iii) During

valet

which

monitoring

the

utilize

in

shall

the

by

upon

agreed

number

that

Retail

Hours

for Garage
is

there

so

is

in

"Operating .Expenses"

economically

to

but

parking,

is

as

garages

or

less

the

be

to

and

for

they pay/

for

mutually

pre-

to

able

only

City

pay.

service

same

other

or

that

such

shall

which

the

of

occupants

patrons, .

to

entitled

decal

and

the

agrees

operating

spaces

by

through

to

Contribution

employees

provisions

for parking

Spaces (

are

shuttle

and

reasonably

which

demand

in the Garage

park

annual

the

other

not

be

all

of

doing

included

Garage) .

Developer

upon

passed

or

park

to

of

who shall not

at

timed

higher

be

rate

the

entitled

ticket

rate

in

sole

its

than the rates charged by the City in its parking

by the City Commission from time to time, as

provided)

entitled

validation

agreed

the

of

to encourage parking during non-

cost

customers

shall

of

cost

established

hereinabove
be

( the

the

Expense"

tickets

operators

provide

users

restaurant

( unless

more

no

discretion).

shall

The

for

reasonable

for

Space ( excluding

free

that

practical

iv)
Retail

to

endeavor

transportation

as

valet

spaces

Developer,

for any restaurant occupants

so

parking

and

and mutually

reasonably

passes,

valet

Parties
of

Operating

parking

transit

public,

and

"

implemented

public

if

an

be

faith

good

deemed

including

to

City

of

shall

Retail. Space)

the

be

decals,

usage

valet

Hours,

pursuant

effort

shall

for

system

of

promoted

marketing

effort

marketing

Garage.

of

joint

upon

be

shall

parking

agreed

Non- Retail

the

the

this

expense

all

free

the

Retail

occupants

of

the

Retail

be

to

546) ,

be

equal

less

the

the

to

Retail

charge,

contribution

of

initially

of

of

Declaration

owner

shall

contemplated

of

of

and

( the

Space (

the

of

the

" Contribution")

The

number

difference

to

payment

which may be

Space) .
the

Space

subject

amount

of

of

Developer

between

the

total

number of City code required parking spaces allocable to the

contemplated

supermarket

contemplated .to

be

78,

less

the

and

calculated

the

City Supermarket Spaces

by taking the 175 total contemplated

number

of

97

contemplated City Supermarket Spaces)

the number .of City code required parking- spaces allocable
to public elevators,
exit
stairs and loading areas ( contemplated to be
28) ,
and the result of this subtraction shall be multiplied by 55 times

supermarket
and

less

also

12 ( the

spaces

anticipated

complete

be ( ( 546- 78) - 28)

applicable

Parties
method

the

shall

for

55

currently,

12 = $ 290, 400. 00)

tax

sales

would

not

in

arithmetic

per

annum

be

symbols,

plus

sales

and

applicable,

would

tax,

if

the

reasonably cooperate with each other to restructure the

payment/ collection

obligation

to

pay

sales

of

tax

the
in

Contribution

the

event

of

in

order

change

to minimize

in law)

and

be paid in 12 monthly installments on or before the fifth day of

shall
each

calculation,

month

normal

in..advance

business

increase

by

commencing

operations.

2 . 5% (

over

the

on

the

date

the

the

Garage

The

amount

of

Prior

year' s

Contribution)

first

Contribution

opens

shall

per year starting

the January 1 immediately following the third anniversary of Full

Rates for non- employee decal ac teas
Occupancy of the Retail Space.
on

85
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

for

card

and

upon

by

special

the

event

justification be

shall be reasonably and mutually agreed

permits

but

Parties,

shall

in

not

the

absence

of

reasonable

less

than the rates charged by the City for parking in

municipal parking garages operated elsewhere in Miami Beach by the
City.
City shall not be entitled to assign or otherwise

v)

delegate

the

the

operation

included

City may enter into a contract with a third party

of

the

the

of

garages

parking

operation

greater

in

Garage

of

by

operated

such

half

one-

the

City

contract-

( or

the

or

more)

Miami

within

shall

Garage

three

( 3)

Beach and

of

include

not be

in

determining the threshold for number of garages ( three/ oneis met) .

City shall operate the garage solely. utilizing City

half)

or employees hired pursuant to a contract with the City for

employees

the

that

(except

entity
for

responsibility for operating the Garage to any other person or

operation

parking

the

of

garages

City

shall

by

allow

three

of

the

City

or

longer desires

Developer

at

its

to

more)

Beach.

of

If,

the

operate

to

option

sole

(or

Miami

within

no

that

half

one-

it

City decides

time,

greater

operated

either

the

at

any

Garage,

operate,

or

engage a third party contractor designated by Developer and reasonably

to

acceptable

to

City

The

vi)

.allocate

mutually
for specific

parking/ transit
upper

levels,

further,

its

customer

if

others) ,

Garage,

and

of

Retail

with

efforts

Retail

Space,

Garage

by

to

Retail

working ( unless
card

rate)

Space
The

maximize
no
and

at

and

reasonable

The

cost

of

the

customers

the

Retail

to

Space

Retail

park

Space,

on

lower

the

such

as

levels;

the

of

the

get

to

the

and

and

maximum
at

enforce

Developer

Developer

cooperation

employees

to

the

of

times

allocations.

shall

shall

extent

such

reasonably and
use good faith and

occupants

possible;

of

the

parking in the

they are not actually

they pay the applicable non- validation/ decal/ access
parking

they

while

are

when

in the Garage other that by Retail

actually shopping

at

the

Retail

Space.

foregoing is to promote public/ transit parking and

from the

actual

the

Garage

customers

Retail

operation,

and

while providing validated

employees)

parking to employees

Space only when they are working/ shopping

Space.

86
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

in the Garage

including public

employees will park on the

will

discretion)

City

other,

avoid,

the

revenue

to

each

validated

customers

intent

may be designated a specific area for

supermarket,

vii)

work

reasonable

reasonably and
spaces

parking

parking, at Developer' s option, to the exclusion of

reasonably required for the efficient operations of the
shall take reasonable steps ( including,
potentially, towing

in the Developers

mutually

the

shall

term parkers

Space

term parkers
of

the

of

long

and

occupants

grocery

Developer

and

( ex.

short

Garage.

portions

users

users)

while

specific

contemplated

City

specific

types

the

operate,

Anything contained in this Declaration to the

viii)

in Developer'

reason

eighteen

presents

Full

the

judgment ( i.

. together

ticket

level

or

customers

and

tenants,
of

available

of

the

discuss

which

ticket

parking

Public

Passes

suggested

in

ticket
rates

the

time

resolution

for

the

Developer,

City

for

course

the
a

Issue . in

the

of .

