Development Agreement
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OFFICE OF THE CITY ATTORNEY
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MURRAY H. DUBBIN
City Attoruey
September 28, 1999
Telephone:
Telecopy:
(305) 673-7470
(305) 673-7002
Mr. Ray Eubanks
Division of Community Planning
Florida Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, FL 32399-2100
VIA FEDERAL EXPRESS
Re: Development Agreement between City or Miami Beach, Florida and
Lincoln Plaza Partners LLC
Dear Mr. Eubanks:
Enclosed herewith please find a copy of the Development Agreement dated September 1, 1999,
between the City of Miami Beach, Florida and Lincoln Plaza Partners LLC which has been recorded in the
Public Records of Miami-Dade County, Florida, and is being submitted to you in accordance with the
requirements of Section 163.3239, Florida Statutes.
If you have any questions concerning this Development Agreement, please feel free to call upon me
at your convenience.
Please acknowledge receipt hereof by signing and returning to me the attached copy of this letter
in the self-addressed, stamped envelope which I have provided for such purpose.
Very truly yours,
~ .
Lawrence A. evy
First Assistant City Attorney
LALlbfg
Receipt ACknowled$edL.,
Date: 9/3/Jrt
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1700 Convention Center Drive - Fourth Floor - Miami Beach, Florida 33139
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99R463146 1999 SEP 03 14=00
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DEVELOPMENT AGREEMENT
\
between
CITY OF MIAMI BEACH, FLORIDA
("Owner")
and
LINCOLN PLAZA PARTNERS LLC
("Developer")
Dated as Of~, 1999
LINCOLN PLAZA PROJECT
Prepared By and Record and Return to::
Joel N. Minsker, Esq. of
Joel N_ Minsker, P.A. of
Bloom & Minsker
1401 Briekell Avenue
7th Floor
Miami, Florida 33131
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TABLE OF CONTENTS
Page
TERMS OF AGREEMENT .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -2-
ARTICLE 1
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -2-
ARTICLE 2.
CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -9-
Section 2.1 Consistency with City's Comprehensive Plan and Zoning Rel!ulations -9-
Section 2.2 Planning Board Aooroval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -9-
Section 2.3 Desi1!D of the Proiect. . . . . . . . . _ . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -9-
Section 2.4 Public Facilities and Concurrency .. . . .. ..., . ., . . . . . . ., . . . . . .. -10-
Section 2.5 PJ~n~ and Specifications ................................... -11-
Section 2.6 Conditions Precedent to Developer's Commencement
of Construction of the Project. . . .. . ... . . .. ... . .. ... . . . . . . . . .. -11-
Commencement and Comnletion of Construction of the Proiect. . . .. -12-
Comnletion of Construction of the Proiect. . ., . . . . . ., .. . . .. . . . .. -13-
Confirmation of Land Develonment Re~ations. . . . . . . . . . . . . . . .. -14-
Reauired Develonment Permits. ............................. -14-
Prooosed Permitted Develonment. ............................ -14-
Develoner's Right of Termination. ........................... -14-
Section 2.7
Section 2.8
Section 2.9
Section 2.1 0
Section 2.11
Section 2.12
ARTICLE 3.
PLANS AND SPECIFICATIONS ...................................... -15-
Section 3.1 kpproval and Modification of Plans and Snecifications. .......... -15-
Section 3.2 Reserved.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " -17-
Section 3.3 Comnliance with Requirements: Construction Standards. ......... -17-
Section 3.4 ProiectBudget.....................................,...... -17-
Section 3.5 Desi1!D and Decor. ........................................ -18-
Section 3.6 Develonment Disnute. ..................................... -18-
ARTICLE 4.
OWNER PARTICIPATION ........................................... -18-
Section 4.1 Owner's Ril!.htto Use Field Personnel. ........................ -18-
Section 4.2 Owner's Ril!.ht to Notice. Access and Review. .................. -19-
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ARTICLE 5.
MISCELLANEOUS CONSTRUCTION PROVISIONS .................... -21-
Section 5.1
Section 5.2
Section 5.3
Section 5.4
Reserved. ............................................... -21-
Names of Contractors. Materialmen. etc. ...................... -21-
Construction Al!Xeements.. . . . '" .. . . . . " . . . . . . . . .. . . . .. . . .. -21-
Demolition of the Proiect Site. . . . . . . . . . . .. . . . . . . . .. .. . . . . . . .. -24-
ARTICLE 6.
FINANCING OF PROJECT CONSTRUCTION
AND DISBURSEMENT PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -24-
Section 6.1 Develooer's Contributions. . . . . .. . . . . . . ... . . . . . . . . . . . .. . . . . .. -24-
Section 6.2 Fees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., -24-
ARTICLE 7.
INSURANCE ....................................................... -25-
ARTICLE 8.
DAMAGE, DESTRUcnON AND RESTORATION ...................... -25-
Section 8.1 Casualty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -25-
Section 8.2 Effect of Casualty on this Al!Xeement. . . . . . . . . . . . . . . . . . . . . . . . ., -25-
ARTICLE 9.
CONDEMNATION .................................................. -25-
Section 9.1 Taking.. .. .. . . ... .. . . . .... .. .., . . . .. . . ...., ., . . .. . " . . .. -25-
Section 9.2 Effect ofTakinl! on this Al!Xeement. .......................... -26-
ARTICLE 10.
RIGHTS OF RECOGNIZED MORTGAGEE ., . . . . . . . . . . . . . . . . . . . . . . . . .. -26-
Section 10.1 Notice and Ril!htto Cure Developer's Defaults. '" ......... ..... -26-
ARTICLE 11.
NO SUBORDINATION .............................................. -27-
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ARTICLE 12.
MAINTENANCE AND REPAIR ............................. .......... -27-
Section 12.1 Maintenance of Proiect Site. .......................;........ -27-
Section 12.2 Waste DisPosal. .......................................... -28-
ARTICLE 13.
REQUIREMENTS. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . " -28-
Section 13.1 Reauirements. ........................................... -28-
ARTICLE 14.
DISCHARGE OF LIENS ............................................. -29-
Section 14.1 ~reation of Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -29-
Section 14.2 Dischar'le of Liens. ....................................... -30-
Section 14.3 No Authoritv to Contract in Name of Owner. ................... -31-
ARTICLE 15.
NO LIABILITY FOR INJURY OR DAMAGE, ETC. ..................... -31-
ARTICLE 16.
INDEMNIFICATION................................................ -31-
Section 16.1 Indemnification Generally. ................................. -31-
Section 16.2 Governs Al!reement. ...................................... -32-
Section 16.3 Survival................................................. -32-
ARTICLE 17.
CERTIFICATES BY OWNER AND DEVELOPER....................... -32-
ARTICLE 18.
RIGHT TO PERFORM THE OTHER PARTY'S COVENANTS. . . . . . . . . . .. -32-
Section 18.1 Ri~ht to Perform Other PartY's Obligations. .................... -32-
Section 18.2 Dischar2e of Liens. ....................................... -33-
Section 18.3 Reimbursement for Amounts Paid Pursuant to this Article. ........ -33-
Section 18.4 Waiver. Release andAssumDtionofObli~ations. ................ -33-
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ARTICLE 19.
EVENTS OF DEFAULT, CONDITIONAL
LIMITATIONS, REMEDIES, ETC. .,. . . . . .. . . . . .. . . . . . . . . . . . . . . . . . . ... -34-
Section 19.1 Definition. .............................................. -34-
Section 19.2 Enforcement of Performance: Damages and Termination. ......... -36-
Section 19.3 Exoiration and Termination of Al!reement. . . . . . . . . . . . . . _. . . . . .. -36-
Section 19.4 Strict Performance. ....................................... -36-
Section 19.5 RiS!.httoEnjoinDefaults ................................... -37-
Section 19.6 Remedies under Bankruotcv and Insolvency Codes. . .. .. . . . . . . . .. -37-
Section 19.7 Inspection. .............................................. -38-
ARTICLE 20.
NOTICES, CONSENTS AND APPROVALS. . . . . . . . . . . . . . . . . . . . . . . . . . . .. -38-
Section 20.1 Service of Notices and Other Communications. ................. -38-
Section 20.2 Consents and AoVrovals. .................... . . . . . . . . . . . . . .. -39-
Section 20.3 Notice of Detailed Plans. ................................... 41-
ARTICLE 21.
FINANCIAL REPORTS AND RECORDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 41-
Section 21.1 Books and Records: Audit Rights. .. . . . .. . . . . . .. . . " . . . . .. . . .. -41-
ARTICLE 22.
ARBITRATION................................... ............ ...... 42-
Section 22.1 Exoedited Arbitration of Develooment Disputes. ................ 42-
Section 22.2 LitiS!.ation................................................ -44-
ARTICLE 23.
NO PERMIT OR WAIVER OF FEES .................................. -44-
ARTICLE 24.
INVESTIGATIONS, ETC. ....... . .. . . . .. . . . .. . . . . . . . . . . . . .... . . . . . . .. -45-
ARTICLE 25.
HAZARDOUS MATERIALS.... ....................... ............... -45-
Section 25.1 General Provision. ........................................ 45-
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Section 25.2 Survival................................................. -45-
ARTICLE 26
MISCELLANEOUS ................................................. -45-
Section 26.1 Governing Law and Exclusive Venue. . .. . " . .. .. '" . .. . . . .... -45-
Section 26.2 References............................................... -46-
Section 26.3 Entire Alp'eement. etc. ..................................... -46-
Section 26.4 Invalidity of Certain Provisions. ............................. -47-
Section 26.5 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -47.
Section 26.6 Performance at Each party's Sole Cost and Expense. ...... . . . . . .. -47-
Section 26.7 Recognized Mortgagee ChargeS and Fees. ..................... -48-
Section 26.8 Time is of the Essence. .................................... -48-
Section 26.9 Successors and Assilms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. -48-
Section 26.10 Notice of Defaults. __...... . .. . . . . . . . . .. . .. .. .. ...... . .. . .. -48-
Section 26.11 No Renresentations. . . . . . .. . . .. . . . . . . . . . . . .. . . .. .. .. . . .. . .. -48-
Section 26.12 CoftlOrate Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .48-
Section 26.13 Nonliability of Officials and Emnlovees. " .... . ... '" ... ... . ... -49-
Section 26.14 Partnershin Disclaimer. .. . . . . . . . . . . . . . . .. .. .. . .. .. .. .. . .... -49-
Section 26.15 Time Periods. . . .. . . . .. . .. . . . . . . . . . . .. .. . . . . .. .. .. .. . . . ... -49-
Section 26.16 No Third Party Rights ..................................... -50-
Section 26.1 7 No Conflict ofInterest. .................................... -50-
Section 26.18 Recording of Develonment Agreement. ....................... -50-
Section 26.19 Duration of This Develooment Agreement. . .. . . .... .. .. . . . . . . .. -51-
List of Exhibits . . . . . . . . . . .. ... .... .. ...... . . .... .. . . . . . '" "'" . " . ., '" . .. -53-
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D~VELOPMENTAGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of the J.d>
day of.s~ 999 (the "Commencement Date") by and between the CITY OF MIAMI
BEACH, FLORIDA ("Owner"), a municipal corporation duly organized and existing under the
laws ofthe State of Florida, LINCOLN PLAZA PARTNERS LLC, a Florida limited liability
company ("Developer").
RECITALS:
WHEREAS, on December 30, 1997, pursuant to the authorization of the Mayor and City
Commission, the Administration issued a Request for Proposals for the development of public-private
parking facilities in the area of south Dade Boulevard (the "RFP"); and
WHEREAS, the City issued the RFP in order to solicit qualified development teams to bid
on certain publicly-owned sites identified in the RFP and/or to propose the development of parking
on privately owned property; and
WHEREAS, on April 6, 1998, the City received proposals from five (5) different
development teams for various sites throughout the South Beach area; and
WHEREAS, on June 30, 1998, an Evaluation Committee appointed by the City Manager and
approved by the Mayor and City Commission, heard presentations from the five teams; and
WHEREAS, in accordance with the criteria identified in the RFP, the Evaluation Committee
ranked the proposals and provided their recommendations to the City Manager; and
WHEREAS, on July 15, 1998, the City Commission adopted Resolution No. 98-22857,
authorizing the Administration to negotiate with a joint venture composed of SRC Lincoln Plaza
LLC, a Florida limited company and RDP LincolnPlazaLLC, a Florida limited liability company and
Michael Milberg (which joint venture is now known as Lincoln Plaza Partners LLC), with regard to
the site located between 17"' Street and Lincoln Lane and Jefferson and Michigan Avenues in the
City; and
WHEREAS, said negotiations have been concluded and the Mayor and City Commission,
in Resolution No. 99-23236, adopted after two (2) duly noticed public hearings held pursuant to the
Development Agreement Act and Sections 82-36 through 82-40 of the City Code. It is in the best
interest of the City to enter into an Agreement of Lease and Development Agreement with Lincoln
Plaza Partners LLC for the development of the aforementioned Project Site.
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TERMS OF AGREEMENT:
NOW, THEREFORE, it is hereby mutually covenanted and agreed by and between the
parties hereto that this Agreement is made upon the terms, covenants and conditions hereinafter set
forth.
ARTICLE 1
DEFINITIONS
All capitalized terms used herein and not specifically defined herein shall have the meanings
ascribed thereto in the Ground Lease. For all purposes of this Agreement the terms defined in this
Article 1 shall have the following meanings and the other provisions of this Article 1 shall apply:
"Accounting Principles" shall have the meaning provided in the Ground Lease.
" Affiliate" or ': Affiliates" means, with respectto any Person, any other Person that, directly
or indirectly, through one or more intermediaries, controls or is controlled by, or is under common
control with, such Person. forpurposes hereof, the term" control" (including the terms "controlled
by" and "under common control with") shall mean the possession ofa Controlling Interest. Unless
the context otherwise requires, any reference to "AffIliate" in this Agreement shall be deemed to
refer to an Affiliate of Developer.
"Architect" means a person or firm licensed to operate as an architect in Miami-Dade
County, Florida.
"Building Permit" means a "Full Building Permit" as such term is defmed in the Land
Development Regulations, issued by the Building Department of the City, which allows building or
structures to be erected, constructed, altered, moved, converted, extended, enlarged, or used, for any
purpose, in conformity with applicable codes and ordinances.
"Building Equipment" has the meaning provided in the Ground Lease.
"Business Day" or "business day" means a day other than Saturday, Sunday or a day on
which banking institutions in the State of Florida are authorized or obligated by law or executive
order to be closed.
"City" means the City of Miami Beach, Florida, a municipal corporation duly organized and
existing under the laws of the State of florida.
"City Code" means the Code of the City of Miami Beach, Florida, as amended through the
date hereof.
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"City Commission" means the Mayor and City Commission of the City of Miami Beach,
flm;ida the governing body of the City, or any successor commission, board or body in which the
general legislative power of the City shall be vested.
"City Manager" means the chief administrative officer of the City, or his or her designee.
"Commence Construction" or "Commencement of Construction" means the
commencement of major work (such as pilings or foundations) for construction of the Improvements
in accordance with the Plans and Specifications to be performed in connection with Construction of
the Project. Promptly after Commencement of Construction, Owner and Developer shall enter into
an agreement acknowledging the date of Commencement of Construction. Any and all preliminary
site work (including, without limitation, any environmental remediation and ancillary demolition) shall
not be deemed to be Commencement of Construction.
"Commencement Date" has the meaning provided in the preamble of this Agreement.
"Completion Deadline" means the date that is twenty-four (24) months from the
Construction Commencement Date.
"Comprehensive Plan" means the Comprehensive Plan which the City adopted and
implemented for the redevelopment and continuing development of the City pursuantto Chapter 163,
Part II, Florida Statutes.
"Concurrency Requirements" has the meaning provided in Section 2.4(b).
"Consenting Party" has the meaning provided in Section 20.2(c)(i).
"Construction" or "Construction ofthe Project" means the construction on the Land of
the Project.
"Construction Agreement(s)" means, collectively, any general contractor's agreement,
architect's agreement, engineers' agreements, or any other agreements for the provision oflabor,
materials or supplies entered into with respect to the Construction of the Project, as the same may
be amended or otherwise modified from time to time.
