are binding upon Developer as a party pursuant to this Agreement. 1.15 Contract Documents: This Agreement, as approved by the Mayor and City Commission and executed by the Mayor and City Clerk; the AIA A I I I Standard Form of Agreement Between Owner and Contractor, the Addendum to A111, the A201, General Conditions to the Contract of Construction, any approved Change Orders; the performance and payment bonds; the Plans and Specifications and any and all other construction documents; other construction documents such as CPM, Construction Schedule, and schedule of values; and any other documents the submission of which is required by this Agreement. When reference is made in the Contract Documents to publications, standards or codes issued by associations or societies, the intent shall be to specify the current or adopted edition of such publication or standard including revision and effect on the date of the contract execution notwithstanding any reference to a particular date. 1.16 Contractor (or General Contractor): Suffolk Construction Company, Inc., a Massachusetts corporation, its successors and assigns, or such other contractor selected by Developer, and approved by the City in its reasonable discretion, to perform the Improvements for the Project. 4 MIAMI 1287157.1 7713726901 Developer and City agree and acknowledge that City is an intended third party beneficiary in any contract entered into between Developer and Contractor. The Developer shall therefore submit its final agreement with Contractor to the City, for its review and approval, prior to such agreement being executed by and between Developer and Contractor. Additionally, Developer herein represents to City that its agreement with Contractor shall incorporate the terms and conditions of this Agreement and the Contract Documents, and Developer shall assume sole and absolute responsibility for binding Contractor to same as if Contractor were a party to this Agreement. The City has approved Developer's selection of Contractor to construct the Improvements. 1.17 Contractor's Fee: Contractor's Fee shall have the meaning set forth in Section 8.6. 1.18 Contract Sum: The Contract Sum is the Cost of the Work plus the Developer's Fee. 1.19 Contract Time: Contract Time shall have the meaning set forth in Section 6.3. 8.10. 1.20 Cost of the Work: Cost of the Work shall have the meaning set forth in Section 1.21 CPM Schedule: CPM Schedule shall mean critical path method schedule. 1.22 Defective Work: Defective Work means Work that is not performed in accordance with the Contract Documents, in violation of code, installed in violation of the manufacturer's written instructions where the installation has caused new materials to be detrimentally affected where the life expectancy of the material installed is reduced, or otherwise installed in a non -workmanlike manner. 1.23 Department: Department shall have the meaning set forth in Section 52A. 1.24 Design Architects: Raymond Jungles and Herzog and de Meuron. 1.25 Design Review Board or DRB: the Design Review Board of the City created and established pursuant to the Land Development Regulations, or any board or body which may succeed to its function. 1.26 Developer: UTA Management, LLC, a Delaware limited liability company, its successors and assigns, is the Developer selected to perform the Improvements pursuant to this Agreement, and is the person, firm or corporation liable for the acceptable performance of the Project. 1.27 Developer's Fee: Developer's Fee shall have the meaning set forth in Section 8.6. 1.28 Development Agreement Act: Development Agreement Act means the Florida Local Government Development Agreement Act, Section 163.3220, et. seq., Florida Statutes. 1.29 Development Approval: Development Approval means any zoning, rezoning, conditional use special exception, variance or subdivision approval, concurrency approval under 5 MIAMI 1287157.1 7713726901 Section 163.3180, Florida Statutes, or any other official action of local government having the effect of approving development of land. 1.30 Documents: Documents shall have the meaning set forth in Section 35.1. 1.31 DRB Order: DRB Order shall have the meaning set forth in the Recitals. 1.32 Field Order: A written order issued by the Contract Administrator which orders minor changes in the Project but which does not involve a change in the total cost or time for performance. 1.33 Final Completion: The date certified by Consultant that all conditions of the permits and regulatory agencies have been met, all construction, including corrective and punch list Work, has been performed, pursuant to the Contract Documents, all administrative requirements of the Contract Documents have been completed, and City has received from Developer a release of all liens, consent of surety, release of claims by Developer, corrected as - built drawings, executed final adjusted Change Order(s), copies of pertinent test results, correspondence and other necessary documentation, including all warranties, guarantees, and operational manuals, if any. 1.34 Guaranteed Maximum Price: Guaranteed Maximum Price shall have the meaning set forth in Section 8.1. 1.35 Hazardous Materials: As used in this Agreement "Hazardous Materials" means any chemical, compound, material, substance or other matter that: 1.35.1 is a flammable, explosive, asbestos, radioactive nuclear medicine, vaccine, bacteria, virus, hazardous waste, toxic, overtly injurious or potentially injurious material, whether injurious or potentially injurious by itself or in combination with other materials; 1.35.2 is controlled, referred to, designated in or governed by any Hazardous Materials Laws; 1.35.3 gives rise to any reporting, notice or publication requirements under any Hazardous Materials Laws, or 1.35.4 is any other material or substance giving rise to any liability, responsibility or duty upon the City with respect to any third person under any Hazardous Materials Law. 1.36 Hazardous Materials Laws: As used in this Agreement, the term "Hazardous Materials' Laws" means any and all federal, state or local laws or ordinances, rules, decrees, orders, regulations or court decisions (including the so called "common law"), including without limitation the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. §§9601 et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. §§1801 et seq.), and the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. §§6901 et seq.), relating to hazardous substances, hazardous materials, 6 MIAMI 1287157.1 7713726901 hazardous waste, toxic substances, environmental conditions on, under or about the Premises, soil and ground water conditions or other similar substances or conditions. 1.37 Historic Preservation Board or HPB: the Historic Preservation Board of the City created and established pursuant to the Land Development Regulations or any board or body which may succeed to its functions. 1.38 Improvements: The improvements to be constructed on the Project Site substantially in accordance with the schematic and design development drawings attached as Exhibit "C". 1.39 Land Development Regulations: Land Development Regulations means Subpart B (Chapters 114 through 142) of the Code of the City of Miami Beach, Florida, as the same was in effect as of the date of this Development Agreement. 1.40 MBeachl: MBeachl shall have the meaning set forth in the recitals. 1.41 MBeach3: MBeach3 shall have the meaning set forth in the recitals. 1.42 Notice(s) to Proceed: A written document(s) issued by the Contract Administrator informing the Developer to officially begin the Project. 1.43 Plans and/or Specifications: The official graphic and descriptive representations of this Project, which are a part of the Contract Documents. 1.44 Project: The Project means the Work described in the Contract Documents and generally consists of the closure of a portion of Lincoln Road between Lenox Avenue and Alton Road to vehicular traffic, and the construction of a new design for the extension of the Lincoln Road pedestrian mall west to Alton Road. The vehicular access that exists between Alton Road and Lenox Avenue will be removed and replaced with a new pedestrian plaza, extending the pedestrian portion of Lincoln Road further to the west. The new plaza design will be organic in nature, characterized by, among other things, grouping mature cypress trees. 1.45 Project Site: Project Site shall have the meaning set forth in the Recitals. 1.46 Shop Drawings: Drawings, diagrams and schedules (excluding, however, the CPM Schedule), and other data specially prepared by Contractor or its subcontractors, sub - subcontractors, manufacturer, supplier or distributor to illustrate some portion of the Work. 1.47 Substantial Completion: Subject to the requirements of Article 42, the dates certified by the Consultant that all conditions of the permits and regulatory agencies have been met for the City's intended use of each portion of the Project, and all construction has been performed therein in accordance with this Agreement and the Contract Documents so City can fully, as opposed to partially, occupy or utilize each portion of the Project for its intended purpose. At a minimum, a Certificate of Substantial Completion is one of the requirements for Substantial Completion. 7 MIAMI 1287157.1 7713726901 1.48 Surety: The surety company or individual which is bound by the performance bond and payment bonds with and for Developer and Contractor who is primarily liable and which surety company or individual is responsible for Contractor's acceptable performance of the Work under the Contract Documents and for the payment of all debts pertaining thereto in accordance with Section 255.05, Florida Statutes. 1.49 Utilities: The public or private systems on the Project site for rendering electrical power, light, heat, gas, water, communication, sewage systems, and the like. 1.50 Work: The construction required by the Contract Documents, as permitted, including all labor necessary to produce such construction, and all materials and equipment incorporated or to be incorporated in such construction. ARTICLE 2 INTENTION OF AGREEMENT It is the intent of the Contract Documents to describe a functionally complete Project to be constructed by Developer in accordance with said Contract Documents. Any Work, materials or equipment that may reasonably be inferred from the Contract Documents as being required to produce the intended result will be supplied. When words which have a well-known technical or trade meaning are used to describe Work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals or codes of any technical society, organization or association, or to laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the standard specification, manual, code, laws or regulations in effect at the time of the completion of design. Applicable laws or codes that may be changed after a permit is issued may result in an increase in the Contract Time or Contract Sum should additional Work be required on behalf of the Developer. ARTICLE 3 CONSTRUCTION 3.1 Consistency with City's Comprehensive Plan and Zoning_ Regulations. The City has adopted and implemented the Comprehensive Plan. The City hereby finds and declares that the provisions of this Agreement dealing with the Project and the Project Site are consistent with the City's adopted Comprehensive Plan and Land Development Regulations, subject to all applicable requirements, permits and approvals. 3.2 Historic Preservation Board Approval. 3.2.1 The City has heretofore submitted an application to the Historic Preservation Board for its review of the Project, and the Historic Preservation Board has approved the Project. 3.2.2 If at any time in the future it shall be necessary in connection with the construction, reconstruction or renovation of the Project to apply to the Historic Preservation 8 MIAMI 1287157.1 7713726901 Board for its review or approval of any changes or modifications to the Premises, the City shall be solely responsible for making such application. 3.3 Design of the Project. Developer shall be solely responsible for overseeing and directing Consultant and Design Architects in the design of the Project, and such design shall be substantially in accordance with the Conceptual Plan. City's prior approval of the Plans and Specifications for the Improvements, in its proprietary and not regulatory capacity, shall not be unreasonably withheld, conditioned or delayed, and shall be required for the following: (a) schematics, (b) design development drawings, (c) 50% construction drawings, and (d) 100% construction drawings. The schematics for the Improvements are complete and have been approved by City. The design development drawings have been conceptually approved by City and are attached as Exhibit "C". City shall have fifteen (15) business days after receipt of 50% construction drawings and fifteen (15) business days after receipt of 100% construction drawings (collectively, the "Construction Drawings") to review and provide Developer with written notice of its approval or disapproval of the Construction Drawings. If the City fails to provide written notice to Developer of its approval or disapproval of the Construction Drawings within such time periods, the City shall be deemed to have approved them. If the City provides Developer with timely disapproval of the Construction Drawings, Developer shall cause Consultant to revise the Construction Drawings in accordance with the City's reasonable objections and submit revised Construction Drawings to the City to address the City's reasonable objections. City shall have the same time period to review and approve or disapprove the revised Construction Drawings as set forth above with respect to the original Construction Drawings. In the event the City disapproves the Construction Drawings, the design phase and the construction phase set forth in the Construction Schedule and the Contract Time shall be extended by one day for each day from Developer's receipt of the City's disapproval notice to the date of the City's approval of the revised Construction Drawings. 3.4 Public Facilities and Concurrency. As the Project involves the creation of a public pedestrian open space on the existing right of way of Lincoln Road between Lenox Avenue and Alton Road and there is no enclosed space being constructed, there are no concurrency impacts on the Project. City and Developer anticipate that the Project will be served by those roadway transportation facilities currently in existence as provided by State, County and local roadways. It is also anticipated that the Project will be served by public transportation facilities currently in existence, including those provided by Miami -Dade County, the City, and other governmental entities as may presently operate public transportation services within the City. Sanitary sewer, solid waste, drainage, and potable water services for the proposed Project are expected to be those services currently in existence and owned or operated by Miami -Dade County, the Miami -Dade County Water and Sewer Department, and the City. The Project will also be serviced by any and all public facilities, as such are defined in Section 163.3221(12), Florida Statutes (1997), as such are described in the City's Comprehensive Plan, specifically including, but not limited to, those facilities described in the Infrastructure Element and Capital Improvements Element therein, a copy of which is available for public inspection in the offices of the Planning, Design and Historic Preservation Department of the City. 3.5 Intentionally Deleted. 3.6 Required Development Permits. 9 MIAM I 12 8715 7.1 7713 726901 3.6.1 Developer shall, on behalf of the City, obtain the Development Approvals listed in the attached Exhibit "F", if applicable. Where necessary or desirable the City shall act as the applicant for the Development Approvals. Developer shall be responsible for processing all applications for the Development Approvals. Contract Administrator shall reasonably assist Developer in facilitating the prompt issuance of the Development Approvals. In the event Developer has provided the City with all documentation necessary to obtain the Development Approvals and the City fails to issue all of the Development Approvals (other than the Certificate of Completion) prior to the end of the permit phase set forth in the Construction Schedule, the permit phase and the Contract Time shall be extended one day for each day from the end of the permit phase to the issuance of all of the Development Approvals (other than the Certificate of Completion). All fees due in connection with the Development Approvals shall either be (a) paid by the City in addition to the Cost of the Work and not as part of the Contract Sum, or (b) waived. 3.6.2 There are no reservations and/or dedications of land for public purposes that are proposed under the terms of this Agreement, except as expressly set forth in Section 52.3. 3.6.3 The failure of this Agreement to address a particular permit, condition, term or restriction shall not relieve Developer of the necessity of complying with the law governing said permitting requirements, conditions, term or restriction. 3.7 Proposed Permitted Development. The proposed permitted development on the Project Site is shown on the attached Exhibit "C". ARTICLE 4 CONTRACT DOCUMENTS 4.1 The Contract Documents shall be followed as to Work, material, and dimensions except when the 'Contract Administrator may authorize, in his reasonable discretion, in writing, an exception. Developer shall be entitled to a Change Order for exceptions that result in a time delay or extra cost. 4.2 Dimensions given in figures are to hold preference over scaled measurements from the drawings; however, all discrepancies shall be decided upon by the Consultant with notice to Contract Administrator. Developer shall not proceed when in doubt as to any dimension or measurement but shall seek clarification from the Consultant with notice to Contract Administrator. 4.3 Developer shall maintain four (4) copies of the Contract Documents; two (2) of which shall be preserved and always kept accessible at the site to the Contract Administrator or his/her authorized representatives. 4.4 This Agreement incorporates by reference the Contract Documents defined in Section 1.15. In the event of a conflict in the Contract Documents, the documents for the Project shall have the following order of precedence, beginning with the most important: 10 MIAMI 1287157.1 7713726901 1. Change Orders 2. This Agreement and all addenda, exhibits and amendments thereto 3. The Addendum to A111 between Developer and Contractor 4. The AIA A 111 Standard Form of Agreement between Owner and Contractor 5. The Plans and Specifications (Approved and Permitted) 6. Other Contract Documents ARTICLE 5 SCOPE OF WORK 5.1 The scope of the Work for the Project is the Work described in the Contract Documents and generally consists of the closure of a portion of Lincoln Road between Lenox Avenue and Alton Road to vehicular traffic, and the construction of a new design for the extension of the Lincoln Road pedestrian mall west to Alton Road. The vehicular access that exists between Alton Road and Lenox Avenue will be removed and replaced with a new pedestrian plaza, extending the pedestrian portion of Lincoln Road further to the west. The new plaza design will be organic in nature, characterized by, among other things, grouping mature cypress trees. 5.2 Contract Administrator will provide, at a minimum, the following services: 5.2.1 Contract Administrator shall inspect the Work. 5.2.2 Contract Administrator shall have the authority to reject Work that does not in his reasonable opinion conform to the Contract Documents. 5.2.3 Contract Administrator shall monitor the overall control and expediting of the construction of the Work to facilitate completion of the Work within the approved time frame and within the Contract Sum. 5.2.4 Contract Administrator shall develop a punch list or lists of items requiring corrective action. 5.2.5 Contract Administrator shall attend weekly progress meetings with the Developer, Consultant and Contractor to review Work progress and resolve issues relating to the prosecution of the Work. 5.2.6 Contract Administrator shall instruct Developer to commence the Work by written instructions in the form of a Notice to Proceed issued by Contract Administrator. 5.2.7 Contract Administrator shall initiate or approve Change Orders in accordance with the terms of this Agreement. 5.2.8 Contract Administrator shall review and approve applications for payment and submit same to the City for payment. 11 MIAMI 1287157. 17713726901 5.2.9 Contract Administrator shall approve or issue Field Orders. 5.2.10 Contract Administrator shall review Shop Drawings. 5.3 Consultant will provide, at a minimum, the following services: 5.3.1 Consultant shall perform all of the architectural and engineering services necessary to describe, detail and design the Project in accordance with the Contract Documents. 5.3.2 Consultant shall design the Project so as to comply with applicable codes and regulations. 5.3.3 Consultant shall prepare the Plans and Specifications, as well as review and approve (or take other appropriate action upon) submittals such as Shop Drawings, product data and samples. 5.3.4 Consultant shall prepare construction change directives, if necessary, and authorize minor changes in the construction Work as provided in the Contract Documents. 5.3.5 Consultant shall receive and review for compliance with the Contract Documents all written warranties and related documents required hereby to be assembled upon Substantial Completion and issue certificates for payment for Work performed in compliance with the requirements of the Contract Documents. 5:3.6 Consultant shall review Shop Drawing submittals prepared by the Contractor and its subcontractors and return to Contract Administrator for routing. 5.3.7 Consultant shall review and/or respond to Contractor and/or City inquiries regarding the intent of the Contract Documents with respect to written requests for information, requests for Change Orders, and other communications between the Developer and the City requiring Consultant review. 5.3.8 Consultant shall prepare Contract Documents clarifications to address clarifications regarding the intent of the Contract Documents. 5.3.9 Consultant shall perform specialty site visits by various design disciplines upon request in the prosecution of the Work. 5.3.10 Consultant shall assist Contract Administrator with the development of a punch list or list of items requiring corrective action. 5.3.11 Consultant shall attend weekly progress meetings with the Developer, Contract Administrator, and Contractor to review Work progress and resolve issues relating to the prosecution of the Work. 5.3.12 Consultant shall have the authority to order or approve deviations from the Contract Documents, pursuant to approved Change Orders, so long as such deviations do not 12 MIAMI 1287157.1 7713726901 cause the Cost of the Work to exceed the Guaranteed Maximum Price. In the event any such deviations are sought, prior written approval from the Contract Administrator must be obtained. ARTICLE 6 CONTRACT TIME 6.1 Time is of the essence for Developer's and Contractor's performance of the Work pursuant to the Contract Documents. Developer agrees to complete the Work in accordance with the Construction Schedule and to achieve Substantial Completion of the Work, in accordance with the Contract Documents, and within the Contract Time, provided the City responds timely to requests for information, Shop Drawings, and/or decisions and approvals required under this Agreement. 6.2 Developer shall be instructed to commence the Work by written instructions in the form of a Notice to Proceed issued by the Contract Administrator. 6.3 The Work shall be Substantially Completed within thirty (30) months after the issuance of the Notice to Proceed, as may be extended as a result of force majeure events, mutual agreement of the City and Developer, or by City caused delays. The Work shall be ready for final payment in accordance with Article 10, within forty-five (45) days from the date certified by Consultant as the date of Substantial Completion (the "Contract Time"). ARTICLE 7 DEVELOPER'S RESPONSIBILITY 7.1 The parties acknowledge and agree that the Developer and Contractor will be responsible for the construction of the Project in accordance with the terms of this Agreement. 7.2 It is Developer's responsibility to cause Contractor to have and maintain appropriate certificate(s) of competency, valid for the Work to be performed and for all persons working on the Project for whom a certificate of competency is required. 7.3 Until Final Completion, Developer shall be fully responsible for the performance of its agents and employees, Contractor and Consultant under the terms of this Agreement. Upon Final Completion, (i) City shall hold only Contractor, Consultant and the other subcontractors and subconsultants (but not Developer) responsible for the performance of this Agreement and any warranties arising therefrom, (ii) City shall unconditionally and irrevocably release, satisfy and forever discharge Developer and all of its officers, shareholders, partners, directors, members, managers, employees or agents of Developer, including, without limitation, Robert S. Wennett, Urban Investments Advisors, LLC, a Delaware limited liability company, and Wellspring Investments Management 1, LLC, a Delaware limited liability company, of and from any and all actions, causes of action, claims, demands, losses, costs and expenses, whether direct, contingent or consequential, liquidated or unliquidated, at law or in equity, relating to the design and construction of the Project, and (iii) provided full payment has been received by Developer, Developer shall unconditionally and irrevocably release, satisfy and forever discharge the City and any employees or agents of the City of and from any and all actions, causes of action, 13 MIAMI 1287157.1 7713 726901 claims, demands, losses, costs and expenses, whether direct, contingent or consequential, liquidated or unliquidated, at law or in equity, relating to the Project, including, but not limited to the design and construction of the Project. 7.4 Developer agrees to bind specifically Contractor and Consultant, and require that Contractor and Consultant bind any and all of their respective subcontractors and subconsultants, to the applicable terms and conditions of this Agreement and the Contract Documents for the benefit of City. 7.5 Developer shall at all times enforce strict discipline and good order among its Contractor, employees and consultants, and require Contractor to enforce strict discipline and good order among its subcontractors at the Project Site and shall not employ on the Project any unfit person or anyone not skilled in the Work assigned to him or her. 7.6 Developer shall keep itself fully informed of, and shall take into account and comply with, all applicable state and national laws and municipal ordinances and regulations in any manner affecting those engaged or employed in the Project, or the materials used or employed in the Project, or in any way affecting the conduct of the Project, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same and of all provisions required by law to be made a part of this Agreement, all of which provisions are hereby incorporated by reference and made a part hereof. If any specification or contract for this Project is knowingly in violation of any such law, ordinance, regulation, order or decree, Developer shall forthwith report the same to the Contract Administrator in writing. Developer shall cause all of its agents and employees and Contractor and Consultant to observe and comply with all applicable laws, ordinances, regulations, orders and decrees. 7.7 In the event of a change after the date of this Agreement in any national, State, local or municipal laws, codes, ordinances and regulations which in any manner affects the Project which becomes known to the Developer or the City, Developer or the City (as applicable) shall advise the Consultant and Contract Administrator, in writing, and the Consultant and/or Contract Administrator, may initiate a Change Order, the purpose of which shall be to bring the Project into compliance with all laws, ordinances, codes and regulations as amended or enacted. 7.8 Developer shall pay as a Cost of the Work all applicable sales, consumer, use and other taxes required by law in effect at the execution of the Agreement. Developer is responsible for reviewing the pertinent State statutes involving State taxes and complying with all requirements. Notwithstanding the foregoing, the City shall provide a City issued debit card to Contractor in order for Contractor to purchase materials for the Project on behalf of the City without the payment of sales tax. 7.9 Developer shall contract the services of a licensed general contractor (Contractor) to execute the Work. 7.10 Developer shall submit a certified, monthly application for payment prepared by Contractor for review/approval by the Consultant and Contract Administrator. 7.11 Developer shall provide a location for, attend and participate in weekly construction progress meetings with the Contract Administrator, Consultant and Contractor. 14 MIAMI 1287157.1 7713726901 7.12 Developer hereby agrees to complete the Project described by the Contract Documents, in accordance with the requirements and provisions of the Contract Documents. 7.13 Developer agrees to meet with Contract Administrator or his designee at reasonable times and with reasonable notice. 7.14 Prior to the final completion of construction services under this Agreement, there shall be established a record set of plans and specifications, on bond paper and on CD Rom, noncompressed, formatted in the latest version of AutoCAD, which shall bear the approval of Developer and Contract Administrator. Such approval shall be indicated by the written signature of both parties. In addition, prior to the commencement of construction services under this Agreement, Developer shall submit to the Contract Administrator a CPM Schedule for the planning and execution of the Construction Phase of the Project. 