Resolution

is

agree

to

as

that

any,

Issue

reached,

any
this

after

shall

the

of

control

existence

the

of

an

Issue,

the discretionary

Agreement

such

as

If they are unable to agree on

resolution

to

if

the

meet

for

the

obtain

Issue,

requested by

interim basis)

an

( on

to

to

attempt

effects

to work out

any

the

of

Issue

resolution

reasonably satisfactory to both ( the

results in a permanent alleviation of
is

be

in

utilizing

to

as

the

" Resolution") .

exercise

of

its

right

referred
s

provided

and

that may

alternatives

other

alleviate

Developer'
as

or

adopt

to

defined,

diligently

If,

to the sufficiency
operational

of

of

obtain

continue

that

manner

hereinafter

work.

Resolution.

by Developer' s

rectifying

being implemented,

City

and

if

for
of

action

immediately

reconveyance/ conveyance

Demand,

is

of

Developer

by

the

of

course

Issue

action,

effects

4 ( c)

to

attempting

the

Developer

the

their

increasing timed
parking during designated hours,
designated
hours
or reducing the number of
during

shall

suggested

and

Developer and City shall meet

action

subparagraph

for

action

of

timed

Developer may notify the

determination

Notice,

the

during designated hours,

by either of the Parties.

during

while

Issue") ,

may

forth

or

is not working

Agreement
"

adoption

timed

proposal

after

an

include

alternatives

course

Developer'

of

days

15

this

by

(each,

efficiently

joint

of

concept

of

limiting

the

courses

set

and

( C)

or

and

permits

alleged to be,

tenants

relative

employees,

alternative

controls

be

or

contemplated

as

or

Within

Issue.

customers

" Notice")

City ( the

for

adequacy
parking
has resulted in complaints

parking,

Garage

effectively

or are

are,

parking
of

employees

their

or

of

adequacy

the

( B)

by City

generated

of parking

customers

commitments made by Developer to its

that

such

to

related

breached,

to

is

parking

tenants

demand

the

with

if Developer

e.

the City shall not have the

case,

authority to second guess Developer) , that (A) the

demand generated by Developer' s tenant' s and their
employees,

in Developer' s

thereafter

and

business

objective

reasonably

event

Occupancy,

exercised

reasonably

determines

Developer

for any
sole and absolute discretion at any time up until

after

months

but

sole

in

notwithstanding,

contrary

below

may be
good

faith to

diligence

Resolution,

shall

made.

and

be

to

If

require

inapplicable and no

Developer and City each

attempt

good

to

faith

reach
to

attempt

a mutually acceptable Resolution has not been

upon
60 days'
notice to the City ( the " Notice
that the City re- convey the City
Period") ,
demand ( the " Demand")
Spaces,
City Unit, City Elevator and other components of the Transit
Facility (which, for clarification, does not include the Transit
Facility .Dedication Area) to Developer or its designee ( in which case
City shall also convey at no additional cost, other than twice ( once
reach

reached,

Developer

may,

87
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

to

for Developer' s unamortized portion and the other for the City' s
unamortized

that

years

above,

portion)

all

systems,

the

operation

of

who

initially

paid

Demand,

if

the

the

until

Passes
the

be

by

the

so

If

the

Developer
30

day

designee,
Developer

regardless

of

the

makes

30

rescission

effect

effects

has

of

exercise,

least

at

has

that

and

of

any proposal
the Issue.

purchased

period

Further,

within

( or

in

continue

alleviate

if

if,

its

or

same) .

not

The

150

Public

alleviated

any Demand made by Developer shall

days

thereafter,

City

to

agrees

adopt

is necessary any proposal submitted by Developer to

as

the

to

Issue.

withdrawn

alleviate

Developer

shall

preceding

the

of

long

Demand,

the

10

conveyance provided for below shall occur and,

City
made

first

the

over

and signage utilized in connection with

to

installed

or

cost

contemplated in Section 4 ( b)

reconveyance/ conveyance

only be

effects

for

for

Developer

during

deemed

Garage

unamortized
as

paid

equipment

the

of

applicable) ,

Demand may

remaining
not

reconveyance/

time

suggested

any
has

Developer

effects

the

of

Upon Developer' s making the

Issue.

such reconveyance/ conveyance by the City to Developer or its

designee

be made in

shall

for a payment by Developer to City

exchange

of:

AA)
or

an

affiliate

Occupancy (

regardless

the

provided

sale

transfer

or

30

days

to

recalculate

the

after

City'

to

Facility

months

sold

or

in

lieu

thereof)

one

1)

year

after

sales

such

after

otherwise

deed

transfer

price

based

sale

or

Contribution,

be

shall

on

less

if

recalulated

transfer) ,

and

an unaffiliated
exercise

below,

BB)

occurs) ,

transferred

to

such

Full

and

the

this

full

the portion

such

within
right

amount

of

the

Facility Dedication Area and the Transit

Dedication Area

Facility

not

sale .or

survive

18

reconveyance/ conveyance

the

Transit

the

or

within

before

or

the

occurs,

shall

Transit

allocated

such

on

when

foreclosure

purchaser

party

right

of

Property is

entire

excluding by
third

in the case of exercise by Developer named herein

this

of

Finishes,

and

to

adjusted

exclude

payment

for

the City Elevator or any City Spaces previously conveyed/ reconveyed to

Developer
thereon

lost

or

at

the

through

rate

until

the date paid or

or

affiliate

BB)
an

Occupancy (
excluding
third

party

greater

exercise
as

of

by

entire

by

the

the

or

of

said

Transit

by

or

the

deed

in

( 1)

Value
right

the

5/ 20/ 05 2: 13 PM

before

18

or

with

date

of

months

otherwise

lieu thereof)
year

of

after

each

simple

interest

each disbursement

after

Full
occurs) ,

and

transferred
to an unaffiliated

such

exercise,

City Space

at

the

the

time

of

to require reconveyance/ conveyance

" Fraction",

as hereinafter defined,

Facility Contribution attributable to the City

88

MIAMI 699472. 17 7198217084

together

from the

reconveyance/ conveyance

sold

one

Market

multiplied
s

on

when

within

Fair

Developer

City'

of

foreclosure

aforestated

plus

right

Property is

purchaser
( M)

annum

in the case of exercise by Developer named herein

this

regardless

the

provided

of

condemnation,

4% per

of

Elevator

( N)

or

the

amount

portion

Dedication Area

Facility
Finishes,

City'

Transit

exclude

together

to

Facility

the

Transit

Facility Dedication Area

for the City Elevator or any

payment

interest

with

Transit

allocated

conveyed/ reconveyed

previously

condemnation,

the

of

thereof

the

and

to

adjusted

and

Spaces

City

full

the

less

Contribution,

Developer

to

thereon

the

at

or

lost

greater

through
( X)

of

the

average yield. on an annualized basis generated by investments actually

by the City in accordance with the City' s Investment Policy and

made

( designed

Procedure

has

which

( Y)

or

CC)
or

an

affiliate

regardless
of

exercise

when

by

named

the

s.