"Construction Commencement Date" has the meaning provided in Section 2.7.
"Construction Work" means any construction work performed under any provision of this
Agreement and/or the Construction Agreements with respect to the Construction of the Project.
"Contractor" means any contractor, subcontractor, supplier, vendor or materialman
supplying services or goods in connection with the Construction of the Project.
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"Controlling Interest" means the ownership of greater than fifty percent (50%) of the voting
oWJ;1ership interests in a Person or the ownership of greater than fifty percent (50%) of the votes
nec~ssary to elect a majority of the board of directors or other governing body of such Person.
"CPM" has the meaning provided in Section 4.2(b).
"CPM Schedule" has the meaning provided in Section 4.2(b).
"Default" means any condition or event, or failure of any condition or eventto occur, which
constitutes, or would after the giving of notice and lapse of time (in accordance with the terms of this
Agreement) constitute, an Event of DefauIt.
"Default Date" means the date which is twenty-four (24) months after the Construction
Commencement Date.
"Default Notice" has the meaning provided in Section 19.1(b).
"Design Review Board" or "DRB" means 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.
"Detailed Plans" has the meaning provided in Section 4.2(a)(iv)(2).
"Developer" means Lincoln Plaza Partners, LLC, a Florida limited liability company.
"Development Agreement" (or this "Agreement") means collectively, this Development
Agreement and all exhibits and attachments hereto, as any of the same may hereafter be
supplemented, amended, restated, severed, consolidated, extended, revised and otherwise modified,
from time to time, either in accordance with the terms of this Agreement or by mutual agreement of
the parties.
"Development Agreement Act" means the Florida Local Government Development
Agreement Act, Section 163.3220, et. seq., Florida Statutes (1998).
"Development Approval" includes any zoning, rezoning, conditional use special exception,
variance or subdivision approval, concurrency approval under Section 163.3180, Florida Statutes,
or any other official action oflocal government having the effect of approving development ofland.
"Development Arbitrator" shall have the meaning provided in Section 22.1(j).
"Development Budget" has the meaning provided in Section 3.4(a).
"Development Dispute" has the meaning provided in Section 3.6.
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"Event of Default" has the meaning provided in Sectilln 19.1.
"Fees" has the meaning provided in Section 6.2(a).
"Final CO" has the meaning provided in the Ground Lease.
"Floor Area" means the floor area of any development (measured in square feet), as defined
in, and measured in accordance with, the Land Development Regulations.
"Funded Equity" has the meaning provided in Section 3.4(b) of this Development
Agreement.
"General Contractor" means the general contractor under that certain guaranteed maximum
price contract for the Construction of the Project entered into by Developer and such general
contractor.
"Governmental Authority or Authorities" means the United States of America, the State
of Florida, Miami-Dade County, the City (in its governmental as opposed to proprietary capacity) and
any agency, department, commission, board, bureau, instrumentality or political subdivision (including
any county or district) of any of the foregoing, now existing or hereafter created, having jurisdiction
over Developer or any owner, tenant or other occupant of, or over or under the Project Site or any
portion thereof or any street, road, avenue or sidewalk comprising a part of, or in front of, the Project
Site, or any vault in or under the Project Site, or airspace over the Project Site.
"Ground Lease" means, that certain Agreement of Lease between Owner and Developer
dated as of the date hereof, pursuant to which Developer (as tenant) has agreed to lease the Land.
"Hearing" has the meaning provided in Section 22.1(b).
"Historic Preservation Board" or "HPB" means 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.
"Improvement(s)" means any building (including footings and foundations), Building
Equipment and other improvements and appurtenances of every kind and description now existing
or hereafter erected, constructed, or placed upon the Land (whether temporary or permanent), and
any and all alterations and replacements thereof, additions thereto and substitutions therefor.
"Institutional Lender" has the meaning provided in the Ground Lease.
"Joint Board" means the Joint Historic Preservation and Design Review Board created and
established pursuant to the Land Use Regulations or any board or body which may succeed to its
functions.
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"Land" means the real property and air rights, if any, described in Exhibit A attached hereto
and, incorporated by reference herein and subject to the provisions of Section 2.1(a) in the Ground
Lease.
, "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.
"Late Charge Rate" has the meaning provided in the Ground Lease.
"Loan Documents" means, collectively, any loan agreement, promissory note, mortgage,
guaranty or other document evidencing or securing a loan secured by, among other collateral,
Developer's interest in the Ground Lease or the Project.
"Mortgage" has the meaning provided in the Ground Lease.
"Mortgagee" means the holder of a Mortgage.
"Notice" has the meaning provided in Section 20.1(a).
"Notice of Failure to Cure" has the meaning provided in Section 10.1(b).
"Operating Equipment" has the meaning provided in the Ground Lease.
"Owner" means the City, acting in its proprietary capacity, and any assignee or transferee of
the City of the entire Owner's Interest in the Premises, from and after the date of the assigrunent or
transfer pursuant to which the entire Owner's Interest in the Premises was assigned or transferred to
such assignee or transferee.
"Owner's Consultant" means such Person as Owner may designate in writing to Developer
from time to time.
"Owner's Interest in the Premises" has the meaning provided in the Ground Lease.
"Payment and Performance Bond" has the meaning provided in Section 2.6(d).
"Permits and Approvals" shall mean any and all permits and approvals required to be issued
by Governmental Authorities in connection with the Construction of the Project, including, without
limitation, the City of Miami Beach building permits, the approvals of the City of Miami Beach
Design Review Board, the Miami-Dade County Department of Environmental Resources
Management permits, the Florida Department of Environmental Protection coastal construction
permit, and any utility access agreements with all applicable utility companies.
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"Person" means an individual, corporation, partnership, joint venture, limited liability
cOD:1pany, limited liability partnership, estate, trust, unincorporated association or other entity; any
Federal, state, county or municipal government or any bureau, department, political subdivision or
agency thereof; and any fiduciary acting in such capacity on behalf of any of the foregoing.
"Planning Board" means the Planning Board of the City or any board or body which may
succeed to its functions.
"Plans and Specifications" means the final plans and specifications for the Project,
including, foundation, structural, electrical, plumbing and HV AC plans, the finish schedule, the
Project program, the differentiation schedule and such other plans and specifications customarily
required to obtain a full building permit, each as established in accordance with Article 3, as the same
may be modified from time to time in accordance with the provisions of Section 3.2.
"Preliminary Plans and Specifications" has the meaning provided in Section 2.3(a) of this
Development Agreement.
"Project" has the meaning provided in the Ground Lease.
"Project Construction Costs" means all hard and soft construction costs incurred in
connection with the development and Construction of the Project. The projected Project Construction
Costs are as set forth in the Development Budget, attached hereto and incorporated by reference
herein as Exhibit 3.4(a).
"Project Opening Date" has the meaning provided in the Ground Lease.
"Project Site" means the Land and all portions of the Improvements.
"Proposal" means the development proposal submitted by Developer in response to the RFP.
"RFP" or "Request for Proposals" has the meaning provided in Article 1 of the Ground
Lease.
"Recognized Mortgage" has the meaning provided in the Ground Lease.
"Recognized Mortgagee" means the holderofa Recognized Mortgage; provided, however,
that, except to the extent permitted by the Ground Lease, a Recognized Mortgagee may not be an
Affiliate of Developer (except if Developer is an Affiliate of a Recognjzed Mortgagee that has caused
the Ground Lease to be assigned to such Affiliate in lieu offoreclosure of the Recognized Mortgage
of such Recognized Mortgagee).
"Requirements" has the meaning provided in Section 13.1(b).
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"Sale of the Project" has the meaning provided in the Ground Lease.
"Substantial Completion" or "Substantially Complete" or "Substantially Completed"
means, with respect to the Project, that (1) it shall have been substantially completed in accordance
with the Plans and Specifications, (2) the certificate of the Architect described in Section 2.8(c)(i)
shall have been obtained, and (3) all of the Improvements therein shall have been issued Certificates
of Occupancy.
"Term" means the period commencing Dn the Commencement Date and, unless sooner
terminated as provided hereunder, expiring on the issuance of a final CO and the completion of all
remaining punch list items with respect to completion of the Project in accordance with the terms of
this Agreement, subject, however, to survival of any provisions of this Agreement that are expressly
stated herein to survive such expiration or termination (as the case may be).
"Unavoidable Delays" means delays due to strikes, slowdowns, lockouts, acts of God,
inability to obtain labor or materials, war, enemy action, civil commotion, fire, casualty, catastrophic
weather conditions, em.inent domain, a court order which actually causes a delay (unless resulting
from disputes between or among the party alleging an Unavoidable Delay, present or former
employees, officers, members, partners or shareholders of such alleging party or Affiliates (or present
or former employees, officers, partners, members or shareholders of such Affiliates) of such alleging
party), the application of any Requirement, or another cause beyond such party's control or which,
if susceptible to control by such party, shall be beyond the reasonable control of such party. Such
party shall use reasonable good faith efforts to notify the other party not later than twenty (20) days
after such party knows of the occurrence of an Unavoidable Delay; provided, however, that either
party's failure to notify the other of the occurrence of an event constituting an Unavoidable Delay
shall not alter, detract from or negate its character as an Unavoidable Delay or otherwise result in the
loss of any benefit or right granted to the delayed party under this Development Agreement. In no
event shall (i) any party's financial condition or inability to fund or obtain funding or financing
constitute an "Unavoidable Delay" (except for an Institutional Lender's inability to fund, which
inability is not caused by Tenant) With respect to such party and (ii) any delay arising from a party's
(or its Affiliate's) default under this Development Agreement or any of the Project Agreements
constitute an "Unavoidable Delay" with respect to such party's obligations hereunder. The times for
performance set forth in this Development Agreement (other than for monetary obligations of a party)
shall be extended to the extent performance is delayed by Unavoidable Delay, except as otherwise
expressly set forth in this DevelDpment Agreement.
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ARTICLE 2.
CONSTRUCTION
Section 2.1 Consistency with City's Comprehensive Plan and Zoning Rewlations.
The City has adopted and implemented the Comprehensive Plan. The City hereby frods and
declares that the provisions of this Development Agreement dealing with the Land are consistent with
the City's adopted Comprehensive Plan and Land Development Regulations, subjectto all applicable
Requirements, Permits and Approvals.
Section 2.2 Planning Board Aooroval.
(a) Developer has heretofore submitted an application to the Planning Board for
its review of the Project, and the Planning Board has reviewed the Project.
(b) If at any time in the future it shall be necessary in connection with the
construction, reconstruction or renovation of the Premises to apply to the Planning Board for its
review or approval of any changes or modifications to the Premises, Developer shall be solely
responsible for making such application.
Section 2.3 DesilZll of the Project.
(a) The Developer shall be solely responsible for the design of the Project, and
such design shall be (I) substantially in accordance with the design shown in Developer's response
to the Request for Proposals (RFP No. 20-97/98 (Amended)) issued by the City on December 30,
1997, except to the extent that changes thereto have been negotiated with, and approved, by Owner,
and (2) at the sole cost and expense of Developer. Developer shall be solely responsible for obtaining
the approval of the City's Design Review Board, and the City's Historic Preservation Board or the
Joint Board, if applicable, and the City shall have no duty or obligation to approve any particular
design. Prior to submission of the Project design to the DRB and HPB or Joint Board, if applicable,
Developer shall submit to Owner (acting in its proprietary capacity as owner of the Land) all of the
Preliminary Plans and Specifications for the Project which shall include, but not be limited to, a
detailed site plan, elevation drawings of each facade, a detailed floor plan for each of the floors of the
Project, a calculation of the floor areas for each floor of the Project, and a calculation of the total
floor area dedicated to each use within the Project (the "Preliminary Plans and Specifications")
which shall be submitted to Owner's City Manager for approval within twenty-four (24) weeks of the
Commencement Date. The City Manager shall have twenty (20) Business Days to review the
Preliminary Plans and Specifications, and shall review the Preliminary Plans and Specifications solely
for consistency with the Developer's response to the RFP. If Owner disapproves the Preliminary
Plans and Specifications, then Developer shall, at its election, either (x) submit Owner's disapproval
to expedited arbitration pursuant to Section 3.6 and Section 22.1 as to the reasonableness of the
disapproval, or (y) submit a revised modification to the Preliminary Plans and Specifications to meet
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Owner's objections, which revised modification shall be submitted and reviewed as provided in
Secrtion 3.1(b). Failure of the Developer to submit Preliminary Plans and Specifications by the date
which is twenty-four (24) weeks from the Commencement Date shall constitute a Default under this
Development Agreement.
(b) Developer shall, within eight (8) weeks of Owner's approval of the Preliminary
Plans and Specifications, submit an application for approval of the Project design to the City's Design
Review Board and to the Historic Preservation Board or Joint Board, if applicable. Failure of the
Developer to submit its application, as provided in this Section, to the DRB and HPB or Joint Board,
if applicable, by the date which is eight (8) weeks from the receipt of Owners Approval as above
provided shall constitute a Default under this Development Agreement.
(c) Developer shall pursue approval of its application to the DRB, HPB or Joint
Board, if applicable, diligently and in good faith.
Section 2.4 Public Facilities and ConcurrencY.
(a) Owner and Developer anticipate that the Project will be served by those
roadway transportation facilities currently in existence as provided by state, county and local
roadways. It is also anticipated that the Project will be served by public transportation facilities
currently in existence, including those provided by Miami-Dade County, the City, and other
governmental entities as may presently operate public transportation services within the City.
Sanitary sewer, solid waste, drainage, and potable water services for the proposed Project are
expected to be those services currently in existence and owned or operated by Miami-Dade County,
the Miami-Dade County Water and Sewer Department, and the City. The Project will also be
serviced by any and all public facilities, as such are defined in Section 163.3221 (12), Florida Statutes
(1997), as such are described in the City's Comprehensive Plan, specifically including, but not limited
to, those facilities described in the Infrastructure Element and Capital Improvements Element therein,
a copy of which is available for public inspection in the offices of the Planning, Design and Historic
Preservation Department of the City of Miami Beach. The foregoing, however, shall not be deemed
to be an approval of, nor shall it be deemed to relieve Developer of the obligation to comply with,
Section 163.3180, Florida Statutes (1997).
(b) Developer shall be solely responsible for obtaining all land use permits,
including, but not limited to, all pennits and approvals required pursuant to Section 163.3180,
Florida Statutes (1997), with respect to concurrency requirements for roads, sanitary sewer, solid
waste, drainage, potable water, parks and recreation (the "Concurrency Requirements").
Developer shall, within twenty-four (24) weeks of the Commencement Date, apply to the appropriate
Governmental Authorities for letters or other evidence that Developer is pursuing all applicable
Concurrency Requirements, and shall diligently and in good faith pursue such letters or other
evidence that the Project meets all applicable Concurrency Requirements, or shall attempt to
negotiate agreements acceptable to Tenant to mitigate the impacts of developing the Project.
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Section 2.5 Plans and SDecifications.
(a) Upon receipt of the DRB's approval of the Project, and the HPB's or Joint
Board's approval if applicable, Developer shall prepare Plans and Specifications for construction of
the Project, consistent with the Preliminary Plans and Specifications, as approved by the DRB, and
the HPB or Joint Board's, if applicable, for review by Owner. The Plans and Specifications shall be
submitted to the Owner within thirty-two (32) weeks from the date on which the DRB and the HPB
or Joint Board, as applicable, approves the Project. Failure of the Developer to submit Plans and
Specifications to the Owner within thirty-two (32) weeks from the date on which the ORB approves
the Project shall constitute a Default under this Development Agreement. The Plans and
Specifications shall be reviewed by the City Manager solely for consistency with the Preliminary Plans
and Specifications as the same have been modified by the DRB and HPB, or Joint Board, if
applicable. If Owner disapproves the Plans and Specifications, then Developer shall, at its election,
either (x) submit Owner's disapproval to expedited arbitration pursuant to Section 3.6 and Section
22.1 as to the reasonableness of the disapproval, or (y) submit a revised modification to the Plans and
Specifications to meet Owner's objections, which revised modification shall be submitted and
reviewed as provided ip Section 3.1(b).
(b) Developer shall pursue approval by the City of the Plans and Specifications
diligently and in good faith.