7.15 Developer will provide overall technical and management services to assist the City in maintaining schedules, establishing budgets, controlling costs, achieving quality and minimizing operational disruptions. 7.16 If at any time the Developer observes or becomes aware of any fault or defect in the Project or of any nonconformance with the Contract Documents, Developer will notify the Consultant and Contract Administrator, and will direct that all reasonable steps be taken to correct such fault, defect or nonconformance. 7.17 During the course of the Work, Developer shall also be responsible for causing Contractor to provide quality assurance of the construction Work in accordance with the Contract Documents. 7.18 Developer shall coordinate all phases of the Work to facilitate completion of the Project in accordance with the established time period and estimate of construction cost. ARTICLE 8 THE CONTRACT SUM 8.1 The Contract Sum in the amount of $5,876,710 is the maximum amount, subject to additions or deletions by approved Change Orders in accordance with this Agreement, agreed to by the City and Developer under this Agreement to complete the Work in accordance with the Contract Documents (the "Guaranteed Maximum Price"). Developer will comply with all requirements of funding sources provided by City for construction of the Improvements. The City confirms that the City Commission has approved the funding of the Contract Sum and that City Commission approval is not required for any approved Change Orders under this Agreement, so long as the Cost of the Work does not exceed the Guaranteed Maximum Price. 8.2 Developer shall enter into a Cost Plus with a Guaranteed Maximum Price contract with Contractor. At 50% Construction Drawings, Developer shall submit the costs of the Improvements for bids. If the bids for the proposed design of the Project exceed the Contract Sum, less the Developer's Fee, then Developer shall cause Consultant and Contractor to value engineer the Project (at their sole cost and at no cost to the City) to bring it back into budget, so 15 MIAMI 1287157.1 7713726901 that the expected cost of the Improvements will not exceed the Contract Sum, less the Developer's Fee. Thereafter, Developer shall submit the value engineered Project to the City for its reasonable approval. The City shall not be deemed to have unreasonably withheld its approval if the value engineered Project reflects material changes to the Improvements from those described in the Conceptual Plan; provided however that the parties agree that the elimination of one of the water features and/or the substitution of an interactive water fountain for one of the water features shown in the Conceptual Plan and/or the reduction in size and/or scope of the water features shall not be deemed a reasonable basis for the City to withhold approval. If the City rejects the value engineered Project, and the City and Developer are unable to agree on a modified design of the Project or an increase in the Contract Sum and/or Contract Time to the extent necessary to complete the Work for such modified design within thirty (30) business days after the City's rejection of the value engineered Project, then either the City or Developer shall have the right to terminate this Agreement by delivering written notice to the other party within ten (10) business days after the end of such thirty (30) business day period. In the event of a termination of this Agreement in accordance with this Section, the City shall be responsible for the payment of the Cost of the Work incurred up to the date of termination of this Agreement. 8.3 The City shall pay the Cost of the Work, as adjusted by approved Change Orders. The construction contract shall limit the grounds for approved Change Orders to City requested Change Orders, Developer requested Change Orders approved by the City, force majeure events, City Building Department field inspector requirements, acts or omissions of the City, errors and omissions in architectural drawings and specifications, material and substantial changes in the Work not caused by Developer, concealed or unknown conditions, and costs due to emergencies incurred in taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property. 8.4 Developer shall fund approximately $162,749 over and above the Contract Sum for the replacement of sidewalks, curbs and gutters on the Project Site, in accordance with the estimated budget attached as Exhibit "G". Additionally, Developer shall match the City's 1'/2% of the Contract Sum for AIPP in accordance with the terms of Section 52.1 in this Agreement. City acknowledges that Developer has already contributed approximately $290,000 in cash or in kind benefits related to the design of the Project, legal fees and costs and out of pocket expenses incurred by Developer, which costs shall not be applied against the Contract Sum. 8.5 The City shall pay Developer the Contract. Sum plus all approved Change Orders in current funds for Developer's performance of this Agreement through the date of the latest approved requisition. The initial Contract Sum is the schedule of values which represents the sum of the Cost of the Work as defined herein plus the Developer's Fee. The Contract Sum may be adjusted only by signed and approved Change Orders issued in accordance with the terms of the Contract Documents. 8.6 Developer's and Contractor's Fee. Developer is entitled to receive the following fees, as set forth in the schedule of values: (a) a developer's fee in the amount of eight percent (8%) of the Cost of the Work as described herein; and (b) an additional fee in the amount of three percent (3%) of the Cost of the Work, to finance the cash flow required for Developer to cause the Work to be completed based on monthly billings to the City (collectively, the 16 MIAMI 1287157.1 7713726901 "Developer's Fee"). Contractor's Fee shall be set forth in the schedule of values and shall not exceed seven percent (7%) of the Cost of the Work as described herein (the "Contractor's Fee"). 8.7 Intentionally Deleted. 8.8 Adjustments to the Guaranteed Maximum Price on account of changes in the Work may be determined only in accordance with the terms of this Agreement. 8.9 In calculating adjustments to the Guaranteed Maximum Price, the terms "cost" and "costs" as used in the above -referenced provisions shall mean the Cost of the Work as defined below and the terms "fee" and "a reasonable allowance for overhead and profit" shall mean the Developer's Fee as defined above. 8.10 Cost of the Work. The term "Cost of the Work" shall mean costs necessarily incurred by the Developer, Contractor, Consultant or the City in the proper performance of the Work. Such costs shall be at rates not higher than the reasonable and customary price paid for similar work on Miami Beach, Florida except with prior written consent of the City. The Cost of the Work shall include only the items set forth in this Article 8, as follows: 8.10.1 Wages of construction workers directly employed by the Developer or Contractor to perform the construction of the Work at the site or, with the City's written approval, at off -site workshops, provided such costs are not incurred as the proximate result of defects of deficiencies of the Work. 8.10.2 Wages or salaries of the Developer's and Contractor's supervisory and administrative personnel when stationed at the site as included in the schedule of values shall be included in the Cost of the Work. 8.10.3 Wages and salaries of the Developer's and Contractor's supervisory or administrative personnel engaged, at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work and only upon the written consent of the City. 8.10.4 Costs paid or incurred by the Developer or Contractor for training, taxes, insurance, contributions, assessments, profit sharing, pensions and all other benefits required by law or collective bargaining agreements or by corporate policy and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work. This amount is stipulated to be fifty-six percent (56%) of the direct payroll. 8.10.5 Payments made by the Developer or Contractor to Consultant or other design professionals in accordance with the requirements of this Agreement, provided such costs are not incurred as the proximate result of defects of deficiencies in the Work. 8.10.6 Costs, including transportation and storage, of materials and equipment incorporated or to be incorporated in the completed construction. 17 MIAMI 1287157.1 7713726901 8.10.7 Costs of materials described in the preceding Section 8.6.6 in excess of those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall become the City's property at the completion of the Work or, at the City's option, shall be sold by the Developer. Any amounts realized from such sales shall be credited to the City as a deduction from the Cost of the Work. 8.10.8 Costs, including transportation and storage, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers, that are provided by the Developer or Contractor at the site and fully consumed in the performance of the Work; and cost (less salvage value) of such items if not fully consumed, whether sold to others or retained by the Developer or Contractor. Cost for items previously used by the Developer or Contractor shall mean fair market value. 8.10.9 Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers that are provided by the Developer or Contractor at the site, whether rented from the Developer or Contractor or others, and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the City's prior approval. Rental charges for equipment owned by the Developer or Contractor shall be consistent with the lesser of those shown in the current Associated Equipment Dealers Manual or prevailing commercial rates. Rental charges from third -parties shall be at cost. Rental rates shall be inclusive of all charges. Lost equipment shall not be a Cost of the Work. 8.10.10 Costs of removal of debris from the site including loading and dump charges. 8.10.11 Costs of document reproductions, facsimile transmissions and long- distance telephone calls, postage and parcel delivery charges, telephone service at the site. 8.10.12 That portion of the reasonable expenses of the Developer's and/or Contractor's personnel incurred while traveling in discharge of duties connected with the Work. Without prior written consent of the City, travel and living charges including per diems for Developer's or Contractor's personnel such as the project manager and project superintendent that do not reside in South Florida shall not be a Cost of the Work. 8.10.13 Costs of materials and equipment suitably stored off the site at a mutually acceptable location, if approved in advance by the City. 8.10.14 That portion of insurance and bond premiums that can be directly attributed to this Agreement. 8.10.15 Sales, use or similar taxes imposed by a governmental authority that are related to the Work at the rates that are in force as of the date of the Agreement. 8.10.16 Fees and assessments for the building permit and for other permits, licenses and inspections for which the City, Developer or Contractor are required by the Agreement to pay. 18 MIAMI 128715 7.1 7713 726901 8.10.17 Fees of laboratories for tests required by the Contract Documents. 8.10.18 Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents; the cost of defending suits or claims for infringement of patent rights arising from such requirement of the Contract Documents; and payments made in accordance with legal judgments against the Developer or Contractor resulting from such suits or claims and payments of settlements made with the City's consent. 8.10.19 Deposits lost for causes other than the Developer's or Contractor's negligence or failure to fulfill a specific responsibility to the City as set forth in the Contract Documents. 8.10.20 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the City. 8.10.21 Costs due to emergencies incurred in taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property. 8.10.22 The Contractor's Fee. 8.11 Costs Not to be Reimbursed. The Cost of the Work shall not include: 8.11.1 Salaries and other compensation of the Developer's or Contractor's personnel stationed at the Developer's or Contractor's principal office or offices other than the site office. 8.11.2 Expenses of the Developer's principal office and offices other than the site office. 8.11.3 Overhead and general expenses not associated with the Project. 8.11.4 Developer's or Contractor's capital expenses, including interest on the Developer's or Contractor's capital employed for the Work or bonding (except as set forth in Section 8.6 above). ARTICLE 9 PROGRESS PAYMENTS 9.1 Progress Payments. 9.1.1 Developer may make application for payment for Work completed during the Project at intervals of not more than once a month. The period covered by each application for payment shall be one calendar month ending on the last day of the month. 9.1.2 City agrees to pay the application for payment submitted by Developer covering all out of pocket costs incurred by Developer with respect to the Project within fourteen 19 MIAMI 1287157.1 7713 726901 (14) days after the execution of this Agreement. Such application for payment shall be in the amount of $74,746.92, which shall not exceed five percent (5%) of the Contract Sum. 9.1.3 Based upon applications for payment prepared by Contractor and submitted by Developer to Consultant and Contract Administrator and certificates for payment issued by the Consultant, (a) Contract Administrator shall have ten (10) days after it is presented with an application for payment to review and approve same or state in writing its reasons for non -approval; and (b) for approved applications for payment, the City shall make progress payments on account of the Contract Sum to Developer, as provided below and elsewhere in this Agreement, within thirty (30) days after the submittal of each such application for payment to Contract Administrator. 9.1.4 With each application for payment, Developer shall submit payrolls, receipted invoices or invoices with check vouchers attached, and any other evidence required by the City, Contract Administrator or Consultant to demonstrate that cash disbursements already made by the Developer or Contractor on account of the Cost of the Work. 9.1.5 Each application for payment shall be based on the most recent schedule of values submitted by Developer in accordance with this Agreement. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Developer's Fee shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Consultant may reasonably require. This schedule, unless objected to by the Consultant or Contract Administrator, shall be used as a basis for reviewing the applications for payment submitted by Developer. 9.1.6 Applications for payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the application for payment. The percentage of completion shall be the lesser of (1) the percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by dividing (a) the expense that has actually been incurred by Developer on account of that portion of the Work for which Developer has made or intends to make actual payment prior to the next application for payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Substantiating backup including that for general conditions, vendors, rentals and sub -developers shall be provided to properly support each progress payment. 9.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: (a) take the total of the Cost of the Work and allocate it to each line item in the approved schedule of values subject to the amount not exceeding the then percent completion of the Work for that individual line item; (b) add the Developer's Fee. The Developer's Fee shall be computed upon the Cost of the Work at the rate stated above; and (c) subtract the aggregate of previous payments made by the City. - 20 MIAMI 1287157.1 7713726901 9.1.8 Unless otherwise provided in this Agreement, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the City, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by Developer and Contractor with procedures satisfactory to the City to establish the City's title to such materials and equipment or otherwise protect the City's interest, and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. 9.1.9 The City may withhold payment of an application for payment to such extent as may be reasonably necessary to protect itself from loss on account of Defective Work. The City shall only withhold payment of the portion of an application for payment for which it claims Defective Work. The City shall provide Developer with written notice of its rejection of an application for payment (or a portion thereof) as a result of Defective Work within ten (10) days after its receipt of such application for payment, failing which, the City shall be deemed to have waived its right to withhold payment of such application for payment on account of Defective Work. Such written notice shall include the City's basis for claiming Defective Work. If Developer disputes the City's claim of Defective Work, such dispute shall be resolved pursuant to the terms of Article 11 in this Agreement. ARTICLE 10 ACCEPTANCE AND FINAL PAYMENT 10.1 Upon receipt of written notice from Developer that the Work is ready for final inspection and acceptance, Consultant and Contract Administrator shall, within ten (10) days, make an inspection thereof. If Consultant and Contract Administrator find the Work acceptable; that the requisite documents have been submitted and the requirements of the Contract Documents have been fully performed; and all conditions of the permits and regulatory agencies have been met, a final certificate of payment shall be issued by Consultant and approved by Contract Administrator, stating that the requirements of the Contract Documents have been performed and the Work is ready for acceptance. 10.2 On or before issuance of the final certificate of payment, Developer shall deliver to Consultant: 10.2.1 A final waiver and release, duly executed by the Developer. 10.2.2 An affidavit listing the name, address and telephone number of the Contractor and of all subcontractors who have performed Work on the Project, with such subcontractors identified as to the trade involved for the Work, along with amounts paid to said Contractor and subcontractors in connection with the Project; 10.2.3 Final waiver and release, duly executed by the Contractor; 10.2.4 One (1) original set and one (1) copy set of the As -Built Drawings; 21 MIAMI 1287157.1 7713 726901 10.2.5 Assignment of all manufacturer's warranties, guarantees, City's manuals to the City, bound in a form acceptable to the City; and 10.2.6 Unconditional consent of Contractor's and Developer's surety to final payment. 10.3 If, after the Work has been Substantially Completed, full completion thereof is materially delayed through no fault of Developer, and Consultant and Contract Administrator so certify, City shall, and without terminating this Agreement, make payment of the balance due for that portion of the Work fully completed and accepted. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 10.4 Developer's acceptance of final payment by the City shall constitute a waiver of all claims by Developer against the City under this Agreement, except those previously made in strict accordance with the provisions of the Contract Documents and identified by Developer as unsettled at the time of acceptance of final payment. 10.5 Developer's final application for payment and the Consultant's final certificate for payment shall constitute a representation to the City by the Developer and the Consultant, respectively, that all conditions precedent to Developer's entitlement to final payment have been excused, waived or satisfied. 10.6 The making of final payment shall not constitute a waiver of claims by the City as against Contractor and Consultant but not Developer for: (a) faulty or defective Work appearing after Consultant's final certificate for payment; (b) failure of the Work to be in strict accordance with the requirements of the Contract Documents discovered after completion of the Work; and (c) terms of all warranties required by the Contract Documents. ARTICLE 11 RESOLUTION OF DISPUTES 11.1 To attempt to prevent all disputes and litigation, it is agreed by the parties hereto that Consultant shall first decide all questions, claims, difficulties and disputes of whatever nature which may arise relative to the Contract Documents and fulfillment of this Agreement as to the character, quality, amount and value of any Work done and materials furnished, or proposed to be done or furnished under or, by reason of, the Contract Documents, and Consultant's estimates and decisions upon all claims, questions, difficulties and disputes shall be conclusive subject to Developer or the City's objection to the extent provided in Section 11.2. Any claim, question, difficulty or dispute which cannot be resolved by mutual agreement of City and Developer shall be submitted to Consultant in writing within ten (10) days of the discovery of the occurrence. Unless a different period of time is set forth herein, Consultant shall notify Developer and the City in writing of the decision within ten (10) days from the date of the submission of the claim, question, difficulty or dispute, unless Consultant requires additional time to gather information or allow the parties to provide additional information. Any request for additional time shall extend the time of substantial completion as between City and Developer 22 MIAMI 1287157.1 7713726901 for an equal period of time. All nontechnical administrative disputes shall be reasonably determined by the Contract Administrator pursuant to the time periods provided herein. During the pendency of any dispute and after a determination thereof, Developer and City shall act in good faith to mitigate any potential damages including utilization of construction schedule changes and alternate means of construction. 11.2 In the event the determination of a dispute under this Article is unacceptable to either party hereto, the party objecting to the determination must notify the other party in writing within twenty-one (21) days of receipt of the written determination. The notice must state the basis of the objection and must be accompanied by a statement that any Contract Documents price adjustment claimed is the entire adjustment to which the objecting party has reason to believe it is entitled to as a result of the determination, if such amount is reasonably calculable at such time. Within sixty (60) days after receipt of written determination as provided in this section, the parties may participate in mediation to address all objections to any determinations hereunder and to attempt to avoid litigation. The mediator shall be mutually agreed upon by the parties. The mediation shall be non -binding. 11.3 Pending final resolution of a claim, including mediation, unless otherwise agreed in writing, Developer and Contractor shall proceed diligently with performance of the Contract Documents and the City shall continue to make payments in accordance with the Contract Documents, subject to the terms of Article 9 in this Agreement. In no event shall Developer be required to make any payments for the Work other than the payments provided under Sections 8.4 and 52.1 in the Agreement and any other payments set forth in this Agreement that are expressly provided to be part of the Cost of the Work. 11.4 Any mediator used shall be certified in accordance with Florida law. Mediation will be conducted in Miami -Dade County. 11.5 The City and Developer shall not be required to submit to arbitration any claim or dispute arising out of, or in connection with, this Agreement unless the City and Developer hereafter agree in writing to arbitrate that particular dispute. During the pendency of any dispute, by mediation, litigation or arbitration (if mutually agreed), provided the City has paid all monies due on non -disputed items, under the pay applications, Developer and Contractor shall carry on the Work and maintain the Construction Schedule, without prejudice to any of their rights, notwithstanding the pendency of any such dispute resolution proceeding, unless otherwise agreed by the City and Contractor in writing. 11.6 In connection with any dispute or litigation arising out of this Agreement, the prevailing party shall be entitled to recover all of its reasonable attorneys' fees and costs incurred, including all reasonable attorneys' fees and costs for litigation in any bankruptcy proceedings and at all trial and appellate levels. 11.7 The Agreement shall be governed and construed in accordance with the laws of the State of Florida. The Developer and City submit to the jurisdiction and venue of the State and Federal Courts in and for Miami -Dade County, Florida and such courts shall have the authority upon proper proof to award compensatory and/or consequential damages, as may be appropriate. 23 MIAMI 1287157.1 7713726901 ARTICLE 12 [THIS ARTICLE LEFT INTENTIONALLY BLANK] ARTICLE 13 [THIS ARTICLE LEFT INTENTIONALLY BLANK] ARTICLE 14 [THIS ARTICLE LEFT INTENTIONALLY BLANK] ARTICLE 15 SECURITY Developer shall cause Contractor to protect the Work, stored products and construction equipment from theft and vandalism, and to protect the Project Site from entry by unauthorized persons. ARTICLE 16 INSPECTION OF PROJECT 16.1 The Contract Administrator or designee shall at all times have access to the Project, and Developer shall provide proper facilities for such access, and such access shall be in accordance with the visitor's rules. 16.1.1 Should the Contract Documents, instructions, any laws, ordinances, or any public authority require any Work for the Project to be specially tested or approved, Developer shall give to the Contract Administrator timely notice of readiness of the Work for inspection. If the testing or approval is to be made by an authority other than City, timely notice shall be given of the date fixed for such testing. Inspections shall be made promptly, and, where practicable, at the source of supply. Within a reasonable time from execution of this Agreement, City shall provide a letter listing the areas of Work the City will inspect. If defined Work for the Project should be covered up without required inspection/approval, it must, if required by the Contract Administrator, be uncovered for examination and properly restored at Developer's expense. 16.1.2 Reexamination and retesting of any Work for the Project may be reasonably ordered by the Contract Administrator; and if so ordered, Developer shall cause such Work to be uncovered by Contractor. If such Work is found to be in accordance with the Contract Documents, the City shall pay the cost of reexamination, retesting and replacement. If 24 MIAMI 12 8715 7.1 7713 726901 such Work is not in accordance with the Contract Documents, Developer shall cause Contractor to pay such cost. 16.2 The payment of any compensation, regardless of its character or form, or the giving of any gratuity or the granting of any valuable favor by Developer to any inspector other than its consultant, is forbidden, and any such act on the part of Developer will constitute a breach of this Agreement. ARTICLE 17 SUPERINTENDENCE AND SUPERVISION 17.1 The orders of the City are to be given through the Contract Administrator, whose instructions are to be strictly and promptly followed in every case, provided that they are in accordance with this Agreement. Developer shall cause Contractor to keep on the Project during its progress a competent supervisor, and any necessary assistants. 17.2 Developer shall prepare, or cause its Contractor or other designated Contract Administrator or Contract Administrator representative to prepare, on a daily basis, and keep on the Project site, a bound log setting forth at a minimum, for each day: the weather conditions and how any weather conditions affected progress of the Work, Work performed, equipment utilized for the Work, any idle equipment and reasons for idleness, visitors to the Project site, labor utilized for the Work, and any materials delivered to the Project Site. The daily bound log shall be available for inspection by the Contract Administrator or designee at all times during the Project. 