City'

of

preservation

during

of .4%

rate

the

until

per

principal,

like

the

in

annum,

each

copy of
of

time

case

from

period

date paid or

in the case of exercise by Developer named herein

right

the

herein

18

after

after Full Occupancy

months

reconveyance/ conveyance

Developer

at

any

time,

that
the

is

occurs)

not

greater

or

in the case

affiliated. with
( X)

of

the

full

amount

Transit

Facility Contribution, less the portion thereof

Transit Facility Dedication Area and the Transit

Dedication Area

Facility

the

Developer)

the

successor

the

to

allocated

to

at

this

of

of

Developer
of

assure

disbursement

each

of

to

furnished

interest

simple

date

the

been

Finishes,

and adjusted to exclude payment

for

the City Elevator or any City Spaces previously conveyed/ reconveyed to

Developer
at

the

lost

or

greater

through

of

i)

condemnation,

the

together with interest thereon

average yield on an annualized basis

generated by investments actually made by the City in accordance with

the

City'

Investment
of

preservation

Developer)
the

rate

during
4%

of

disbursement
Space

City

require

the

per

the

the

time

and

Procedure ( designed

to

the

assure

copy of which has been furnished to

like

period

time

of

or

ii)

interest

simple

at

in each case from the date of each

annum,

until

at

Policy

principal,

date

paid,

and

( Y)

the

Fair Market

Developer

Value

of

each

by
conveyance as. aforestated multiplied by the
City' s Transit Facility Contribution attributable to
of

exercise

of

said

right

to

reconveyance/

Fraction

plus

the

the City Elevator.

In

addition

as

applicable,

for

City'

first

10

to

the

twice

that

paid

pursuant

to

(AA) ,

( BB) ,

or

( CC)

for Developer' s unamortized costs and once

( once

unamortized

years

be

to

amount

cost)

Developer

any remaining unamortized cost over the

has not paid, as contemplated above, on

and signage utilized. in connection with the operation of

all

equipment

the

Garage

was

calculated based on the cost per City Space actually paid by the

City

to

shall

be

Developer

in

paid

to

the

contrast

City.

with

the

The

Fraction

agreed

upon

shall

be

56%,

which

value of each City

by the Parties.
City
shall,
within .the. Notice Period (
or such reasonably longer time frame
as Developer
shall
request,
in order to enable Developer to put
together its funding for the payment to be made
by it) , re- convey the

Space

in

the

Garage based

on

criteria

89
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

approved

City Spaces and City Elevator and convey the aforestated systems,
to Developer or its designee .free and clear of

equipment

and

signage

liens

and

otherwise

all

spaces,

those

the

equipment

spaces

City

and.

subject

signage

to,

or

any

matters

shall

only to the matters affecting those

the time of Developer' s conveyance

at

of

purchase

such

Upon

such

of

equipment or signage by,

systems,

joined in,

by,

created

Developer.

by

requested -

Developer

and

rendered

against

re- conveyance/ conveyance,

or

City and

all revenues- and expenses collected or incurred

adjust

under this Declaration as of the date of the re- conveyance/ conveyance,

City

and

turn

shall

segregated

Garage.

The

.and

all

( viii)

any

transfer
payable

taxes

on

be

reconveyance/ conveyance

its

exercise

the

in

cash

Developer

of

control

deposited

City

shall

over

of

be

surtax

are

any

the

at

shall

stamps,

if

transfer,

the

of

and

orderly turn-

paid

and

documentary

said

the

be

to

are

therein,

monies

shall

reconveyance/ conveyance,

be

its designee

or

Revenues

the
to

pursuant

cooperate

control

with

the

of

to be made by Developer to the .City under this

payment

subparagraph

Developer

which

designee in

its

or

Developer

into

account

Declaration,

this

to

over

time of

or

that may
any time prior to
Developer may rescind
otherwise)

At

payable.

contemplated

the

liable for payment of

hereby,

to require such reconveyance/ conveyance.

right

Notwithstanding anything to the contrary provided in this

Declaration,

it

to

require

conveyance/ reconveyance

to

this

is

4(

subparagraph

in

circumstance

intent

the

Parties
the

of

that

City'

the Developer' s

right

interests pursuant

only under the limited

Developer determines as aforestated that

c) ( vifi)

the

which

the

of

shall

exist

there are parking Issues and a Resolution mutually acceptable to the

Parties

4(

as

c) ( viii)

aforestated

is
the

reacquire

appreciation
of

the

maintain

and

share

City'

portions

manner.

for

the

shall

been

not

value

or

found.

afford

interests

in the

This

Developer

solely to take

parking

spaces

or

subparagraph

an opportunity to
advantage

to

the

of

recapture

larger

revenues generated from the Garage.

d.

all

has

intended to

not

Standard
replace,
of

or

for Operation.
be

to

cause

Property ( including

Developer

operated,

the

Retail

shall

operate,

maintained

Space)

in

and
a

replaced,

first

class

City shall operate access, validation and collection systems

Garage in a first class manner.
All portions of the Property

be

in

operated

accordance

with

the

limitations

contained in

this

Declaration.

Collection

e.

of

Revenues

and Allocation of Operating

Expenses.

i)
to

and

be

the

the

Retail

the

City

Space

and

All

revenues

from the

without

being paid

from

90
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

Retail

Space

shall

be paid

All "operating expenses"

of
property of Developer.
shall be borne by Developer without
contribution by

sole

the

Revenue

of

the

Garage.

ii)
the

Developer,

and/ or

All

as

from the operation of the Garage

revenues

including

" Revenue") ,

Contribution,

the

in

applicable,

shall be deposited by City

dedicated bank

account

the

Operating..Account") and no other sums shall be co- mingled with the

funds in said account ( provided, however, that for expenses that are
Space,
the

to

allocable

partially

Developer

portion

to

allocable

provider

applicable

Account

the Garage and partially allocable to the Retail

money into the Operating Account to cover

deposit

may

of

Retail

the

service

out

Space
the

of

and then

cut

one

check

Account) .