Section 2.6 Conditions Precedent to Develoner's Commencement
of Construction of the Project.
(a) Developer shall obtain a Building Permit for the entire Project by not more
than twenty-four (24) months from the Commencement Date and failure to do so shall constitute a
Default under this Development Agreement. Subject to Section 2.6(c), Developer shall not
Commence Construction of the Project unless and until (i) Developer shall have obtained and
delivered to Owner's Consultant copies of all Permits and Approvals required to Commence
CDnstruction and (ii) Developer shall have delivered to Owner original certificates of the policies of
insurance required to be carried pursuant to the provisions of Article 7 of this Agreement.
(b) Owner (solely in its capacity as the owner of the Project Site and not in its
governmental capacity) shall reasonably cooperate with Developer in obtaining the Permits and
Approvals required by Sections 2.2(a) and 2.10(a) and any necessary utility access agreements, shall
sign any application reasonably made by Developer which is required in order to obtain such Permits
and Approvals and utility access agreements and shall provide Developer with any information and/or
documentation not otherwise reasonably available to Developer (if available to Owner) which is
necessary to procure such Permits and Approvals and utility access agreements. Any such
accommodation by Owner shall be without prejudice to, and shall not constitute a waiver of, Owner's
rights to exercise its discretion in connection with its governmental functions. Developer shall
reimburse Owner, within ten (10) days after Owner's demand, for any reasonable out-of-pocket cost
or expense payable to Owner's technical consultants (other than Owner's Consultant and Owner's
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employees), such as architects and engineers, so incurred by Owner in connection with Owner's
assistance: in obtaining the Permits and Approvals and utility access agreements required by Sections
2.6(a) and 2.10(a).
(c) Developer shall not Commence Construction of the Project, or any portion
thereof, unless and until Owner shall have approved the Plans and Specifications, as provided in
Section 2.5. However, if Developer chooses to perform any Construction of the Project on a
"fast-track" basis, Developer may request the necessary approval of Owner in stages and perform that
portion ofthe Construction Work which has been approved (provided Developer shall comply with
all other requirements with respect to such portion of the Construction Work), even if progress plans
and specifications for other portions of the Construction Work have not yet been prepared.
(d) Payment and Performance Bond. Prior to Commencement of Construction
of the Project, Developer shall cause the General Contractor to furnish to Owner a payment and
performance bond (the "Payment and Performance Bond"), in a form reasonably acceptable to
Owner, issued by a surety listed in the most recent United States Department of Treasury listing of
approved sureties, guaranteeing the performance of the General Contractor under that certain
guaranteed maximum price contract for the Construction of the Project. Owner may accept, in its
sole and absolute discretion, for any reason and/or for no reason whatsoever, a completion guarantee
from the General Contractor in substitution for such Payment and Performance Bond. Owner shall
be named as a dual obligee under the Payment and Performance Bond; provided, however, Owner's
rights under the Payment and Performance Bond shall be subordinate to the Recognized Mortgagee's
(as defined in the Ground Lease) rights under the Payment and Performance Bond and Owner shall
agree in writing with such Recognized Mortgagee that Owner shall only seek to enforce its rights
under the Payment and Performance Bond if the Ground Lease is terminated and such Recognized
Mortgagee fails to exercise its rights under Section 11.6 of the Ground Lease for the execution of
New Tenant's Documents (as defined in the Ground Lease).
Section 2.7 Commencement and Completion of Construction of the Proiect.
Developer shall at its expense (a) Commence Construction on or before sixty (60) days after
all Permits and Approvals necessary for the Commencement of Construction are issued (the
"Construction Commencement Date") and (b) thereafter continue to prosecute Construction of
the Project with diligence and continuity to completion. If, after Developer has Commenced
Construction, Developer fails to diligently prosecute Construction of the Project (subject to
Unavoidable Delays), and such failure continues (subject to Unavoidable Delays) for thirty (30)
consecutive days after Developer's receipt of notice of such failure, Owner shall, in addition to all of
its other remedies under this Agreement and the Ground Lease, have the right to seek such equitable
relief (either mandatory or injunctive in nature) as may be necessary to cause diligent and continuous
prosecution of Construction of the Project (subject to Unavoidable Delays) by Developer, it being
understood that Construction of the Project is a material inducement to Owner to enter into the
Ground Lease and monetary damages shall be inadequate to compensate Owner for harm resulting
from such failure. Notwithstanding anything to the contrary contained herein, if Developer fails to
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Substantially Complete Construction of the Project by the Default Date, then the same shall constitute
a Default 'under this Agreement and under the Ground Lease.
Section 2.8 Completion of Construction of the Proiect.
(a) Substantial Completion of the Project shall be accomplished in a diligent
manner, and in any event by the Completion Deadline, and final completion of the Construction of
the Project, including but not limited to completion of all punch-list items, shall be accomplished in
a diligent manner thereafter, in each case in a good and workerlike manner, in substantial accordance
with the Plans and Specifications (with no material deviations except as expressly permitted herein),
in accordance with all applicable Requirements and, except as provided in Article 6, at Developer's
sole cost and expense.
(b) Upon Substantial Completion of Construction of the Project, Developer shall
furnish Owner with the following:
(i) a certification of the Architect ( certified to Owner on the standardAIA
certification form) that it has examined the Plans and Specifications and that, in its
professional judgment, after diligent inquiry, Construction of the Project has been
Substantially Completed in accordance with the Plans and Specifications applicable
thereto and, as constructed, the Improvements comply with all applicable
Requirements;
(ii) if Requirements require the same, a copy or copies of the temporary
certificates of occupancy for the Project (or portion thereof, as applicable) issued by
the City of Miami Beach Building Department;
(iii) lien waivers in form and substance reasonably satisfactory to Owner
from each contractor, subcontractor, supplier or materialman retained by or on behalf
of Developer in connection with the Construction of the Project, evidencing that such
Persons have been paid in full for all work performed or materials supplied in
connection with the Construction of the Project;
(iv) a complete set of "as built" plans and a survey showing the
Improvement(s) (excluding personalty) for which the Construction of the Project has
been completed. Owner shall have an unrestricted license to use such "as built" plans
and survey for any purpose related to the Project Site without paying any additional
cost or compensation therefor, subjectto copyright and sirnilarrights of the Architect
to prohibit use of designs for purposes unrelated to the Project Site, as such rights
exist in law or may appear in the Architect's contract, and subject to applicable public
records laws. The foregoing requirement with respect to "as built" plans shall be
satisfied by Developer furnishing to Owner, at Developer's expense, a complete set
of Plans and Specifications, with all addenda thereto and change orders in respect
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thereof, marked to show all changes, additions, deietions and selections made during
the course of the Construction of the Project; and
(v) a Contractor's final Affidavit in form and substance reasonably
satisfactory to Owner executed by the General Contractor (i) evidencing that all
contractors, subcontractors, suppliers and materialmen retained by or on behalf of
Developer in connection with the Construction of the Project have been paid in full
for all work performed or materials supplied in connection with the Construction of
the Project and (ii) otherwise complying with all of the requirements under the Florida
Construction Lien Law, Chapter 713, Florida Statutes, as amended.
(c) In the event that Developer has not Substantially Completed construction of
the Improvements by the Completion Deadline, Developer shall forfeit the Security Deposit held
pursuant to Section 3.6 of the Lease to Owner as liquidated damages, and not as a penalty, the
Parties agreeing that it is impossible to ascertain actual damages to Owner in the event that Developer
does not Substantially Complete construction of the Improvements by the Completion Deadline.
Section 2.9 Confirmation of Land Development Re~ulations.
The City Commission held a duly noticed public hearing on July 7, 1999, after which it
determined, pursuant to Section 142-425 of the City Code, that the zoning district classification of
the Land under the Lease is CD-3, as defined in the Land Development Regulations.
Section 2.10 ReQuired Develooment Permits.
(a) Developer shall be solely responsible for obtaining the Development Approvals
listed in Exhibit 2.10 attached hereto, if applicable.
(b) There are no reservations and/or dedications ofland for public purposes that
are proposed under the terms of this Development Agreement.
Section 2.11 Proposed Permitted Develooment.
The proposed permitted development on the Land shall not exceed a Floor Area Ratio (as
defined in the City's Land Use Regulations) of2.75, and the height of the development on the Land
shall not exceed One Hundred (100) feet.
Section 2.12 Develooer's Ril!ht of Termination.
Notwithstanding anything to the contrary contained herein, Developer shall have the rightto
be released from its liability and obligations [except the obligation to pay Rental and/or Impositions
prior to the Possession Date pursuant to Section 3 .2( a) of the Ground Lease] and to terminate this
Development Agreement and the Ground Lease prior to the Possession Date because (a) changes to
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the Preliminary Plans and Specifications required by the DRB, Joint Board, or any other
Governmental Authority (including the City), render the Project economically unfeasible in the
reasonable business judgment of Developer, (b) the Project carmot meet concurrency requirements
under Section 163.3180, Florida Statutes (1997), or the costs of concurrency mitigation are, in the
reasonable business judgment of Developer, economically unfeasible, or (c) Developer, after good
faith efforts, has been unable to obtain a full building permit for the Project pursuant to the Plans and
Specifications submitted by Developer. In the event oftermination of this Development Agreement
and the Ground Lease pursuant to this Section 2.12, each Party shall bear its own costs and expenses
incurred in connection with this Development Agreement and the Ground Lease and neither Party
shall have any further liability to the other.
ARTICLE 3.
PLANS AND SPECIFICATIONS
Section 3.1 AD"roval and Modification of Plans and S"ecifications.
(a) In accordance with Section 2.5, and prior to submitting its application for the
required Building Permits, Developer shall prepare and submit to Owner (acting in its proprietary
capacity as owner of the Land), the Plans and Specifications, which Plans and Specifications shall be
used to obtain the required building permits. lfsuch submitted Plans and Specifications are materially
inconsistent with, or contain material modifications to, the Preliminary Plans and Specifications as
approved by the DRB and the HPB or Joint Board, if applicable, then such Plans and Specifications
shall clearly indicate, by "ballooning", highlighting, blacklining or describing in writing in sufficient
detail in a memorandum accompanying such Plans and Specifications, all such modifications to the
Preliminary Plans and Specifications. Within ten (I 0) Business Days of its receipt of such Plans and
Specifications, Owner shall notify Developer, in writing, describing, with specificity, the basis for such
disapproval of any material inconsistencies or material modifications of which Owner disapproves
between the proposed Plans and Specifications and the Preliminary Plans and Specifications, it being
agreed however, that Owner's failure to so notify Developer of its disapproval within such time
period shall be deemed to constitute Owner's conclusive approval of such Plans and Specifications;
provided, however, that if Owner shall notify Developer within ten (10) Business Days following its
receipt that any of such inconsistencies or modifications to the Preliminary Plans and Specifications
are not indicated as required by this Section 3.1(a) or that the complexity of such changes from the
Preliminary Plans and Specifications necessitates an extension of such time period to complete
Owner's review, such period shall be extended to the date which is thirty (30) days after Owner's
receipt of the proposed inconsistencies or modifications; provided, further, however, that Owner shall
not be responsible for, and shall not be deemed to have approved, any such material inconsistency or
modification that is not indicated as required by this Section 3.I(a), except that when Developer
advises Owner in writing, and Owner agrees with Developer in writing, that the Plans and
Specifications, as approved as herein provided above, are complete and sufficient and suitable to
construct, furnish and equip the entire Project in accordance with the provisions of this Agreement,
such written agreement shall be deemed to constitute Owner's conclusive approval of all
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modifications and inconsistencies, whether or not the modifications are highlighted, in such Plans and
Sp~cifications; provided, however, that the foregoing exception relating to Owner's conclusive
approval does not apply to those changes which, in Owner's opinion, (i) diminish any of the levels
of quality of the Project, (ii) materially diminish, individually or in the aggregate, any of the physical
components ofthe Project, or (iii) have a material adverse effect (a) on the ability of Developer to
complete Construction of the Project or (b) on the financial feasibility of the Project.
Notwithstanding anything to the contrary contained herein, Owner shall not object to any
inconsistencies with or modifications to the Preliminary Plans and Specifications which are
necessitated by Requirements or as a result of a drafting, coordination, mechanical or technical error
in the Preliminary Plans and Specifications.
(b) If Developer desires to modify previously approved Plans and Specifications
(as such may have been modified by approved Plans and Specifications), Developer shall submit any
such modified Plans and Specifications to Owner for Owner's approval. Such modified Plans and
Specifications shall clearly indicate, by "ballooning", highlighting, blacklining or describing in writing
in sufficient detail in a memorandum accompanying such modified Plans and Specifications, all such
proposed modification$ to the Plans and Specifications. Within ten (10) Business Days of its receipt
of the proposed modifications, Owner shall notify Developer in writing, with specificity of any
material inconsistencies or material modifications of which Owner disapproves between the Plans and
Specifications as modified and the Plans and Specifications previously approved by Owner, it being
agreed however, that Owner's failure to so notify Developer of its disapproval during such time
period shall be deemed to constitute Owner's conclusive approval of such Plans and Specifications;
provided, however, that if Owner shall notifY Developer within ten (10) Business Days following its
receipt that any of the proposed modifications to the Plans and Specifications are not indicated as
required by this Section 3.1(b) or that the complexity of the proposed modifications necessitates an
extension of such time period to complete Owner's review, such period shall be extended to the date
which is thirty (30) days after Owner's receipt of the proposed modifications; provided, further,
however, that Owner shall not be responsible for, and shall not be deemed to have approved, any such
proposed modification that is not indicated as required by this Section 3.1(b). Notwithstanding
anything to the contrary contained herein, Ownef shall not object to any modifications to the Plans
and Specifications which are necessitated by Requirements or as a result of a drafting, coordination,
mechanical or technical error in the Plans and Specifications.
(c) If Owner disapproves any material inconsistencies or material modification in
the Plans and Specifications from the Preliminary Plans and Specifications pursuant to Seetion3.1(a)
above, or Owner disapproves any of the material modifications to or material inconsistencies in the
Plans and Specifications pursuantto Section 3.1(b) above, then Developer shall, at its election either:
(x) submit Owner's disapproval to expedited arbitration pursuant to Section 3.6 and Section 22.1
as to the (i) materiality of the inconsistency or modification and/or (ii) the reasonableness of the
disapproval or (y) within thirty (30) days after receiving Owner's disapproval notice, submit revised
Plans and Specifications or a revised modification to the Plans and Specifications to meet Owner's
objections, which revised Plans and Specifications or revised modification shall be reviewed as
provided in Section 3.1 (a) or (b), as applicable.
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Section 3.2 Reserved
Section 3.3 Comoliance with ReQuirements: Construction Standards.
(a) Notwithstanding anything to the contrary contained herein, the Plans and
Specifications shall comply with all applicable Requirements. It is Developer's responsibility to
assure such compliance. Owner's approval in accordance with this Article 3.3 of any Plans and
Specifications shall be deemed to be a determination by Owner that the Plans and Specifications so
approved are in substantial conformity with the Proposal, but shall not be, and shall not be construed
as being, or relied upon as, a determination that such Plans and Specifications comply with other
applicable Requirements, including, without limitation, any Requirements providing for the review
and approval of the Plans and Specifications by any Governmental Authority (in its governmental
capacity as opposed to its proprietary capacity).
(b) Construction of the Project shall be carried out pursuant to Plans and
Specifications prepared by licensed architects and engineers, with controlled inspections conducted
by a licensed architect!Jr professional engineer as required by applicable Requirements.
Section 3.4 Proiect Budliet.
(a) Developer has previously submitted to Owner, and Owner has approved, a
pre-construction budget and development budget for the Project (collectively, the "Development
Budget"), copies of which are attached hereto and incorporated by reference herein as Exhibit
3.4(a). Information copies of any material modifications to the Development Budget shall be
promptly delivered to Owner.