17.3 If Contractor or Consultant, in the course of the Project, finds any discrepancy between the Contract Documents and the physical conditions of the site, or any errors or omissions in the Contract Documents including the Plans and Specifications and notifies Developer of such discrepancy, it shall be a Developer duty to immediately inform the Contract Administrator, in writing; and Contract Administrator will promptly verify the same. 17.4 Developer shall coordinate, supervise and direct the Project competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Project in accordance with the Contract Documents. Developer shall cause Contractor to be responsible for the means, methods, techniques, safety, sequences and procedures of construction. Developer shall cause Contractor to give efficient supervision to the Work, using Developer's and Contractor's best skill, attention, and judgment. ARTICLE 18 CITY'S RIGHT TO TERMINATE AGREEMENT 18.1 If Developer (a) fails to cause Contractor to begin the construction of the Project within the time specified, or (b) fails to cause Contractor to perform the Project with sufficient workers and equipment or with sufficient materials to insure the prompt completion of the Project, in accordance with the Contract Documents and schedules, within the Contract Time, or (c) fails to cause Contractor to perform the Work suitably and without defects, or (d) 25 MIAMI 12 8715 7.1 7713 726901 discontinues the prosecution of the Project, except for excused delays in accordance with this Agreement, or (e) becomes insolvent or be declared bankrupt, or commits any act of bankruptcy or insolvency, or (f) makes an assignment for the benefit of creditors, or (g) shall not carry on the Project in accordance with the Contract Documents, the City shall give notice in writing to Developer and the surety of such delay, neglect or default, specifying the same. If Developer, within a period of ten (10) days after such notice, shall not proceed to commence to rectify such complaint in accordance therewith and thereafter diligently pursue the resolution of such complaint, then the City may, upon written certificate from the Contract Administrator of the fact of such delay, neglect or default and Developer's failure to comply with such notice: (i) terminate the services of Developer under this Agreement, exclude Developer and Contractor from site and take the prosecution of the Project out of the hands of Developer and Contractor, as appropriate. In such case, Developer shall not be entitled to receive any further payment until the Project is finished. In addition, the City may (ii) enter into an agreement for the completion of the Project according to the terms and provisions of the Contract Documents or use such other methods as in its opinion shall be required for the completion of the Project in an acceptable manner. Developer hereby collaterally assigns its rights under the Contract Documents to the City so that upon termination of this Agreement by the City in accordance with the terms of this paragraph, the assignment of the Contract Documents shall automatically become effective. Notwithstanding the assignment of the Contract Documents automatically becoming effective, Developer agrees, upon request of the City, to execute such documentation as may be reasonably necessary in order to effectuate such assignment; and/or (iii) sue Developer for the damages, costs and charges incurred by the City which shall be deducted from any monies due or which may become due to said Developer Actions will be instituted to recover on the posted bonds. 18.2 Upon receipt of a notice of termination pursuant to Sections 18.1 above, Developer shall promptly discontinue all affected Work unless the notice of termination directs otherwise and deliver to the City within seven (7) days of termination all data, drawings, specifications, reports, estimates, summaries and such other information as may have been required by the Contract Documents whether completed or in process. Compensation shall be withheld until all documents are provided to the City pursuant to this Article. ARTICLE 19 DEVELOPER'S RIGHT TO STOP WORK OR TERMINATE CONTRACT Should Contract Administrator fail to review and approve or state in writing reasons for non -approval of any application for payment within ten (10) days after it is presented, or if the City fails either to pay Developer within thirty (30) days after presentation of such application for payment to Contract Administrator, or to notify Developer in writing of any objection to the application for payment, then Developer may, give written notice to the City, through Contract Administrator, of such delay, neglect or default, specifying the same. If City or Contract Administrator (where applicable), within a period of seven (7) days after such notice shall not remedy the delay, neglect, or default upon which the notice is based, then Developer may stop Work or terminate this Agreement and recover from the City payment for all Work executed and reasonable expenses sustained therein plus reasonable termination expenses. 26 MIAMI 1287157.1 7713726901 ARTICLE 20 "OR EQUAL" CLAUSE 20.1 Whenever a material, article or piece of equipment is identified in the Contract Documents including drawings (plans) and specifications by reference to manufacturers' or vendors' names, trade names, catalog numbers, or otherwise, it is intended merely to establish a standard, and, unless it is followed by words indicating that "no substitution is permitted," any material, article, or equipment of other manufacturers and vendors which will perform or serve the requirements of the general design will be considered equally acceptable provided the material, article or equipment so proposed is, in the opinion of the Consultant and Contract Administrator: 20.1.1 At least equal in quality, durability, appearance, strength and design; 20.1.2 Performs at least equally the function imposed in the general design for the Project; 20.1.3 Conforms substantially, even with deviations, to the detailed requirements for the items as indicated by the Contract Documents; and 20.1.4 Carries the same guaranty or warranty of the specified equipment. All substitution requests will be made via written request which shall be attached to a Shop Drawing and/or Change Order which shall be attached to a detailed description of the specified item and a detailed description of the proposed substitution. A comparison letter itemizing all deviations from specified items must be included for the Consultant and Contract Administrator to properly evaluate substitution. Failure to provide the deviation comparison sheet shall automatically deny the request. Any changes, inclusive of design changes, made necessary to accommodate substituted equipment under this paragraph shall be at the expense of Developer, Contractor or subcontractor responsible for the Work item. 20.2 Contract Administrator's written consent will be required as to acceptability, and no substitute will be ordered, installed or utilized without Consultant and Contract Administrator's prior written acceptance which will be evidenced by either a Change Order or an accepted Shop Drawing. City may require Developer to cause Contractor to furnish at Contractor's expense a special performance guarantee or other surety with respect to any substitute. ARTICLE 21 PLANS AND SPECIFICATIONS All plans, general and detail, are to be deemed a part of this Agreement, and the Plans and Specifications are to be considered together, and are intended to be mutually complementary, so that any Work shown on the Plans, though not specified in the Specifications, 27 MIAMI 1287157.1 7713726901 and any Work specified in the Specifications though not shown on the Plans, is to be executed by Developer as part of this Agreement. Figured dimensions are to prevail over scale. All things which in the opinion of the Contract Administrator may reasonably be inferred from this Agreement and Plans as developed by Consultant and mutually agreed upon and approved by Developer and City for the Project, are to be executed by Developer under the terms of the Agreement; and the Consultant shall determine whether the detailed Plans conform to the Contract Documents, except as may be otherwise determined by the Contract Administrator. In the event the Work requested under this Section expands the scope of the Project, Developer may seek a Change Order pursuant to Article 38. ARTICLE 22 CONTRACTOR TO CHECK DRAWINGS AND DATA Developer shall cause Contractor to take measurements and verify all dimensions, conditions, quantities and details shown on the drawings, schedules, or other data. Failure to discover or correct errors, conflicts or discrepancies shall not relieve Contractor of full responsibility for unsatisfactory Work, faulty construction, or improper operation resulting therefrom nor from rectifying such condition at Contractor's own expense. Contractor will not be allowed to take advantage of any error or omissions. ARTICLE 23 DIFFERING SITE CONDITIONS In the event that during the course of the Work Contractor encounters subsurface or concealed conditions at the Project Site which differ materially from those shown on the Contract Documents and from those ordinarily encountered and generally recognized as inherent in Work of the character called for in the Contract Documents, or unknown physical conditions of the Project Site, of an unusual nature, which differ materially from that ordinarily encountered and generally recognized as inherent in Work of the character called for in the Contract Documents and Contractor notifies Developer of such conditions, Developer shall notify or cause Contractor, without disturbing the conditions and before performing any Work affected by such conditions, to, within twenty-four (24) hours of their discovery, notify Contract Administrator and Consultant in writing of the existence of the aforesaid conditions. Consultant and Contract Administrator shall, within two (2) business days after receipt of Contractor's and/or Developer's written notice, investigate the site conditions so identified. If, in the opinion of Consultant and Contract Administrator, the conditions do materially so differ and cause an increase or decrease in Developer's cost of, or the time required for, the performance of any part of the Work, whether or not charged as a result of the conditions, Consultant and Contract Administrator shall recommend an equitable adjustment to the Contract Sum, or the Contract Time, or both. If City and Developer cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall be referred for determination in accordance with the provisions of Article 11. Should Consultant and Contract Administrator determine that the conditions of the Project Site are not so materially different to justify a change in the terms of the 28 MIAM I 128715 7.1 7713 726901 Contract Documents, Consultant shall so notify City and Developer in writing, stating the reasons, and such determination shall be final and binding upon the parties hereto. No request by Developer for an equitable adjustment to the Contract Sum and/or Contract Time under this provision shall be allowed unless Developer has given written notice. No request for an equitable adjustment or change to the Contract Sum or Contract Time for differing site conditions shall be allowed if made after the date certified by Consultant as the date of Substantial Completion. ARTICLE 24 WARRANTY Developer shall require that Contractor warrant to the City in the Contract Documents that all materials and equipment furnished for the Project will be new unless otherwise specified and that all Work for the Project will be of good quality, free from faults and defects and in conformance with the Contract Documents. The standard of quality shall be at least that employed by similarly qualified Contractor's that are duly qualified and licensed to perform similar projects. If materials or equipment is improperly stored and becomes altered as a result of such improper storage, Developer shall cause Contractor to replace said materials with new materials at no additional cost. Developer shall cause Contractor to be responsible for proper storage and safeguarding of all materials. If required by the Contract Administrator, Developer shall cause Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The warranty requirements set forth in the Contract Documents as herein defined shall govern warranty terms and conditions for all warranty items expressed or implied. The Contractor's warranty period under this Article shall be one (1) year from the date of Substantial Completion of each portion of the Project. However, this Section shall not abridge the times or impede the rights and remedies afforded the City against other entities or persons under this Agreement, or by law. ARTICLE 25 SUPPLEMENTARY DRAWINGS 25.1 When, in the opinion of Consultant, it becomes necessary to explain more fully the Work to be done, or to illustrate the Project further to show any changes which may be required, supplementary drawings, with specifications pertaining thereto, will be prepared by the Consultant. 25.2 The supplementary drawings shall be binding upon Developer with the same force as the Contract Documents. Where such supplementary drawings require either less or more than the estimated quantities of Work, appropriate adjustments shall be made pursuant to Change Order. 29 MIAMI 1287157.1 7713726901 ARTICLE 26 [THIS ARTICLE LEFT INTENTIONALLY BLANK] ARTICLE 27 GENERAL WORKMANSHIP 27.1 Articles, materials, and equipment specified or shown on drawings shall be new and shall be applied, installed; connected, erected, used, cleaned, and conditioned for proper forming, as per the manufacturer's directions. Contractor shall, if required, furnish satisfactory evidence as to kind and quality of the materials. Should materials arrive to the jobsite new and be improperly stored and deteriorate from new condition, the materials shall be replaced at no additional cost to City. 27.2 Developer shall cause Contractor to apply, install, connect, and erect manufactured items or materials according to recommendations of manufacturer when such recommendations are not in conflict with the Contract Documents. If there is conflict between manufacturer recommendations and the Contract Documents, Consultant and Contract Administrator shall be notified and participate in the corrective actions. ARTICLE 28 DEFECTIVE WORK 28.1 Consultant and/or Contract Administrator shall have the authority to reject or disapprove Work for the Project which Consultant and/or Contract Administrator reasonably finds to be defective. If required by Consultant and/or Contract Administrator, Developer shall cause Contractor to promptly either, as directed, correct all Defective Work or remove it from the Project site and replace it with non -Defective Work. In the event it is determined that City was correct in its order, Developer and/or Contractor shall bear all costs of such removal or correction. 28.2 If, within one (1) year after Substantial Completion, any Work is found to be defective or not in accordance with the Contract Documents, Contractor shall correct it promptly in accordance with the its warranties and without cost to City after receipt of written notice from City to do so unless City has given Contractor a written acceptance of such conditions. Nothing contained herein shall be construed to establish a period of limitation with respect to any other obligation which Contractor might have under the applicable State law. 28.3 Prior to Substantial Completion, should Developer fail to cause Contractor to remove or correct any Defective Work performed for the Project or to make any necessary repairs in an acceptable manner and in accordance with the requirements of this Agreement within a reasonable time, indicated in writing, City shall have the authority to cause the unacceptable or Defective Work to be removed or corrected, or make such repairs as may be reasonably necessary to be made at Developer's or Contractor's expense. Continued failure or 30 MIAMI 1287157.1 7713 726901 refusal on the part of Developer to cause Contractor to make any or all necessary repairs promptly, fully, and in acceptable manner shall be sufficient cause for City to declare this Agreement forfeited, in which case City, at its option, may purchase materials, tools, and equipment and employ labor or may contract with any other individual, firm or corporation, or may proceed with its own forces to perform the Work. All costs and expenses reasonably incurred thereby shall be charged against Developer or Contractor. 28.4 Failure to reject any Defective Work or material shall not in any way prevent later rejection when such defect is discovered or obligate City to final acceptance. 28.5 Upon Final Completion, City agrees to look solely to the Contractor, Consultant or both, but not the Developer, to perform any and all to repair or correct any and all Work considered or determined by the City to be non -conforming or defective or otherwise in breach of any warranty. 28.6 Upon Final Completion, the City shall become solely responsible and liable for the operation, security, maintenance, heat, utilities, damage to the Work, and insurance. The failure to include any items of corrective Work on such list does not alter the responsibility of Contractor to complete all of the Work in accordance with the Contract Documents. Warranties from Contractor required by the Contract Documents shall commence on the date of Final Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Completion. ARTICLE 29 SUBCONTRACTS 29.1 Until Final Completion, Developer shall be fully responsible for the performance of its agents and employees, and Contractor and Consultant under the terms of this Agreement. Until Final Completion, nothing in the Contract Documents shall create any contractual relationship between any subcontractor and City or any obligation on the part of City to pay or to see the payment of any monies due any subcontractor. City or Developer may furnish to any Contractor, subcontractor, subconsultant evidence of amounts paid to Developer on account of specific Work performed. 29.2 Developer agrees to bind specifically Contractor and require that Contractor bind every subcontractor and subconsultant to the applicable terms and conditions of the Contract Documents for the benefit of City. 29.3 Upon the occurrence of Final Completion and thereafter, as a third -party beneficiary of the Contract Documents and all warranties thereunder, City shall be deemed to be in a direct contractual relationship with the Contractor such that the Contractor shall be liable to the City to the same extent that Contractor is liable and responsible to the Developer for the acts and omissions of itself and all of its subcontractors, sub -subcontractors, materialman and laborers employed by the Contractor. 31 MIAMI 1287157.1 7713 726901 ARTICLE 30 ENVIRONMENTAL MATTERS The City is responsible as a Cost of the Work pursuant to an approved Change Order for any required environmental remediation within the Project Site. Developer shall be responsible as a Cost of the Work pursuant to an approved Change Order for conducting environmental due diligence prior to construction to assess the environmental site conditions and subsequent remediation needs, if applicable. ARTICLE 31 USE OF COMPLETED PORTIONS 31.1 City shall have the right at its sole option to take possession of and use any completed or partially completed portions of the Project. Such possession and use shall not be deemed an acceptance of any of the Work not completed in accordance with the Contract Documents. If such possession and use increases the cost of or delays the Work, Developer shall be entitled to reasonable extra compensation, or reasonable extension of time or both, as recommended by Consultant and approved by City. 31.2 In the event City takes possession of any completed or partially completed portions of the Project, the following shall occur: 31.2.1 City shall give notice to Developer in writing at least thirty (30) days prior to City's intended occupancy of a designated area. 31.2.2 Developer shall complete to the point of Substantial Completion the designated area and request inspection and issuance of a Certificate of Substantial Completion from Consultant. 31.2.3 Upon Consultant's issuance of a Certificate of Substantial Completion, City will assume full responsibility for maintenance, utilities, subsequent damages of City and public, adjustment of insurance coverage's and start of warranty for the occupied area. 31.2.4 Developer shall complete all items noted on the Certificate of Substantial Completion within the time specified by Consultant on the Certificate of Substantial Completion, as soon as possible and request final inspection and final acceptance of the portion of the Work occupied. Upon completion of final inspection and receipt of an application for final payment, Consultant shall issue a final certificate of payment relative to the occupied area. 31.2.5 If City finds it necessary to occupy or use a portion or portions of the Work prior to Substantial Completion thereof, such occupancy or use shall not commence prior to a time mutually agreed upon by City and Developer and to which the insurance company or companies providing the property insurance have consented by endorsement to the policy or policies. Insurance on the unoccupied or unused portion or portions shall not be canceled or lapsed on account of such partial occupancy or use. Consent of Developer and of the insurance company or companies to such occupancy or use shall not be unreasonably withheld. 32 MIAMI 1287157.1 7713726901 ARTICLE 32 CONSTRUCTION AREA 32.1 Developer and Contractor shall use areas approved by the Contract Administrator for deliveries and personnel. 32.2 To provide for maximum safety and security, Contractor shall erect and maintain all necessary barricades, and any other temporary walls and structures as required, and boarding or fencing to protect life and property during the period of construction. 32.3 Construction staging for the Project will be confined to the Project Site, thereby not impacting adjacent commercial areas. Developer shall develop a plan for construction staging in order for access to the adjacent commercial areas to be continually maintained with only minimal disruptions. Such plan shall be subject to City's prior approval which shall not be unreasonably withheld, conditioned or delayed. ARTICLE 33 LANDS FOR WORK City shall provide as indicated in the Contract Documents, the lands upon which the Project is to be performed, rights -of -way and easements for access thereto and such other lands as are designated for the use of Developer. No claim for damages or other claim other than for an increase in the Contract Sum or Contract Time shall be made or asserted against City by reason of any delay arising as a result of any failure of City to provide such lands on the date needed by Developer. The provisions of Article 41 shall apply herein. ARTICLE 34 LEGAL RESTRICTIONS Developer shall conform to all applicable laws, regulations, or ordinances with regard to labor employed, hours of Work and Developer's general operations. ARTICLE 35 DAMAGE TO EXISTING FACILITIES, EQUIPMENT OR UTILITIES 35.1 The City shall provide Developer with the documents, including, without limitation, a sonar study of all existing underground facilities, equipment and utilities within the Project Site, identified on the attached Exhibit "H" (collectively, the "Documents") within ten (10) days after the date of this Agreement. 35.2 The City shall, prior to commencement of the Work, identify to Developer any and all existing utilities and other underground facilities, equipment, or utilities at City's sole cost and expense. Developer and Contractor shall be responsible to preserve all existing utilities identified in the Documents. If a utility conflict is encountered which was not identified in the 33 MIAMI 1287157.1 7713726901 Documents, Consultant or Developer shall be responsible for giving sufficient notice to the owners of the utilities so that the City may make the necessary adjustments. Any time delay or cost incurred will be the responsibility of the City and shall increase the Contract Time and Contract Sum through an approved Change Order. City, as a Cost of the Work through a Change Order, shall relocate any underground utilities existing as of the date of this Agreement on the Project Site, if necessary, that were not identified by City to Developer in the Documents. 35.3 Developer shall cause Contractor to exercise care and take all precautions during excavation and construction operations to prevent damage to any existing facilities, equipment, or utilities. Any damage caused by Contractor shall be reported immediately to the Contract Administrator and such Work shall be repaired and/or replaced by Contractor in a manner approved by City. In the event Contractor damages underground facilities, equipment, or utilities that were identified by City in the Documents, then all costs to repair and/or replace any damage to existing facilities, equipment, or utilities, shall be the sole responsibility of Contractor, and such repair or replacement shall be performed expeditiously without cost to City. In the event Contractor damages underground facilities, equipment, or utilities that were not identified by City in the Documents, then all costs to repair and/or replace any damage to existing facilities, equipment, or utilities, shall be the sole responsibility of City, and such repair or replacement shall be performed expeditiously at the expense of the City as a Cost of the Work through a Change Order. 35.4 Developer shall cause Contractor to provide that type of required protection for finished Work at all times and protect adjacent Work during cleaning operations, and make good any damage resulting from neglect of this precaution. 35.5 Protection of Work shall include protecting of Work that is factory finished, during transportation, storage, during and after installation. Where applicable and as required, Developer shall cause Contractor to close off spaces of areas where certain Work has been completed to protect it from any damages caused by others during their operations. 35.6 To all applicable sections where preparatory Work is part of Work thereon, Developer shall cause Contractor to carefully examine surfaces over which finished Work is to be installed, laid or applied, before commencing with the Work. Developer shall not allow Contractor to proceed with said Work until defective surfaces on which Work is to be applied are corrected satisfactorily to the Contract Administrator. Commencement of Work shall be considered acceptance of surfaces and conditions. ARTICLE 36 CONTINUING THE WORK Provided City is current in its payments under this Agreement, Developer and Contractor shall carry on the Work and adhere to the Construction Schedule during all disputes or disagreements with City, including disputes or disagreements concerning a request for a Change Order, a request for a change in the Contract Sum or Contract Time. Provided City is current in 34 MIAMI 1287157.1 7713726901 its payments under this Agreement, the Work shall not be delayed or postponed pending resolution of any disputes or disagreements. ARTICLE 37 FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS 37.1 The Contract Administrator shall have the right to approve and issue Field Orders (subject to Developer's approval) setting forth written interpretations of the intent of the Contract Documents and ordering minor changes in Contract Documents execution, providing the Field Order involves no change in the Contract Sum or the Contract Time. 37.2 The Contract Administrator shall have the right to approve and issue to Developer reasonable supplemental instructions to Developer setting forth written orders, instructions, or interpretations concerning the Agreement or its performance, provided they make no material changes in Contract Documents execution and involve no change in the Contract Sum or the Contract Time. ARTICLE 38 CHANGE ORDERS (CHANGES IN QUANTITIES OF WORK) 38.1 Changes in the quantity or character of Work within the scope of this Project which are not properly the subject of Field Orders or supplemental instructions, to include all changes resulting in changes in the Contract Sum or the Contract Time, shall be authorized only by Change Orders approved by the Contract Administrator and Developer. 38.2 Developer shall not start Work on any alteration requiring an increase in price or extension of time for completion until a Change Order setting forth the adjustments is approved in writing by the Contract Administrator and Developer, except for the provisions of Section 38.3, which governs disputed Change Order items. 38.3 In the event satisfactory adjustment cannot be reached for any item requiring a Change Order, the City reserves the right, at its own option, to either terminate the Agreement as it applies solely to the items in question and make such arrangements as may be deemed necessary to complete the item in question. Provided, however, if the arrangements made by the City to complete the item in question would delay Final Completion of the Work or result in additional expense to Developer, then the City shall either (1) issue a Change Order for such additional cost or time extension or (2) postpone the City's proposed work until after Final Completion of the Work or (3) submit the matter in dispute for resolution as set forth in Article 11 herein. During the pendency of the dispute resolution, Developer shall proceed with the Work set forth within the Change Order on a time and materials basis, which Developer shall adequately document pending final resolution of such dispute(s). 38.4 On approval of any Change Order increasing the price, Developer shall direct Contractor to ensure that the applicable Performance and Payment Bonds, to the extent 35 MIAMI 1287157.1 7713726901 applicable under the provisions of Article 51 hereof, are each increased so that it reflects the total amount of the Project as increased. 38.5 Proposed Change Orders shall be prepared by the Contractor and submitted by Developer to Contract Administrator for approval. ARTICLE 39 VALUE OF CHANGE ORDER WORK In the event the City initiates a Change Order for Work to be performed or eliminated from the Contract Documents by Developer, Developer shall use its best efforts to negotiate with the Contractor for the most cost effective pricing with respect to a determination of the change in the Contract Sum, if any, or the amount of the time extension or reduction, if any, necessitated by the Change Order. The cost quoted by the Contractor for Change Orders shall be within standard industry rates and shall be submitted with a breakdown of labor, material, overhead and profit subtotal amounts. Combined overhead and profit for Developer directed Change Orders shall be ten percent (10%); Contractor and subcontractors shall be entitled to markup of ten percent (10%) overhead and five percent (5%) profit; ARTICLE 40 CHANGE OF CONTRACT TIME OR CONTRACT SUM 40.1 The Contract Time set forth in Article 6 or the Contract Sum may only be changed by a Change Order. Any claim for an extension of the Contract Time or for an increase in the Contract Sum shall be based on written notice delivered by the party making the claim to the Contract Administrator promptly (but in no event later than forty-five (45) days) after the occurrence of the event giving rise to the claim and stating the general nature of the claim. Notice of the extent of the claim with supporting data shall be delivered within such forty-five (45) day period (unless Contract Administrator allows, in writing, an additional period of time to ascertain more accurate data in support of the claim). All claims for adjustment in the Contract Time or for an increase in the Contract Sum shall be decided by the Contract Administrator pursuant to the terms of Article 11 in this Agreement. No claim for an adjustment in the Contract Time or for an increase in the Contract Sum will be valid if not submitted in strict accordance with the requirements of this Article. 