Operating

to

the

The

initially be funded with an estimated three

with the City funding the City Fraction
and the Developer funding the balance.
One twelfth of the annual
Contribution shall be deposited in the Operating Account not later than
the fifth day of each month,
in advance.
All Revenues of the garage
Operating

that

within

legal

day)

their

of

deposit

day (

the

If

collection.

to

sums

accrue

received

on

Friday,

weekends

at

deficiency within
being allocated

balance

to

three

interest

Party

not

Collection

the

for

by

the

its

of

until

of

due,

when

paid

payment

enforcement

the

on

City

Fraction,

with

either Party fails to pay any amount

Account

date due

in default

Costs

If

Operating

from the

business days after notice

( 3)

City based

to

Developer) .

the

by it into

payable

revenues

any time the Operating Account has

Operating Expenses, the Parties shall

cover

deposit,

said

the

business

one

holidays will be deposited no later than the next business

insufficient

the

Expenses,

are collected by the City shall be deposited into the Operating

Account
and

shall

Operating

of

months

at

said

the

obligation

amount

Default
shall

shall

Rate,

be

and

entitled

to

the other Party' s payment

obligation.

iii) The Operating Account

is

accessible

at

all

times

know

City

the

Developer

and

status

by
Operating

the

of

be

shall

computer,

set

so

so

up
that

that

it

each will

Account.

The Operating
Account shall be established with the Institutional Lender holding the
financing encumbering the Retail Space or its designee, if required by
the terms of said financing, or otherwise with another Institutional
Lender

the

be

( which . shall
agreed

mutually

Parties.

to

City

the

bank

contrary)
Developer,

and

the

Developer,

Account
and,

as

when

not

thereof) ,

not,

of

cost

the

alone,

without

unless

portions

noted

Retail

notice

repairing,

Space ( the

insuring,

Property ( or

enumerated
said

to

to the Operating

the

of

as
on

will

prior

maintaining,

Garage,

percentages

the

acting

item pertaining

other

including
of

loan association,

have signatory
although Developer shall be the

each

those

part

and

mutually and reasonably agreed to by

replacing

in the

hereto,

shall
or

The

signatory.

technically

shall

City

check

any

necessary,

components
attached

sign

savings

Account,

Operating
primary signatory and City
authority

on

or

on

Schedule,

" Operating

Schedule
whether

1
or

Expenses") ,

be allocated to the Garage and shall ultimately be payable by the

and

Retail

Developer

Spaces

owned

in

by

proportion
each

to

91
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

the

from time

to

number

time

of

City Spaces and

in relation to the total

of

Retail

all

initially,
50. 511

based

Garage;

the

Fraction

if

City'
and

tax

if

fees,

account

Extended

the

its

costs

of

include

all

financial

the

Garage

to

payable

the

and Developer will pay

if

and

the

at

time,

costs

incurred for preparing

costs

for the condominium

statements

is

part

and

all

Florida Division

Property being

condominium.

the

of

costs

Condominiums

of

Operating

and
on

Expenses

shall

actually incurred by Developer during the

Period,

Warranty

issue

time

total

from time to time

adjusted

shall
and

which

of

any,
of

to

parking spaces in the

hereinafter be referred to as the " City

shall

be

shall

include any

also

1081

from time

Garage

the ratio of City Spaces to Developer Spaces changes) .

returns

association

pay

share

the

535/ 1081= 49. 49$

contemplated

Expenses

Operating
annual

the

will

in

Spaces

City

and

City

on

that

any,

Space

the

construction

hereinafter defined ( and Developer may

as

warranties,

at no cost

other

than

the

actual

warranty work performed to maintain, repair or replace,

the period of time beyond the time frames that are typical for

for

commercial

extent

extension

in

Florida,

lieu

Extended

Expense

is

the

of

not

Period") ,

to

the

is required under the Condominium Act of

frame)

Period.

Warranty

Warranty

contractor extending its construction

time

such

" Extended

frames

time

such

for

warranties

the

( the

construction
of

enumerated

on

for performing any warranty work during

To the extent any item of Operating

said

Schedule

1,

the

Parties

in good

shall

faith and reasonably agree on an equitable allocation between the

Space and the Garage, using
the methodology used for allocating

Retail
the

items

that

that

are

forth

set

Expenses

Operating

on

shall

such

Schedule

include,

1.

The

Parties

limitation,

without

agree

any

insurance deductibles .(provided they are in accordance with Section

6 ( b)
the

below)
costs

and

of

condemnation

capital

Initial
award

one

work

year

Condominium Act) .

that

proceeds

defective

correcting
period beyond

expenditures

Construction,

or

for

but

paid,

shall

not

include

any costs covered by insurance or

are

actually

materials

initial

Operating

when

( except

collected,

or

construction warranties

Expenses

shall

costs

of

during any extension

include

the

under

costs

the

of

routine day to day maintenance of

the City Elevator and Transit
Facility Dedication Area Finishes, such as sweeping and cleaning.
Operating Expenses shall specifically exclude all other maintenance
costs

City

including

Elevator,

reasonable

City
shall

be

paid

by

costs

and

of

service

approval) ,

Elevator

approved

the

which

and

all

service

contract
costs

of

contract

shall

be

for maintenance

of

the

subject to City' s

repairing

and

replacing,

the

Transit

Facility Dedication Area Finishes, which

for in full by the City based on a budget
reasonably

the

City and reconciled annually.

iv)

in preparing an
budget shall be

annual

Developer

budget

prepared

and

shall

consult and coordinate with City

and Operating Expenses,
which

for Revenue

finalized

(with the

approval,

not

unreasonably withheld, conditioned or delayed, of City and Developer)

at
least 60 days before the year end for the prior budget (
the budget

92
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

shall

be

the calendar year unless mutually agreed to the

contrary) ,

or

the

year

monthly budgeted

the

of

personnel

and

by City.

City

shall

on

quarterly

and

supporting
60 days in

by
incurred by
incurred by

if

the

5%

for

figures

incurred

be

to

actual

personnel

from the

amount

including reasonably requested

days

after

the

end of
and

reconciliation)

annual

each

the

quarter

amount

of

resulting from such reconciliation shall be paid by the

the

to

to

for

Operating

it

for

personnel)

shall be

facilities

City

applicable
that

the

costs

agrees

that

the

costs

with the costs

in

size

the

agrees

consistent

similar

of

after

Developer

City.

Expenses ( and

it

similar

days

30

within

other

furnished

is

reconciliation

incurred

City'

that

more

actual

reflect

Developer shall provide City with

30

within

the

of

case

Party

applicable

by

reconciliations,

documentation,

adjustment

any

budget.

approved

annual

the

deviate

it

to

year

subject

approved,

anticipated.

or

notify Developer

promptly

calendar

next

and

include

shall

incurred

expenses

by

furnished

reconciliation

year- end

finalized

so

incurred

such

reflected

as

for the

made

is

year

current

other

any

costs

other

the

budget

The

costs) .

to be

payments

cumulative

and

quarterly

or

for

budget

until

to

for the prior year shall govern for purposes

budget

the

the

of

vicinity

Property ( City facilities, in the case of costs to be incurred by the

City) , taking into consideration the nature of the materials utilized
in the construction of the Property and the levels of use of the
Developer further agrees that no payment of Operating
Property.
Expenses

budget

be

shall

the

and/ or

the

by

approved

in accordance with the

not

In order to allow Developer and City

conditioned.

or

shall not be unreasonably

approval

which

the

by

then current

forth in this Agreement unless

set

guidelines

City,

delayed

withheld,

is

that

made

hereunder,

each

to

agrees

make

verify

the

charges

made

its books

and

records

solely pertaining to such charges available for

to

inspection at
the

by

review

furnished

days
and

to

the

An

year) .