(b) Developer hereby covenants and agrees that:
(i) Developer shall initially invest or cause to be invested (including
amounts that are fInanced and all costs associated with, and directly related to, the acquisition of, and
the conveyance to, the City of Parcel 2 as described in Exhibit A) not less than Thirty Million Six
Hundred Forty-Four Thousand Dollars ($30,644,000) for the total initial Project cost, subject to any
adjustments due to value engineering which do not change the design quality or scope of the Project
and subjectto Developernot expending all funds in the contingency line items ofExhibit3.4(a); and
(ii) Not less than Twenty One Million One Hundred Twenty-Eight
Thousand Dollars ($21,128,000) shall be spent on hard construction costs of the initial Project,
subject to any adjustments due to value engineering which do not change the design quality or scope
of the Project; and
(iii) Developer shall invest not less than Seven Million Six Hundred Sixty-
One Thousand Dollars ($7,661,000) as its equity contribution to the total initial Project cost (the
"Funded Equity").
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( c) Upon Substantial Completion of the Project, Developer shall certifY to Owner
that it has, in fact, expended not less than said amounts for total construction costs and hard
construction costs.
Section 3.5 DesilZI\ and Decor.
Notwithstanding anything to the contrary contained in this Agreement, Owner shall not have
any approval rights with respect to matters of interior design and decor of the Project except to the
extent the same are reflected in the Plans and Specifications.
Section 3.6 Develonment DiS1'ute.
Any dispute or disagreement between Owner and Developer arising prior to the Project
Opening Date with respect to the following matters (a "Development Dispute") shall be finally
resolved in accordance with the provisions of Section 22.1:
(a) Any dispute as to whether Developer's modifications to the Preliminary Plans
and Specifications or the Plans or Specifications pursuant to Section 2.3 or Section 2.5, or Section
3.1(a) or (b), respectively, are material and/or materially inconsistent and are therefore subject to
Owner's approval; and
(b) Any contention by Developer that Owner has unreasonably failed to approve
or give its consent to any modifications to the Preliminary Plans and Specifications pursuant to
Section 2.3 or to the Plans and Specifications pursuant to Section 2.5, Section 3.1(a) or (b).
ARTICLE 4.
OWNER PARTICIPATION
Section 4.1 Owner's Rhzhtto Use Field Personnel.
Owner reserves the right, at its sole cost and expense, to maintain one (1) on-site
representative (from Owner's Consultant, Owner or another entity designated by Owner) at the
Project Site to conduct inspections of the Project Site (provided, however, that Owner shall be
entitled to maintain additional on-site representatives from time to time to the extent reasonably
necessary to perform such inspections), and Developer agrees to provide safe access to the Project
Site, including, without limitation, access to inspect the Construction Work, including, without
limitation, the preparation work and work in progress wherever located. No such inspection by the
Owner's on-site representatives shall impose upon Owner responsibility or liability for any failure by
Developer to observe any Requirements or safety practices in connection with such Construction
Work, or constitute an acceptance of any work which does not comply with the provisions of this
Agreement, and no such inspection shall constitute an assumption by Owner of any responsibility or
liability for the performance of Developer' s obligations hereunder, nor any liability arising from the
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improper performance thereof. The Owner's on-site representatives shall not interfere with any
Construction Work being performed at the Project Site and shall comply with all safety standards and
otherjob-site rules and regulations of Developer. Owner's on-site representative is an inspector only.
The on-site representative shall make only such communications with Developer's construction
manager(s), the General Contractor, its subcontractors, or any other Person involved in the
Construction of the Project, as are reasonably necessary to enable such on-site representative to
conduct its investigations, and in no event shall the on-site representative give directions to such
Persons. Developer shall provide a reasonable work area and services for Owner's on-site
representative as is customarily provided at similar construction sites. All expenses incurred by
Owner's on-site representative shall be paid by Owner.
Section 4.2 Owner's Right to Notice. Access and Review.
(a) Developer acknowledges that Owner has appointed the Owner's Consultant
as the Owner's consultant in connection with the Construction of the Project in accordance with the
terms of this Agreement. In connection therewith, Developer agrees to cooperate fully with the
Owner's Consultant. Ip furtherance thereof, Developer agrees that the Owner's Consultant, and its
authorized representatives, shall have such rights of notice, access and review with respect to the
Project and the Construction Agreements as is reasonably necessary to achieve the foregoing
(including, but not limited to verifying on Owner's behalf that the Construction of the Project is being
conducted in accordance with the terms hereof), including, without limitation, the following:
(i) the opportunity for attendance by the Owner's Consultant at regularly
scheduled Construction W orkmeetings (which shall be scheduled not less frequently than twice each
month) and at any special meetings which Developer deems necessary in its reasonable discretion as
to change orders, delays and other material issues concerning the Project;
(ii) the inspection by the Owner's Consultant of all Construction Work (in
accordance with the provisions of Sed ion 4.1);
(iii) the opportunity for attendance by the Owner's Consultant at the
interior design presentations given to Developer (or an equivalent presentation);
(iv) the delivery by Developer to the Owner's Consultant of two (2) copies
of:
(I) the executed contract between Developer and the General
Contractor for the Project;
(2) the Plans and Specifications (and modifications thereto, with
such modifications being clearly indicated, by "ballooning", highlighting, or blacklining on the Plans
and Specifications or describing in writing in sufficient detail in a memorandum accDmpanying such
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REC. 4 Of !/.\;lI W
modified Plans and Specifications), working and other drawings, renderings, blueprints,
spfi:cifications, layouts and change orders (collectively, the "Detaile:l Plans");
(3) all insurance certificates required by Article 7 of this
Agreement (including those of Developer and all contractors and subcontractors);
(4) a monthly construction cost-to-date report reasonably
acceptable to Owner;
(5) all periodic (but not less than monthly) updates to the
Development Budget, which updates shall show all variances; and
To the extent the exercise of the Owner's rights hereunder requires the opportunity for review of any
documents or the opportunity for participation in any meetings, Developer agrees, without request
therefor by Owner, to promptly provide cDpies of such documents or notice of such meetings to
Owner and the Owner's Consultant, as applicable, after receipt of the same by Developer and
reasonably in advance.of any meetings to allow for appropriate travel arrangements to the extent
practical under the circumstances. If Owner's Consultant is not in attendance, the meeting will
proceed and Developer will promptly provide Owner's Consultant with minutes of the meeting. The
Owner's Consultant shall not interfere with any Construction Work being performed at the Project
Site and shall comply with all safety standards and other job-site rules and regulations of Developer.
(b) Prior to the Commencement of Construction, Developer shall provide to
Owner a construction schedule for each phase of the Project, which schedule shall be prepared using
the critical path method ("CPM"; such schedule, as it shall be amended from time to time in
accordance with the Construction Agreements, shall be referred to as the "CPM Schedule"),
including a CPM network diagram, for use in scheduling and controlling the Construction. The CPM
Schedule shall, at a minimum, show:
(i) the early and late start and stop times for each major construction
activity;
(ii) all "critical path" activities and their duration;
(Hi) the sequencing of all procurement, approval, delivery and work
activities;
(iv) manpower levels;
(v) late order dates for all long lead time materials and equipment; and
(vi) critical Developer and Owner decision dates.
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Developer shall promptly provide to the Owner's Consultant information copies of
the CPM Schedule. The CPM Schedule shall (I) be revised by Developer whenever there is a
material variance in the progress of the Construction from the then current CPM Schedule and
otherwise at appropriate intervals, but in no event less frequently than monthly and (2) provide for
expeditious and practicable execution of the Construction.
A copy of the CPM network diagram highlighting the completed and partially
completed activities and manpower schedule shall be maintained by Developer on a current basis, at
the Project Site, to accurately reflect the actual progress of the Construction and shall be displayed
at all times in a manner that is readily accessible to the Owner's Consultant. Three (3) copies of the
updated CPM Schedule, CPM network diagram and manpower schedule shall be delivered to the
Owner's Consultant promptly after the same have been revised as required herein. The CPM network
diagram shall reflect the actual progress of Construction to date. The manpower schedule shall reflect
actual manpower levels each week compared to manpower levels set forth in the CPM Schedule.
Developer shall keep the Owner's Consultant informed on a periodic (but not less than
twice per month) basis, unless circumstances dictate the need to do so more frequently, as to actual
progress made. Developer shall provide the Owner's Consultant with reasonable access to the
reports, logs and other systems in which Developer records or notes the daily progress of the
Construction Work. Developer shall inform the Owner's Consultant of any deviation from the CPM
Schedule which, in Developer's good faith determination, is likely to cause a material delay in the
Substantial Completion ofthe Project (as shown on the current CPM Schedule), within three (3)
Business Days after such deviation becomes apparent to Developer.
ARTICLE 5.
MISCELLANEOUS CONSTRUCTION PROVISIONS
Section 5.1 Reserved.
Section 5.2 Names of Contractors. Materialmen. etc.
All Persons employed by Developer with respect to Construction of the Project shall be paid,
without subsequent deduction or rebate unless expressly authorized by Requirements, not less than
the relevant prevailing wage as prescribed by the City of Miami Beach Prevailing Wage Ordinance,
Miami Beach City Code, Section 3IA-27, as amended, but only to the extent such Prevailing Wage
Ordinance is applicable to the construction of the Improvements.
Section 5.3 Construction Agreements.
(a) Required Clauses. All Construction Agreements which provide for the
performance of labor on the Project Site shall include the following provisions (or language
substantially similar thereto which is approved in advance by Owner); provided, however, that any
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Construction Agreement having aggregate payments of Five Hundred Thousand Dollars ($500,000)
or less shall not be required to ir..clude the provisions set forth in paragraph (i) below:
(i) an agreement by the Contractor to provide, prior to the commencement
of its portion of the work, and maintain during the performance thereof, the insurance set forth on
Exhibit 5.3(a) attached hereto and incorporated by reference herein. Such Contractor shall procure
an appropriate clause in, or endorsement on, any policy of insurance carried by it pursuant to which
the insurance company waives subrogation or consents to a waiver of right of recovery consistent
with the release, discharge, exoneration and covenants not to sue contained herein. Original
Certificates ofInsurance, in quadruplicate (all of which shall be original signed counterparts) and
including the City of Miami Beach, Florida (and any successor Owner), as additional insureds (the
"Certificate ofInsurance"), shall be furnished to Developer by Contractor prior to commencement
of work, denoting all insurance required of Contractor pursuant to the terms of the Contract. The
Contractor shall secure an original Certificate of Insurance from each of its sub-contractors and/or
suppliers with limits ofliability equal to those carried by the Contractor;
(ii) "Contractor hereby waives all rights of recovery, claims, actions or
causes of action against the City of Miami Beach, Florida (and any successor Owner), and their
respective elected and appointed officials (including, without limitation, the City's Mayor and City
Commissioners), directors, officials, officers, shareholders, members, employees, successors, assigns,
agents, contractors, subcontractors, experts, licensees, lessees, mortgagees, trustees, partners,
principals, invitees and affiliates, for any loss or damage to property of Contractor which may occur
at any time in connection with the Project.";
(iii) "To the fullest extent permitted by law, Contractor shall and does
hereby indemnify and hold harmless the City of Miami Beach, Florida (and any successor Owner),
and their respective elected and appointed officials (including the City's Mayor and City
Commissioners), directors, officials, officers, shareholders, members, employees, successors, assigns,
agents, contractors, subcontractors, experts, licensees, lessees, mortgagees, trustees, partners,
principals, invitees and affiliates, from and against any and all liability, claims, demands, damages,
losses, fines, penalties, expenses and costs of every kind and nature, including, without limitation,
costs of suit and attorneys' fees and disbursements (collectively, "Expenses"), resulting from or in any
manner arising out of, in connection with or on account of: (1) any act, omission, fault or neglect of
Contractor, or anyone employed by it in connection with the work or any phase thereof, or any ofits
agents, contractors, subcontractors, employees, invitees or licensees in connection with the work, or
anyone for whose acts any of them may be liable, (2) claims of injury (including physical, emotional,
economic or otherwise) to or disease, sickness or death of persons or damage to property (including,
without limitation, loss of use resulting therefrom) occurring or resulting directly or indirectly from
the work or any portion thereof or the activities of Contractor or anyone employed by it in connection
with the work, or any portion thereof, or any of its respective agents, contractors, subcontractors,
employees, invitees or licensees in connection with the work, or anyone for whose acts any of them
may be liable, or (3) mechanics' or materialmen's or other liens or claims (and all costs or expenses
associated therewith) asserted, filed or arising out of the work or any phase thereof other than liens
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or claims arising out of Developer's failure to make the required payments properly due Contractor.
In no event shall Contractor be able to seek or be entitled to consequential damages (including,
without limitation, loss of profits or loss of business opportunity) for claims arising under this
contract. This indemnification obligation shall not be limited in any way by: (x) any limitation on the
amount or type of damages, compensation or benefits payable to Contractor under worker's
compensation acts, disability benefit acts or other employee benefit acts or other insurance provided
for by this contract; or (y) the fact that the Expenses were caused in part by a party indemnified
hereunder. The Contractor further agrees that this indemnification shall be made a part of all
contracts and purchase orders with sub-contractors or material suppliers. The indemnification
agreement included in this contract is to be assumed by all sub-contractors.";
(iv) (1) the right of Developer to assign to Owner, subject and subordinate
to the rights of Lender, the contract and Developer's rights thereunder, at the Owner's request,
without the consent of the Contractor, and (2) that without the necessity of such assignment and
without thereby assuming any of the obligations of Developer under the contract occurring prior to
such assignment and/or purchase order, except for Developer's payment obligations, Owner shall
have the right to enfors:e the full and prompt performance by the Contractor of such Contractor's
obligations under the contract;
(v) "Contractor agrees to comply with all laws and requirements applicable
to Contractor and the Project, including, without limitation, the City of Miami Beach Prevailing Wage
Ordinance, Miami Beach City Code, Section 31 A-27, as amended, if such provision is applicable to
construction of the Improvements.";
(vi) "Upon an Event of Default by Developer resulting in a termination of
that certain Agreement of Lease between Developer and Owner, dated as of.stll"tf;ll\~1 . 1999,
pursuant to which Developer (as tenant) has agreed to lease the Land on which the Project is to be
constructed, Contractor shall, at the option of the City of Miami Beach, Florida, subject and
subordinate to the rights of Lender, be terminated or Contractor will honor this agreement as if this
agreement had been originally entered into with the City of Miami Beach, Florida.";
(vii) ''Nothing contained in this contract is in any way intended to be a
waiver of the prohibition on Contractor's ability to file liens against property of the City of Miami
Beach, Florida, or of any other constitutional, statutory, common law or other protections afforded
to public bodies or governments.";
(viii) "Upon an Event of Default by Developer resulting in a termination of
that certain Agreement of Lease between Developer and Owner, dated as ofSllP'tOIe.6I'- I . 1999,
pursuant to which Developer (as tenant) has agreed to lease the Land on which the Project is to be
constructed, all covenants, representations, guarantees and warranties of Contractor hereunder shall
be, subject and subordinate to the rights of Lender, deemed to be made for the benefit of the City of
Miami Beach, florida, (and the City of Miami Beach, Florida, shall be deemed to be a third-party
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beneficiary hereof) and shall be, subject and subordinate to the rights of Lender, enforceable by the
City of Miami Beach, Florida.";
(ix) "Unless and until the City of Miami Beach, Florida, expressly assumes
the obligations of Developer under this contract (and then only to the extent the same arise from and
after such assumption), the City ofMiarni Beach, Florida, shall not be a party to this contract and will
in no way be responsible to any party for any claims of any nature whatsoever arising or which may
arise in connection with such contract."; and
(x) "Contractor hereby agrees that notwithstanding that Contractor
performed work at the Project Site or any part thereof, the City of Miami Beach, Florida shall not be
liable in any manner for payment or otherwise to Contractor in connection with the work performed
at the Project Site, except to the extent the City of Miami Beach, Florida, expressly assumes the
obligations of Developer hereunder (and then only to the extent such obligations arise from and after
such assumption)."
Section 5.4 Demolition of the Proiect Site.
Except as necessary and as provided in the Plans and Specifications in connection with
Construction of the Project or as part of a Casualty Restoration or Condemnation Restoration or as
may be otherwise permitted under this Development Agreement or the Ground Lease, Developer
shall not demolish any portion of the Project Site. Any demolition permitted hereunder shall be
perforrned in accordance with all applicable Requirements.
ARTICLE 6.
FINANCING OF PROJECT CONSTRUCTION
AND DISBURSEMENT PROCEDURES
Section 6.1 Develooer's Contributions.