40.2 The Contract Time will be extended in an amount equal to time lost due to days beyond the control of and through no fault or negligence of Developer if a claim is made therefore as provided herein. Such delays shall include, but not be limited to, acts or neglect by City, or by any employee of City, or any separate Contractor or consultant employed by City, fires, floods, labor disputes, epidemics, abnormal weather conditions or acts of God. 36 MIAMI 1287157.1 7713726901 ARTICLE 41 NO DAMAGES FOR DELAY NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN EXTENSION OF CONTRACT TIME OR AN INCREASE IN THE CONTRACT SUM SHALL BE MADE OR ASSERTED AGAINST THE CITY BY REASON OF ANY DELAYS. DEVELOPER SHALL NOT BE ENTITLED TO PAYMENT OF COMPENSATION OF ANY KIND FROM THE CITY FOR DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER COSTS, EXPENSES OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OF ACCELERATION OR INEFFICIENCY, RESULTING FROM ANY DELAYS, EXCEPT IN THE EVENT THAT SUCH DELAYS ARE DUE TO FRAUD, BAD FAITH, ACTIVE INTERFERENCE OR THE FAILURE TO TIMELY ACT BY THE CITY. OTHERWISE, DEVELOPER SHALL BE ENTITLED ONLY TO EXTENSIONS OF THE CONTRACT TIME OR AN INCREASE IN THE CONTRACT SUM AS ITS SOLE AND EXCLUSIVE REMEDY FOR SUCH DELAYS. DEVELOPER SHALL SPECIFICALLY INCLUDE THIS PROVISION IN ITS AGREEMENT WITH CONTRACTOR. ARTICLE 42 SUBSTANTIAL COMPLETION When Developer considers that the Work, or a portion thereof designated by the City, pursuant to Article 31 hereof, has reached Substantial Completion, Developer shall so notify Contract Administrator and Consultant in writing. Contract Administrator and Consultant shall then promptly inspect the Work. When Contract Administrator and Consultant, on the basis of such an inspection, determine that the Work or designated portion thereof is Substantially Complete, Consultant will then prepare a Certificate of Substantial Completion which shall establish the Date of Substantial Completion and shall list all Work yet to be completed to satisfy the requirements of the Contract Documents for Final Completion. The Certificate of Substantial Completion shall be subject to Contract Administrator's reasonable approval and shall be submitted to City through the Contract Administrator and Developer for their written acceptance of the responsibilities assigned to them in such Certificate. ARTICLE 43 SHOP DRAWINGS AND SCHEDULE OF VALUES 43.1 Developer shall submit Shop Drawings from Contractor for all equipment, apparatus, machinery, fixtures, piping, wiring, fabricated structures and manufactured articles. The purpose of a Shop Drawing is to show the suitability, efficiency, technique of manufacture, installation requirements, details of the item and evidence of its compliance or noncompliance with the Contract Documents. 43.2 Developer shall promptly request of Contractor Shop Drawings from the various manufacturers, fabricators, and suppliers. MIAMI 1287157.1 7713726901 37 43.3 To the extent Shop Drawings are required by the Consultant or industry custom and standards would contemplate the preparation of Shop Drawings for certain items of the Work, subcontractors and/or materialmen shall be required by contract to submit Shop Drawings. Consultant shall thoroughly review and check the Shop Drawings and each and every copy shall show Consultant's approval thereon. 43.4 If the Shop Drawings show or indicate departures from the Contract Documents requirements, Developer shall cause Contractor to make specific mention thereof in its Shop Drawing submittal and a separate letter. Failure to point out such departures shall not relieve Contractor from its responsibility to comply with the Contract Documents. Contract Administrator shall determine acceptability of change and in considering said change, may require data, technical comparisons, cost comparisons, quality comparisons and/or calculations to determine the equality of deviations. Contract Administrator is not obligated to accept deviations. 43.5 No Work called for by Shop Drawings shall be done until the said Drawings have been furnished to and accepted by the Contract Administrator or his designee. Contract Administrator shall respond to Shop Drawings pre -approved by Consultant with objections or acceptance within ten (10) days of receipt. Acceptance is for design intent only and shall not relieve Contractor and Consultant from responsibility for fit, form, function, quantity or for errors or omissions of any sort on the Shop Drawings. 43.6 No acceptance will be given to partial submittal of Shop Drawings for items which interconnect and/or are interdependent. It is Developer's responsibility to assemble the Shop Drawings prepared by Contractor for all such interconnecting and/or independent items, check them and then make one submittal to the Contract Administrator along with Consultant's comments as to compliance, noncompliance, or features requiring special attention. 43.7 If catalog sheets or prints of manufacturers' standard drawings are submitted as Shop Drawings, any additional information or changes on such drawings shall be typewritten or lettered in ink. Catalog sheet with multiple options shall be highlighted to depict specific pertinent data including options. 43.8 Developer shall submit to Contract Administrator six (6) copies. Resubmissions of Shop Drawings shall be made in the same quantity until final acceptance is obtained. 43.9 Contract Administrator's acceptance of the Shop Drawings as approved by Consultant will be for general compliance with the plans and specifications design intent and shall not relieve Contractor of responsibility for the accuracy of such Drawings, nor for the proper fittings and construction of the Work, nor for the furnishing of the materials or Work required by the Contract Documents and not indicated on the Drawings. 43.10 Developer shall keep one set of Shop Drawings marked with the Contract Administrator's acceptance at the Project site at all times. 43.11 At least thirty (30) days prior to the commencement of construction, the Developer shall submit a schedule of values to the Contract Administrator. Developer shall submit to the Contract Administrator a separate schedule of values for demolition, abatement, 38 MIAM I 12 8715 7.1 7713 726901 and site Work thirty (30) days prior to commencing such portion of the Work. The schedule will be typed on 8-1/2" x I white paper listing: Title of project, location, project number, architect, Contractor, Contract Documents designation, and date of submission. The schedule shall list the installed value of the component parts of the Work in sufficient detail to serve as a basis for computing values for progress payments during the construction. The table of contents of the specifications shall establish the format for listing the component items. Each line item will be identified by the number and title of the respective major section of the specifications. For each line item, Developer shall list the sub -values of major products or operations under the item. Each item shall include the proportion of Developer's overhead and profit. For any items for which progress payments will be requested for stored materials, the value will be broken down with: 43.11.1 The cost of materials delivered, unloaded, properly stored and safeguarded, with taxes paid; and 43.11.2 The total installed value. ARTICLE 44 FIELD ENGINEERING 44.1 The Developer shall provide as a Cost of the Work, the engagement of Consultants for field engineering services required for the Project. This field engineering services shall include the following elements: 44.1.1 Survey Work required in execution of the Project. 44.1.2 Civil, structural or other professional engineering services specified, or required to execute the Contractor's construction methods. 44.2 The survey completed by the survey Consultant will identify the qualified engineer or registered land surveyor, acceptable to the City, and it shall be retained by the Developer at the outset of this Project. 44.3 The survey will locate and protect control points prior to starting site Work, and will preserve all permanent reference points during construction. 44.3.1 No changes or relocations will be made without prior written notice to the Contract Administrator. 44.3.2 A report shall be made to the Contract Administrator when any reference point is lost or destroyed, or requires relocation because of necessary changes in grades or locations. 44.3.3 The surveyor shall be required to replace Project control points which may be lost or destroyed. The surveyor shall be duly registered as a surveyor or mapper, as required by state law. 39 MIAMI 128715 7.1 7713726901 44.3.4 Replacements shall be established based upon original survey control. ARTICLE 45 FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS 45.1 The entire responsibility for establishing and maintaining a line and grade in the field lies with Contractor. Contractor shall maintain an accurate and precise record of the location and elevation of all pipe lines, conduits, structures, underground utility access portals, handholds, fittings and the like and shall deliver these records in good order to the Contract Administrator as the Work is completed. These records shall serve as a basis for "record" drawings. The cost of all such field layout and recording Work is included in the prices bid for the appropriate items. 45.2 Contractor shall maintain in a safe place at the site one record copy of all Drawings (Plans), Specifications, Addenda, written amendments, Change Orders and written interpretations and clarifications in good order and annotated to show all changes made during construction. These record documents together with all approved samples and a counterpart of all approved Shop Drawings will be available to Contract Administrator for reference. Upon completion of the Project, these record documents, samples and Shop Drawings shall be delivered to Contract Administrator. 45.3 At the completion of the Project, the Contractor shall turn over to the City a set of reproducible drawings (Mylars) and a complete set of all drawings in the latest version of the AutoCAD format on floppy disk not compressed which accurately reflect the "as built" conditions of the new facility. All changes made to the construction documents, either as clarifications or as changes, will be reflected in the plans. The changes shall be submitted on Mylar at least monthly to the Contract Administrator. These "as built" drawings on Mylar and the latest version of the AutoCAD format media must be delivered and found to be acceptable prior to final payments. ARTICLE 46 SAFETY AND PROTECTION 46.1 Developer shall require Contractor to be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Project. Developer shall require Contractor to take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: thereby; 46.1.1 All employees on the Project and other persons who may be affected 46.1.2 All the Work and all materials or equipment to be incorporated therein, whether in storage on or off the Project site; and MIAMI 1287157.1 7713726901 40 46.1.3 Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 46.2 Developer shall use reasonable efforts to cause Contractor to (a) comply with all applicable laws, ordinances, rules, regulations and orders of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and (b) erect and maintain all necessary safeguards for such safety and protection. Developer shall notify owners of adjacent property and utilities when prosecution of the Work may afflict them. All damage, injury or loss to any property referred to in Sections 46.1.2 and 46.1.3 above, caused directly or indirectly, in whole or in part, by Developer or Contractor, any subcontractor or consultant or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be remedied by the responsible party; however, Developer and/or Contractor shall not be liable for injury or damage caused by City, its employees, consultants or its separate Contractors. Developer's and Contractor's duties and responsibilities for the safety and protection of the Project shall continue until such time as all the Project is completed and the Contract Administrator has issued a notice to Developer that the Project is acceptable except as otherwise provided in Article 28. 46.3 Contractor shall designate a responsible member of its organization at the Project site whose duty shall be the prevention of accidents. This person shall be Contractor's project representative unless otherwise designated in writing by Developer to City. ARTICLE 47 PAYMENT OF TESTS BY DEVELOPER Except when otherwise specified in the Contract Documents or this Agreement, the expense of all tests and test reports shall be borne by Developer but will be passed onto City as a Cost of the Work. ARTICLE 48 [THIS ARTICLE LEFT INTENTIONALLY BLANK] ARTICLE 49 CLEANING UP AND REMOVAL OF EQUIPMENT 49.1 Developer shall cause Contractor at all times keep the Project site free from accumulation of waste materials or rubbish caused by Contractor's operations. At the completion of the Project, Developer shall cause Contractor to remove all of its waste materials and rubbish from and about the Project as well as its tools, construction equipment, machinery and surplus materials. If Developer fails to cause Contractor to clean up at the completion of the Project, City may do so; and the reasonable cost thereof shall be charged to Developer or Contractor. 41 MIAMI 1287157.1 7713 726901 49.2 In case of termination of this Agreement before completion for any cause whatever, Developer, if notified to do so by City, shall cause Contractor to promptly remove any part or all of Contractor's equipment and supplies from the property of City, failing which City shall have the right to remove such equipment and supplies at the expense of Developer or Contractor. ARTICLE 50 [THIS ARTICLE LEFT INTENTIONALLY BLANK] ARTICLE 51 BONDS AND INSURANCE 51.1 Developer shall cause Contractor to furnish upon the execution of the construction contract with Contractor, a performance bond and payment bond of the form and containing all the provisions set forth in this Section. Payment and performance bonds shall be in the form of dual obligee bonds from the Contractor in the amount of the Guaranteed Maximum Price, naming the City and Developer as dual obligees. 51.2 The bonds shall be in the amount of one hundred percent (100%) of the Contract Sum guaranteeing to City the completion and performance of the Project covered in this Agreement as well as full payment of all suppliers, material persons, laborers, or subcontractors employed pursuant to this Project. Such bonds shall be with a surety company which is qualified pursuant to Section 51.4. 51.3 Such bonds shall continue in effect for one year after completion and acceptance of the Project with liability equal to one hundred percent (100%) of the Contract Sum, or an additional bond shall be conditioned that Developer will, upon notification by City, correct any defective or faulty Work or materials which appear within one year after completion of the Work. 51.4 The surety company shall have at least the following minimum ratings in the latest revision of Best's Insurance Report: Amount of Bond Ratings Category 500,001 to 1,020,000 B+ Class I 1,020,001 to 2,000,000 B+ Class II 2,000,001 to 5,000,000 A Class III 5,000,001 to 10, 000, 000 A Class IV 10,000,001 to 25,000,000 A Class V 25,000,001 to 50,000,000 A Class VI 50,000,001 or more A Class VII 51.5 Indemnification Of City 42 MIAMI 128715 7.1 7713 726901 51.5.1 The . construction contract between Developer and Contractor and the architect's agreement between Developer and Consultant shall provide that Contractor or Consultant (as applicable) shall indemnify and save harmless City, its officers, agents and employees, from or on account of any injuries or damages, received or sustained by any person or persons during or on account of any construction activities of Contractor or Consultant (as applicable), or any of its subcontractors, subconsultants, agents, servants, or employees connected with the Project; or by or in consequence of any negligence of Contractor or Consultant (as applicable), or any of its subcontractors, subconsultants, agents, servants, or employees (excluding negligence of City), in connection with the construction activities of Contractor or Consultant (as applicable), or any of its subcontractors, subconsultants, agents, servants, or employees connected with the Project; or by use of any improper materials or by or on account of any act, error or omission of Contractor or Consultant (as applicable) or any subcontractor, subconsultants, agents, servants or employees, except to the extent caused by City. The construction contract between Developer and Contractor and the architect's agreement between Developer and Consultant shall further provide that Contractor or Consultant (as applicable) shall indemnify and save harmless City (a) against any claims or liability arising from or based upon the violation of any federal, State, County or City laws, bylaws, ordinances or regulations by Contractor, its subcontractors, agents, servants or employees (excluding negligence of City); and (b) from all such claims and fees, and from any and all suits and actions of every name and description that may be brought against City on account of any claims, fees, royalties, or costs for any invention or patent, and from any and all suits and actions that may be brought against City for the infringement of any and all patents or patent rights claimed by any person, firm, or corporation. 51.5.2 Developer shall indemnify, save harmless and defend City, its agents, servants and employees, from and against any claim, demand or cause of action of whatever kind or nature arising out of any negligent conduct or negligent misconduct of Developer and for which City, its agents, servants or employees, are alleged to be liable. 51.5.3 The indemnification provided above shall obligate Contractor, Consultant or Developer (as applicable) to defend at its own expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at City's option, any and all claims of liability and all suits and actions of every name and description that may be brought against City which may result from the operations and activities under this Agreement whether the construction operations be performed by Developer, Contractor, Consultant, its subcontractors, its subconsultants, or by anyone directly or indirectly employed by any of the above. 51.6 Insurance. Developer shall as a Cost of the Work provide, or cause to be provided, and maintain, or cause to be maintained, in force at all times during the Project, such insurance, including Workers' Compensation Insurance, Employer's Liability Insurance, Comprehensive General Liability Insurance, and Professional Liability Insurance, as will assure to City the protection contained in this Agreement. Such policy or policies shall be issued by companies approved to do business in the state of Florida, and having agents upon whom service of process may be made in the state of Florida. Developer shall specifically protect City by naming City as an additional insured under the Comprehensive General Liability Insurance Policy hereinafter described. MIAMI 1287157.1 7713726901 43 51.6.1 Professional Liability Insurance to be carried by Consultant with limits of liability provided by such policy not less than Three Million Dollars ($3,000,000.00) each claim to assure City the indemnification specified in Section 51.5. Such policy may carry a deductible; however, any deductible shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) for each claim. The Certificate of Insurance for Professional Liability Insurance shall reference the applicable deductible and the Project. 51.6.2 Workers' Compensation Insurance to apply for all employees in compliance with the "Workers' Compensation Law" of the state of Florida and all applicable federal laws. In addition, the policy(ies) must include: Employer's Liability with a limit of $1,000,000.00 each accident. 51.6.3 Comprehensive General Liability with minimum limits of One Million Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Comprehensive General Liability Policy, without restrictive endorsements, as filed by the Insurance Services Office and must include: (i) Premises and/or Operations; (ii) Independent Contractors; (iii) Products and/or Completed Operations; (iv) The Developer shall cause Contractor to maintain in force until at least three (3) years after final completion of the Project coverage for Products and Completed Operations, including Broad Form Property Damage; (v) Explosion, Collapse and Underground Coverages; (vi) Broad Form Property Damage; (vii) Broad Form Contractual Coverage applicable to this specific Agreement, including any hold harmless and/or indemnification agreement; (viii) Personal Injury Coverage with Employees and Contractual Exclusions removed with minimum limits of coverage equal to those required for Bodily Injury Liability and Property Damage Liability; and (ix) Notice of Cancellation and/or Restriction —The policy(ies) must be endorsed to provide the City with thirty (30) days notice of cancellation and/or restriction. 51.6.4 Business Automobile Liability with minimum limits of One Million Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the 44 M I AM I 12 8715 7.1 7713 726901 latest edition of the Business Automobile Liability Policy, without restrictive endorsements, as filed by the Insurance Services Office and must include: (i) Owned vehicles; and (ii) Non -owned and hired vehicles. 51.6.5 Notice of Cancellation, Expiration and/or Restriction: The policy(ies) must be endorsed to provide the City with thirty (30) days notice of cancellation, expiration and/or restriction, to the attention of the Risk Manager, 1700 Convention Center Drive, Miami Beach, Florida 33139. 51.6.6 Developer shall furnish to the Contract Administrator Certificate(s) of Insurance evidencing the insurance coverages required herein within ten (10) days after execution of the construction contract. Such certificate(s) shall reference this Agreement. City reserves the right to require a certified copy of such policies upon request. All certificates shall state that City shall be given thirty (30) days' prior written notice of cancellation and/or expiration. 51.6.7 Developer shall provide to City a Certificate of Insurance or a copy of all insurance policies required under this Article. The City's Risk Manager reserves the right to require certified copies if requested. Endorsements and certifications shall state City is to be given thirty (30) days' written notice prior to expiration or cancellation of the policy. ARTICLE 52 MISCELLANEOUS 52.1 Art in Public Places. The City has advised Developer that the proposed Project constitutes a public joint development, and that the AIPP 1'/2% will apply to the Contract Sum (per proposed revisions to ordinance). Developer agrees to match the City's 1'/2% of the Contract Sum for AIPP. The City agrees that Developer's AIPP contribution shall be utilized solely on the 1100 block of Lincoln Road between Lenox Avenue and Alton Road and that the art and artists shall be reviewed and selected pursuant to the City's established AIPP procedures, as set forth in the City of Miami Beach Code, as same may be amended from time to time. 52.2 Public Benefits. The public will benefit in several ways from the proposed Project: (a) the current obsolete design of the 1100 block of Lincoln Road will be replaced with a new design reflecting a modern interpretation of Morris Lapidus's original design prepared by the world class Design Architects created by and coordinated with the design and construction of the 1111 Lincoln Project, which will enhance the public use and experience of this block; (b) the design will incorporate significant areas in the central portion of the block, to be determined in the final design, that will be reserved for open public use and prohibit restaurant seating and food displays; (c) by contracting with an affiliate of the developer of the adjoining I I I I Lincoln Project to develop the Project, the public will realize significant savings in general conditions and other expenses related to the construction of the Project; (d) having a single developer and Contractor building both the new mixed -use building on the I I I I Lincoln Project and the Project will minimize disruption and ensure better coordination of the two projects; and (e) the extension 45 MIAMI 128715 7.1 7713 726901 of the very successful Lincoln Road pedestrian mall will benefit the public and this portion of Lincoln Road and reinforce the pedestrian experience of Lincoln Road from Washington Avenue through Alton Road. 52.3 Easements. City agrees to grant to MBeachl and MBeach3 a temporary construction right-of-way permit and/or easement and continuing maintenance easements and/or right-of-way permits along Lincoln Road, Alton Road, Lincoln Lane, Alton Court and Lenox Avenue in the form attached as Exhibit "I" for the construction and maintenance, including but not limited to the architectural overhangs and features over pedestrian portions of the adjacent dedicated rights -of -way and the underground utilities necessary to serve the buildings to be constructed by MBeachl on the MBeachl Property and by MBeach3 on the MBeach3 Property. 52.4 Pedestrian Drop -Off Areas. Pedestrian drop-off areas shall be carefully designed for both Alton Road and Lenox Avenue in a manner to be reviewed and approved by City staff in accordance with the requirements of the Department of Public Works (the "Department"). The Department has already met with the Florida Department of Transportation and is completing studies requested to finalize the drop-off plan. 52.5 Operation of Project upon Substantial 'Completion. City shall be solely responsible for operating and maintaining the Project upon Substantial Completion. 52.6 Annual Maintenance Program. A comprehensive annual maintenance program and schedule is being prepared by the Design Architects for City for successful future maintenance of the "urban glade" features of the Project, including ponds, water features, indigenous plants and trees and special lighting. Such program and schedule shall be approved by City staff and relevant City agencies. Developer shall provide oversight of such program and schedule as part of a separate agreement to be entered into with City. Water features are subject to City's approval after submittal by Consultant of life cycle cost. The back up information shalt_ be provided before the 50% Construction Drawings are completed. 52.7 Royalties And Patents. All fees, royalties, and claims for any invention, or pretended invention, or patent of any article, material, arrangement, appliance or method that may be used upon or in any manner be connected with the construction of this Project or appurtenances, are hereby included in the prices stipulated in this Agreement for said Project. 52.8 Rights of Various Interests. Whenever Work being done by City's forces or by other Contractors is contiguous to Work covered by this Agreement, the respective rights of the various interests involved shall be established by the Contract Administrator to secure the completion of the various portions of the Work in general harmony. 52.9 Assi nment. This Agreement shall not be assigned or subcontracted as a whole or in part without the written consent of the City, nor shall Developer assign any monies due or to become due to it hereunder, without the prior written consent of the Contract Administrator. 52.10 No Interest. Any monies not paid by City when claimed to be due to Developer under this Agreement shall not be subject to interest. However, the provisions of City's prompt payment ordinance, as such relates to timeliness of payment, and the provisions of Section 46 M IAMI 12 8715 7.1 7713 726901 218.74(4), Florida Statutes, as such relates to the payment of interest, shall apply to valid and proper invoices. 52.11 Ownership of Documents. Drawing, specifications, design, models, photographs, computer AutoCAD disks, reports, surveys, and other data provided in connection with this Agreement and for which City has rendered payment, are and shall, subject to the terms of the Contract Documents, become and remain the property of City whether the Project for which they are made is executed or not. If this Agreement is terminated for any reason prior to completion of the Work, City may, subject to the terms of the Contract Documents, in its discretion, use any design and documents prepared hereunder for the purpose of completing the Project, provided that City has paid for same; and provided further that if such termination occurs prior to completion of documents and/or through no fault of Developer; Developer and Consultant shall have no liability for such use; and provided further that any reuse without the written verification or adaptation of Consultant for the specific purpose intended will be without liability or legal exposure to Consultant or Developer. At the completion of the Project, as part of the Project closeout, copies of all drawings on AutoCAD disks shall be transmitted from Developer to the Contract Administrator within seven (7) days of termination of this Agreement in addition to the record drawing. The provisions of this clause shall survive the completion of this Agreement and shall thereafter remain in full force and effect. Any compensation due to Developer shall be withheld until all documents are received as provided herein. Notwithstanding the foregoing, the City retains ownership of any and all documents provided to the Developer and has full use thereof without any further payment. 