Developer

or

acceptable

contingent

fee

be

Default

basis.
amount

to

entitled

interest

thereon

for

reconciliation

annual

an

to
In
paid

independent

City
the

event

by it

certified

Developer

and

either

under

of

reimbursement

from the date

the

notice

within

180

applicable

year

for

the

applicable

paid

until

who

Party is

protest,

such

public

and

the

amount,

the

date

is

accountant

not paid on

successful
successful

together

in

Party

with

reimbursed

at

the

In connection with the quarterly and annual

v)

the

upon

year,

reviewed,

Rate.

reconciliations

in

per

being

for

notice

advance

or review shall be performed annually by City or

audit

reasonably

shall

times

are

reconciliation

annual

the

of

receipt

personnel

disputing any

the

of

three

records

whose

reasonable

must proceed promptly thereafter and be completed within

audit

after

year

Party

on

and

than

more

no

other,

the

receipt

after

times

reasonable

other

Operating

to

be

effected

Account

into

as

provided

which

in

Revenues

( iv)
are

above,

deposited

any amounts
in excess of

those reasonably needed or projected to be needed to pay Operating

93
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

Expenses

thereafter

be

will

to

added

Parties

coming due ( taking

such

into

thereafter)

account

Revenues

consideration

that

shall be distributed to the

in the same proportions as Operating Expenses are paid by the

Parties.

is

intention of the foregoing provisions

City shall ultimately receive and retain that portion of all
Revenue that is equal to the City Fraction,
that City shall ultimately
It

vi)

the

that

that .portion .of

pay

Operating

all

Expenses

equal

to the City Fraction,

and that Developer shall ultimately receive and retain, the remaining

Revenues

be

and

liable

for the remaining Operating Expenses.

Following

vii)

to

subject

audit

any

adjustments,

Developer any amounts

and

three

estimated
will

not

occur

months

in

operate,

maintain,

final
f.

this

form

breaching Party
breaching Party
frame

by

repair

the

be

annual

Developer

Operating
Operating
for the

reconciliation,

shall

distribute to City

Account

over

Expenses.

next

and

the

then

This distribution

ensuing year has been

Parties.

If
and,

Party breaches its obligation to

either
when

necessary,

replace

as

set

forth

in

the other Party may send written notice to such

and,

if such obligations are not performed by the

of

days

15

within

capable

shall

the

budget

Remedies.

Declaration,

reasonably

in

projected

the

until

approved

each

from

receipt

being fully -perfbrmed

for

extended

such

reasonable

of

such

within

notice

15

days,

additional

( if

not

such

time

time as may be

needed to perform so long as performance commences within such 15 day

period and
proceeds

until

limiting

without

such
of

obligations

such

days.

15

amount

from the

and

the

any
and

non-

enforcement

of

the

bill
If

it

the

breaching Party
of

notice

may be

shall

have

available)

the

right

to perform

breaching Party for the reasonable costs

breaching Party shall not pay such bill

then

was

that

rights

the

receipt,

time

Party giving

other

performance.

within

in good faith and with due diligence

continuously,

then

completion) ,

interest shall accrue on the unpaid

expended
shall

be

until

paid

entitled

at

to

the

Default

Rate,

Collection Costs

for

the breaching Party' s payment obligation.

Notwithstanding

the

foregoing, in the event of an emergency, the notice

and opportunity to cure provided above shall not be required but,
rather,
only such notice as may be reasonable under the circumstances
shall be required (
including telephonic notice or no notice at all) ;
the

Party relying

perform
and

such

eliminate

shall

require

provisions

be
the

upon

work

of

the

the

provisions

this

and

situation,

opportunity

subparagraph

this

shall

and

to

all

cure

as

other or
provided

specifically,

additional
above.

without

work

The

limitation,

the remedying of violations of Legal Requirements by

Parties

as

elsewhere

94
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

of

sentence shall only

reasonably necessary to stabilize the situation

is

emergency

notice

applicable. to
respective

as

provided

in this Declaration.

5.

Taxes.

Developer

a.

discount,,
or

taxes

all

levied

special,

Developer Unit

City

Unit,

the

operation,

estate

and

cooperate
said

for

available,

levied
that

to

real

Retail

and

Space,

personal,

the

respective

components.

the

ownership

City'

the

and

property taxes

City
at

of

equipment

To

the

shall

the

cost

extent
with

pay,
real

and

Spaces

City

supermarket

and

whether

general

Developer Spaces,
The

Parties

the

City Spaces,

the

the

and signage for the

assessments

Non- Supermarket

no

assessments,

against

if

with the maximum allowable

pay,

they should be entitled to an exemption from real

City,

City

and

due

the

exemption.

taxes

their

personal

with

the

City Elevator

Garage

potentially,

shall

assessments,

against

and

that,

acknowledge

and

to
an

Developer,

maximum

personal,

to

whether

is not
discount,

allowable

general

its components;

and

agrees

in attempting to realize

in the Retail Space is

use

Developer

from taxes

exemption

the

( except,

Spaces) .

or

all

special,

however,

provided,

changed to another use,

Developer
shall pay or reimburse the City for any taxes and assessments
for
the

City Supermarket

obligated. to
exempt

i.

if

pay

the

if the

e.

Spaces

City

current

that

the City would otherwise be

Non- Supermarket

Spaces

are

the time

at

for the

exemption

City Non- Supermarket

Spaces is eliminated, the
foregoing proviso shall be inapplicable) . To
the extent an exemption from taxes is not
available in respect of the
City Unit, the equipment and signage for the Garage operation or the
City Elevator, the taxes and assessments related thereto, and its
components,

b..
Developer
to

be

shall

The foregoing shall not preclude either City or

from contesting

prevent

sale

Party appealing

any

such appeal.

not

preclude

Each

the

shall

respect

in

payment

d.

taxes,

in

an

reasonably requested by the

assessed for tax purposes.
If

e.

this

paragraph,

obligation,

applicable
shall

date

at

amount

accrue
repaid,.

be

as

account

of

to

attempt
other,

to

only,

costs

all

reasonable
of

the

thereof,

Property

separately

other

time
to

the

Party

shall

thereafter,
applicable

have the

right,

but

not

the

to remedy the breach by paying the

authority,

and any such payment

interest at the Default Rate from the date paid

until
.and the nonbreaching Party shall be entitled to
95

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

for

foregoing shall

portion

component

taken

available.

with

have any
any

the

are

thereof.

the- full

extent

cooperate

to
or

the

steps

non- payment

for

responsible

assessments

agrees

appropriate

either Party breaches its payment obligations under

the

any

on

installments,

Party

other

to

long

so

Property

taxes

With

c..

of

the

of

The

requests

included in Operating Expenses.

the

Collection

for

Costs

of the breaching Party' s payment

enforcement

obligation.