Developer shall provide the Funded Equity as set forth in Section 3.4(b). Developer shall
also provide all of the funds necessary to complete Construction of the Project.
Section 6.2 Fees.
(a) City Permit Fees. Developer assumes payment responsibility for any and all
Permits, now or hereafter, required to be obtained from the City for the construction of the Project,
which include, without limitation, building permit applications, inspection, certification, impact and
connection fees that the City may levy by or through its Public Works Department (including, without
limitation, water and sewer fees) and those fees, to the extent applicable, listed in the City of Miami
Beach Building Department Fee Schedule, as amended through September 16, 1992 by Ordinance
Number 92-2796, or the most current edition adopted by the City, which fee schedule is hereby
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incorporated by reference and made a part of this Agreement (collectively, the "Fees"). Developer
sh,a!1 remain responsible for payment of the fees notwithstanding any and all modifications or changes
in price structure as imposed by the City or any other Governmental Authority authorized to impose
such Fees.
(b) Non-City Permit Fees. Developer shall assume responsibility for payment of
all fees charged by Governmental Authorities relating to the Project.
ARTICLE 7.
INSURANCE
Developer shall, in accordance with the Ground Lease, carry or cause to be carried the
insurance required under Section 7.10 of the Ground Lease, including the relevant provisions of
Sections 7.2, 7.3, 7.6 and 7.14 of the Ground Lease.
ARTICLE 8.
DAMAGE, DESTRUCTION AND RESTORATION
Section 8.1 Casualty.
If the Project Site is damaged or destroyed in whole or in part by fire or other casualty, the
provisions of the Ground Lease applicable to damage or destruction by fire or other casualty to
the"Premises" described under the Ground Lease shall govern the rights and obligations of Developer,
Owner and any Recognized Mortgagee hereunder.
Section 8.2 Effect of Casual tv on this All:reement.
Except as provided in Section 8.1 or the Ground Lease, this Development Agreement shall
not terminate, be forfeited or be affected in any manner, by reason of any damage to, or total or
partial destruction of, or untenantability of the Project Site or any part thereofresulting from such
damage or destruction.
ARTICLE 9.
CONDEMNATION
Section 9.1 Takinll.
If all or any portion of the Project Site is taken for any public or quasi-public purpose by any
lawful power or authority by the exercise of the right of condemnation or eminent domain or by
agreement among Owner, Developer, any Recognized Mortgagee and those authorized to exercise
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such right, the provisions of the Ground Lease applicable to such taking of the "Premises" described
under the Ground Lease shall govern the rights and obligations of Developer, Owner and any
Recognized Mortgagee hereunder.
Section 9.2 Effect ofTakinl! on this Al!reement.
Except as provided in Section 9.1 or the Ground Lease, this Development Agreement shall
not terminate, be forfeited or be affected in any manner, by reason of any taking of the Project Site
or any part thereof.
ARTICLE 10.
RIGHTS OF RECOGNIZED MORTGAGEE
Section 10.1 Notice and Ril!ht to Cure Develoner's Defaults.
(a) .Owner shall give to the Recognized Mortgagee and/or Affiliate Mortgagee a
copy of each notice of Default at the same time as it gives notice of such Default to Developer, and
no such notice of Default shall be deemed effective with respect to any Recognized Mortgagee or
Affiliate Mortgagee unless and until a copy thereof shall have been so received by or refused by such
Recognized Mortgagee or Affiliate Mortgagee, as applicable. All such notices to a Recognized
Mortgagee or Affiliate Mortgagee shall be sent as set forth in Section 11.4(a) of the Ground Lease.
Owner shall also give the Recognized Mortgagee or Affiliate Mortgagee notice ("Notice of Failure
to Cure") in the event Developer fails to cure a Default within the period, if any, provided in this
Agreement for such cure, promptly following the expiration of such period (i.e., an Event of Default).
(b) The Recognized Mortgagee shall have a period of sixty (60) days after receipt
of the Notice of Failure to Cure, in the case of any Event of Default, to (1) cure the Event of Default
referred to in the Notice of Failure to Cure or (2) cause it to be cured, subject to the same additional
time periods provided to Developer pursuant to the provisions of Section 19.1(b) unless such default
is not susceptible of being cured by a Recognized Mortgagee (Le., defaults stated in Section 19.1(e),
(f) and (g)). Nothing contained herein shall be construed as imposing any obligation upon any
Mortgagee to so perform or comply on behalf of Developer.
(c) Owner shall accept performance by a Mortgagee of any covenant, condition
or agreement on Developer's part to be performed hereunder with the same force and effect as
though performed by Developer.
(d) Notwithstanding any other provision of this Agreement, no payment made to
Owner by any Mortgagee shall constitute the Mortgagee's agreementthat such payment was, in fact,
due under the terms of this Agreement.
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(e) Notwithstanding the foregoing provisions of iliis Section 10.1, if a Recognized
Mortgagee fails (for any reason) to cure any Event of Default by Developer within sixty (60) days
following receipt of the Notice of Failure to Cure regarding such Event of Default, then Owner may,
but shall be under no obligation to, perform the obligation of Developer the breach of which gave rise
to such Event of Default (including, without limitation, the performance of any of the obligations of
Developer under any Construction Agreement), without waiving or releasing Developer from its
obligations with respect to such Event of Default. Developer hereby grants Owner access to the
Project Site in order to perform any such obligation. Any amount paid by Owner in performing
Developer's obligations as provided in this Section 10.1( e), including, without limitation, all costs and
expenses incurred by Owner in connection therewith, shall be reimbursed to Owner within thirty (30)
days following Owner's demand therefor, together with a late charge on amounts actually paid by
Owner, calculated at the Late Charge Rate from the date of notice of any such payment by Owner
to the date on which payment of such amounts is received by Owner.
(f) If there is more than one Recognized Mortgagee, only that Recognized
Mortgagee, to the exclusion of all other Recognized Mortgagees, whose Recognized Mortgage is
most seniorin lien shall be recognized as having rights under this Article 10, unless such first priority
Recognized Mortgagee has designated in writing to Owner a Recognized Mortgagee whose
Mortgage is junior in lien to exercise such right.
ARTICLE 11.
NO SUBORDINATION
Owner's Interest in the Premises, including, without limitation, Owner's interest in the Ground
Lease and this Agreement, as the same may be modified, amended or renewed, shall not be subject
or subordinate to (a) any Mortgage now or hereafter existing, (b) any other liens or encumbrances
hereafter affecting Developer's Interest in the Premises and Developer's interest in this Development
Agreement or (c) any sublease or any mortgages, liens, or encumbrances now or hereafter placed on
any subtenant's interest in the Project Site. Developer's Interest in the Premises and this
Development Agreement and all rights of Developer hereunder are and shall be subject to the Title
Matters as set forth on Exhibit 2.1 to the Ground Lease.
ARTICLE 12.
MAINTENANCE AND REPAIR
Section 12.1 Maintenance ofProiect Site.
(a) Maintenance and ReDair.
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(i) Developer shall take good care of, and keep and maintain, the Project
Site in good and safe order and condition, and shall make all repairs reasonably necessary to keep the
Project Site in good and safe order and condition.
(ii) Developer shall not commit, and shall use all reasonable efforts to
prevent waste, damage or injury to the Project Site, except with respect to the Construction of the
Project (but subject, however, to the provisions of Section 12.1(a)(i)).
(b) Cleaning ofProiect Site. Developer shall keep clean and free from rubbish all
areas of the Project Site.
(c) Other Areas. Developer shall promptly rectify any damage or interference
caused by Developer to any improvements, equipment, structures or vegetation outside of the Project
Site which is owned or controlled by Owner or the City. The City or Owner shall promptly rectify
any damage or interference caused by the City or Owner to the Project Site.
Section 12.2 Waste Disnosal.
Developer shall dispose of waste from all areas of the Project Site in accordance with
Requirements and in a prompt, sanitary and aesthetically reasonably inoffensive manner.
ARTICLE 13.
REQUIREMENTS
Section 13.1 Requirements.
(a) ObIilJation to Coml'lv. In connection with any Construction Work, and with
the maintenance, management, use, construction and operation of the Project Site and Developer's
performance of its obligations hereunder, Developer shall comply promptly with all Requirements,
without regard to the nature of the work required to be done, whether extraordinary or ordinary, and
whether requiring the removal of any encroachment (but Developer may seek to obtain an easement
in order to cure an encroachment, if permitted by Requirements), or affecting the maintenance, use
or occupancy of the Project Site, or involving or requiring any structural changes or additions in or
to the Project Site and regardless of whether such changes or additions are required by reason of any
particular use to which the Project Site, or any part thereof, may be put. No consent to, approval of
or acquiescence in any plans or actions of Developer by Owner, in its proprietary capacity as Owner,
or Owner's designee shall be relied upon or construed as being a determination that such are in
compliance with the Requirements, or, in the case of construction plans, are structurally sufficient,
prudent or in compliance with the Requirements. Failure of this Development Agreement to address
a particular permit, condition, term or restriction shall not relieve the Developer of the necessity of
complying with the law governing said permitting requirements, conditions, term or restriction.
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(b) Definition.
"Requirements" means:
(i) any and all laws, constitutions, rules, regulations, orders, ordinances,
charters, statutes, codes, executive orders and requirements of all Governmental Authorities having
jurisdiction over a Person and/or the Project Site or any street, road, avenue or sidewalk comprising
a part of, or lying in front of, the Project Site or any vault in, or under the Project Site (including,
without limitation, any ofthe foregoing relating to handicapped access or parking, the Building Code
of the City and the laws, rules, regulations, orders, ordinances, statutes, codes and requirements of
any applicable fire Rating Bureau or other body exercising similar functions);
(ii) the temporary and/or permanent certificate or certificates of occupancy
issued for the Project Site as then in force;
(iii) the requirements of the City of Miami Beach Prevailing Wage
Ordinance, Miami Bel\ch City Code, Section 31 A-27, as amended, ifapplicable; and
(iv) any and all provisions and requirements of any property, casualty or
other insurance policy required to be carried by Developer under this Agreement.
ARTICLE 14.
DISCHARGE OF LIENS
Section 14.1 Creation of Liens.
(a) Developer shall not create, cause to be created, or suffer or permit to exist (I)
any lien, encumbrance or charge upon this Agreement, the Project Site or any part thereof or
appurtenance thereto, which is not removed within the time period required pursuant to Section 14.2,
(2) any lien, encumbrance or charge upon any assets of, or funds appropriated to, Owner, or (3) any
other matter or thing whereby Owner's Interest in the Premises or any part thereof or appurtenance
thereto might be materially impaired. Notwithstanding the above, Developer shall have the right to
execute Mortgages and other loan documents, subleases and other instruments (including, without
limitation, equipment leases) as provided by, and in accordance with, the provisions of the Ground
Lease.
(b) Owner shall not create, cause to be created, or suffer or permit to exist (i) any
lien, encumbrance upon this Agreement, the Ground Lease or the income therefrom (except as
expressly provided in the Ground Lease), the Project Site, or any part thereof or appurtenance
thereto, which is not removed within the time period required pursuant to Section 14.2, (ii) any lien,
encumbrance or charge upon any assets of, or funds appropriated to, Developer, or (iii) any other
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matter or thing whereby Developer's Interest in the Premises any part thereof or appurtenant thereto
mj.ght be materially impaired.
Section 14.2 Dischar~e of Liens.
(a) If any mechanic's, laborer's, vendor's, materialman's or similar statutory lien
(including tax liens, provided the underlying tax is an obligation of Developer by the Requirements
or by a provision of this Development Agreement) is filed against the Project Site or any part thereof,
or if any public improvement lien created, or caused or suffered to be created by Developer shall be
filed against any assets of, or funds appropriated to, Developer or Owner, Developer shall, within
thirty (30) days after Developer receives notice of the filing of such mechanic's, laborer's, vendor's,
materialman's or similar statutory lien or public improvement lien, cause it to be discharged of record
by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. However,
Developer shall not be required to discharge any such lien if Developer shall have (i) furnished Owner
with, at Developer's option, a cash deposit, bond, letter of credit from an Institutional Lender (in
form reasonably satisfactory to Owner) or other security (such as a personal guaranty or title
company indemnity) ryasonably satisfactory to Owner, in an amount sufficient to pay the lien with
interest and penalties; and (ii) brought an appropriate proceecling to clischarge such lien and is
prosecuting such proceeding with diligence and continuity; except that if, despite Developer's efforts
to seek discharge of the lien, Owner reasonably believes that a court judgment or order foreclosing
such lien is about to be entered or granted and so notifies Developer, Developer shall, within ten (10)
days of notice to such effect from Owner (but not later than three (3) Business Days prior to the entry
or granting of such judgment or order offoreclosure), cause such lien to be discharged of record or
Owner may thereafter discharge the lien in accordance with Section 18.2 and look to the security
furnished by Developer for reimbursement of its cost in so doing. Notwithstanding anything to the
contrary contained in this Section 14.2(a), in the case of a public improvement lien which provides
for installment payments as a means of satisfying such lien, Developer shall be required only to pay,
on a timely basis, all installments when due.
(b) Notwithstanding anything to the contrary contained in Section 14.2(a), if any
mechanic's, laborer's, vendor's, materialman's or similar statutory lien (including tax liens, provided
the underlying tax is an obligation of Developer by the Requirements or by a provision of this
Development Agreement) is filed against the Project Site or any part thereof or Developer's Interest
in the Premises or Owner's Interest in the Premises as a result of any action of Owner, its officers,
employees, representatives or agents, Owner shall, within thirty (30) days after Owner receives notice
of the filing of such mechanic's, laborer's, vendor's, materialman's or similar statutory lien, cause it
to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or
otherwise. However, Owner shall not be required to discharge any such lien if Owner shall have (i)
furnished Developer with, at Owner's option, a cash deposit, bond, letter of credit from an
Institutional Lender (in form reasonably satisfactory to Developer) or other security (such as a
personal guaranty or title company indemnity) reasonably satisfactory to Developer, in an amount
sufficient to pay the lien with interest and penalties and (ii) brought an appropriate proceeding to
discharge such lien and is prosecuting such proceeding with diligence and continuity; except that if,
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despite Owner's efforts to seek discharge of the lien, Developer reasonably believes that a court
judr,mel\t or order foreclosing such lien is about to be entered or granted and so notifies Own~r,
Owner shall, within ten (10) days of notice to such effect from Developer (but not later than three
(3) Business Days prior to the entry or granting of such judgment or order offoreclosure), cause such
lien to be discharged of record or Developer may thereafter discharge the lien in accordance with
Section 18.2 and look to the security furnished by Owner for reimbursement of its cost in so doing.
Section 14.3 No Authority to Contract in Name of Owner.
Nothing contained in this Article 14.3 shall be deemed or construed to constitute the
consent or request of Owner, express or implied, by implication or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the furnishing of any
materials for any specific improvement of, alteration to, or repair of, the Project Site or any part
thereof, nor as giving Developer any right, power or authority to contract for, or permit the rendering
of, any services or the furnishing of materials that would give rise to the filing of any lien, mortgage
or other encumbrance against Owner's Interest in the Premises or any part thereof or against any
assets of Owner. Noti<;e is hereby given, and Developer shall cause all Construction Agreements to
provide, that to the extent enforceable under Florida law, Owner shall not be liable for any work
performed or to be performed at the Project Site or any part thereof for Developer or for any
subtenant or for any materials furnished or to be furnished to the Project Site or any part thereof for
any of the foregoing, and no mechanic's, laborer's, vendor's, rnateriaIman's or other similar statutory
lien for such work or materials shall attach to or affect Owner's Interest in the Premises or any part
thereof or any assets of Owner. The foregoing shall not require Developer to request advance
waivers of lien from contractors or subcontractors.
ARTICLE IS.
NO LIABILITY FOR INJURY OR DAMAGE, ETC.
The provisions of Article 19 of the Ground Lease shall be applicable to this Agreement as if
the references to the "Premises" in such Article 19 were references to the "Project Site" .
ARTICLE 16.
INDEMNIFICATION
Section 16.1 Indemnification Generally.
The provisions of Article 20 of the Ground Lease shall be applicable to this Agreement as if
the references to the "Premises" in such Article 20 were references to the "Project Site".