52.12 Records. Developer shall keep such records and accounts and require Contractor and Consultant to keep records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to this engagement. Such books and records will be available at all reasonable times for examination and audit by City and shall be kept for a period of three (3) years after the completion of the Project pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be grounds for disallowance by City of any fees or expenses based upon such entries. 52.13 Nondiscrimination, Equal Employment Opportunity And Americans With Disabilities Act. Developer shall not unlawfully discriminate against any person in its operations and activities in its use or expenditure of the funds or any portion of the funds provided by this Agreement and shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act in the course of providing any services funded 'in whole or in part by City, including Titles I and 11 of the (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. Developer's decisions regarding the delivery of services under this Agreement shall be made without regard to or consideration of race, age, religion, color, gender, sexual orientation, national origin, marital status, physical or mental disability, political affiliation, or any other factor which cannot be lawfully or appropriately used as a basis for service delivery. Developer shall comply with Title I of the Americans with Disabilities Act regarding nondiscrimination on the basis of disability in employment and further shall not discriminate against any employee or applicant for employment because of race, age, religion, color, gender, 47 MIAMI 12 8715 7.1 7713 726901 sexual orientation, national origin, marital status, political affiliation, or physical or mental disability. In addition, Developer shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of pay, other forms of compensation, terms and conditions of employment, training (including apprenticeship), and accessibility. Developer shall take affirmative action to ensure that applicants are employed and employees are treated without regard to race, age, religion, color, gender, sexual orientation, national origin, marital status, political affiliation, or physical or mental disability during employment. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of pay, other forms of compensation, terms and conditions of employment, training (including apprenticeship), and accessibility. Developer shall not engage in or commit any discriminatory practice in violation of the City's Human Rights Act in performing the Scope of Services or any part of the Scope of Services of this Agreement. 52.14 No Contingent Fee. Developer warrants that it has not employed or retained any company or person, other than a bona fide employee Working solely for Developer to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee Working solely for Developer, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, City shall have the right to terminate the Agreement without liability at its discretion, to deduct from the Contract Sum, or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration. 52.15 All Prior Agreements Superseded: Amendments. The Contract Documents incorporate and include all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein, and the parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in the Contract Documents. Accordingly it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. 52.16 Notices. Whenever either party desires to give notice unto the other, it must be given by written notice, (a) sent by certified United States mail, with return receipt requested, (b) by personal delivery with a signed receipt, (c) by recognized national overnight courier service or (d) by facsimile, in any case, addressed to the party for whom it is intended, at the place last specified; and the place for giving of notice shall remain such until it shall have been changed by written notice in compliance with the provisions of this paragraph. Notices given by an attorney 48 M IAM 112 8715 7.1 7713 726901 for the City or Developer shall be deemed effective notices. For the present, the parties designate the following as the respective places for giving of notice, to wit: FOR CITY: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager Fax: (305) 673-7782 With a copy to: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Attorney Fax: (305) 673-7002 City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: Fred Beckmann, Public Works Director Fax: (305) 673-7028 FOR DEVELOPER: UTA Management, LLC I I I I Lincoln Road, Suite 760 Miami Beach, Florida 33139 Attn: Robert S. Wennett Fax: (305) 531-4409 With a copy to: Bilzin Sumberg Baena Price & Axelrod LLP 200 South Biscayne Blvd., Suite 2500 Miami, Florida 33131 Attn: John C. Sumberg, Esq. Fax: (305) 351-2201 52.17 Truth -In -Negotiation Certificate. Signature of this Agreement by Developer shall act as the execution of a truth -in -negotiation certificate stating that wage rates and other factual unit costs supporting the compensation of this Agreement are accurate, complete, and current at the time of Contracting. The original Contract Sum and any additions thereto shall be adjusted to exclude any significant sums by which City determines the Contract Sum was increased due to 49 MIAMI 1287157.1 7713726901 inaccurate, incomplete, or non -current wage rates and other factual unit costs. All such adjustments shall be made within one (1) year following the end of this Agreement. 52.18 Interpretation. The parties hereto acknowledge and agree that the language used in this Agreement expresses their mutual intent, and no rule of strict construction shall apply to either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to the particular sentence, paragraph or section where they appear, unless the context requires otherwise. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections and subparagraphs of such Section or Article, unless the reference is expressly made to a particular subsection or subparagraph of such Section or Article. 52.19 Recycled Content. In support of the Florida Waste Management Law, Developer is encouraged to supply any information available regarding recycled material content in the products provided. City is particularly interested in the type of recycled material used (such as paper, plastic, glass, metal, etc.); and the percentage of recycled material contained in the product. City also requests information regarding any known or potential material content in the product that may be extracted and recycled after the product has served its intended purpose. 52.20 Public Entity Crimes Act. In accordance with the Public Entity Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who is a Contractor, consultant or other provider, who has been placed on the convicted vendor list following a conviction for a Public Entity Crime, may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public Work, may not submit bids on leases of real property to the City, may not be awarded or perform Work as a Contractor supplier, subcontractor or consultant under a contract with the City and may not transact any business with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for category two purchases for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this section shall result in cancellation of the City purchase and may result in debarment. 52.21 Waiver of Trial by Jury. BY ENTERING INTO THIS AGREEMENT, DEVELOPER AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF THE PROJECT. DEVELOPER SHALL SPECIFICALLY BIND CONTRACTOR AND CONSULTANT AND REQUIRE THAT CONTRACTOR AND CONSULTANT BIND ANY AND ALL OTHER SUBCONTRACTORS AND/OR SUBCONSULTANTS TO THIS PROVISION OF THIS AGREEMENT. 52.22 Approvals. Whenever any matter set forth herein is made subject to the approval of the City or the Contract Administrator, the approval shall be expressed in writing and the City or the Contract Administrator (as applicable) shall not be unreasonably withhold, delay or condition any such approval, and the failure to grant or withhold any such approval within five 50 MIAMI 1287157.1 7713726901 (5) business days after receipt of written notice requesting the same (or such other time period as may be expressly provided in this Agreement), shall be deemed approval -of such matter if so stated in said notice. 52.23 Time. Time shall be .of the essence for the performance of all obligations of Developer, the City and Contract Administrator under this Agreement. Whenever this Agreement provides for or contemplates a period of time for performance of any obligation, such time period shall be calculated using calendar days, except when such time period is expressly stated to be calculated in business days. Any date in this Agreement which falls upon a Saturday, Sunday or legal holiday (defined as any weekday upon which banks in Miami, Florida are not open for business) shall be deemed to be extended to the next business day. The term "business day" as used in this Agreement means any day that is not a Saturday, Sunday, or legal holiday. 52.24 Recording of Development Agreement. Within fourteen (14) days after the City executes this Agreement, the City shall record this Agreement with the Clerk of the Circuit Court of Miami -Dade County. Developer shall submit a copy of the recorded Development Agreement to the State of Florida's Land Planning Agency within fourteen (14) days after this Agreement is recorded. This Agreement shall become effective only after (a) it has been recorded in the Public Records of Miami -Dade County, and (b) thirty (30) days have elapsed after the State of Florida Land Planning Agency's receipt of a copy of the recorded Agreement. The. City agrees that it shall be responsible for all recording fees and other related fees and costs related to the recording and delivery of this Agreement as described in this Section. The provisions hereof shall remain in full force and affect during the term hereto, and subject to the conditions of this Agreement shall be binding upon the undersigned, and all successors in interest to the parties to this Agreement. Whenever an extension of any deadline is permitted or provided for under the terms of this Agreement, at the request of either party, the other party shall join in a short -form recordable Memorandum of Agreement confirming such extension to be recorded in the Public Records of Miami -Dade County. 52.25 Duration of this Development Agreement. The duration of this Agreement shall not exceed ten (10) years from the date first written above; provided, however, that the duration of this Agreement may be extended by mutual agreement of the City and Developer. During the term of this Agreement, the City's laws and policies governing the development of land in effect as of the date hereof shall govern development of the Project. The City may apply subsequently adopted laws and policies to the Project only if the City has held a public hearing pursuant to Section 163.3225, Florida Statutes, and determined: 52.25.1 they are not in conflict with the laws and policies governing this Agreement and do not prevent development of the land uses, intensities, or densities in this Agreement; or 52.25.2 they are essential to the public health, safety, or welfare, and expressly state that they shall apply to a development that is subject to a development agreement; or 52.25.3 they are specifically anticipated and provided for in this Agreement; or 51 MIAMI 1287157.1 7713726901 52.25.4 the City demonstrates that substantial changes have occurred in pertinent conditions existing at the time of approval of this Agreement; or 52.25.5 this Agreement is based on substantially inaccurate information supplied by Developer. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 52 MIAMI 1287157.1 7713726901 IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first above written. WITNESSES: .--4 �-ZA"Yaw&" ign Print Name Sign Print Name STATE OF FLORIDA CITY: CITY PF a m ici Fl ida / Xaame: David Dermer Title: Mayor , FLORIDA, of the State of ATTEST: By. cl�lt LLI"_ Name: Robert Parcher Title: City Clerk )ss: COUNTY OF MIAMI-DADE ) r The foregoing instrument was acknowledged before me this t day oft 1. , 2007, by David Dermer, as Mayor, and Robert Parcher, as City Clerk, of the City OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, on behalf of such municipal corporation. They are personally known to me or produced valid Florida driver's licenses as identification. i Notary Public, State of Florida My commission expires: 07. 77,7 t f_t," N 9E YWCHAMP ' �\`SA0 29, 2010 Pf moo.; Apry Public UndErWrUrS MIAMI 1287157.1 7713726901 APPROVED AS TO FORM & LANGUAGE FCUTION 3 l at A�(_, , Sign Print aame Sign o� Lv I _ Print Name STATE OF FLORIDA ) )SS: COUNTY OF MIAMI-DADE ) DEVELOPER: UTA MANAGEMENT, LLC, a Delaware limited liability company By: Urban Investments Advisors, LLC, a Delaware limited liability company, its Managing Member By: Wellspring Investments Management I, LLC, a Delaware limited liability company, its Managing Member �y.s-- Name: Robert S. Wennett Title: Managing Member The foregoing instrument was acknowledged before me this `� � day of k4eKI) 2007, by Robert S. Wennett, the Managing Member of Wellspring Investments Management I, LLC, a Delaware limited liability company, the Managing Member of Urban Investments Advisors, LLC, a Delaware limited liability company, the Managing Member of UTA Management, LLC, a Delaware limited liability company, on behalf of such limited liability companies. He is personally known to me or produced valid Florida driver's licenses as identification. Notary Public, State of Florida My commission expires: y149-A I •V rp, , ELIZABETH OSORIA S*-AMY COMMISSION # DID648576 �W EXPIRES: April 19, 2011 A, R` Banded Thru Rohard Insurance Agency MIAM I 1287157.1 7713 726901 EXHIBIT "A" LEGAL DESCRIPTION OF PROJECT SITE [attached] MIAMI 128715 7.1 7713 726901 COUSINS SURVEYORS & ASSOCIATES, INC. 3921 SW 47TH AVENUE, SUITE 1011 DAVIE, FLORIDA 33314 CERTIFICATE OF AUTHORIZATION : LB # 6448 PHONE (954) 680-9885 FAX 954 680-0213 LAND DESCRIPTION AND SKETCH LAND DESCRIPTION : PROJECT NUMBER : 5085-04 CLIENT MBEACHI, LLLP A PORTION OF LINCOLN ROAD LYING BETWEEN ALTON ROAD AND LENOX AVENUE, AS SHOWN ON "COMMERCIAL SUBDIVISION", ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 6, AT PAGE 5 OF THE PUBLIC RECORDS OF MIAMI/DADE COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS; BEGIN AT THE WESTERN MOST SOUTHWEST CORNER OF LOT 1, BLOCK 39 OF SAID "COMMERCIAL SUBDIVISION"; THENCE SOUTHEASTERLY ALONG THE ARC OF A CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 15.00 FEET; A CENTRAL ANGLE OF 90'02'39" AND AN ARC DISTANCE OF 23.57 FEET; THENCE TANGENT TO THE LAST DESCRIBED CURVE NORTH 89'08'55" EAST ALONG THE SOUTH LINE OF SAID BLOCK 39, A DISTANCE OF 290 FEET TO A POINT ON A TANGENT CURVE CONCAVE TO THE NORTHWEST; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE, HAVING A RADIUS OF 15.00 FEET, A CENTRAL ANGLE OF 89'57'21" AND AN ARC DISTANCE OF 23.55 FEET; THENCE SOUTH 00'48'26" EAST, A DISTANCE OF 130.00 FEET TO A POINT ON A TANGENT CURVE CONCAVE TO THE SOUTHWEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE, HAVING A RADIUS OF 15.00 FEET; A CENTRAL ANGLE OF 90'02'39" AND AN ARC DISTANCE OF 23.57 FEET; THENCE SOUTH 89.08'55' WEST ALONG THE NORTH LINE OF BLOCK 46 OF SAID "COMMERCIAL SUBDIVISION", A DISTANCE OF 290.00 FEET TO A POINT ON A TANGENT CURVE CONCAVE TO THE SOUTHEAST; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE, HAVING A RADIUS OF 15.00 FEET, A CENTRAL ANGLE OF 89'57'21" AND AN ARC DISTANCE OF 23.55 FEET; THENCE NORTH 00'48'26" WEST, A DISTANCE OF 130.00 FEET TO THE POINT OF BEGINNING. SAID LAND SITUATE, LYING AND BEING IN THE CITY OF MIAMI BEACH, MIAMI/DADE COUNTY, FLORIDA; CONTAINING 32,193 SQUARE FEET, MORE OR LESS. REVISIONS DATE FB PG DWN CKD LAND DESCRIPTION Q SKETCH 03/06/07 ----- AV REC PROPERTY ADDRESS LAND DESCRIPTION 1111 LINCOLN ROAD do SKETCH FOR LINCOLN ROAD SCALE: N/A BETWEEN ALTON ROAD & LENOX AVE SHEET 1 OF 3 COUSINS SURVEYORS & ASSOCIATES, INC, 3921 SW 47TH AVENUE, SUITE 1011 DAVIE, FLORIDA 33314 CERTIFICATE OF AUTHORIZATION : LB If 6448 X(k PHONE (954) 680-9885 FAX (954) 680-0213 LAND DESCRIPTION AND SKETCH A L T 0 N R 0 A D EAST LINE -_LOT 12 —WEST UWE - LOT 1 EAST UIE - LOT 11 WEST UWE - LOT 10 09 ;s Ot TJI EJ1 a _ EAST UWE - LOT 10 WEST LAVE - LOT 9 N 10 O m O �o >t EAST UWE - LOT 9 - —WEST UWE - LOT a b ao EAST UWE - LOT a — —wEaf UK = LOT D m u u 4 Nq-- LEGEND: S N N p CKO CHECKED BY V OWN DRAWN BY a ra/PG FIELD BOOK AND P EAST uWB _ LOT T POB AGE — POINT OF BEGINNING FOC POINT OF COMMENCEMENT P.B. PLAT BOOK M/D.C.R. MIAMI/DADE COUNTY RECORDS A ARC DISTANCE R RADRIS o CENTRAL ANGLE N00.48'26"W 130.00' 100.00' r— 0 D v 100.00' PROJECT NUMBER : 5085-04 CLIENT MBEACHI, LLLP WESTERN MOST SOUT"WEST CORNER LOT 1, BOCKL39 (PA. a. PO. S. M/O.CA.) - WEST UWE - LOT 1 D DII� 11 N Q (ANJn O V w O a e+ EAST LINE - LOT 2 WEST LAZE - M 3 — — — — > Z o D m g II 0022 u CA o N a m EAST UWE -LOT S - OJT 4 — — (AORE N p '00o1 � s � e roLINE - LOT f llUN- 1DT 3 — — — — S00'48'26% 130.00' 5 1, a EAST UNE - LOT S iTEsr"G1IE = r0r c — — NV� VINO a EAST LINE - LOT a L E N 0 X A V E N U E REVISIONS DATE FB PG OWN CKD LAND DESCRIPTION 3 SKEFCH 03/05/07 -- AV REC PROPERTY ADDRESS : LAND DESCRIPTION & SKETCH I (I I LINCOLN ROAD FOR LINCOLN ROAD SCALE: 1 "= 40' BETWEEN ALTON ROAD 8c LENOX AVE SHEET 2 OF 3 COUSINS SURVEYORS & ASSOCIATES, INC. 3921 SW 47TH AVENUE, SUITE 1011 DAVIE, FLORIDA 33314 CERTIFICATE OF AUTHORIZATION : LB # 6448 PHONE (954) 680-9885 FAX 954 680-0213 LAND DESCRIPTION AND SKETCH PROJECT NUMBER : 5085-04 CLIENT MBEACHI, LLLP NOTES: 1. NOT VALID WITHOUT THE SIGNATURE AND THE ORIGINAL RAISED SEAL OF A FLORIDA LICENSED SURVEYOR AND MAPPER. 2. LANDS SHOWN HEREON WERE NOT ABSTRACTED FOR RIGHTS —OF —WAY, EASEMENTS. OWNERSHIP, OR OTHER INSTRUMENTS OF RECORD. 3. DATA SHOWN HEREON DOES NOT CONSTITUTE A FIELD SURVEY AS SUCH. 4. THE LAND DESCRIPTION SHOWN HEREON WAS PREPARED BY THE SURVEYOR. S. BEARINGS SHOWN HEREON ARE ASSUMED. THE SOUTH LINE OF LOT 20, BLOCK 39 "COMMERCIAL SUBDIVISION, FIRST ADDITION", P.B. 6, PG. 30. M/D.C.R. SAID LINE BEARS S89'08'55'W. I HEREBY CERTIFY THAT THE ATTACHED "LAND DESCRIPTION AND SKETCH" IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF AS PREPARED UNDER MY DIRECTION IN MARCH, 2007. 1 FURTHER CERTIFY THAT THIS LAND DESCRIPTION AND SKETCH' MEETS THE MINIMUM TECHNICAL STANDARDS FOR SURVEYING IN THE STATE OF FLORIDA ACCORDING TO CHAPTER 6lG17 OF THE FLORIDA ADMINISTRATIVE CODE. PURSUANT TO SECTION 472.027, FLORIDA STATUTES. SUBJECT TO THE QUALIFICATIONS NOTED HEREON. FOR THE FIRM, 1: ----- � _ S RICHARD E. COUSINS PROFESSIONAL SURVEYOR AND MAPPER FLORIDA REGISTRATION NO. 4188 REVISIONS DATE FB PG DWN CKD LAND DESCRIPTION k SKETCH 03/06/07 _____ AV REC PROPERTY ADDRESS ; -j LAND DESCRIPTION t 111 LINCOLN ROAD do SKETCH FOR LINCOLN ROAD BETWEEN ALTON ROAD SCALE: N/A LE NOX AVE SHEET 3 OF 3 EXHIBIT 1111-1" LEGAL DESCRIPTION OF MBEACHI PROPERTY Lots 1, 2, 3, 4, 5 and 6, Block 39, COMMERCIAL SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 6, Page 5 of the Public Records of Miami -Dade County, Florida, and Lots 7 and 8, Block 39, PALM VIEW SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 6, Page 29 of the Public Records of Dade County, Florida, and MIAMI 1287157.1 7713726901 EXHIBIT "B-2" LEGAL DESCRIPTION OF MBEACH3 PROPERTY Lots 19 and 20, Block 39, COMMERCIAL SUBDIVISION, FIRST ADDITION, according to the Plat thereof, as recorded in Plat Book 6, Page 30 of the Public Records of Dade County, Florida. MIAMI 1287157.1 7713726901 EXHIBIT licit SCHEMATIC AND DESIGN DEVELOPMENT DRAWINGS [attached] MIAMI 1287157.1 7713726901 �l�r■�7 ii � �i►�� > � ■II■�r�r ■ r ■■+•` "�INl�b�ll lel SMOMom V ►%/WE �� [ME r��r�r■r��*�ac�: - ---.�.�-,�--fir. •���+�-� .r�rL. EXHIBIT "D" FORM OF ARCHITECT'S AGREEMENT [intentionally omitted for purposes of recording] M IAM I 12 8715 7.1 7713 726901 v Ve.rAIA Document B151 —1997 Abbreviated Standard Form of Agreement Between Owner and Architect AGREEMENT made as of the day of August 2006 in the year Two Thousand and Six (In words, indicate day, month and year) BETWEEN:' (Name, address and.other information) MBEACH1, LLLP, a Delaware limited ]I' bilit'limited partnership, authorized to transact business in Florida as MBEACHI, LLLP', Ltd. 1111 Lincoln Road Suite 760 Miami :Beach, F133139 (hereinafter, "Owne17"), The Architect: (Name, address and other information) Zyscovi.ch, Inc. 100 N Biscayne Blvd. Suite 270.0 Miami FL 33132 (hereinafter referred to as "Zyscovich" or the "Architect") For,the-following Project: (Include detailed description of Project) Mixed=Use Project at`1111 Lincoln Road comprised of (1) new improvements of: (a) approximately 20,000 square feet of retail space, (b) approximately +/- 250 parking spaces on six,I vets" and (c)>a 5,000 square foot residential unit at the rooftop; and (II) renovations and improvements to the existing building: (a) approximately 20,000 square feet of retail space on the ground floor, (b) new open "air restaurant facility on the roof, and (III) a new two (2) story 24,000 square foot building ;located at 1665 Alton Road comprised of: (a) a bank on the ground floorpith private banking on, the 2r'd floor, and (b) four (4) residential units on the second floor (collectively, the "Project"). The Owner and Architect agree as follows: ARTICLE 1 ARCHITECT'S RESPONSIBILITIES § 1.1 Except where expressly stated to the contrary, the services performed by the Architect, Architect's employees, Owner's Consultants (as defined hereinafter) and Architect's Consultants shall be as enumerated in Articles 2, 3 and 12. § 1.2 The Architect's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. The Architect shall submit for the Owner's approval a schedule for the ADDITIONS AND DELETIONS: The author of this document has added information needed for Its completion: The author may also have revised the text of the original AIA standard form. An Additions and Deletions Reportthat notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. AIA Document 8151 TM —1997. Copyright @ 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AI, Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIO Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the low. This document was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200640 2 which expires on 10/3/2006, and Is riot for resale. User Notes: (1927908"4) performance of the Architect's services which may be adjusted as the Project proceeds. This schedule shall include allowances for periods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule which is attached as Exhibit B, shall not, except for reasonable cause, be exceeded by the Architect or Owner. § 1.3 The Architect shall designate a representative authorized to act on behalf of the Architect with respect to the Project. § 1.4 The services covered by this Agreement are subject to the time limitations contained in Section 11.5.1. § 1.5 The Architect shall review, and shall be responsible for, compliance with, all laws, codes, ordinances and regulations such that the design drawings and construction documents shall be fully compliant with all laws codes, ordinances and regulations applicable to the Project at the time of Permitting regardless,of whether the design drawings and construction documents, or any portion of them, was preparedbythe Architect or its consultants including, but not limited to, the Design Consultant as that term is defined:below. ARTICLE 2 SCOPE OF`ARCHITECT'S BASIC SERVICES § 2.1. DEFINITION 2.1 The Architect shall engage the services of Herzog & De Meuronas a Design Consultant (the "Design Consultant" or "Herzog"). 2.1.1The Architect's Basic Services consist of those described in Sections 2.2 through 2.6 and any other Services identified in Article:l2 as part of Basic Services and shall include, but not be limited to, complete responsibility for every aspect of the design of the Project including, but not limited to, the architectural. design, (except schematic`design, which is to be provided by Herzog), landscape architecture, structural, civil, and mechanical, electrical and plumbing ("MEP") engineering services and any other aspect of the design necessary to carryout the complete design of the Project. Included in these Basic Services is the fullresponsibility for, and oversight of, all consultants including the Owner's Consultants', Architect's consultants, Design. Consultant, subconsultants or other design professionals reasonably necessary for the design of ifiii Project (collectively;" "Consultants"). Notwithstanding the foregoing, the Owner will be responsible for paying any and all`fees owed to those consultants. § 2.1.2• Zyscovich shall coordinate the services of the Consultants. § 2.1.2 Architect shall submit a list of its proposed Consultants for review and approval by the Owner prior to Architect entering into one or more agreements with Consultant(s). § 2,1.3 All Agreements between Architect and the Consultants shall be in writing with a copy. delivered to the Owner. Each such agreement shall incorporate the terms and conditions of this Agreement so that all responsibilities of.the Architect with respect to the material provisions of this Agreement shall be applicable to the Consultants under their agreements including, but not limited to, scope, timeliness, notice, payment, change orders, costs, and included services. § 2.1.4 The Architect shall not terminate any of the Consultants without the written consent of the Owner, which consent shall not be unreasonably withheld. § 2:2 SCHEMATIC DESIGN PHASE § 2.2.1 The Design Consultant shall review the program furnished by the Owner to ascertain the requirements of,the Project and shall arrive at a mutual understanding of such requirements with the Owner. AIA Document B151TM-1997. Copyright © 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA! Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAe Document, or any 2 portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200640_2 which expires on 10/3/2006, and is not for resale. User Notes: (1927906464) § 2.2.2 The Design Consultant shall provide a preliminary evaluation of the Owner's program, schedule and construction budget requirements, each in terms of the other, subject to the limitations set forth in Section 5.2.1. § 2.2.3 The Design Consultant shall review with the Owner alternative approaches to design and construction of the Project. § 2.2.4 Based on the mutually agreed -upon program, schedule and construction budget requirements, the Design Consultant shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and. other documents illustrating the scale and relationship of Project components. § 2:3 DESIGN DEVELOPMENT PHASE § 23.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Architect with assistance from the Design Consultant shall prepare, for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate. §'2.4 CONSTRUCTION DOCUMENTS PHASE § 2.4.1 Based on the approved Design Development Documents and any further adjustments in the scope or.quality of the 'Projeet or in the construction budget authorized by the Owner, the Architect shall prepare, for approval -,by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail the requirements for the construction of the Project. r' § 2.4.2 The Architect shall,assist the Owner in the preparation of the necessary bidding information; bidding forms; the Conditions of the Contract, and the form of Agreement between the Owner and Contractor. § 2.4.3 The Architect.shall not advise the Owner of any adjustments to the preliminary estimate of Construction. Cost because those services have been separately contracted by the Owner. § 2.4.4 The Architect shall assist the'Owner in connection with the. Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. The Architect and its Consultants shall attend and, where necessary, make presentations at all meetings with any; and all govern mental; authorities reasonably necessary to obtain the building permit for the Project. § 2.4.5 Architect shall consultwith Owner and Contractor to value analyze (also known as value engineer) the Design and, as a Basic Service, shall make all reasonable revisions to the drawings necessary to incorporate the proposed changes into the design in order to meet the "Targeted Costs" (as defined hereinafter) -provided (1) such proposed changes are approved in writing by the Owner and (2) would not cause a substantial revision to the structural, mechanical and electrical systems already designed or the overall aesthetic design for the.Project (3) the revisions are based upon review of the 50 Percent C-D Phase or earlier versions of"the Construction Documents. The Architect shall not perform further Work on the Construction Documents until Owner has acknowledged, in writing, that Owner has completed its review of the 50 percent C-D Phase drawings and has made its proposed recommended revisions, if any. The "50 percent C-D Phase" as used herein shall mean that set of drawings prepared by the Architect, the Architect's Consultants or the Design Consultants during the Construction Document Phrase which represent 50 percent completion of the Construction Documents.. Not withstanding the foregoing the Architect, Owner's Consultants' and Design Consultants shall not be responsible for revisions prepared solely. by the Owner except for those provided in 3.3.1.1. § 2.5 BIDDING OR NEGOTIATION PHASE The Architect, following the Owner's written approval of the Construction Documents and of the latest preliminary estimate of Construction Cost, shall assist the Owner in obtaining bids or negotiated proposals and assist in awarding and preparing contracts for construction. AIA Document B151TM —1997. Copyright 0 1974,1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA° Document, or any 3 portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 18:02:14 on OW8/2006 under Order No.1000200640_2 which expires on 10/3/2006, and is not for resale. User Notes: (1827906484) § 2.6 CONSTRUCTION PHASE —ADMINISTRATION OF THE CONSTRUCTION CONTRACT § 2.6.1 The Architect's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the initial Contract for Construction and terminates upon the later of (a) completion of the Project, (b) issuance of the final Certificate of Occupancy or (c) punch list completion (the later to be referred to hereinafter as "Completion"). The Architect's fees for Construction Administration are for 20 months. Any additional time would be Additional Services. § 2.66.2 The Architect shall provide administration of the Contract for Construction as set forth below and in the edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the. date of this Agreement and the Contract for Construction, unless otherwise provided in this Agreement. Modifications made to the General Conditions, when adopted as part of the Construction Documents, s* hall be enforceable under this Agreement only to the extent that they are consistent with this Agreement. § 2.6.3 Duties, responsibilities and limitations of authority of the Architect under this Section 2.6 shall not be restricted, modified or extended without written agreement of the Owner and Architect. § 2.6.4 The.Architect.shall be a representative of and shall advise and consult with the Owner during the administration of the Contract for Construction. The Architect shall have authority to act on behalf of the Owner:only to: the extent expressly provided in this Agreement unless otherwise modified by written amendment. § 2 6.5The Design Consultant shall provide a full time architect in Miami during the construction administration. phase. The Architect shall provide two half time architectural staff. Through the presence of such support, the Architect shall endeavor to provide further protection for the Owner against defects and deficiencies in the Work, -but the furnishing of such representation shall not modify the rights, responsibilities or obligations of the Architect as described elsewhere in this Agreement. The Architect, will (1) become generally familiar with and to keep the Owner Informed about the progress and quality -of the portion of the Work completed, (2) endeavor to guard the Owner against defects and deficiencies in the Work,; and (3) determine in general that the Work is being performed in a manner indicating that the Work,,when fully completed, will.be substantially in accordance with the Construction Documents. The., Architect shall neither:have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or; procedures, or for safety precautions and programs in connection with the Work, since. these are solely the Contractor's rights and responsibilities under the Construction Documents:., -. § 2.6.6 Wit respect to the construction, the Architect shall report to the Owner known deviations from the Construction Documents and, deviations which it observes. The Architect shall not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Construction Documents unless Architect knew of the Contractor's failure or should have known of the Contractor's failure of performance but failed to report such facts to the Owner in writing. Except as otherwise set forth herein, the Architect shall be responsible for the Architect's negligent acts or omissions, and the negligent acts -and/or "omissions of`its'Consultants. Except as otherwise set forth herein, the Architect shall not have control over or. charge of and shall not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons or entities performing portions of the Work. § 2 6:7 The Architect and Design Consultant shall at all times have access to the Work wherever it is in preparation or progress. § 2.6.8 The Owner shall endeavor to communicate with the Contractor through Architect about matters arising from or related to the Construction Documents. Nothing herein shall preclude the Owner from communicating directly with the Contractor on any matter that relates to the Project inclusive of the Construction Documents nor shall the Owner be precluded from communicating directly with the Design Consultant. The Architect and/or Design Consultant shall attend all project meetings with the General Contractor and its subcontractors as reasonably required or upon request of the Owner unless excused AIA Document B151 TM —1997. Copyright 01974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA• Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA* Document, or any 4 portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 18:02:14_on 08/28/2006 under Order No.1000200640_2 which expires on 10/3/2008, and Is not for resale. User Notes: (1927906464) by Owner in writing and shall attend all construction meetings between Contractor and Owner, unless excused by Owner in writing. § 2.6.8.1 Architect shall prepare a set of reproducible record drawings showing material and/or significant changes in the Work as compared with the Design Drawings which were made during construction based on marked -up prints, drawings and other data furnished by the Contractor to the Architect (the "As -Built Drawings") as an additional service, § 2.6.8.2 The Architect shall maintain one or more logs, in a form and manner agreed upon by Owner, containing (1) a description and date of all (a) Change Orders proposed by Contractor, (b) all Change Orders Proposed by Owner, (c) the date of all fully executed Change Orders, (2) a description and date of all Requests for Information made by the Contractor to the Architect and the date irn:which the Request For Information was answered, (3) a description and date of all Shop Drawings received and the date in which a response was made to the shop drawing';by the Architect, Design Consultant or other Consultant(s) § 2.69 CERTIFICATES FOR PAYMENT § 2.6.9.1' The'Architect shall:review and certify the amounts due the Contractor and shall issue certificates insuch amounts. § 2.6.9.2 The Architect's. certification for payment shall constitute a representation to the Owner, based on the Architect`s evaluation.of. the Work as provided in Section 2.6.5 and on the data comprising the Contractor's Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, after reasonable inspection, that the quality of;: the Work is in accordance with the Construction Documents. The foregoing representations are subjects-4.. (1) to an evaluation of the Work for conformance with the Construction Documents. upon Substantial"+:.. Completion, (2) to results of'tests and Inspections, (3) to correction of minor deviations from the Constructiori Documerifs prior to completion, and (4) to specific qualifications expressed in :writing10 the Owner by the Architect. § 2.6.93 The.issuance of a Certificate for Payment shall not be a representation that the Architect has; (1) made exhaustive on -site inspections to check the quality or quantity of the Work, except as required under Section 2.6.5 (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment, or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. § 2.6.10 The Architect shall have authority to reject Work that does not conform to the Construction Documents. Whenever the Architect considers it necessary or advisable, the Architect shall have authority to require inspection or testing of the Work in accordance with the provisions of the Construction Documentsi whether or not such Work is fabricated, installed or completed. However, neither this authority of .the Architect nor aAecis ion made in good faith either to exercise or not to exercise such authority shall give rise. to a du:.ty or responsibility of the Architect to the Contractor, Subcontractors, material and'equipment suppliers, their agents or employees or other persons or entities performing portions .of the Work. § 26.11 The Architecf shall timely review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, and Requests for Information ("RFIV) but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Construction Documents. The Architect's action shall be taken with.such reasonable promptness as to cause no delay in the Work or in the activities of the Owner, Contractor or separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review. Absent extraordinary circumstances, which shall be explained in writing by the Architect, "Timely Review" shall mean the Review of Shop Drawings and Product Data Samples in no more than seven (7) business days and the review of RFI's in seven (7) business days after Architect receives request. AIA Document B151 TM —1997. Copyright 0 1974,1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This Alea Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any 5 portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the low. This document was produced by AIA software at 18:02:14 on 08/28/2006 under Order No. 1000200640 2 which expires on 10/3/2006, and Is not for resale. User Notes: (1927906464) § 2.6.12 The Architect's review or that of its Consultants shall be for compliance with the intent of the design and the Construction Documents and shall not include review of quantities, weight or gauges, fabrication processes, construction methods, coordination with the work of other trades, or construction safety precautions, all of which are the sole responsibility of the Contractor. The Architect or its Consultants shall not be required to review partial submissions or those for which submissions for correlated items have not been received. Review of such submittals is not conducted for the purpose of determining the accuracy andcompleteness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review shall not constitute approval of. safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's review of a specific item shall not indicate that the Architect has reviewed the entire assembly of which the item is a component § 26.13 If professional'design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Construction Documents, the Architect shall specify appropriate performance and design criteria that such services must satisfy. The Architect shall not be responsible for the actual design undertaken by the design professional retained by the Contractor or for its adequacy or completeness of the services, certifications of approvals performed by such design professional. Shop Drawings and other submittals related to the Work designed or certified by the design professional retained by the Contractor shall bear such professional's written approval when submittedfo the Architect. The Architect shall be entitled to rely on the adequacy and accuracy and,completeness of the services, certification or approvals by such design professionals. The Architect -shall. be entitled to=rely on the adequacy and accuracy and completeness of the services; .;;. certification or approvals by-' "such design professionals. § 2.6.4 The Owner shall prepare Change Orders and Construction Change Directives, which shall be reviewed, by the Architect with supporting documentation and data if deemed necessary by the Architect as provided in Sections 31..1 and 3.3.3, for the Owner's approval and execution in accordance with the Construction Documents, and may: advise the Owner to other minor changes in the Work not involving an ? adjustment.in the Contract Sum or an extension of. the Contract Time which are consistent with the intent of the Construction Documents. § 2.6A 5 The Architect shall conduct inspections to determine the date or dates of "Substantial Completion" and #He date of "Firtal: Completion", as those terms are defined under the Construction Contract ,and: shall receive from the.:Contractorard forward to the Owner, for the Owner's review and records, written'warranties and: related documents required by the Construction Documents and assembled by the Contractor;`and shall issue a final Certificate for Payment based upon a final inspection indicating the Work 66 plies..with the requirements of the Construction Documents between Owner and Contractor. § 2.6.16, The. Architect shall interpret and decide matters concerning performance of the Owner and Contractor under, and requirements of, the Construction Documents on written request of either the Owner or Contractor. The Architect's response to such requests shall be made in writing within any time limits agreed upon or otherwise with reasonable promptness. § 2.6.17 Interpretations, recommendations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Construction Documents and shall be in writing or in the form of drawings. When making such interpretations, recommendations and initial decisions. The Architect shall not show partiality to either, and shall not be liable for results of interpretations or decisions so rendered in good faith. § 2.6.18 If requested, the Architect shall render initial decisions on claims, disputes or other matters In question between the Owner and Contractor as provided in the Contract Documents between the Owner AIA Document B151 TM—1997. Copyright 01974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAe Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAe Document, or any 6 portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200840 2 which expires on 10/3/2008, and is not for resale. User Notes: (1927906464) and Contractor. However, the Architect's and Design Consultant's decisions on matters relating to aesthetic, effect shall be final if consistent with the intent expressed in the Construction Documents. § 2.6.19 The Architect's decisions on claims, disputes or other matters in question between the Owner and Contractor, except for those relating to aesthetic effect as provided in Section 2.6.17, shall be subject to the terms of this Agreement and the Construction Documents between Owner and Contractor. § 2.6.20 The Architect and Owner's Consultants shall perform all of its services in a timely manner and according to the schedule attached at Exhibit B. The Architect's performance shall be consistent with the professional'skill and care of like professionals. Time is of the essence with respect to the Architect's performance underthis Agreement. Architect shall be in material default under this Agreement should Architect or its=Consultants fail to timely or properly perform their services in accordance with this Agreement including; but not limited to, the timely preparation of Plans and Specifications, the timely review of and; comment:upon Submittals, shop drawings and/or Requests for Information from the Contractor. Notwithstanding the foregoing, Architect and Consultants shall not be deemed in material defaul to the extent that any. delay or failure in their performance or their obligations is the result of a cause beyond their reasonable control and not caused by their own negligence. ARTICLE 3. ADDITIONAL SERVICES § 3.1 GENERAL § 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in. Article 1.2, and they shall be paid for by the Owner as provided in this Agreement, in addition to the. compensation for Basic Services. The services described under Article 3 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Section 3.3 are required due to circumstances beyond the Architect's control, the Architect;,,.; shall. obtain. Owner's consent'in writing prior to commencing such services. If the Owner deems that`such services described under Section 3.3 are not required, the Owner shall give prompt written notice to,the Architect. If the Owner indicates in writing that all or part of such Contingent Additional Servicesi are not required,,the,Archi#ect shall have no obligation to provide those services. § 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES § 3.2.1 ;'The services provided under § 2.6.5 shall be included as part of the Architect's Basic Service: If more extensive representation at the site than is described in Section 2.6.5 is required, and upon .the request of the. Owner, the Architectshall provide one or more additional Project Representatives to assist in carrying out such additional on -site responsibilities. § 3 2 2 Proiect:Representatives shall be selected, employed and directed by the Architect, and the Architect shall.be compensated therefor as agreed by the Owner and Architect. The -duties, responsibilities :and °limitations of authority of Project Representatives shall be as described in the edition of AIA Document B352 current as of the date of this Agreement, unless otherwise agreed. § 3 2 3 Through the presence:at the site of such Project Representatives, the Architect shall endeavor to provide further protection for the Owner against defects and deficiencies in the Work, but the furnishing of a sucfi'pr:.oject representation 'shall not modify the rights, responsibilities or obligations of the Architect as described elsewhere in this Agreement. § 3.3 CONTINGENT ADDITIONAL SERVICES § 3.3.1 Making revisions in drawings, specifications or other documents when such revisions are: .1 inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's program or Project budget; provided, however, revisions to the Documents necessary to implement value analysis (also known as value engineering) in the Construction Documents Phase shall be included as a Basic Service provided that the revisions comply with paragraph 2.4.5. .2 required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, unless reasonably foreseeable by Architect; .3 due to changes required as a result of the Owner's failure to render decisions in a timely manner. AIA Document B161n" —1997. Copyright 0 1974,1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAe Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAe Document, or any 7 portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 18:02:14 on OMB/2006 under Order No.1000200640_2 which expires on 10/3/2006, and Is not for resale. User Notes: (1927906464) § 3.3.2 Providing services required because of significant changes in the Project including, but not limited to, size, quality, complexity, the Owner's schedule, or the method of bidding or negotiating and contracting for construction; provided, however, revisions to the Contract Documents necessary to implement value analysis provided by the Contractor and accepted by the Owner to bring the cost of construction within the Targeted Cost (as defined below) shall be included as a Basic provided that the revisions comply with paragraph 2.4.5. (Paragraph deleted) , § 3.3.3 Preparing Drawings, Specifications and other design documentation and supporting design data, in connection with Change Orders and Construction Change Directives, unless (a) such Drawings, Specifications and .other,design documentation and supporting design data where necessary for the proper completion of the Project or (b) the revisions were necessary to implement value analysis provided by the Contractor and -accepted by the Owner to bring the cost of construction within the Targeted Cost in which: case's6ch services -Shall be included in Basic Services provided that the revisions comply with paragraph 2A.5 § 3.3.4 Providing; services in connection with evaluating substitutions proposed by the Contractor and making subsequent reyisions to Drawings, Specifications and other documentation resulting therefrom, provided,: however;. such services, to implement value analysis provided by the Contractor during the pricing phase of the protect acid accepted by the Owner to shall be included as a Basic provided that the revisions comply with'paragraph 2.4.5.. § U.S.Providing consultation concerning replacement of Work damaged by fire or other cause during.; :: construction, and furnishing -services required in connection with the replacement of such Work: § 3.3.6 Providing services made necessary by the default of the Contractor, by major defects or. deficiencies.in,the Work of the Contractor, or by failure of performance of either the Owner or Contractor underahe .Contract for Construction. § 3.3.7 Providing. services in evaluating an extensive number of claims submitted by the Contractor or. others in connection with the Work. § 3.3.8 Providing services in connection with a public hearing, a dispute resolution proceeding or a legal proceeding except where; the Architect is party thereto. (Paragraph,dele.ted) § 3.3.9 Intentionally Omitted. 3.3.10 The Owner acknowledges that the Design Consultant requires that various mock-ups at one to one scale be constructed as partof:the Project development to insure design, detailing, resolution and Owner approval. Services reiated'to the design and construction of the Mock-ups shall be considered as an Additional Service'and billed at an hourly rate. The Design Consultant shall provide the Owner with an anticipated mock-up scope, and a quotation estimate for the services needed to be performed by the Design Consultant and Architect and shall only commence work upon receipt of written approval from the Owner. 3.3.11 The Owner acknowledges that services related to the following are not included in the Basic Services`Fee, and if required, shall be subject to separate fee agreements with the Owner, based on associated scope, cost and schedule parameters. Retail Shop interior space design, documentation and fit -out except that Store Front design shall be included as a Basic Service • Restaurant Interior space, cafe and Kitchen design, documentation and fit -out • Office interior space design, documentation and fit out • Furniture selection, and/or design for the various interior spaces AIA Document B151 TM —1997. Copyright @ 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA• Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA• Document, or any 8 portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200640_2 which expires on 10/3/2006, and is not for resale. User Notes: (1927906464) • Interior Design related to the existing SunTrust Building, except exterior finishes • ` Interior Design for Apartments and Penthouse, except that the Interior Design shall be "Designer Ready" such that the design shall be inclusive of mechanical, electrical and plumbing, including lighting, flooring and finishes, all of which shall be included in the Basic Design. • Upgrade and/or modifications to existing SunTrust building levels 3 through 8 except that any design services necessary or appropriate to incorporate those portions of the SunTrust building into the Project as a consequence of a contemplated shared or connecting fire stairwell such as HVAC, electric systems, plumbing and structural, shall be included in the Basic Design § 3;3.12 Providing services; required to prepare construction documents, bids, permits and administering constructlon.it the project istarried out in more than the three (3) phases contemplated under I, II and III §1A OPTIONAL ADDITIONAL SERVICES § 3.41 Providing analyses of the Owner's needs and programming the requirements of the Project § 3.4.2 Providing financlal,feasibility or other special studies. § 3,4.3 Except as maybe required to obtain Governmental approval for the Project, providing planning surveys, site evaluations or -comparative studies of prospective sites. § 3.44 Providing special surveys, environmental studies and submissions required for approvalsof - governmental: authorities or _others having jurisdiction over the Project. § 3 4.5 Providing services relative to future facilities, systems and equipment. § 3 4 6 Providing servicesto investigate existing conditions. or facilities or to make measured drawings: thereof § 3.4.7. Providing services to verify the accuracy of drawings or other information furnished by the Owner. § 3.4:8 Providing coordination of construction performed by separate contractors or by the Owner's own forces'and coordination of services required in connection with construction performed and equipment supplied by the Owner: § 3.4.9 Providing services in connection with the work of a construction manager or separate consultants retained by the Owner: § $.410 Providing detailed estimates of Construction Cost. §'3.4.11 Providing detailed quantity surveys or inventories of material, equipment and labor. § 3.4.12 Providing analyses of owning and operating costs. § 3.4.1.3 Providing interior design and other similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment. § 14.14 Providing services for planning tenant or rental spaces. § 3.4.15 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities. § 3.4.16 Intentionally Omitted AIA Document 8151 TM —1997. Copyright ®1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA• Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA* Document, or any 9 portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200640 2 which expires on 10/3/2006, and Is not for resale. User Notes: (1927906464) § 3.4.17 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance, and consultation during operation. § 3.4.18 Providing services after issuance to the Owner of the final Certificate for Payment, or in the absence of a final Certificate for Payment, more than 60 days after the date of Final Completion of the Work, as Final Completion is defined under the Contract for Construction. § 3.4.19 Providing any. other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice. § 34.20 Providing•the services of special inspections as required by code and governmental authorities. § 3.4.2.1 Thirdrparty perniits;,,and expediting costs. ARTICLE 4 OWNER'S RESPONSIBILITIES § 4.1 The Architect shall rely on the information provided by the Owner and the Design Consultant's Schematic Design.and any other written information, where reasonable and appropriate that Owner and Desigri Consultant provide the Architect. The Owner shall furnish to the Architect, within 15 days after receipt of a written request, information necessary and relevant for Architect to evaluate, give notice of or enforce. lien Rights. § 4.27he Owner shall establish and periodically update an overall budget for the Project, including;th0i Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs--:: § 4.3 The Owner shall designate a representative authorized to act on the Owner's behalf with respeot'to the Project. The Owner or -such designated representative shall render decisions in a timely manner pertaining to documents submitted by the Architect in order to avoid unreasonable delay in the orderly and sequential,progress.of;the Architect's services. § 4.4 The Owner shall furnish surveysto describe physical characteristics, legal limitations and utility locations. for the site of the Project, and a written legal description of the site. The surveys and legal information shall•include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structuj'es adjacent drainage; rights -of -way, restrictions, easements, encroachments, zoning; deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data with respect to.existingbuildings, other improvements and trees; and information concerning available utilityservices_and lines; -both public and private, above and below grade, including. inverts and depths. All the. information on the survey shall be referenced to a Project benchmark. § 4.5 The Owner shallfurnish:the services of geotechnical engineers when such services are requested by the Architect. Such services=may include but are not limited to test borings, test pits, determinations of soil kearing values, percolation tests, evaluations of hazardous materials, ground corrosion tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate recommendations. § 4.6 The Owner shall furnish the services of consultants including, but not limited to those designated in Section 4.5 when such services are reasonably requested in writing by the Architect and are reasonably required by the. scope of the Project ("Owner's Consultants"). § 4.7 The Owner shall furnish structural, mechanical, and chemical tests; tests for air and water pollution; tests for hazardous materials; and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. § 4.8 The Owner shall furnish all legal, accounting and insurance services that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests. Such services shall AIA Document 8151 TM —1997. Copyright m 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA* Document, or any 1 Q portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200640 2 which expires on 10/312006, and is not for resale. User Notes: (1927906464) include auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner.. § 4.9 The services, information, surveys and reports required by Sections 4.1 and 4.4 through 4.8 shall be furnished at the Owner's expense and the Architect shall be entitled to rely upon the accuracy and completeness thereof. (Paragraph deleted) § 4.10 Reasonable notice shall be given by the Owner to the Architect or by the Architect to the Owner, as the case may be, if the Owner, Architect become aware of any material fault or defect in the Project or material non-conformance with the Contract Documents. For purposes of this provision, "Material" shall mean any information ;that :would likely affect the quality and/or cost of construction or which would change: in a,noticeable way'the design or appearance of the Project. ARTICLE 5CONSTRUCTION COST § 5.1 DEFINITION § 511.1 The. Construction Cost shall be the total cost to the Owner of all elements of the Project designed or specified by-thia,Arch.it6bt as set forth in the Contract for Construction including all addendums, amendments and'change orders thereto. § 5.T.2.The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and: equipment designed, specified, selected or specially provided for by the. , Architect, including the costs of management or supervision of