6.

Insurance

a.

Types

below,

coverage,.
would

were

maintaining

Developer (
law

by

entitled

in

and,
and

the

case

to

elects

of

self

( iv)

insure

in which case the City shall be liable for all matters

have

Declaration
as

City is

City, -

this

Restoration.

Insurance.

of

unless

that

and

been

coverage)

in

remains

had

covered

such

City
shall

maintain

its

at

effect,

maintained

cost

but

such

at

coverage

times

all

subject

to

as

while

if

it

this

contribution

Expenses (

Operating
equitably allocated between the Retail Space and
as contemplated by Schedule 1 attached hereto or Section
e) ( iii).hereto).,
the following:

Garage
4(

i)

in

including
installed

than

of

100%

full

of

blanket

replacement
an

with

coverage;

blanket

contractual

ii)

of

if

excess

umbrella

limits

with

i)

contractor' s
shall
with

be

this

of

less

foundations

coverage is by way

include demolition and debris

shall

in the

operations

aggregate,
aggregate

Declaration

Property,

builder'

than

specified

limits
(

ii)

of

$ 1,

and

000, 000

$ 10,

000, 000

and

In

with

and

not

in

subparagraph

blanket

less

addition,
minimum

risk insurance

than
owner'

coverage

contractual

that
s

and

of

$1,

000, 000

contractors performing work in connection

maintain

the

naming

coverage

above.

insurance
all

that

insurance

contractor' s

unless

insureds

the

less

not

protective

insurance,

additional

if

risks

not

times during which construction is being

with

with

construction

liability

all

amount

excavation,

endorsement

occurrence

all

subparagraph

required

such

at

coverage

liability insurance
in

excluding

an

general

completed

connection
of

against

coverage;

independent

above,

specified

per

and

iii)
in

performed

cost

amount

commercial

$1, 000, 000

liability

products

insurance on the Property

initially purchased and

equipment

liability insurance ( including

liability, personal injury and advertising injury,
liquor liability) covering the Property in amounts

applicable,

least

at

agreed

Said policy

policy.

removal

and,

form"

Garage

and any replacements

thereof)
damage ( including windstorm) in

or

footings) ,

and

the

of

by City,
loss

physical

"
special

respect

no

less

than

$ 1, 000,. 000

of

general

Parties and their mortgagees as

satisfying

the

standards

set

forth

elsewhere

in

for insurance to be maintained by the Patties;

I

iv)

levels

required

less

than

Property

and

$1, 000, 000

as

result

worker' s

employer'

for
of

the
or

compensation

5/ 20/ 05 2: 13 PM

at

employees

entering upon the

legally
liability insurance in an amount not

benefit

of

all

in connection with their employment by the

96

MIAMI 699472. 17 7198217084

insurance

Party maintaining
contractor

or

of

such
such

coverage

or

agent,

any

licensee

representative,

Party ( or

where -such Party is otherwise legally

insurance

against

liable) ;

v)

items
than

be

shall

that

internal

or

compressor

located

Parties;

flood,

and

increases

to

with

to

use

liability

general

which

case

in

each

has

been

provided

casualty
of

deductible,

and

and

as

time

any

additional

discretion.

named

their

for

against.

agents,

other

and

is

or

other

agents,

for

employees

Party

agents,

policy

the

respective

itself

of

for
$ 10,

000

of higher

The policies

such Party of

insureds ( in the

and

acquired

liability insurance

and

casualty
rights

and

approve

mortgagees

exceed

liability policies) and copies of the policies

insurance shall be provided to all named insureds

each

its
and

its

employees

Party,

and

( or

waiver
and

tenant(
waives

tenant (s)

s)

any

of

subrogation
and

and each Party,

and their

respective

liability

that

the

or their respective

have

representatives. might

equivalent)

tenant (s) ,

representatives;

and

its

Each policy of

mortgagees)

representatives,
or

contain

and

providing insurance
VII

renewed.

shall

mortgagee( s)

mortgagee( s)
or

or

its

employees

and

location

value

perils

both Parties

The insurance companies

promptly upon request.
shall have a Bests rating of not less than A(-)

the

amounts,

to

not

2%- of

earthquake

reasonable

Party

such

are customarily
in construction,

windstorm) ,

unless

their

name

in

The policies provided for in

flood

coverage,

as

and

Property.

reasonable

( excluding

for

000

and

similar

the

on

Insurance.

deductibles

certificates

at

Revenue

including, without

coverages,

located

shall

notice
of.

the

of

mischief

insurance,

facilities

to

perils

$100,

peril,

different

or

respect

malicious

foregoing

contain

may

for property

maintained

less

interruption insurance for up

insurance

other

termination

for

Standards

windstorm

for

the

respect

subparagraph , (a)

50, 000

not

as mutually and reasonably agreed upon by

facilities

the

b.

coverage

of

above;

in

available,

glass,

plate

discriminatory

maintained

i)

if such

compressor

and

limitation,

such

Property

or

limits

with

loss/ business

rent

reasonably

vii) such

wrongful/

loss or damage by boiler or

boiler

of. a

subparagraph

from the Garage,

generated

the

if

months,

the

on

in

specified

vi)

18

to

explosion

which

was

covered

or

would have been covered by the insurance provided for in this

The

subparagraph.

Operating
same

manner

substitute) .
or

policies s,

covered

amount

Expense ( and

and

as

insurance
All

and

of

shall

any deductible
be

allocated

proceeds,

which

the

be deemed an
the

Parties

deductible

is

in the
a

insurance may be maintained through a blanket policy

shall

between

be

reasonably

the. Garage

and

97
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

of

shall

between

allocated

the

Retail

amongst

Space.

the

properties

Remedies.