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Section 16.2 Governs A2reement.
The provisions of this Article 16 shall govern every other provision of this Agreement. The
absence of explicit reference to this Article 16 in any particular provision of this Agreement shall not
be construed to diminish the application of this Article 16 to such provision.
Section 16.3 Survival.
The provisions of this Article 16 shall survive the expiration of the Term of this Agreement.
ARTICLE 17.
CERTIFICATES BY OWNER AND DEVELOPER
Upon request for reasonable purposes, either party shall provide a written statement to the
requesting party certifying as to the relevant information required pursuant to Article 27 of the
Ground Lease with respect to this Agreement and the date to which amounts payable hereunder by
either party have been paid.
ARTICLE 18.
RIGHT TO PERFORM THE OTHER PARTY'S COVENANTS
Section 18.1 Right to Perform Other Party's Oblil!ations.
(a) IfanEvent of Default shall occur, Owner may, but shall be under no obligation
to, perform the obligation of Developer the breach of which gave rise to such Default, without
waiving or releasing Developer from any of its obligations contained herein, provided that Owner
shall exercise such right only in the event of a bona fide emergency or after five (5) Business Days
notice, and Developer hereby grants Owner access to the Project Site in order to perform any such
obligation.
(b) If a default by Owner under this Agreement shall occur and be continuing
beyond any applicable grace period, Developer may, but shall be under no obligation to, perform the
obligations of Owner (other than those which are governmental as opposed to proprietary
obligations) the breach of which gave rise to such default, without waiving or releasing Owner from
any of its obligations contained herein, provided that Developer shall exercise such right only in the
event of a bona fide emergency or after five (5) Business Days notice to Owner or the City, as
applicable.
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Section 18.2 DischlU'l!:e of Liens.
(a) If Developer fails to cause any mechanic's, laborer's, vendor's, materialman's
or similar statutory lien (including tax liens, provided the underlying tax is an obligation of Developer
by the Requirements or by a provision of this Development Agreement) to be discharged of record
in accordance with the provisions of Article 14, Owner may, but shall not be obligated to, discharge
such lien of record either by paying the amount claimed to be due or by procuring the discharge of
such lien by deposit or by bonding proceedings.
(b) If Owner fails to cause any mechanic's, laborer's, vendor's, materialman's or
similar statutory lien (including, tax liens, provided the underlying tax is an obligation of Developer
by the Requirements or by a pTovision of this Development Agreement) to be discharged of record
in accordance with the provisions of Article 14, Developer may, but shall not be obligated to,
discharge such lien of record either by paying the amount claimed to be due or by procuring the
discharge of such lien by deposit or by bonding proceedings. If Developer' s Interest in the Premises
(or any portion thereof) is threatened or a material interest of Developer is impaired, Developer may
also, if Owner has not.done so (or bonded such lien), compel the prosecution of an action for the
foreclosure of such lien by the lienor and the payment of the amount of the judgment in favor of the
lienor with interest, costs and allowances.
Section 18.3 Reimbursement for Amounts Paid Pursuant to this Article.
(a) Any amount paid by Ownerin performing Developer's obligations as provided
in this Article 18, including all costs and expenses incurred by Owner in cormection therewith, shall
constitute additional Rental under the Ground Lease and shall be reimbursed to Owner within thirty
(30) days of Owner's demand, together with a late charge on amounts actually paid by Owner,
calculated at the Late Charge Rate from the date of notice of any such payment by Owner to the date
on which payment of such amounts is received by Owner.
(b) Any amount paid by Developer in performing Owner's obligations as provided
in this Article 18, including all costs and expenses incurred by Developer in connection therewith,
shall be reimbursed to Developer within thirty (30) days of Developer's demand, together with a late
charge on amounts actually paid by Developer, calculated at the Late Charge Rate from the date of
notice of any such payment by Developer to the date on which payment of such amounts is received
by Developer.
Section 18.4 Waiver. Release and Assumlltion ofObli~ations.
(a) Owner's payment or performance pursuant to the provisions of this Article
18 shall not be, nor be deemed to constitute, Owner's assumption of Developer's obligations to pay
or perform any of Developer's past, present or future obligations hereunder.
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(b) Developer's payment or performance pursuant to the provisions of this Article
18 shaIlnot be, nor be deemed to constitute, Developer's assumption of Owner's obligations to pay
or perform any of Owner's past, present or future obligations hereunder.
ARTICLE 19.
EVENTS OF DEFAULT, CONDITIONAL
LIMITATIONS, REMEDIES, ETC.
Section 19.1 Definition.
Each of the following events shall be an "Event of Default" hereunder:
(a) an Event of Default under the Ground Lease shall have occurred and be
continuing beyond any applicable cure period, including any cure period applicable to a Recognized
Mortgagee; or
(b) if Developer shall default in the observance or performance of any term,
covenant or condition of this Agreement on Developer's part to be observed or performed and, if no
cure period is expressly provided for herein, Developer shall fail to remedy such Default within thirty
(30) days after notice by Owner of such Default (the "Default Notice"), or if such a Default is of
such a nature that it cannot reasonably be remedied within thirty (30) days (but is otherwise
susceptible to cure), Developer shall not (i) within thirty (30) days after the giving of such Default
Notice, advise Owner of Developer's intention to institute all steps necessary (and from time to time,
as reasonably requested by Owner, Developer shall advise Owner of the steps being taken) to remedy
such default (which such steps shall be reasonably designed to effectuate the cure of such Default in
a professional manner), and (ii) thereafter diligently prosecute to completion all such steps necessary
to remedy the same; or
(c) to the extent permitted by law, if Developer admits, in writing, that it is
generally unable to pay its debts as such become due; or
(d) to the extent permitted by law, if Developer makes an assignment for the
benefit of creditors; or
(e) to the extent permitted by law, ifDevelopcr files a voluntary petition under
Title 11 of the United States Bankruptcy Code, or if Developer files a petition or an answer seeking,
consenting to or acquiescing in, any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future Federal bankruptcy code or
any other present or future applicable Federal, state or other bankruptcy or insolvency statute or law,
or seeks, consents to, acquiesces in or suffers the appointment of any trustee, receiver, custodian,
assignee, sequestrator, liquidator or other similar official of Developer, of aU or any substantial part
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of its properties, or of all or any part of Developer's Interest in the Premises, and the foregoing are
not stayed or dismissed within one hundred fifty (150) days after such filing or other action; or
(t) to the extent permitted by law, if, within one hundred fifty (150) days after the
commencement of a proceeding against Developer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the present or any future
Federal bankruptcy code or any other present or future applicable Federal, state or other bankruptcy
or insolvency statute or law, such proceeding has not been dismissed, or if, within one hundred eighty
(180) days after the appointment, without the consent Qr acquiescence of Developer, of any trustee,
receiver, custodian, assignee, sequestrator, liquidator or other similar official of Developer, of all or
any substantial part of its properties, or of all or any part of Developer's Interest in the Premises, such
appointment has not been vacated or stayed on appeal or otherwise, or if, within one hundred eighty
(180) days after the expiration of any such stay, such appointment has not been vacated; or
(g) if a levy under execution or attachment in an aggregate amount of One
Hundred Thousand Dollars ($100,000) (as adjusted for inflation in accordance with the Ground
Lease) at any one tim~ is made against the Project Site or any part thereof or rights appertaining
thereto (except for a levy made in connection with actions taken by Owner (other than holding
Owner's Interest in the Premises)), or this Agreement and such execution or attachment is not vacated
or removed by court order, bonding or otherwise within a period of sixty (60) days, subject to
Unavoidable Delays after such levy or attachment;
In the event of aDefault which with the giving of notice to Developer and the passage of time
would constitute an Event of Default, Owner's notice to Developer shall state with specificity the
provision of this Agreement under which the Default is claimed, the nature and character of such
Default, the facts giving rise to such Default, the date by which such Default must be cured pursuant
to this Agreement, if applicable, and, ifapplicable, that the failure of Developer to cure such Default
by the date set forth in such notice will result in Owner having the right to terminate this Agreement.
With respect only to Development Disputes, Owner's allegation of a Default shall be subject to
expedited arbitration in accordance with the provisions of Article 22, provided Tenant shall initiate
any such arbitration within the applicable grace period provided in this Section 19.1 or within ten
(10) Business Days after receipt of Owner's notice if no such grace period is provided therein.
Notwithstanding the foregoing, no Event of Default shall be deemed to have occurred until
such time as Owner shall have given Developer notice of the occurrence of an Event of Default;
provided, however, if Developer shall dispute, in accordance with the provisions of Article 22,
Owner's assertion that an Event of Default has occurred within ten (10) Business Days after the
giving of such notice by Owner, an Event of Default shall not be deemed to have occurred and Owner
shall not be permitted to exercise any rights against Developer stated herein to arise out of an Event
of Default until such time as the Arbitrator or a court, if applicable, has determined that an Event of
Default has occurred.
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Notwithstanding anything to the contrary contained herein, Owner shall be entitled to seek
any injuflctive or other equitable relief that may be available t(l Owner during the pendency of any
Default.
Section 19.2 Enforcement of Performance: Damages and Termination.
If an Event of Default occurs, Owner may elect to (a) enforce performance or observance by
Developer of the applicable provisions of this Agreement or (b) recover damages for breach of this
Agreement or (c) in the circumstances described in Section 19.3(a), terminate this Agreement
pursuant to Section 19.3(a). Owner's election of a remedy hereunder with respect to an Event of
Default shall not limit or otherwise affect Owner's right to elect any of the remedies available to
Owner hereunder with respect to any other Event of Default.
Section 19.3 Expiration and Termination of Alrreement.
(a) If an Event of Default occurs under the Ground Lease which results in a
termination of the Gro~d Lease, this Agreement shall terminate. Ifsuch termination is stayed by
order of any court having jurisdiction over any case described in Sections 19.1(e) or 19.1(f) or by
federal or state statute, then, following the expiration of any such stay, or if the trustee appointed in
any such case, Developer or Developer as debtor-in-possession fails to assume Developer's
obligations under this Agreement within the period prescribed therefor by law or within thirty (30)
days after entry of the order for relief or as may be allowed by the court, Owner, to the extent
permitted by law or by leave of the court having jurisdiction over such case, shall have the right, at
its election, to terminate this Agreement on five (5) days notice to Developer, Developer as debtor-in-
possession or the trustee. Upon the expiration of the five-day period this Agreement shall expire and
terminate and Developer, Developer as debtor-in-possession and/or the trustee immediately shall quit
and surrender Developer's Interest in the Premises and possession thereof.
(b) If this Agreement is terminated as provided in Section 19.3( a), Owner may,
without notice, re-enter and repossess Developer's Interest in the Premises and may dispossess
Developer by summary proceedings, writ of possession, proceedings in bankruptcy court or
otherwise, subject to applicable Requirements.
Section 19.4 Strict Performance.
No failure by Owner or Developer to insist upon strict performance of any covenant,
agreement, term or condition of this Agreement or to exercise any right or remedy available to such
party by reason of the other party's default or an Event of Default, shall constitute a waiver of any
such Default or Event of Default or of such covenant, agreement, term or condition or of any other
covenant, agreement, term or condition. No covenant, agreement, term or condition of this
Agreement to be performed or complied with by either party, and no default by either party, shall be
waived, altered or modified except by a written instrument executed by the other party. No waiver
of any Default or Event of Default shall affect or alter this Agreement, but each and every covenant,
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agreement, term and condition of this Agreement shall continue in full force and effect with respect
to any other then existing or subsequent Default. Developer's compliance with any request or
demand made by Owner shall not be deemed a waiver of Developer's right to contest the validity of
such request or demand.
Section 19.5 Right to Enioin Defaults.
With respect to Development Disputes and all other disputes, in the event of Developer's
Default or an Event of Default, Owner shall be entitled to seek to enjoin the Default or Event of
Default and shall have the right to invoke any rights and remedies allowed at law or in equity or by
statute or otherwise, except to the extent Owner's remedies are expressly limited by the terms hereof.
With respect to Development Disputes and all other disputes, in the event of any default by Owner
of any term, covenant or condition under this Agreement, Developer shall be entitled to seek to enjoin
the default and shall have the right to invoke any rights and remedies allowed at law or in equity or
by statute or otherwise, except to the extent Developer's remedies are expressly limited by the terms
hereof. Each right and remedy of Owner and Developer provided for in this Agreement shall be
cumulative and shall be in addition to every other right or remedy provided for in this Agreement or
now or hereafter existing at law or in equity or by statute or otherwise, except to the extent Owner's
remedies and Developer's remedies are expressly limited by the terms hereof, and the exercise or
beginning of the exercise by Owner or Developer of anyone or more of the rights or remedies
provided for in this Agreement or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by Owner or Developer of any or all
other rights or remedies provided for in this Agreement or now or hereafter existing at law or in
equity or by statute or otherwise, except to the extent Owner's remedies and Developer's remedies
are expressly limited by the terms hereof.
Section 19.6 Remedies under Bankruotcv and Insolvency Codes.
If an order for relief is entered or if any stay of proceeding or other act becomes effective
against Developer, Developer's Interest in the Premises, or Developer's interest in this Agreement,
or Owner, Owner' 5 Interest in the Premises, or Owner's interest in this Agreement, as applicable, in
any proceeding which is commenced by or against Developer or Owner, as applicable, under the
present or any future Federal Bankruptcy Code or in a proceeding which is commenced by or against
Developer or Owner, as applicable, seeking a reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any other present or future applicable
federal, state or other bankruptcy or insolvency statute or law, Owner or Developer, as applicable,
shall be entitled to invoke any and all rights and remedies available to it under such bankruptcy or
insolvency code, statute or law or this Agreement (except to the extent Owner's remedies and
Developer's remedies are expressly limited by the terms hereof).
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Section 19.7 Inspection.
~i: 187;rur~ 1.16
Without in any way limiting Article 4, Owner and its representatives shall have the right, upon
twenty-four (24) hours prior notice to Developer, to enter upon the Project Site to conduct
inspections for the purpose of determining whether a Default or an Event of Default has occurred,
provided that Owner shall be accompanied by a representative of Developer and provided further that
such entry shall not unreasonably interfere with the Construction of the Project. Devl;loper agrees
to make a representative of Developer available to accompany Owner on any such inspection.
ARTICLE 20.
NOTICES, CONSENTS AND APPROVALS
Section 20. I Service of Notices and Other Communications.
(a) In Writing. Whenever it is provided herein that notice, demand, request,
consent, approval or o!her communication shall or may be given to, or served upon, either of the
parties by the other (or any Recognized Mortgagee), or whenever either of the parties desires to give
or serve upon the other any notice, demand, request, consent, approval or other communication with
respect hereto or to the Project Site, each such notice, demand, request, consent, approval or other
communication (referred to in this Section 20.1 as a "Notice") shall be in writing (whether or not
so indicated elsewhere in this Agreement) and shall be effective for any purpose only if given or
served by (i) certified or registered U.s. Mail, postage prepaid, return receipt requested, (ii) personal
delivery with a signed receipt or (Hi) a recognized national courier service, addressed as follows:
if to Developer:
Lincoln Plaza Partners LLC
c/o SRC Lincoln Plaza LLC
230 Fifth Street
Miami Beach, FL 33139
Attention: Scott Robins, Managing Member
with a copy to:
Stuart K. Hoffman, Esq.
Holland & Knight
701 Brickell Avenue
Suite 3000
Miami, FL 33131
if to Owner:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, florida 33 139
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with a copy to:
City of Miami Beach
City Attorney
1700 Convention Center Drive
Miami Beach, Florida 33139
with a copy to:
Bloom & Minsker
1401 Brickell Avenue, Suite 700
Miami, Florida 33131
Attention: Joel N. Minsker, P.A.
Any Notice may be given, in the manner provided in this Section 20.1, (x) on either party's behalf
by its attorneys designated by such party by Notice hereunder, and (y) at Developer's request, on its
behalf by any Recognized Mortgagee designated in such request.
(b) Effectiveness. Every Notice shall be effective on the date actually received,
as indicated on the receipt therefor or on the date delivery thereof is refused by the recipient thereof.
(c) References. All references in this Agreement to the "date" of Notice shall
mean the effective date, as provided in the preceding subsection (b).