construction or installation provided by,�a:: separate construction manager or contractor, plus a reasonable allowance for their overhead and profit:' In addition, a;reasonable allowance for contingencies shall be included for market conditions at the time of bidding and forchangesin the Work so long as they are included in the Contract for Construction. § 5.1.3 construction Cost does notlinclude the compensation of the Architect, Consultants, the costs of the land; rights -of .way -an d financing or other costs that are the responsibility of the Owner as provided in Article 4. - I` § 5.14 Intentionally Omitted. i . (Paragraph deleted): 5.2 RESPONSIBILITY FOR.DELIEVERY OF DRAWINGS WITHIN THE TARGETED COST (Paragraph deleted) § 5.2.1 Intentionally Omitted �5.2.2,The Project shall -be "designed in such a way that the Construction Cost shall not exceed Dollars (the "Targeted Cost"). § 5.2.3 In determining whether the Design falls within the Targeted Cost, the Architect shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids as may be necessary to adjust the Construction Cost to the Targeted Cost if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Construction. _ . Architect may rely upon the Owner's Cost Estimator in determining whether the Design falls within the Targeted cost. AIA Document B151 TM —1997. Copyright 0 1974,1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This Al e Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this Al a Document, or any 11 portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200640_2 which expires on 10/3/2006, and Is not for resale. User Notes: (1927906464) § 5.2.4 If the Bidding or Negotiation Phase has not commenced within 90 days after the Architect submits the Construction Documents to the Owner, Targeted Cost shall be adjusted to reflect changes in the general level of prices in the construction industry. § .5.2.5 If the Targeted Cost (adjusted as provided in Section 5.2.3) is exceeded by the estimate of the Owner's Cost Estimator, the Owner may, in its sole discretion: .1 gives written approval of an increase in the Targeted Cost; .2 authorize rebidding or renegotiating of the Project within a reasonable time; and/or .3 cooperate in revising the Project scope and quality as required to reduce the Construction Cost, provided, however, Owner may elect, in its sole discretion, to terminate the Project. In such event; Owner's sole financial responsibility under this Agreement shall be limited to the Termination Expenses set forth in Article 8. § 5.2.6 If the Owner chooses to proceed under Section 5.2.5.3, the Architect and their respective Consultants, without additional compensation and as part of the Basic Services of the Architect shall modify the design and the design documents to comply with the Targeted Cost provided that the revisions comply with paragraph 2 4 5. The Architect shall be entitled to compensation in accordance with this Agreementfor all services.performed whether or not the Construction Phase is commenced, except that if Owner elects'in its sole discretion, to terminate the Project, Owner's sole financial responsibility under this Agreement shall be limited to the Termination Expenses set forth in Section 8.1. ARTICLE 6 s:USE OFARCHITECT'S INSTRUMENTS OF SERVICE (Paragraph deleted) § 6.1 The intellectual property rights with respect to the design and design drawings are owned by the: Herzog and deMeuron as the' Design Consultant or as otherwise agreed between Architect and Design: Consultant. (Paragraph deleted) § 6.2 Upon the completion of the Project and upon the full payment of all sums due Architect and'Design Consultant;. the Owner -shall own all right, title and interest in and to any and all the Instruments of Services and all drawings, specifications and other documents, including those in electronic form, and including all Architecfural_Concept'Design, Schematic Design, Design Development, Construction Documentation, Construction Administration, (the "Work Product") prepared by the Architect and/or the Design-Consultantfor the Project provided, however, that concepts and elements which are not incorporated in. the final Project'shall�be excluded from the Work Product. Furthermore, the Owner acknowledges that the final Project incorporates and comprises certain unique, unusual or otherwise distinctive design concepts, many of which (or the combination of which) are original to the Design Consultant, and that nothing:.herein will prohibit the Design Consultant from using such concepts in other projects so long as such use does not result in a structure which is materially the same as the Work Product. (Paragraph deleted) § &3 The Owner shall use its best efforts to identify the Project as having been designed by the Design Consultant and Architect in any media releases, descriptive brochures, marketing, exhibits and similar materials concerning or making reference to the Work Product and on the Work Product to be used in such context. The Design Consultant and Architect shall have the right to use tF e.;Work Product and the name "l 111 Lincoln Road, Miami Beach" to identify the Project: as a documentation of its experience and capabilities, including but not limited to curricula. vitae and professional resumes, in connection with design competitions or other professional development, including but not limited to submissions of the project designed for consideration in competitions honouring design and in exhibitions. I Project Credit shall read: AIA Document 6151 TM —1997. Copyright 0 1974,1978, 1987 and 1997 by The American Institute of Architects. All rights Do reserved. WARNING: This AIAe Documentis protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of thortion 0�it, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible unsis AIA® Document, or any der the This document 12 was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200640_2 which expires on 10/3/2006, and Is not for resale. User Notes: (1927906464) Design Architect: Herzog and de Meuron Principal Architect: Zyscovich, Inc. § 6.4 Except in the case of a sale by Owner of the improved real property upon which the Project was built by or a sale of the Owner, the Owner agrees that in exercising its rights of ownership of the Work Product, it shall not sell or otherwise transfer ownership of such instruments to a third party, nor shall it willingly or knowingly allow the Project or substantial parts thereof to be copied or implemented by another Architectural firm, developer or building owner, without a direct or prior written approval of the Design Consultant and Architect. (Paragraph deleted) § 65 Copies of the documents that may be relied upon by Owner are limited to the printed copies that are signed and sealed by Architect. Files in electronic media format or text, data, graphics or other type that. are`furnlshed;by Architect to. Owner are only for convenience of Owner. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. ARTICLE 7 ;DISPUTE RESOLUTION § 7.1 MEDIATION' § 7A.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation, provided, however, mediation shall not be a condition precedent to the exercise of any other remedies either at law or in equity. If such matter relates to or is the subject of a lien arising out of the Architect's services, the Architect may proceed in accordance with applicable law to comply with the lier,notice or filing deadlines prior to resolution of the matter by mediation or by arbitration. § 7.1.2. Intentionally Omitted. § 7.1 3 The parties shall share the mediator's fee and any filing feea equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. § 7.2 LITIGATION „ § 7.21 Notwithstanding anything to the contrary contained herein or in any other agreement, the Circuit Ccurt of the Eleventh Judicial'.Circuit in and or Miami -Dade County, Florida shall have exclusive subject 'matter., jurisdiction over any claim, dispute or other matter in question arising out of or related to this Agreement or any agreementrelated hereto. The parties expressly waive any right to jurisdiction by a United States -District Court or';the Court's of any other jurisdiction or country. The parties agree that Venue and jurisdiction shall lieexclusively in the Circuit Court of the Eleventh Judicial Circuit in and for Miami -Dade County, Florida. Zyscovich and Herzog shall be subject to personal jurisdiction in the Circuit Court of the 11 th Judicial Circuit in and for Miami -Dade County, Florida § 7 22 In any Judgment or verdict entered in any claim, dispute, or other matter in question arising out of or related td th;isAgreement, the prevailing party shall be entitled to the award of it's reasonable attorney's fees' and court costs including any and all attorneys fees and costs incurred on appeal or in a bankruptcy proceeding. However, in the event of a settlement of such claim or dispute, if any, the parties agree that prevailing.;party attorney's fees shall not apply, and shall not be a consideration in any settlement amount. (Paragraphs deleted) § 7.2.3'TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER, REMEDY OR DEFENSE ARISING OUT OF OR RELATED TO THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE. AIA Document 81617a —1997. Copyright ®1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA* Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA* Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document 3 was produced by AIA software at 18*02:14 on 08/28/2006 under Order No.1000200640_2 which expires on 10/3/2006, and Is not for resale. User Notes: (1927906464) ARTICLE 8 TERMINATION OR SUSPENSION § 8.1 If the Owner fails, upon fifteen (15) business days written notice after a payment is due to make payments to the Architect in accordance with this Agreement, such failure shall be considered substantial nonperformance and cause for termination or, at the Architect's option, cause for suspension of performance of services under this Agreement. If the Architect elects to suspend services, prior to suspension of services, the Architect shall give seven days' written notice to the Owner. In the event of a justified suspension of services, the Architect shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Before resuming services, the Architect shall be paid all sums due -prior to suspension and any expenses incurred in the interruption and resumption of the. .Architect's .services. The Architect's fees for the remaining services and the time schedules shall be equitably adjusted. § 82 If the Project is suspended by the Owner for more than 30 consecutive days, the Architect shall be compensated forservices:performed prior to notice of such suspension. When the Project is resumed, the Architect shall be compensated for reasonable expenses incurred in the interruption and resumption of the Architect's services: § 8.3 If the Project ls,susperided or the Architect's services are suspended for more than 90 consecutive days; the Architect may terminate this Agreement by giving not less than seven days' written notice. § &A'This m Agreeent may be terminated by either party upon not less than seven days' written notice should the other. party fail substantially to perform in accordance with the terms of this Agreement through no fault of.the party initiatirlig,the termination. § 8.5 This Agreement maybe terminated by the Owner upon not less than thirty days' written notice'-itbc the Architect for the .Owner`s convenience and without cause. § 8.6 INTENTIONALLY DELETED § 8.7 In the event of termination not the fault of the Architect, the Architect shall be compensated for services performed prior to termination, together with Reimbursable Expenses then due and all termination expenses as defined in Paragraph 8.7 (Paragraph deleted) § 8�8 Termination `Expenses Shall mean time billed plus actual reimbursable expenses incurred by the Architect; and the Consultants pnor:to the date of the Termination as set forth in Section 11.5.4, but shall in no event exceed the percentage of completion of the total design of the Project at the particular phase Ofthe Project design on the date of Termination. ARTICLE 9. MISCELLANEOUS PROVISIONS § 9.1. This Agreement sh.A .be governed by the law of Florida. § 9.2 Terms in-this�Agreement shall have the same meaning as those in the edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement. § 9.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run on the later of (a) date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion, (b) or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion or (c) upon reasonable discovery by Owner of facts giving rise to a claim. § 9.4 To the extent damages are covered by property insurance during construction, the Owner and Architect waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, except such rights as they may have to the proceeds of such insurance as set forth in the edition of AIA Document A201, General Conditions of the Contract for AIA Document B151TM-1997. Copyright 01974, 197B, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document 14 was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200640_2 which expires on 1013/2006, and Is not for resale. User Notes: (1927906464) Construction, current as of the date of this Agreement. The Owner or the Architect, as appropriate, shall require of the contractors, consultants, agents and employees of any of them similar waivers in favor of the other, parties enumerated herein. §. 9.5._The Owner and Architect, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither the Owner nor the Architect shall assign this Agreement without the written consent of the other, except that the Owner may assign this Agreement to a lender providing financing for the Project or to a third -party should the Owner sell the land upon which the Project is located or should Seller sell itself. In the case of an assignment to Lender, the lender shall assume the Owner's rights and obligations under this Agreement: The Architect shall execute all consents reasonably required to facilitate such assignment. § 9.6 This Agreement represents the entire and integrated agreement between the Owner and the Architect and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Architect. §11 Nothing. contained in this Agreement shall create a contractual relationship with or a cause of action i in favor of `a:third party against either the Owner or Architect. § 9.8. Unless otherwise provided in this Agreement, the Architect and Architect's Consultants shall have no rponsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials or toxic -substances in any form at the Project site. §.9.9 The Architect and the'Design Consultant shall have the right to Include photographic or artistic,::. representations of the desigmof the Project among the Architect's promotional and professional materials. The Architect shall be given reasonable access to the completed Project to make such representations. However, the. Architect's materials shall not include the Owner's confidential or proprietary information -if the Owner has.previously:.advised the Architect in writing of the specific information considered by the.- Ownerto be confidential or proprietary. The Owner shall provide professional credit for the Design Consultant and Architect in the Owner's promotional materials for the Project. § 9A If the Owner requests .the Architect to execute certificates, the proposed language of such certificates shall be submitted to the Architect for review at least 14 days prior to the requested dates of execution. The Architect shall -not be required to execute certificates that would require knowledge, services or responsibilities beyond the scope of this Agreement. § 9.11 The Architect shall perform its>services in accordance with that degree of skill and care ordinarily exercised by similarly situatedmembers of Architect's profession involved in the design of similar projects in the same locale as the Project. It is understood by the parties that the existing or constructed building may, as a result of post -construction, use, maintenance, operation or occupation, contain or be caused to contain mold substances which can present health hazards and result in bodily injury, property damage .. and/or necessary remedial measures and costs. -:ARTICLE 10:PAYMENTS TO THE ARCHITECT § 10.1 Intentionally Or J (Paragraph deleted) § 10.2 REIMBURSABLE EXPENSES 110.261 Reimbursable Expenses for the Architect and Architect's Consultants are in addition to compensation for Basic and Additional Services and include expenses incurred by Zyscovich's and Zyscovich's employees and Consultants directly related to the Project, as identified in the following Clauses: .1 transportation in connection with the Project, authorized out-of-town travel (Principals shall travel first class) and subsistence, and electronic communications; .2 fees paid for securing approval of authorities having jurisdiction over the Project; AIA Document I3151 TM —1997. Copyright 01974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA• Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA* Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document 15 was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200640_2 which expires on 10/3/2006, and is not for resale. User Notes: (1927906464) .3 reproductions, plots, standard form documents, postage, handling and delivery of Instruments of Service; .4 expense of overtime work requiring higher than regular rates if authorized in advance by the Owner; .5 renderings, models and mock-ups requested by the Owner if approved by the Owner In writing; .6 expense of professional liability insurance dedicated exclusively to this Project or the expense of additional insurance coverage or limits requested by the Owner in excess of that normally carried by the Architect and the Architect's Consultants; .7 .'::.Intentionally Omitted; .8;..:other similar direct Project -related expenditures. .9 Long distance communication, mobilisation and relocation costs of key personnel hired specifically for this project, any project fees paid by the Architect and Design :Consultant. § 10 3(PAYMENTS ON ACCOUNT OF BASIC SERVICES (Paragraph deleted) § 10.32 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed'within.each phase of service, on the basis set forth in Section 11.2.2. § 10 33 If and to tfie-extent that the time initially established in Section 11.5.1 of this Agreement is exceeded or extended through no fault of Zyscovich, compensation for any services rendered during:, -the' additional period of time shall be computed in the manner set forth in Section 11.3.2. § 10.3.4 INTENTIONALLY DELETED §-10.4: PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES Payments on account of the Architect's Additional Services and for Reimbursable Expenses shall be made monthly upon presentation -of the Architect's statement of services rendered or expenses incurred. § 10.6 PAYMENTS WITHHELD (Paragraph deleted) Sh911 d'a bona.fide dispute exist,,theiOwner shall have the right to notify Architect's. -Professional Liability Insurance Cornoany';of a claims and pending resolution of that claim, may withhold an amount of money commensurate with the value of the dispute, limited to the deductible amount of Architect's or Design :Consultant's -Professional Liability Insurance Policy. § 10.6 ARCHITECT'S ACCOUNTING RECORDS Records of -Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of hourly rates or a multiple of Direct Personnel Expense shall be available to the Owner or the Owner's authorized representative at mutually convenient times. ARTICLE 11 BASIS OF COMPENSATION The Owner shall pay compensation under this Agreement as follows: (Paragraphs deleted) § 11.2 BASIC COMPENSATION § 11.2.1 For Basic Services, as described in Article 2, and any other services included in Article 12 as part of Basic Services, Basic Compensation shall be paid to the Architect for: AIA Document B151 TM —1997. Copyright 01974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA* Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this Ale Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law7 6 . ThIs document was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200640-2 which expires on 10/3/2006, and Is not for resale. User Notes: (1927908464) (A) A fee_equal to Dollars � 1; plus reimbursables as provide in §10.2, (B) Consultants Fees and reimbursables as provided in §10.2, (C) Architect's Overhead Fee on Consultants Fees (but not the fee to Design Consultant) of percent of the Consultants' Fees. § 11.2.1.1 The Consultants Fees, although paid by Owner to Architect, must be paid by Architect to Consultants without unreasonable delay or set-off of any kind or nature. § 11.2.1.2 For Basic Services, as described in Article 2, and any other services included in Article 12 as part of Basic Services, Basic Compensation shall be paid directly to the Design Consultant by the Owner for (A) A The equal to lus (B) Herzog's; reimbursable expenses which sum shall be fixed at plus reimbursables only for: (i) transportation in connection with the Project (Design Consultant's partners shall travel frstclass, associates and project managers shall travel business Class); .(Pardgraph deleted) . (ii) mock. ups, if:requested by Owner and approved by the Owner in writing, (iii) relocation costs of up to three (3) employees of Design Consultant to Miami and subsequent return to Switzerland upon conclusion of the Project, upon written approval by the'Owner; (III) a housing•allowance of per month for each of Design Consultant's employees•in Miami. § 11.2.1.3 Consultant's Fees shall mean the professional fees and expenses incurred by each Consultant hired,by the Architect and approved by Owner pursuant to the provisions of Section 2.1 above.- § 11.2.2 Progress payments for Basic Services of the Architect in each phase are set forth below and shall be invoiced monthly Retainer Schematic. Design Phase: not applicable Design Development Phase: Construction Documents & Permitting Phase: Bidding or Negotiation Phase: Construction Phase: Total Basio Compensation Progress payments for Basic Services of Design Consultant in each phase shall total the following percentages of the total Basic Compensation payable to Design Consultant in the amounts set forth below and shall.be invoiced monthly. Schematic Design Phase: Thirty percent 30 %) ( .Design Development Phase: Twenty-six percent 26 %) ( Construction Documents Twenty-four percent 24 %) Phase: Site Supervision Phase: Twenty percent 20 %) ( AIA Document B151 TM —1997. Copyright 0 1974,1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAe Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this Ale Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document 17 was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200640_2 which expires on 10/=006, and Is not for resale. User Notes: (1927906464) Total Basic Compensation one hundred percent 100.00 %) § 11,2.4 Intentionally Omitted. § 11.2.5 Design Consultant will be paid directly by the Owner upon written approval by the Architect. § 112.6 Progress payments shall be paid monthly by Owner in proportion of the Work certified to have been performed and further provided that Architect, the Design Consultant and Consultants have delivered to -Owner Lien; Waivers for the full amount of the prior month's payments, if any. In no event shall the amount of progress payments exceed the percentages set forth in § 11.2.2 and § 11.2.3 for each phase of the Work. (Paragraph deleted) ` (Rows deleted) 11.3 COMPENSATION FOR ADDITIONAL SERVICES § 11.3.1 For Project Representation Beyond Basic Services, as described in Section 3.2, compensation shall be computed as follows: § 11•:3.2 For 'AddltionaIS ervices of the Architect and Design Consultant as described in Articles 3 and 12, other than (1) Additional Project Representation, as described in Section 3.2, and (2) services included in Article:12 as part of Basic Services, but excluding services of Consultants (other than Herzog), compensation shall be billed'on an hourly basis using the rates set forth on Exhibit B to this Agreement. .(Paragraphs deleted) (Paragraph deleted) §:11.4 REIMBURSABLE EXPENSES For Reimbursable Expenses„ as described in Section 10.2, and any other items included in Article 12 as Reimbursable Expenses,.a multiple of (1.05) times the expenses incurred by the Architect, the Architect's employees and Consultants directly related to the Project, except foi reimbursable expenses of Herzog. § 11.5 ADDITIONAL PROVISIONS § 11.51 If -the 'Basic `Services. covered by this Agreement have not been Completed by the end'of 2008, through no fault of the Architecf, the Architect's compensation for Basic Services shall be equitably adjusted to compensate the Architect for having performance extended into a later period. § 115.2 Payments are due and'payable Thirty (30) days from the date of the Architect's invoice. Amounts unpaid Forty-five (45) days after the invoice date shall bear interest at the rate of 1.00% monthly § 11.5.3 The rates and multiples set forth for Additional Services shall be adjusted in accordance with the normal salary review practices of the Architect, but not more that once annually. ARTICLE 12 OTHER CONDITIONS OR SERVICES § 12:1.1 For performing this Agreement the Architect shall use only consultants approved by the Owner. § 12.1..2 The Architect shall use Suria Yaffar as Partner in Charge and Carlos Monteverde as Project Manager. The Architect shall not change these assignments without the Owner's written consent, which consent shall not be unreasonably withheld. AIA Document B151 TM —1997. Copyright 0 1974,1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA+ Document Is protected by U.S. Copyright Lew and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any 18 portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200640 2 which expires on 1013/2006, and Is not for resale. User Notes: (1927906484) § 12.1.3 The Design Consultant shall be under the direct guidance of Jacques Herzog, Pierre de Meuron and Christine Binswanger. Christine Binswanger shall be the Partner in Charge. Christopher Haas shall be the. Project Manager. These persons shall not be replaced without the written consent of the Owner. 