C.

insurance

required

obligated

to,

the

and

obtain

the

fails
Rate

Default

do

event

the

the

from the date

reasonable
shall

paid

for the breaching Party

coverage

within 15

interest

so,

Party fails to maintain the

Party may, but shall not be

either
other

insurance

shall, '

for

other

to

the

such

breaching. Party

reimburse

Party

In

hereunder,

days

cost

accrue

the

until

of

the

on

date

d.

loss

is

thereof,

Developer
the

In

Casualty.
shall

the

portion

any

the breaching

amount

owed

the

Non-

for enforcement

Costs

the

of

the

at

and

Property,

or any

damaged or destroyed by reason of. casualty,

in

promptly,

including

event

If

reimbursed,

breaching Party shall be entitled to Collection

of
the breaching Party' s payment obligation.

components

demand therefor,

thereof.

faith

good

funding

pursuing

of

due

diligence,

and

with

the

insurance

proceeds)

settle
and

thereafter promptly restore the damaged or destroyed portion to at

least the following extent:
( i) the Property shall be restored to
it

substantially the condition

destruction ( provided, that

they

condition

in

were

in prior to the damage or

was

if restoration to substantially the

to

prior

damage

the

destruction

or

is

not

then

by applicable Legal Requirements, restoration shall be to as

nearly the . condition they were in prior to the damage or destruction as
may then be permitted by applicable Legal Requirements) or ( ii) the
permitted

damage

destruction

or

to

subject

of

relocation

in

restored
of

the

easements

as

delayed

account

toward

be

shall

the

condemnation,

to

the

and

together

with

reimbursed

entitled

at

to

under

the

approval,

no

to

its
7

paragraph

City,

interest

project

shall be

Developer

may determine

Property

Developer

and the balance

its sole property.

as

obligations

under

this

regarding restoration after

days prior written notice, shall be
the

Developer' s

the

amounts

from the

promptly

for

in its

first be applied

shall

forth herein,

at

Rate,

character

not be unreasonably

will

reimburse

thereon

Costs

in the

change

restoration

restoration
shall

Default

Collection

30

after

such

the
set

retained .

breaches

respecting

City Spaces shall be

insurance proceeds payable on

by

and

which

the

as

The

obligations

Developer

the

destruction

or

perform

and

the

condition

however,

Declaration,

above)

further.

disbursed to

or

( i)

different

such

matters,

conditioned)

event . Developer

entitled

cost,

or

restoration

subparagraph

other

with

City'

and,

damage

of

the

this

retail/ restaurant/ office

the

discretion;

sole

to

restored

of

and

accordance

without

withheld,

be

can

provisions

Property

effected

In

the

date

paid

upon

enforcement

until

demand,
of

reasonable

so incurred,
the date

and City shall be

the Developer' s payment

obligation.

7.

Condemnation.

In

a.

any

by

component

deed

in

the

thereof,

lieu

event

is

thereof

all

or

condemned
or

by

any

98
MIAMI 699472. 17 7198217084
5120105 2: 13 PM

or
any portion of the Property,
taken through eminent domain,

or

other

means,

Developer

shall

be

to

entitled

taking,

if

condemnation

Property,

or

Developer

intervene

the

consistent . with

the

authorizes

in

respect

the

defenses

raise

condemnation

or

furtherance

of

this

of

title

in

the

iii)

to

hereby

City

in

it
be

shall

matters

proceedings

waives
such

might

and

to

any

consistent

be

shall

final

City

b.

for

If

is

them
a

lost
the

City

amount

and

to

shall

Spaces

be

of

but

result

of

amount

City

City'

and

to

on

by
long

( b)

the

The

of

any

meetings

they

Parties
the

of

below

to

all

Developer
as

The

directed

directly

in

portion

subparagraph

and

award.

respect

made
so

Declaration.

taking,
in

in

have

and

out

in
are

award

allocate

City

to

award,

otherwise

any

separate

or

City

entitled

might

sit

decisions
on

this

of
a

to

and

be

waives

the

separate

it

that

Developer

with

the

all

actual

of

any
in

last

the

assigns

any

not

hereby

obtain

binding

the
said

the

of

proceeds.

spaces

that

and,

spaces,

as

the

taken,

are

spaces

parking

reasonably

useable

parking

to

of

sole

in

or

must

any
be

exercised

business

result

such

of

number

reconfiguration

of

shall

portion

the

of

reconfigured

judgment

in

in

order

reconfiguration,

there

parking
first be

spaces

so

applied

taken
to

or

reduce

City Spaces ( and if Retail Spaces are taken or lost,

convey to Developer ( or its designee) the number of City
required to
implement the foregoing allocation ( and if all

number

Spaces

sole

such

City

authorized

parking

taken

loss
as

any

of

such

pay

award

rights

but

specified

is

authority

to

Developer'

event

shall

and

in

or

the

of

Developer

hereby

receive

iv)

condemnation

provisions

the

condemnation

Garage

is

in

the

condemning
amount

the

with

that,

to

all

consult

pertaining to any condemnation,

its
sole
discretion shall be
agreed

by

in

taking

join

and

interest

any

City

or

have

otherwise

to

pertaining

and

any

award

entitled

the

award,

the

respect

respect

affecting

( ii)

the

of

in

City

proceedings

absolute

City

City) ,
further

interests

specified

the

potential

the

of

City

requested
as

i)

the

of

Developer,

portion

share

that

rights

interest

to

Property

Except
( a) ,

in

with

reasonably

proceeding

of

7.

its

cooperate

foregoing.

subparagraph

condemnation

City

have

documents

in

of

such

contest

actions

consent

the

authorizes

exclusion

to

any

and

Developer'

entitled

other
s

any

of

of

respect

condemnation

the

and

City in

in

notice

Section

separate
and

be

not

fully

shall

the

and

in . any

share

shall

the

this

any

any
Developer'

other

sentence

of

to

( and

taking,

of

City

of

such

any

of

take

or

City

stipulations

potential

City

without

discretion.

right,

City'

The

Property.

to

interests

defense

the

City

consolidation

the

of

any

provisions

by

interest,

such

last

Declaration)

interest
the

the

the

with

Developer

notify

any

received

condemnation

against

the

of

this

of

promptly

assume

the

of

( consistent

proceeds

against

pertaining

behalf

all

the

over

defenses

provisions

shall

of

and

negotiations
on

of

notice

condemnation

condemnation

( a) )

instituted

written

any

control

limitation,

express

City

any) .

of

to

the

the

proceeding

potential

and

to

sole

disbursement

and

subparagraph

(subject

restoration,

and

without

withdrawal

this

extent

including,.

any,

of

sentence

the

if

total

exercise

proceedings

are

of

re-

lost

City

or

re- conveyed

( or

99
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

the

number

of

City

Spaces

remaining

the

after

taking

also

convey

and

all

for

provided

conveyed

payment

the

and

an, amount

Contribution

ii)

in

lost
or

otherwise)

by

as

the

to

equal

in

accordance . with

to

the

mechani-sm

Space

Fraction
to

the

or

loss/

the

( B)

the

this

condemnation

City'

to

not

the

taxes

divided

in

conveyed

taking

above,

the

be

foregoing

would

be

obligated

liable
or

between

the

be.tween . the

entering

into

if

shall

(or

the

in

City,

no

to

for

of

the

above,

City
shall

the

and

be

City
an

The

and

that

the

Elevator

agreed

into

will

upon

the

transaction

City

for

equipment
and

after

authority,

the
and

if

proportionately,

be

spaces

various

led

evidenced
Unit

City

signage

or,

to

of

of

be

such

later) ,
the

so

and

that

the . date

calculating
Developer
in
respect

Parties
not

consideration

of

adjusted

paid

payment

and

the

signage

be

condemning

or

negotiations

From

cost)

of any transfer
may be payable on

the

to

conveying

purposes

100
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

due

applicable.