Section 20.2 Consents and Approvals.
(a) Effect of Granting or Failure to Grant Approvals or Consents. All consents
and approvals which may be given under this Development Agreement shall, as a condition of their
effectiveness, be in writing. The granting by a party of any consent to or approval of any act
requiring consent or approval under the terms of this Development Agreement, or the failure on the
part of a party to object to any such action taken without the required consent or approval, shall not
be deemed a waiver by the party whose consent was required of its right to require such consent or
approval for any other act.
(b) Standard. All consents and approvals which may be given by a party under
this Development Agreement shall not (whether or not so indicated elsewhere in this Development
Agreement) be unreasonably withheld or conditioned by such party and shall be given or denied
within the time period provided, and if no such time period has been provided, within a reasonable
time. In furtherance of the foregoing, in determining whether Owner has acted reasonably in not
giving its consent or approval, the trier of fact shall take into consideration (for so long as Owner
is the City or any Governmental Authority) that Owner is a political body governed by elected
officials or persons that are appointed, directly or indirectly, by elected officials. Upon disapproval
of any request for a consent or approval, the disapproving party shall, together with notice of such
disapproval, submit to the requesting party a written statement setting forth with specificity its
reasons for such disapproval.
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(c) Deemed Aporoval.
(i) If a party entitled to grant or deny its consent or approval (the
"Consenting Party") within the specified time period shall fail to do so, then, except as otherwise
provided in Section 20.2( c)(ii) below, and provided that the request for consent or approval (and the
envelope in which such request is transmitted to the extent pennitted by the carrier) bears the legend
set forth below in capital letters and in a type size not less than that provided below, the matter for
which such consent or approval is requested shall be deemed consented to or approved, as the case
may be:
"FAILURE TO RESPOND TO THIS REQUEST WITHIN THE TIME
PERIOD PROVIDED IN THE DEVELOPMENT AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA AND LINCOLN PLAZA PARTNERS,
LLC SHALL CONSTITUTE AUTOMATIC APPROV AL OF THE MATTERS
DESCRIBED HEREIN WITH RESPECT TO SECTION IFILL IN
APPLICABLE SECTION] OF SUCH DEVELOPMENT AGREEMENT."
(ii) Notwithstanding anything to the contrary contained in Section
20.2(c)(i) above, ifthe "Owner" hereunder and the matter, other than a matter referred to in Section
20.2( c)(iii) below, to be consented to or approved requires the consideration of the City Commission,
as applicable (whether pursuant to Requirements or the written opinion of the City Attorney, then,
provided Owner gives Developer notice of such requirement within the time period provided for such
consent or approval, such matter shall not be deemed approved or consented to unless Owner shall
fail to respond to Developer's request by the date which is five (5) Business Days after the first
regular meeting of the City Commission which occurs no earlier than ten (10) days following the
receipt of such request (or second request, as applicable); but in any event not later than sixty (60)
days following such request (or second request), as applicable.
(Hi) Owner hereby agrees, for SO long as the City shall be the "Owner"
hereunder, that, subject to Requirements, the City Manager, as applicable, shall be authorized to grant
consents or approvals on behalf of the City with respect to Section 2.4(c) and Article 3 and
Article 7.
(iv) The foregoing provisions of this Subsection shall not be construed to
modify or otherwise affect a party's right to arbitrate or litigate, as applicable, the failure of a party
to act reasonably in granting or denying a request for consent or to timely respond to a request for
a consent, but such right to arbitrate or litigate, as applicable, shall not serve to delay the time period
within which a grant or denial of such request is required hereunder.
(d) Remedy for Refusal to Grant Consent or Aooroval. If, pursuant to the terms
of this Agreement, any consent or approval by Owner or Developer is alleged to have been
unreasonably withheld, conditioned or delayed, then any dispute as to whether such consent or
approval has been unreasonably withheld, conditioned or delayed shall be settled by arbitration or
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litigation, as applicable. In the event there shall be a final determination that the consent or approval
was unreasonably withheld, conditioned or delayed so that the consent or approval should have been
granted, the consent or approval shall be deemed granted and the party requesting such consent or
approval shall be entitled to any and all damages resulting therefrom, subject to the limitations
provided in this Agreement.
(e) No Fees. etc. Except as specifically provided herein, no fees or charges of any
kind or amount shall be required by either party hereto as a condition of the grant of any consent or
approval which may be required under this Agreement (provided that the foregoing shall not be
deemed in any way to limit Owner acting in its governmental, as distinct from its proprietary, capacity
from charging governmental fees on a nondiscriminatory basis).
(t) Governmental Capacity. Notwithstanding anything to the contrary contained
in this Section20.2, the City shall not be required by this Development Agreement to give its consent
to any matter arising from or in connection with this Development Agreement when the City is acting
in its governmental capacity.
Section 20.3 Notice "fDetailed Plans.
Notwithstanding anything to the contrary contained in this Agreement (including without
limitation Articles 3, 4 and 20):
(a) Copies of the Detailed Plans shall be submitted solely to Owner's Consultant.
(b) Copies of all Notices to Owner pursuant to Sections 3, 4 and 5 (whether or
not such Notice includes Detailed Plans) shall be distributed to Owner's Consultant.
ARTICLE 21.
FINANCIAL REPORTS AND RECORDS
Section 21.1 Books and Records: Audit Rights.
(a) Developer shall at all times during the Term keep and maintain (separate from
any of Developer's other books, records and accounts), accurate and complete records pertaining to
the construction of the Project and such other matters referenced in this Agreement, in accordance
with the Accounting Principles with such exceptions as may be provided for in this Agreement.
Owner and its representatives shall have, during normal business hours and upon reasonable advance
notice, access to the books and records of Developer pertaining to the Project for the purpose of
examination and audit (including copying), including books of account properly reflecting the
construction of the Project.
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(b) The obligations of Developer under this Article to maintain, and to provide
Owner and its representatives access to, the books and records related to the Project shall survive the
expiration of this Agreement for a period of seven (7) years.
( c) The right of Owner to audit the books and records of Developer pertaining to
the Project, including, without limitation, the books of account regarding the Construction Work,
shall be governed by the provisions of Article 28 of the Ground Lease as if such books and records
were specifically described in such Article 28 as being part of the "books and records" described in
such Article 28; provided, however, copying of all such "books and records" shall specifically be
allowed.
ARTICLE 22.
ARBITRATION
Section 22.1 Exnedited Arbitration of Development DisDutes.
(a) If Developer or Owner asserts that a Development Dispute has arisen, such
asserting party shall give prompt written notice thereof to the other party and to the Development
Arbitrator.
(b) The Development Arbitrator shall no later than five (5) Business Days after
receipt of such notice, hold a preliminary, informal meeting with Owner and Developer in an attempt
to mediate such Development Dispute. If such Development Dispute shall not be resolved at that
meeting, the Development Arbitrator shall at such mediation meeting establish a date, not earlier than
five (5) Business Days after the mediation hearing nor later than twenty (20) Business Days after the
mediation hearing for a hearing (a "Hearing") to be held in accordance with this Agreement to
resolve such Development Dispute.
(c) Developer and Owner shall have the right to make one (1) written submission
to the Development Arbitrator prior to any Hearing. Such submission shall be received by the
Development Arbitrator and the other party not later than two (2) Business Days prior to the Hearing
Date. The parties agree that no discovery (as the term is commonly construed in litigation
proceedings) will be needed and agree that neither party nor the Development Arbitrator shall have
discovery rights in connection with a Development Dispute.
(d) Each Hearing shall be conducted by the Development Arbitrator. It is the
intention of the parties that the Hearings shall be conducted in an informal and expeditious manner.
No transcript or recording shall be made. Each party shall have the opportunity to make a brief
statement and to present documentary and other support for its position, which may include the
testimony of not more than four (4) individuals, two (2) of whom may be outside experts. There shall
be no presumption in favor of either party's position. Any procedural matter not covered herein shall
be governed by the Amended 1993 edition of the CPR Rules for the Arbitration of Business Disputes
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and the florida Arbitration Code to the extent not inconsistent with the CPR Rules and this Section
22.1.
(e) The Hearings shall be held in a location selected by the Development
Arbitrator in Miami-Dade County, Florida. Provided the DevelopmentArbitrator is accompanied by
representatives of both Developer and Owner, the Development Arbitrator may, at its option, visit
the work site to make an independent review in connection with any Development Dispute_
(f) Once it has been determined by the Development Arbitrator or by agreement
of the parties with respect to any Development Dispute that Developer's proposed modifications are
material with regard to, or materially inconsistent with, the Preliminary Plans and Specifications or
the Plans or Specifications pursuant to Section 3.1 the Development Arbitrator shall take into
account, in determining whether Owner has acted unreasonably in failing to grant an approval or
consent as described in Section 3.6(b) such factors as he deems relevant which are not inconsistent
with this Agreement (including items I through 7, below), which in all events shall include the
following factors:
(1) Owner does not have any approval rights with respect to the
matter of interior design and decor of the Project except to the extent the same is reflected in the
Preliminary Plans and Specifications or pursuant to Section 3.6(b).
(2) The Project shall be a first class office building with retail space
and Garage at a quality compatible with the quality set forth in the original approved Preliminary
Plans and Specifications or the original approved Plans and Specifications (without regard to changes
thereto).
(3) The mutual goal of Developer and Owner that Project
Construction Costs overruns shall be minimized.
(4) The mutual goal of Developer and Ownerthatthe Construction
of the Project be completed within approximately twenty-four (24) months from the Possession Date.
(5) Applicability of any Requirement.
(6) The magnitude of the modification to the previously approved
Preliminary Plans and Specifications or Plans and Specifications, as applicable.
(7) The magnitude of the consistency or inconsistency from the
previously approved Preliminary Plans and Specifications or Plans and Specifications, as applicable.
(g) Pending resolution of the Development Dispute, Developer may not implement
the matter which is the subject of such Development Dispute.
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(h) The Development Arbitrator shall render a decision, in writing, as to any
Development Dispute not later than two (2) Business Days following the conclusion of the Hearings
regarding such Development Dispute and shall provide a brief written basis for its decision not later
than five (5) Business Days thereafter. As to each Development Dispute, the Development
Arbitrator's decision shall be limited to (i) whether or not Developer's proposed modification(s) to
the Preliminary Plans and Specifications or the Plans or Specifications pursuant to Section 3.1 is
material, (ii) whether or not Developer's proposed modification(s) to the Preliminary Plans and
Specifications or the Plans or Specifications pursuant to Section 3.1(a) or (b), respectively, is
materially inconsistent, (Hi) whether or not Owner has unreasonably failed to approve or give its
consent to any modifications to the Preliminary Plans or Specifications or the Plans and Specifications
pursuant to Section 3.1(a) or (b); and/or (iv) whether or not Developer or Owner is entitled to any
extension of time for performance. The Development Arbitrator may not award any other or different
relief.
(i) The decision of the Development Arbitrator shall be final and binding on the
parties for all purposes and may be entered in any court of competent jurisdiction.
G) The parties shall cooperate to select an independent, neutral, professional firm
having hotel development or construction experience to serve as the arbitrator (the "Development
Arbitrator"). If the parties cannot agree, then any party may ask the CPR Institute for Dispute
Resolution to select a substitute who will act as Development Arbitrator of that Development
Dispute.
Section 22.2 Liti~ation.
Any dispute between the parties, other than a Development Dispute, shall be subject to
litigation and not arbitration.
ARTICLE 23.
NO PERMIT OR WAIVER OF FEES
This Development Agreement is not and shaH not be construed as a Development Approval,
Building Permit or authorization to commence development, nor shall it relieve Developer of the
obligations to obtain necessary Development Approvals, Building Permits and other required permits
that are required under applicable law and under and pursuant to the terms of this Development
Agreement. Nothing contained in this Development Agreement shall be deemed to constitute a
waiver of any fee, charge or cost imposed by the City in connection with the issuance of any
Development Approval, Building Permit or other permit.
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ARTICLE 24.
INVESTIGATIONS, ETC.
To the extent required by Requirements, Developer shaH cooperate fuHy and faithfully with
any investigation, audit or inquiry conducted by any Governmental Authority that is empowered
directly or by designation to compel the attendance of witnesses and to examine witnesses under oath,
or conducted by a Governmental Authority that is a party in interest to the transaction, submitted bid,
submitted proposal, contract, lease, permit, or license that is the subject of the investigation, audit or
inquiry, In addition, Developer shall promptly report in writing to the City Attorney of the City of
Miami Beach, Florida any solicitation, of which Developer's officers or directors have knowledge,
of money, goods, requests for future employment or other benefit or thing of value, by or on behalf
of any employee of Owner, City or other Person relating to the procurement or obtaining of this
Development Agreement by Developer or affecting the performance of this Development Agreement.
ARTICLE 25.
HAZARDOUS MATERIALS
Section 25.1 General Provision.
The provisions of Article 35 of the Ground Lease shaH be applicable to this Agreement as if
the references in such Article 35 to "Owner", "Tenant" and the "Premises" were references to Owner,
Developer and the Project Site, respectively.
Section 25.2 Survival.
The provisions of this Article 25 shall survive the expiration or sooner termination of this
Agreement.
ARTICLE 26
MISCELLANEOUS
Section 26.1 Governinl! Law and Exclusive Venue.
This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Florida, both substantive and remedial, without regard to principles of conflict of laws. The
exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida,
if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. The
exclusive venue for any expedited arbitration arising out of this Agreement shall be as specified in
Article 22 herein.
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Section 26.2 References.
(a) Captions. The captions of this Development Agreement are for the purpose
of convenience of reference only, and in no way define, limit or describe the scope or intent of this
Development Agreement or in any way affect this Development Agreement. All captions, when
referring to Articles or Sections, refer to Articles or Section in this Development Agreement, unless
specified otherwise.
(b) Table of Contents. The Table of Contents is for the purpose of convenience
ofreference only, and is not to be deemed or construed in any way as part of this Agreement.
( c) Reference to Owner and Developer. The use herein of the neuter pronoun in
any reference to Owner or Developer shall be deemed to include any individual Owner or Developer,
and the use herein of the words "successors and assigns" or "successors or assigns" of Owner or
Developer shall be deemed to include the heirs, legal representatives and assigns of any individual
Owner or Developer.
.
(d) City's Governmental Caoacity. Nothing in this Agreement or in the parties'
acts or omissions in connection herewith shall be deemed in any manner to waive, impair, limit or
otherwise affect the authority of the City in the discharge of its police or governmental power.
(e) Reference to "herein". "hereunder". etc. All references in this Agreement to
the terms "herein", "hereunder" and words of similar import shall refer to this Agreement, as
distinguished from the paragraph, Section or Article within which such term is located.
(f) Reference to "Aol'roval" or "Consent". etc. All references in this Agreement
to the terms "approval", "consent" and words of similar import shall mean "reasonable written
approval" or "reasonable written consent" except where specifically provided otherwise.
Section 26.3 Entire AlITeement. etc.
(a) Entire Agreement. This Development Agreement, together with the
attachments hereto, contains all of the promises, agreements, conditions, inducements and
understandings between Owner and Developer concerning the development and construction of the
Project on the Project Site and there are no promises, agreements, conditions, understandings,
inducements, warranties or representations, oral or written, express or implied, between them other
than as expressly set forth herein and in such attachments thereto or as may be expressly contained
in any enforceable written agreements or instruments executed simultaneously herewith by the parties
hereto. Notwithstanding anything to the contrary set forth in this Agreement, the terms of this
Agreement shall supersede the terms of the Letter of Intent and the RFP and Developer's response
thereto. This Agreement may be executed in counterparts, each of which shall be deemed an original
but all of which together shall represent one instrument.
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(b) Waiver. Modification. etc. No covenant, agreement, term or condition of this
[)evelopment Agreement shall be changed, modified, altered, waived or terminated except by a
written instrument of change, modification, alteration, waiver or termination executed by Owner and
Developer. No waiver of any Default or default shall affect or alter this Agreement, but each and
every covenant, agreement, term and condition of this Agreement shall continue in full force and
effect with respect to any other then existing or subsequent Default or default thereof.