12.2 Insurance §12.2.1 At its sole expense, the Architect and each of them shall maintain the insurance coverage that it normally maintains, including worker's compensation insurance covering all persons employed by the Architect in connection with the Project with statutory coverage limits, the minimum of which coverages shall be at least: A. Statutoryworkers compensation. B: 'Employers liability with limit of $1,000,000 per occurrence and shall include coverage for the Architect's Consultants. C ,Comprehensive General Liability for loss or damage because of bodily injury including personal injury sickness, diseases ordea6of any person and injury to or destruction of property, as a result of the acts or omissions of "tfie Architect, its employees, agents or Consultants, including loss of use resulting therefrom. -wit a'minimum.personaI injury limit of $3,000,000 per occurrence and a minimum of $.4,000;000, aggregate'. D. , Professional Liability insurance of $1,000,000 per occurrence or claim. E. The owner'shall have. the unconditional right, at its expense, to require a change in the terms or Conditions of the insurance required herein or an increase in the limit of coverage. F. The liability limits required,by this Article may be accomplished through the use of umbrella policies. G: in the everlt;Owner obtains any excess, or Owner's Protective Liability Insurance Policy that would provide coverage to owner for Architect's or Design Consultant's professional liability, owner shall provide a copy of said policy to Architect and Design Consultant for review of any "other insurance" effect or: Impact of said Insurance policy. § 12.3 The following Exhibits are incorporated into this Agreement: (a) Insurance Specifications are annexed hereto as Exhibit A (Paragraph deleted) (b) Preliminary: utli.ne Project Schedule is annexed hereto as Exhibit B. (Paragraph deleted)" (c) Hourly Rate Schedule is annexed hereto as Exhibit C. (Paragraph deleted) (d) Lien Waivers by the Architect and the Design Consultant and Consultants to be provided are annexed hereto as Exhibit D. (e) ., Matrix of Responsibilities Is Exhibit E (Paragraph deleted) AIA Document B151 TO —1997. Copyright 0 1974,1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA* DocumentIs protected by U.S. Copyright Lew and International Treaties. Unauthorized reproduction or distribution of this AIA° Document, or any 19 portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 18:02:14 on 08/28/2006 under Order No.1000200640 2 which expires on 10/312006, and Is not for resale. User Notes: (1927906464) AIA Document B151T^+-1997. Copyright 01974,1978, 1987 and 1997 by The American Institute of Architects. Ali rights reserved. WARNING: This AIAe Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAe Document, or any 20 portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 18:02:14 on O8/28/2006 under Order No.1000200640_2 which expires on 10/3/2006, and is not for resale. User Notes: (1927906464) ACORP, CERTIFICATE OF LIABILITY INSURANCE oajiijz o) PRODUCER (305)822-7800 FAX THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION —] Collinsworth, Alter, Fowler, Dowling & French ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE P 0 B X 9315 I HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR o Miami Lakes, FL 33014-9315 Fabiola Munoz INSURED Zyscovic , Inc. 100 North Biscayne Boulevard Suite 2700 Miami, FL 33132 rrnicDAr_ec INSURERS AFFORDING COVERAGE INSURERA: Lexington Insurance INSURER B: INSURER C: INSURER D: INSURER E: NAIC # THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR DD' iNqRrTYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPI TION LIMITS GENERAL LIABILITY EACH OCCURRENCE $ COMMERCIAL GENERAL LIABILITY CLAIMS MADE OCCUR DAMAGE TO RENTED $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER: POLICY SECT LOC PRODUCTS -COMP/OP AGG $ AUTOMOBILE LIABILITY ANY AUTO COMBINED SINGLE LIMIT (Ea accident) $ ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Par person) HIRED AUTOS NON -OWNED AUTOS BODILY INJURY (Per acoMent) Si PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT - $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY, AGG $ EXCESSIUMBRELLA LIABILITY OCCUR CLAIMS MADE EACH OCCURRENCE $ AGGREGATE $ S DEDUCTIBLE S RETENTION $ $ WORKERS COMPENSATION AND WC STATU- OTH- EMPLOYERS' LIABILITY E.L. EACH ACCIDENT $ ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? I yes, describe under E.L. DISEASE - EA EMPLOYE $ E.L. DISEASE - POLICY LIMIT I $ SPECIAL PROVISIONS below A 0TOW essional Liability aims -Made Form 4179052 04/02/2006 04/02/2007 $1,000,000 each claim $5,000,000 Policy aggregate Retrodate: 4/01/1977 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT/ SPECIAL PROVISIONS " S P E C I M E N" SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WALL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Meade Coll.insworth/FVMo' n�vnv LO twV RIVol CACORD CORPORATION 1988 PD1= created with pdfFactory Pro trial Version www.pdffactory.com IMPORTANT If the certificate holder is an ADDITIONAL. INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ''.UMW co 1cuuvuo) PDF created with pdfFactory Pro trial version www.pdffactory.com Client#- 11061 �i (� r ZYSIN ACORD. CERTIFICATE OF LIABILITY INSURANCE 01is/ 006 ) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION PRODUCER Hilb Rogal & Hobbs/So Florida ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 201 Alhambra Circle, #1100 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. P O Box 141308 Coral Gables, FL 33114-1308 INSURERS AFFORDING COVERAGE NAIC # 'u011vFn INSURERA: Transportation Insurance Companies Zyscovich, Inc. INSURERB: Valley Forge Insurance 100 No. Biscayne Blvd, Suite #2700 INSURERC: Miami, FL 33132 INSURERD: INSURER E: COVERAUt, THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. wwomp LTR A NS TYPE OF INSURANCE GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS MADE FE OCCUR POLICY NUMBER B2022994932 LIC EF 17YE p M/ 01/14/06 POLICY EXPIRATIO D 01/14/O7 LIMITS EACH OCCURRENCE $1 000 000 DAMAGE TO RENTED $50 000 MED EXP (Any one penwn) $5 000 PERSONAL & ADV INJURY $1 000 000 GENERAL AGGREGATE $2 000 000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $1 000 000 POLICY r X JET LOC A AUTOMOBILE X LIABILITY ANY AUTO B1073783010 01 /14106 01/14/07 COMBINED SINGLE LIMB (Ea accdent) s1,000,000 BODILY INJURY (Perms) a . ALL OWNEDAUTOS SCHEDULED AUTOS BODILY INJURY (Peraceldent) s X X HIRED AUTOS NON -OWNED AUTOS PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY . AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY: AGG $ ANY AUTO $ A EXCESSIUMBRELLA LIABILITY B1077123463 01/14/06 01/14/O7 EACH OCCURRENCE s3 000 000 AGGREGATE s3 000 000 X OCCUR CLAIMS MADE s s DEDUCTIBLE s X RETENTION 110000 B WORKERS COMPENSATION AND WC406650790 01114/06 01/14/07 X wORY e LIMIT oTH- E.L. EACH ACCIDENT $500,000 EMPLOYERS' LIABILITY OFFICER/MEM ER EXCLUDED? ECUTNE E.L. DISEASE - EA EMPLO $500 000 S' Pea, desalbe olISIdONer S below SECIAL PROV E.L. DISEASE - POLICY LIMIT $1 000,000 OTHER DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT SPECIAL PROVISIONS SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION For Information Only DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL zn DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR AUTHORIZED REPRESENTATIVE ACORD 25 (ZU01108) 1 of 2 #S72781/M72780 JXO 0 ACORD CORPORATION 1968 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. EXHIBIT C ZYSCOVICH, INC. 2006 HOURLY RATE SCHEDULE Managing Principal Principal Senior Associate Senior Project Manager Project Manager Senior Architect Senior Designer Senior Planner Senior Interior Designer Landscape Designer Project Architect Job Captain Interior Designer Designer AutoCAD Technician Landscape Designer Senior Field Representative Field Representative IT Manager IT Staff Administrative Staff IN-HOUSE REPRODUCTION CHARGES PER SQUARE FOOT SMALL SCALE PRINTING Black & White on Bond Paper Color on Bond Paper Color on Glossy Paper LARGE SCALE PLOTTING Black & White on Bond Paper Color on Bond Paper Color on Glossy Paper PHOTOCOPIES 8.5 x I I IIx17 ELECTRONIC FILE REPRODUCTION Compact Disk (CD) EXHIBIT D-3 SUBCONTRACTOR AFFIDAVIT AND PARTIAL RELEASE OF CLAIMS AND LIEN WAIVER STATE OF )Ss. COUNTY OF BEFORE ME, the undersigned authority, on this day personally appeared known to me to be a credible person and. officer of ("Subcontractor"), and who, being duly swom, upon his oath declares and acknowledges as follows: 1. 1 am the duly authorized agent for Subcontractor which has authorized me to make this affidavit, to enter into the agreements and to grant the lien waivers herein set forth, on its behalf and as its acts and deeds, and all the recitations herein are true and correct. 2. Pursuant to an agreement dated 20 between Subcontractor and a corporation ("General Contractor"), Subcontractor has supplied materials and performed labor in connection with the construction of improvements upon certain real property in the described in Exhibit A attached hereto. by this reference ("Land"). Said improvements are more particularly described as and related improvements ("Improvements"). 3. Subcontractor has received payment in the amount of Dollars ($ ) [Insert total of all payments received to date]; for all materials supplied and labor performed by or on behalf of Subcontractor in connection with the construction of Improvements during the period through [Insert date of end of prior progress payment period.] 4. In consideration of and conditioned upon the payment by General Contractor of the sum of Dollars ($ ) [insert total amount requested in present Application for Payment], the sufficiency of which is hereby acknowledged, Subcontractor hereby waives and releases any and all liens, claims, rights and interests (whether choate or inchoate and including, without limitation, all mechanic's and materialmans's. liens under federal law or the statutes of the ) owned, claimed or held, or to be owned, claimed or held by Subcontractor in and to the Land and Improvements, whether or not affixed to or severable from the Land or from any other portion of the Improvements, and/or against the Contractor, the Owner and any other person or party having any ownership int± -rest in such Land and Improvements, to the full extent of the amount set d'� gkove with regard to the work paid for by or on behalf of the Subcontractor. 5. Subcontractror warrants that all costs incurred and bills owed by Subcontractor to others for materials supplied or labor performed in connection with the Improvements through [insert date of end of prior progress payment period] have been fully paid and satisfied. 1 G'+ Subcontractor does further warrant that should any claim or lien be filed for material supplied or labor performed by virtue of Subcontractor's participation in the construction of said Improvements, Subcontractor will immediately furnish a bond for the release of each such claim or lien, obtain settlement of any such claim or lien and furnish Owner and General Contractor a written full release of such claim or lien. Should Subcontractor be unable to obtain such release, Subcontractor agrees to fully indemnify, defend and hold harmless General Contractor and Owner for any and all costs, including but not limited to attomeys' fees, any of them may incur by reason of such claims or liens. EXECUTED this day of 20 SUBCONTRACTOR By: Title: SUBSCRIBED AND SWORN TO before"me the said Subcontractor Affidavit afid Partial .,, Release of Claims and Lien Waiver this day of . 20 , to certify which witness my hand and seal of office. NOTARY PUBLIC in and for the My Commission Expires: LEGAL DESCRIPTION OF REAL PROPERTY 1111 LINCOLN ROAD MATRIX OF RESPONSIBILITIES Report Exhibit C_Matrix of Responskbtiftis Firm Abbreviation 1 Owner UTA Management LLC UTA 2 Design Architect Herzog & de Meuron (HSdeM) H&deM (Herzog & de Me" US Inc, fbrwork conducted in the USA) 3 Local Architect ZYsoovich z 4 Owners representative Development Service Solutions, LLC DSS 5 Structural Engineering Burn HgwM BH 8 MEP Engineering PSS&J PBS&J 7 Clvll Engineering PBS&J PSS&J a Landscape & Hardscape design Jungles Landscape Architects JLA 9 Parking Consultant Timothy Hearts Paiki ng Consultants THPC 10 Fire Code Consultant R.D. Hale, Inc. RDH 11 Geotech nical Engirnaerkg to be selected GE 12 Transportation Ergineerig to be selected TE 13 General Contractor to be selected GC 14 Plan Expediter Pronto Permits PP 15 The Matrix Is based on assistance and collaboration with Overall Design and Consultant team Also refer to contract for further inlan lion Subtitle Schematd Design through Construction Administration KEY P "Primary Responsibility' means responsibility for the proper and timely completion of the task in question S "Support Role" means providing, in a proper and timely manner, those services wilt the supporting Party's areas of particular responsibility and competence reasonably required by the Party, with primary responsibility to complete the task In question C "Comments and Review* means provlm�rg, In a timely manner, such comments as a party may have on documents or other materials prepared by Itte Party with Primary responsibility for the task in question. ,information only' means a party Is entitled to be Informed with respect to the task but has no responsibility unless they recognize an Issue exists requIrbg action SCHEMATIC DESIGN PHASE Prood management :: P:•:• S :: i+•:•:•: Client conferences :: P :: S :::C:::: :•}:•: Design Meeting Minutes ::: P ;:; S Provide program requirements ::5:•:• S :P:;:;•;• Program analysis :: P. ?: S ::•1:•:C Site Analysis {•: P:•:• S :{ :I:•:•:•: Space requirements and relationship :::}P}:: S Building and zoning code analysis :•:•8:•: P :•;•1::•:•: Preparation ofIndependent Cost Estimates ::5:•: 8 :•:•$•:•:•:• P:PBS&J Review of Owner's Construction Cart Esf mate and Project Budget :•:•5•:•: P :::C:::: S: DSS Establish & monitor schedule schematic phase :;: $::: P ?::4::::::: Preparation of Sdsmatic Design Phase Documents based on assistance and collaboration with Design team: She plan - building onty Ease Program ::O:•:•:•: ::C:•:•:•: 8: THCP (parldng) retaliconauRant sc Floor plans Coe layouts :O:• Elevation and building sections Design guidelines :•: f' 8 :: :: :::::; Exterior dadding and roof finish :: 3! :: S Dlsidbullonofdrawings :;:fi1: ; P Co-ominetsappointment of consultants ::•:> }:• P Preparation of M.E.P, Structural, and CM Plans andfor Narratives ::: C •}: S F. PBS&J CoodnadonofWucb WmedhanicallplumbingIelectricalconnrftlMsers consulting eng :•:S:•: P ;:;:}R: ;:;. C Renderings, modals, phoography. brochure production - (If required additional service) Cdlelion of completed schematic design documents :;: §:;:; P PreserMaGonofsdtertra' toowrsr ::: :•:• S :;:;:L,:;•;•;• Seledbnofmajor building materials :•::P.:•: S :•:•:C:•:•:•: S:DSS P~raft review and Operation ::C:; S ::7C•:•:•:• P:THPC Tednicalquality control and code compliance •:•:'k':•:: P •:;.;1;.;•;.:. �;•:::•:• Preparation of Landscape Plans and/or Narratives :•:• $::•: C :::::C:•::•: P: JLA R"Sed 612-2005 1 of 5 Produced by Participants Prht deft Wg/2003 1111 LINCOLN ROAD MATRIX OF RESPONSIBILITIES Report Exhlbit C_Mahk of Responsuilit Finn Abbreviation 1 Owner UIA Management LLC UTA 2 Design Ardtled Herzog & de Msurat (H&deM) (Herzog & de Memuon US Inc, forwork conducted In the USA) H&dsM 3 L.a:elAtd*act Zys 1d1 Z 4 Owners representative Development service Solutions, LLC DSS 5 Structural Engineering Buro Happold BH e MEP Engineering PSS&J PBS&J 7 Civil Engineering PBS&J PSS&J 8 Landscape & Harlscepe design Jungles Landscape AmNiects JLA 9 Parking Consultant Timothy Haahs Padding Consultants THPC 10 Fire Code Consultant R.D. Hole, Ina RDH 11 Geotedatcal Engineering to be selected GE 12 Transportation Engineering to be Waded TE 13 General Contractor to be selected GC 14 Plan FVediter Pronto Permits PP 15 The Metric Is based on asaletarm and collaboration with Overall Design and Consultant team Also refer to mrtradforfurlherInformation Subtitle $dramatis Design through Construction Administration KEY P "Primary Responsibility means responsibility for the proper and timely completion of the task in question S 'Support Role means prodding, in a proper and timely manner, those services wi Nn the supporting parry's areas of particular responsibility and competence reasonably required by the party with primary responsibility to complete Me task in question C "Comments and Revlevl' means providing, In a timely manner, such comments u a party may have on documents or other materials prepared by the Party with primary responsibility for the task In question. I "Information only" means a party Is entitled to be informed with respect to the task but has no responsibility unless May reeog ize an Issue exists requiring action DEMON DEVELOPMENT PHASE { Project management ::$:: P Meeting Minutes - General - Hard meetings w/corsultants, city au8norltles :.:0:;: P ::: ::: C: D$S Meedng Minutes -De3ign/Ctent meetings - Chris Ft :: S ::A:•:•: C: DSS Client carderences-design :::�'::: 8 Coo "ton of stnucurall mednaniceU Plumbing/ electrical consulting enairlam :5::: P :: ::::•:• Coordination and Incorporation of design details and specs icall— recommended :: S :: ..... P :•::o:::•: . . .... or prepared by otisr sub- eonsultea to e.g. cladding. elevator, landscape alo. Selection of major building material :: P:: S ::: Q•:::: S: DSS Preparation of Independent Cost Estimates C:• S ::C::•'•' P:PBW Review of Owners Construction Cost Estimate and Project Budget ::O: •: 8 P: 088 Establish & monitor schedule for sdmmatic phase :•: �4::.: P .. ..... .... Prepareton of Design Development Documents based on assistance and collaboration with Design team: Ste plan - building only Base Program :•: •:C: •:•: •: Rod and Floor plans Cel" Plans Coe layouts ParkinglkafAcreview and Operation ::0:?• 8 :•:7E•::•:• P:THPC Interior layouts and Plane •:•it•:•: S =•:C:•:•:•: Elevations and building sections >: :: s Development & 000rdinst of ouWs specification ::•:• C::::: C: Dss Refinement ofexterior cladding and rod &*M - ::7!•:•: 8 :•:•:0::•:•: Distribution of drawings :9:: P •:.N Tedw" qallly control and code compliance :•: 5:: P ::I:: :• Coordination of mock. ups prepared In in the U.S. (additional service) : P S C}: Coordination of mock- ups prepared in Switzerland •:•:•P:•:• S :: >r ::•: Review plans with applicable agencies P ::1:::: :•:?•:• Coordination of renderings, models, photography and brochures (if required additional service) ::::•P.:::: S ::•:::N; ,';•: Coordination and collation of completed design development documents :: S:: P :::::?L :: Presentation ofdesign development documents toowner :A S :•::o:•:•:•' Preparation of M.E.P, Structural, CiW and Landscape Plans, Narratives and Specifications •:;:C:}: S :::{ ;:;:::: P: PBS&J Coordination of M.E.P, Struoxal, Civil and Landscape Plans. Narratives and SpeciMstions ::•:$:::: P :::::t ; ;•;• P: PBS&J Coordination and Incorporation ofSpec" Consukams :1 P :.?:C} :•: C Revised 8-12-2008 2 01` 5 Produced by Participants Print dab B/29/2005 1111 LINCOLN ROAD MATRIX OF RESPONSIBILITIES Report Exltblt C_MeMx of Responslb" Finn Abbreviation 1 owner UTAManagementLLC UTA 2 Arctttect Heaog & de Meuroh (H&deM) (Herzog & de Meuron US Inc. for work conducted In the USA) H&deM 3 Local ArchtW ZYscovicth Z 4 Owners representative Development Service Solutions, LLC DSS 5 Str t" Engineering Brno Happoki BH 6 MEP FJgtteertn9 PSSW PBS&J 7 Civil Engineering PBS&J 5 Landscape & Hardatxghe design Jungles Landscape Archkocts POW JLA 9 Parting Consultant Timothy Haahs Parking Consultants THPC 10 Flre Cade Consultant R.D. Hale, Inc. ROM 11 Geoleftical Engineering to be self GE 12 Transportation Engineering to be selected TE 13 General Contractor to be selected GC 14 Plan Expediter Pronto Permits PP 15 The Mob* Is based on assistance and collaboration with Overall Design and Consultant team Also refer to contract forfurtlher information Subtitle Scharnetc Design through ConsWction Administration KEY P 'Printery Responsibllky" means responsibility for the proper and timely completion of the task in question S 'Support ROW means providing, In a proper and tmey, manner, those services within On supporting pertys areas of particular responsibility end competence reasonably required by the Party with primary resppnsib k to complete the task In question C "Comments and Revlem" means providing, In a tknaly manner, such comments as a party may have on documents Or othar materiels prepared by the Party, with primary responsibility for the task in question. I 'Information oW means a perry Is entitled to be Informed with respect to the task but has no responsibility unless they recognize an Issue exlero requiting action CONSTRUCTION DOCUMENT PHASEAl" . PmW management P ..... Meatkg Mkhrrles::::;: P Client Wilerances : ;• 8-:•: P :: ::•:•: :•3:•: Preparation of Independent Cost Fstimates :•:3:•:• 8 :•:•v:•:•:• P:PBS&J Review of Owrrals Consuuctlat Cost Estimate and Pro)ect Budget P ::: C:::: P: DSS Establish & mordordrawig schedule }; P }:?f}: }: C: DSS Reviewlbr adharance to design IntsM ....: : Establish Scope of convact documents :: )E•:•: P :::il:•:•:•: preparation of Construction Documents based on assratance and collaboration wilt Design team Architectural working drawings P •:C:•::: :}3}' DOMWfor owhadingendowreand cladding ::a:•:• P ::•>E•:•:•:• :4 Specifications :::::;: P S: DSS : S: Finishes Submittal of construction documents to applk:eMe agendas �:�:�:�:� Submittal of construction documents to owner ::::3t::::I P :•::O:•:•:•: Coordination withLandscape Architect •:':•S:•:• P •:•:•:C•:•:':• :•:!•:• Coordination of engineering services P Coordination of mock• ups and prototypes prepared In the U.S. Cif required additional service) :: P.:: S : •: •:C:: •: •: Quality Control for Design Intent adherence :•:P:•:• S :•:•:1::•:•:• Code Compliance Preparation of Building Permit Documents Prepare aid submit requkad drawings for peraft Respond to Coda Review questions and comments. P C: PP C: PP :':'A:::: P P :: •:C:::: :: ::: C ReviW O-12--2DOB 3 of 5 Produced by Participants Print data 8=005 1111 LINCOLN ROAD MATRIX OF RESPONSIBILITIES Report &'hCJdatrbc of Realognsibilitk Firm Abbreviation I Owrw UIA Management LLC UIA wog & de Mason (H&deM) wog H&deM 2 Design Architect & do Meuron US Inc. for work conducted In the USA) 3 Local Architect Zyacovich z DSS 4 Owners representative Development Service Solutions, LLC a Structural Engineering Sure Happold BH 6 MEP Engineering PBS&J PBS&J 7 Civil Enginsenng PBS&J PBS&J 8 Landscape & Hardscape design Jungles Landscape Architects JLA 9 Pandng Consultant Timothy Keahs Parking Corlwitants THPC 10 Fire Code Consultant R.D. Hale, Inc. RDH 11 Geotechrlical Engineering to be selected GE 12 Transportation Engineering to be selected TE 13 General Contractor to be selected GC 14 Plan Expediter Pronto Permits Pp 15 The Mebrix is based on assistance and collaboration with Overall Design and Consultant team Also refer to contract for Itffiller Information Subtitle Schematic Design through Construction Administration KEY P "primary ResponsibW means responsURY for the proper and Itmelly completion of the task In question S"Support ROW means pvAdlng. in a proper and timely manner, those services within the supporting party's arms of particular mW-"tY and 00ffWQW- reasonably m9Arsd by the party with primary rasp —lb" to complete the task In quesWn C "Comments and RGAW means providing, in a " manner, such comments as a party may have on doollmer" or other materials prepared by the Party with primary responsibility for the task In question. I "Information ony means a party is enNeW to be killarmed with respect to the task but has no responsibility unless they recognize an Ism exists Mquiring action BID AND NEGOTIATION Project Management S: DSS Reproduction and distribution of plans and spedficadons P Conduct prwaward bid tours and conferences P :I: DSS Preparation of addenda P Process of contractors questions and WOM1011011 during bidding P 81 DSS provide analysis and recommendations of bids and alternates P %= S:-DSS Assist In any negotiations with bidders ---------- 3: DSS CONSTRUCTION ADMINISTRATION PHASE I ...... ......... ..... or Construcljon Administration P S:DSS Mee" Minutes p C: DSS Coordnatton of engineering services p Review for achar9rcO 10 ds$W intent- Including relative WW dm"s ........ .... Administration d the ConblWj: ...... .... .... .... based on assistance and collaboration with Design team issue instructions and Interpretall" to GenWW Col tic ::::1*1:::: P Afterld we" cOnSWC11011 meetings p Conduct site observation visits ..... P ........ P:DSS Prepare progress reports Is S: DSS Collation and review of shop dr-AW P Material and sample review ox Make recommendations to owner to raled work not in conformance ..... P ........ Supplementary drawings for clankall0rdRIl response Is Review charge orders 5 P:DS8 Review a Respond to Shop Drawings for Curtain Walk Finish Metals, G"M, Doors• Finish Concrels mW LVOV p S:DS9 Evaluation of Materials Substitutions ... S ........ S:DSS Cost P:DS8 Schedule P: DSS Review application for payment P:DS3 Substantial completion Inspection F, S:DS8 Final completion Inspection Is S:DS8 Co-ordinate preparation of warranties, and operations and maintenance manuals P .... jPreparadon and coordination of"as buift"drewings (Additional Service) Is S: DSS Revised 6-12-2005 4ofs Produced by Participants Print date 029FI008 1111 LINCOLN ROAD MATRIX OF RESPONSIBILITIES Report Exhibit C Matrix of Responeibiltie Fens Abbreviation 1 Owner UTA Management LLC UTA 2 Design Amhitect Herzog & de Masai (H&deM) H&deM (Herzog & de Meuron US Inc, for work conducted In the USA) 3 Local Archtect Zyscovidt Z 4 Owners representative Development Service Solutions, LLC DSS s Structural Engineering Buro Happold BH 8 MEP Engineering PBS&J PBS&J 7 Civil Engineering PBS&J PB88"I 8 Landscape & Hardsoape design Jungles Landscape Archteds JLA 9 Poking Consultant Timothy Heahs Parking Consultants THPC 10 Fire Code Consultant R.D. Hale, Inc. RDH 11 Geotechnlcal Engineering to be selected GE 12 Transportation Engineering to be selected TE 13 General Contractor to be selected GC 14 Plan Expediter Pronto Pemrits PP 1s The Matrix is based at aselstanos and collaboration with Overall Design and Consultant team Also refer toconh forfnutitertrdormatlon Subtitle Schematic Design through Construction Adm4Nstration KEY P "Printery Responsibility" means responaWWly for Me Proper and timely completion of the task in question 8 -Support Role" means Providing, In a proper and timely manner, those services within the supporting party'& areas of particular responsibility and competence reasonably req<Ared by the party with primary responsibility to complete On task In qusetbn C "Comments end Review' means Provkitrg; In a tiny mamter, such oo miens as a eery may have on documents or otiter materials prepared by the Poly with primary responsibility for the task In question. 1 "Intonmallon only" means a party Is entitled to be Informed with respect to the task but has no responsibility unless they recognize an issue -as requl ft action POST CONSTRUCTION SERVICES ....... . ....... ...... ......... ..... ....... .......... Assist in correction of detects and cloWencies covered by guarantees :::tit:::: C •: •::;$ •:::•:• P: DSS Conduct eleven monen lnspedion and review and issue report :: N :: P :::.9::: •:•: S. D88 �•51x=H 1 Representatives of both the Design Consultant and Executive Architect shell attend the meetings. 2 Both the Design Co nsukantt and the Executive Architect shall review the documents for compliance to codes; however, the Executive, Audited remains responsible for ultimate compliance to applicable codes and requirements. 3 The Design Consultant will review and direct all areas of detail design and construction documentation with rasped to aesdwtic intent Including Sped licalbn review. 4 The Design Consultant will review documents pwWk ft to all areas for conformance to aestlnetic design Intent and quality, etted all contractor suppler meetings and assess the design as appropriate. s Minutes of Construction Meetings shall be prepared by tits Architect, and shell be copled to the Design Consultant Revised 8-12-20D8 s of s Produced by Participants Print date 826WW �•51x=H 1 Representatives of both the Design Consultant and Executive Architect shell attend the meetings. 2 Both the Design Co nsukantt and the Executive Architect shall review the documents for compliance to codes; however, the Executive, Audited remains responsible for ultimate compliance to applicable codes and requirements. 3 The Design Consultant will review and direct all areas of detail design and construction documentation with rasped to aesdwtic intent Including Sped licalbn review. 4 The Design Consultant will review documents pwWk ft to all areas for conformance to aestlnetic design Intent and quality, etted all contractor suppler meetings and assess the design as appropriate. s Minutes of Construction Meetings shall be prepared by tits Architect, and shell be copled to the Design Consultant Revised 8-12-20D8 s of s Produced by Participants Print date 826WW ADDENDUM to AIA B151 Agreement dated August 31, 2006 BETWEEN MBEACH1, LLLP, a Delaware limited liability limited partnership, authorized to transact business in Florida as MBEACH1, LLLP, Ltd. 1111 Lincoln Road Suite 760 Miami Beach, FI 33139 (hereinafter, "Owner"), AND Zyscovich, Inc. 100 N. Biscayne Blvd. Suite 2700 Miami, FL 33132 (hereinafter referred to as "Zyscovich" or the "Architect") 1. Zyscovich shall contract directly with the Civil Engineering firm, Kimley-Horn & Associates, Inc. ("KHA"), for all traffic and civil design work necessary for the above project. 2. In recognition and consideration for Zyscovich's signin a sub -consultant agreement with KHA that includes KHA's limitation of liability in the amount ofOwner agrees that: a) in the event of a loss or claim by Owner, connected with the performance of the services of KHA Owner shall pursue or sue KHA, by assignment and/or directly, for any claims within the imitation of liability. b) Owner shall limit any claims against Zyscovich for KHA related services, that are in excess of KHA's limitation of liability, to the available or remaining limits of Zyscovich's professional liability insurance policy. 3. Zyscovich hereby assigns to Owner, all contractual rights necessary, for Owner to sue KHA directly for any Owner claims related to KHA's sub -consultant contractual services. 4. The words "or by arbitration" shall be deleted from the last sentence in section § 7.1.1 of the Prime Agreement. OWNER MBeachl, LLLP, a Delaware limited liability limited partnership, authorized to transact business in Florida as MBeachl, LLLP, LTD. By: MBeachl GP, LLC, a Delaware limited liability company, its General Partner. By: Urban Investments Advisors, LLC, a Delaware limited liability company, its sole member. By: Wellspring Investments Management I, LLC, a Delaware limited liability company, its Managing Member. (Si iature) By: Robert S. Wennett Its: Managing Member ARCHITECT Zyscovich, Inc. IF( ffl-W-W4V, o4mu� By: Bernard Zyscovich, AIA Its: President EXHIBIT "E" CONSTRUCTION SCHEDULE [attached] M IAM I 12 8715 7.1 7713 726901 a. (D W Go Ae U) m 0 (a Cl) to 0 U) C, co CO (D co a) v co V) U) U) a. 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O L j N o r U W l[t ��; E a ..N_. tU 0 c N N N T T T mW N T mN CO T N T t0 N T m0 N T N T 0to N T 01 T T Co N N tq N -; N N N N..... 7 N : v v v v v v a v tp a is N v N o A 9 to :v wto a v"M m m 'o Ma v A I co ' M cM Cl) �M M M M CM M M M M: M M cM M M M p 10 O O I M i 0 O O u� to to .M d I N ti cm Y n co Z C N ►m to o a w j c° y N c Y I 7 _ I N Y � C O ts H N N N N cm .� ❑ I ❑ ❑ ^ co y c r E o c� a U m m 3 ay t° w Z j Q W = N C ;, co Z Y C c I to N N N. L 01 •N y N C .O- c 'O 'O w Z N N a7 c O N Z ❑ C n�p _Ol C n 47 N N y U C C N to N H Z In N y. :O w _•7 p p Z L C ZQ i C1 a :E .a W Z t o `� m m m E to m LL S` ',� .H Z o y Y iJ to a a a to to CL LL M W U m _ iU O F -r �* ❑ N H ! F- N a LL. I U a Z o a IN IM `10 'tO TO !4] 10 N ❑ Cl) Cl) co IM M t• M aD�O1 M M iv `N sf M t ;" itO !� 1� y I� aD I� O � E EC. +y' p n a I ao C, 0 v a LL co O " ~ o F-I a` m ,u a0 G� ..... ... .... i i:. ♦ .._.� V r L. C Oil Y N UJ U w CD I H y � E E E E c a co LL F-i Q3 0 o N co O a E v ii E m . _. _.._ ....... _ _.... _... _.. . _ CDr c m E a �O v I J � _ _ �I c Vl o� LL, = C o V 0 Z ~� iO f y = 01 J M l o C w g I of N •- �� Q C E� Q � o _ _ _ ZO J o a N o Z�- a. a C%l N r co G n a EXHIBIT "F" DEVELOPMENT APPROVALS Certificate of Completion Demolition Permit Department of Environmental Protection Permit ( if required) Department of Environmental Resource Management Permit FDOT Permit Building permits for: Electrical Plumbing Miami -Dade County Public Works Department Permit (if required) Public Works Permit, Paving and Drainage Public Works Permit, Water and Sewer Such other permits as may be required by Federal, State and local law MIAMI 1287157.1 7713726901 EXHIBIT "G" BUDGET FOR REPLACEMENT OF SIDEWALKS, CURBS AND GUTTERS [attached] MIAMI 1287157.1 7713726901 LINCOLN ROAD PEDESTRIAN CONVERSION ALTON ROAD TO LENOX AVENUE The aforementioned Opinion of Probable Cost (OPC) is based on schematic plans. The costs shown are based on engineering assumptions which will be adjusted upon final determination of the design. This OPC is non -binding and subject to change. 1 of 1 1 /5l2007 EXHIBIT "H" DOCUMENTS PROVIDED BY THE CITY TO DEVELOPER 1. Water, sewer and stormwater utility drawings for Lincoln Road, N. Lincoln Lane and Alton Court. 2. Memoranda to Finance and Citywide Projects Committee meetings and Commission meetings. 3. Sonar study of all existing underground facilities, equipment and utilities within the Project Site. MIAMI 1287157.1 7713 726901