(c) Effect of Other Transactions. No Mortgage, whether executed simultaneously
with this Agreement or otherwise, and whether or not consented to by Owner, shall be deemed to
modify this Agreement in any respect, and in the event of an inconsistency or conflict between this
Agreement and any such instrument, this Agreement shall control.
Section 26.4 Invalidity of Certain Provisions.
If any provision of this Agreement or the application thereof to any Person or circumstances
is, to any extent, finally detertnined by a court of competent jurisdiction to be invalid and
unenforceable, the remainder of this Agreement, and the application of such provision to Persons or
circumstances other thW those as to which it is held invalid and unenforceable, shall not be affected
thereby and each term and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
Section 26.5 Remedies Cumulative.
Each right and remedy of either party provided for in this Agreement shall be cumulative and
shall be in addition to every other right or remedy provided for in this Agreement, or now or hereafter
existing at law or in equity or by statute or otherwise (except as otherwise expressly limited by the
terms of this Agreement), and the exercise or beginning ofthe exercise by a party of anyone or more
of the rights or remedies provided for in this Agreement, or now or hereafter existing at law or in
equity or by statute or otherwise (except as otherwise expressly limited by the terms of this
Agreement), shall not preclude the simultaneous or later exercise by such party of any or all other
rights or remedies provided for in this Agreement or now or hereafter existing at law or in equity or
by statute or otherwise (except as otherwise expressly limited by the terms of this Agreement).
Section 26.6 Performance at Each Party's Sole Cost and Expense.
Unless otherwise expressly provided in this Agreement, when either party exercises any ofits
rights, or renders or performs any of its obligations hereunder, such party shall do so at its sole cost
and expense.
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Section 26.7 Recoenized Morteaeee Char~es and Fees.
Developer shall pay any and all fees, charges and expenses owing to a Recognized Mortgagee
in connection with any services rendered by it as a depositary pursuant to the provisions of this
Agreement.
Section 26.8 Time is of the Essence.
Time is of the essence with respect to all matters in, and requirements of, this Development
Agreement as to both Owner and Developer including, but not limited to, the times within which
Developer must commence and complete Construction of the Project.
Section 26.9 Successors and Assil!ns.
The agreements, terms, covenants and conditions herein shall be binding upon, and inure to
the benefit of, Owner and Developer, and, except as otherwise provided herein, their respective
successors and permitted assigns. If, while City is the Owner hereunder, the City shall cease to exist,
the City, by its signature hereto, hereby agrees to be bound with respect to all of the terms, covenants
and conditions of Owner hereunder and Developer agrees to recognize the City as Owner hereunder.
There can be no assignment by Developer of its rights or obligations hereunder or its interest in this
Agreement, except Developer may assign all its rights hereunder to a Recognized Mortgagee as
security for the performance of Developer's obligations under the Loan Documents. This
Development Agreement, however, shall automatically transfer in connection with a transfer of
Developer's (as Tenant) interest in the Ground Lease in accordance with the provisions of the Ground
Lease.
Section 26.1 0 Notice of Defaults.
Notwithstanding anything to the contrary set forth in this Development Agreement, under no
circumstances shall any party to this Development Agreement lose any right or benefit granted under
this Agreement or suffer any harm as a result of the occurrence of any Default or default of such party
as to which Default or default such party has not received notice thereof from the other party.
Section 26.11 No Representations.
Owner and City have made no representations herein as to the condition of the Project Site.
Section 26.12 Comorate Oblil!ations.
It is expressly understood that this Development Agreement and obligations issued hereunder
are solely corporate obligations, and, except as otherwise provided in Article 15 that no personal
liability will attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors,
elected or appointed officials (including, without limitation, the Mayor and City Commissioner of the
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City) or employees, as such, of Owner or Developer, or of any successor corporation, or any of them,
under or by reason of the obligations, covenants or agreements contained in this Agreement or
implied therefrom; and, except as otherwise provided in Article 15, that any and all such personal
liability, either at common law or in equity or by constitution or statute, of, and any and all such rights
and claims against, every such incorporator, stockholder, officer, director, elected or appointed
officials (including, without limitation, the Mayor and City Commissioner of the City) or employee,
as such, or under or by reason of the obligations, covenants or agreements contained in this
Agreement or implied therefrom are expressly waived and released as a condition of, and as a
consideration for, the execution of this Agreement.
Section 26.13 Nonliabilitv of Officials and Emolovees.
Except as otherwise provided in Article 15, no member, official or employee of Owner shall
be personally liable to Developer, or any successor in interest, in the event of any default or breach
by Owner or for any amount or obligation which may become due to Developer or successor under
the terms of this Agreement; and, except as otherwise provided in Article 15, any and all such
personal liability, either at common law or in equity or by constitution or statute, of, and any and all
such rights and claims .against, every such Person, under or by reason of the obligations, covenants
or agreements contained in this Development Agreement or implied therefrom are expressly waived
and released as a condition of, and as a consideration for, the execution of this Development
Agreement.
Section 26.14 Partnership Disclaimer.
Developer acknowledges, represents and confirms that it is an independent contractor in the
performance of all activities, functions, duties and obligations pursuant to this Development
Agreement.
The parties hereby acknowledge that it is not their intention to create between themselves a
partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or agency relationship
for the purpose of developing the Project, or for any other purpose whatsoever. Accordingly,
notwithstanding any expressions or provisions contained herein, nothing in this Agreement, the
Ground Lease or the other documents executed by the parties with respect to the Project shall be
construed or deemed to create, or to express an intent to create, a partnership, joint venture, tenancy-
in-common, joint tenancy, co-ownership or agency relationship of any kind or nature whatsoever
between the parties hereto. The provisions of this Section 26.14 shall survive expiration of this
Development Agreement.
Section 26.15 Time Periods.
Any time periods in this Agreement of less than thirty (30) days shall be deemed to be
computed based on Business Days (regardless of whether any such time period is already designated
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as being computed based on Business Days). In addition, any time peri.od which shall end on a day
other than a Business Day shall be deemed to extend to the next Business Day.
Section 26.16 No Third Party Ril!hts.
Nothing in this Development Agreement, express or implied, shall confer upon any Person,
other than the parties hereto and their respective successors and assigns, any rights orremedies under
or by reason of this Agreement; provided, however, that a Recognized Mortgagee or its Designee
(as such term is defined in the Ground Lease) shall be third party beneficiaries hereunder to the extent
same are granted rights hereunder.
Section 26.17 No Conflict ofInterest.
Developer represents and warrants that, to the best of its actual knowledge, no member,
official or employee of the City has any direct or indirect financial interest in this Development
Agreement nor has participated in any decision relating to this Development Agreement that is
prohibited by law. Developer represents and warrants that, to the best ofits knowledge, no officer,
agent, employee orrepresentative of the City has received any payment or other consideration for the
making of this Agreement, directly or indirectly, from Developer. Developer represents and warrants
that it has not been paid or given, and will not payor give, any third person any money or other
consideration for obtaining this Agreement, other than normal costs of conducting business and costs
of professional services such as architects, engineers, and attorneys. Developer acknowledges that
Owner is relying upon the foregoing representations and warranties in entering into this Agreement
and would not enter into this Agreement absent the same.
Section 26.18 Recordinl! of Development Al!reement.
Within fourteen (14) days after the City executes this Development Agreement, the City shall
record this Development Agreement with the Clerk of the Circuit Court of Miami-Dade County. The
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 Development Agreement is recorded. This
Development Agreement shan become effective only after (i) it has been recorded in the Public
Records of Miami- Dade County, and (ii) thirty (30) days have elapsed after the State of Florida Land
Planning Agency's receipt of a copy of the recorded Development Agreement. The Developer agrees
that it shall be responsible for all recording fees and other related fees and costs related to the
recording and delivery of this Development Agreement as described in this Section 26.18. The
provisions hereof shall remain in full force and affect during the term hereto, and subject to the
conditions of this Development Agreement shall be binding upon the undersigned, and all successors
in interest to the parties to this Development Agreement. Whenever an extension of any deadline is
permitted or provided for under the terms of this Development 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.
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Section 26.19 Duration of This Development Al!feement.
The duration of this Development Agreement shall not exceed ten (10) years from the date
first written above; provided, however, that the duration of this Development Agreement may be
extended by mutual agreement of the Owner and Developer. During the term of this Development
Agreement, the City's laws and policies governing the development of land in effect as of the date
hereof shall govern development of the Land. The City may apply subsequently adopted laws and
policies to the Project only if the City has held a public hearingpursuantto Section 163.3225, Florida
Statutes, and determined:
(a) they are not in conflict with the laws and policies governing this Development
Agreement and do not prevent development of the land uses, intensities, or densities in this
Development Agreement; or
(b) 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
(c)
Agreement; or
they are specifically anticipated and provided for in this Development
(d) the City demonstrates that substantial changes have occurred in pertinent
conditions existing at the time of approval of Development Agreement; or
( e) this Development Agreement is based on substantially inaccurate infonnation
supplied by Developer.
EXECUTION
IN WITNESS WHEREOF, Owner and Developer intending to be legally bound, have
executed this Development Agreement as of the day and year first above written.
WITNESSES:
H, FLORID~,
atipI)o{,the State of Florida
By: }":IU:;:xr~~'':i'~''''",
Neisen O. Kasdim lVfaYef<:'i': ~." 6: .\.
: ~t.v 1'4'" .- ,.r"
; CO' ,:' {;..~\J',~~,. r.~ ,'~, \
. ":-. ~"" ir .A,;::' , '.. ~
ATTEST' :!' ~ . ,~,,~'...'t');. I",);;:' '.,';.\ \t"
~ r1lJlj'~ \~;~ ~\. >i!M~~~'~'~ '.0.. :
;,....' . .,(.:.~!:! .' >>:'J. ,..., ~', ' .
. ,..., " _I ff"""i,_ ", ...~
':-; '~41~:::;"", ..' .
By: . .", ~Y;1;~' , . .
Robert Parcher, Cit5-,~~,."...."~ji~,,W+i!'~;
.., }
.,' [SEAL]
~ /)~ ~
aJ/&.ap<<fI~ V,I
rintName:7~eNq~~~
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APPROve!) As TO
FORM & lANGUAGE
& FOR EXECUTION
1fJitrlf- ~
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STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
ST
The foregoing instrument was acknowledged before me this / day of
,1999, by Neisen O. Kasdin, as Mayor, and Robert Parcher, as City
Cle , of the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida,
on behalf of such municipal corporation. '{hey are personally known to me or pretltieed valia Flarida
" identification. .,A
~/hi2../i '.fldl.LL"~;~
otary Public, tate of Florida
Print Name: ~'//iltJtJ j),t'Oc}tJ.,li~
OFFICIAL NOTARY SEAL
ULUAN BEAUCHAMP
NOTARY PUBLIC Sf ATE OF FLORIDA
COMMISSION NO. CC738372
MYCOMMlSSION EXP. Al'lt. :1'},2IllY.l
COLN PLAZA PARTNERS LLC,
a Florida limited liability company
LLC, a Florida limited
I .. company, as Managing Member
obins, Managing Member
My commission expires:
i
'1/
I
I dayof J~.
L, lorida limited liability
L C a Florida limited liability
al own to me or produced a
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged be or me thi
1999, by Scott Robins, as Managing Member ofSRC In PI
company, the Managing Member of LINCOLN PL
company, on behalf of such limited liability company
valid Florida driver's license as identification.
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Exhibit A
Exhibit 2.10
Exhibit 3.4( a)
Exhibit 5.3(a)
UrF. Hi77nDl' n I
lllt.t. ~ Of I iJlU 1f:J.,
List of Exhibits
Legal Description
List of Required Development Approvals
Lincoln Plaza Development Costs
Insurance Required of Contractor
P:lMlNSKERIC M.BlMichigan-Lincoln PlazalLincoInPIozaDevAgtg.17a(Ex).\VPd
AuguSl30. 1999 (2:37PM)
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EXHIBIT A
LEGAL DESCRIPTION
PARCEL 1
Lots 7 through 10, and Lots 16 through 20, Block 37, PALM VIEW SUBDIVISION,
as recorded in Plat Book 6, Page 29 of the Public Records of Miami-Dade County,
Florida,
PARCEL 2
Lots 14 and 15, Block 37, PALM VIEW SUBDIVISION, according to the Plat
thereof, recorded in Plat Book 6, at Page 29, of the Public Records of Miami-Dade
County, Florida.
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Angust lO, 1999 (2:37PM)
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EXHIBIT 2.10
LIST OF REOUlRED DEVELOPMENT APPROVALS
Certificate of Use and Occupancy
Demolition Pennit
Department of Environmental Protection Pennit
Department of Environmental Resource Management Permit
FDOP Permit
Full Building Permit, covering
Foundation
Electrical
Plumbing
Mechanical and Cooling Towers
Elevator
Fire/Life Safety Systems
Roofing .
Glazing (Windows and Doors)
Stair and Balcony Railings
Signs
Miami-Dade County Public Works Department Permit
Miami-Dade Water and Sewer Authority Approval
Public Works Permit, Paving and Drainage
Public Works Permit, Water and Sewer
South Florida Water Management District Permit (Storm Water Management)
Such other permits as may be required by Federal, State and local law.
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August 30, 1999 (2:37PM)
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EXHIBIT 3.4(a)
DEVELOPMENT BUDGET
LINCOLN PLAZA PARTNERS LLC
SPACES S.F. TOTALS
711 34,510
HARD COSTS
Parking Structure @ $/sp $ 11,000$ 7,821,000 $ 7,821,000
Retail space @ $/sf $ 35 1,207,850 $ 1,207,850
Office Building $ 100 106,000 $ 10,600,000
Land $ 1,500,000 $ 1,500,000
TOTAL HARD COSTS $ 21,128,850
SOFT COSTS
Pre-development $ 211,288
Rent during construction and option
money $ 500,000
Consultants Services $ 845,154
Development Overhead $ 1,056,442
Construction management $ 633,866
Legal/appraisal/Mise $ 211,288
Impact fees $ 422,577
Marketing $ 42.258
Taxes/Insurance $ 105,644
Parking control equipment $ 25,000
TOTAL SOFT COSTS $ 4,053,518
SUBTOTAL $ 25,182,368
OTHER COSTS
Contingency (hard and soft) 2,518.237
Construction Interest
(12mo/prkg)(15 m%ffice) $ 1,600,000
Leasing commissions $ 966,000
Financing Fees 377.736
TOTAL OTHER COSTS $ 5,461,972
TOTAL PROJECT COST $ 30,644,340
P:IMINSKERIC M 8\Michigan-Lincoln Pla:zalLincolnPlazaDcvAgt8.17a(Ex) wpd
August 30, 1999 (2:37PM)
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EXHIBIT 5.3(a)
INSURANCE REOUIRED OF CONTRACTOR
(a) Worker's compensation insurance covering all employees of the Contractor as
required by the laws of the State of Florida and employer's liability insurance of not less than One
Million Dollars ($1,000,000) per occurrence.
(b) Comprehensive general liability insurance in an amount of not less than One Million
Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) annual aggregate
covering personal injury and property damage. Such coverage shall include, but not be limited to,
the following:
1. Blanket contractual liability insurance covering all indemnity or hold harmless
agreements.
2. Protective liability insurance for the operation of the Independent Contractors.
3. XCU coverage (explosion, collapse or damage to underground property).
4. Products and completed operations (for two year extension beyond completion of
project).
( c) Excess umbrella liability insurance with a limit of not less than Twenty-Five Million
Dollars ($25,000,000) per occurrence and in the aggregate in excess of the above mentioned
insurance; which shall be required only in any "wrap up" policy.
(i) Developer may cause the insurance listed in this subsection (i) to be provided through
an overall "wrap up" policy, in lieu of individual policies provided by Contractors.
(ii) Comprehensive automobile insurance in an amount of not less than Two Million
Dollars ($2,000,000) combined single limit for bodily injury and property damage covering all owned,
non-owned or hired vehicles, trailers or semi-trailers, including any machinery or apparatus attached
thereto.
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August 30, 1999 (2:37PM)
"""-"<>mclAl RECORDs IIOOIC
01' O_COIHI7'>< FlOR/QlL
~ECORO I.iERfFtED
HARVEY RUVIN
CLERK ClRClIIT COURT