utilized

Revenues

payment

and

of

respect

for

Developer

shall

payable.
not

amount

takes

that

Garage

City

of

upon

unamortized

years

that

is

the

Agreement

provided

if

possession

contributions
and

which

Parties

be

specifically

by

or

the

payment

are

any

each

by

( once

equipment

the

for

to

this

twice

otherwise)

Parties

of

Space,

all

payment

value

addition,

of

attributable

the . number

by

10

pursuant

multiplied

City'

of

pay for the

merely intended as

is

but

on

not

In

first

the

operation

surtax

market

percentages

Expenses

stamps,

that

There
as

shall

for

once

over

the

fair

compromises

except

with

of

allocation

hereby.

and

conveyance/ re- conveyance,

re- conveyed,

the

cost

Developer

City.

authority

to

costs

City

all

and

Contribution

interest.

provided

( determined

proceedings)

re- conveyance

and - multiplied

of

contemplated

(documentary

reflective

lost/

as

connection

acknowledge

up

by 535

designee)

as

Value

Declaration

Facility

without

unamortized

paid,

such

any

Transit

conveyance/ re- conveyance

utilized

loss/

its

or

Space

City

per

(-or

Market

Facility

interest

without

reconfiguration

in

of

of

or

of

time

to

re- conveyance

Developer

Fair

or

lost/ re-

the.

to

the

equipment
against

Transit

and

entitled

amount

used

reconveyed,

remaining

(A)

an

provisions

Developer' s-, unamortized

any
has

taking

of

customarily

at ,

lost/

greater

the

Spaces

City

Spaces

the

of

City'

spaces,

re- conveyance

result

loss/

of

the

signage

liens

originally

be

shall

Elevator

City

payment

the

for

vest

and

rendered

award

and

all

acquired

City

case

to

equal

of

of

the

and

the

of

Developer

City

sole

the

re- conveyed

of

way

in

the

to

lost/

of

case

(including

City

amount

attributable

the

herein

an

( i)

City

clear

when

Elevator,

same,

equipment

joined. in,

by,
City' s

City
to

and

when

created

As

equal

( and

free

(or

the

the

with

regardless

terminate

shall

to

existing

City

the

and/ or

Elevator,

City

the

matters

any

spaces

of

to

those

connection

installed,

or

payment

be

City shall
City Elevator

Unit,

designee) ,

Declaration

upon

shall

than

for

paid

re- conveyance

Developer) .

by

requested

which

in

its

( or

100) ,

than

City

utilized

this

of

applicable)

spaces

the

who

less

the

and

Developer

designee)

other

signage)

or

herein) ,

encumbrances

signage

to

respect

its

or

if

conveyance,

conveyed

for,

in

rights

Developer

or

and

Garage

paid

Spaces

City

remaining

the

of

amount

City'
in

any

is

reconfiguration

any

equipment

operation

the

and

the

relative

Operating

effective

as

of

the

of

date

shall

the

between

as

is

that

be

for

or

possession,
of

City

taken

not

be

6( d)

as

as

to

and

the

as

portion

the

of

extent

the

the

of

therein

and

condemnation

forth

set

event

Declaration

required

result

the

this

of

and

restored

available

In

applicable.

Developer

and

restoration

as

subparagraph

shall

proceeds

for

used.

taking

provisions

condemnation

shall

therein

insurance -proceeds.

Intentionally omitted.

C.

d.
of

the

apply

Property

the

of

taking,

the

much

for

Upon

City'

rights

this

under

does

that

condemnation

any

not

Declaration,

in a termination

result

Developer shall utilize so

the condemnation award proceeds as may be received and needed

to restore
the Garage to the condition called for by

of

restoration

Section

6 ( d)

8.

5th

"

to

Party

in

this

the

&

of

case

Alton"

casualty.

Trade

Name.

City (only in its capacity as a

acknowledges being advised of Developer' s

Declaration)

proprietary interest in the trade name

dispute same.
City may use the name "
for

reference

further

Garage,

but

to

comply,

at

that

requirements

to

order

the

agrees

Developer

its

protect

shall
no

out

115th

5th

&

&

Alton"

Alton

not . otherwise
of

pocket

with

to

respect

such

not

City
City,. with any

to

name.

from time to time in

115th

the

will

locational

use

cost

may reasonably impose

rights

and

as

&

Alton"

trade

name.

9.

Developer'
P

desires

to

contract

sell

( which

contingencies

Developer

interests

in

contingent

of

City'

allocated

Transit

Facility

payment

for

or

Fraction

plus

the

Elevator.

Unit
the

or,

City'

as

equipment. and

have

30

days

Developer
shall

be

There

within

date

by

shall

City

written

lost

5/ 20/ 05 2: 13 PM

City may

first

said

contract
of

greater

not

sell

offer its
first
of

shall

be

refusal) ,

( a)

the

who

full

and adjusted
Spaces

to

exclude

previously

through

condemnation,

without

for each City Space multiplied by the

Facility Contribution attributable to

be

no

payment

due

to

City for the City

provided

in Subparagraph 7( b)

conveyed

by

offers

to

its

accept

acceptance

101
MIAMI 699472. 17 7198217084

the

City

any
or

Value

to .elect

which

evidenced

so

right

Finishes,

or

specifically
signage to be

from the

and

its

to

do

shall

Facility Contribution, less the portion

Facility Dedication Area and the

Transit

Purchase.

Transit

Fair Market

the

except

equal-

Developer

to

exercising

Dedication Area

interest

City

Developer

to

amount

the

to

If City
Property and enters into a
( or in respect of which all

to

refusal)

Property) , City

City Elevator

conveyed/ reconveyed
( b)

contingencies

Transit

to

Ref
Refusal

in the

other than a contingency for exercise by

not

an

First

first

of

Property

thereof

the

no

in the

for

of

interests

expired)

Developer

same

the

it

right

the

on

acquire

amount

its

of

Right
9

of

contains

have

interests

partial

may

all

the

City.

interest ,in
such

to

offer,

the

above,

Developer

which

City.

shall

-the Property to
election

Once
-

accepted,

Developer

shall

Property by
contract

rights

Developer

reasonable

to

order
cash

at

the

the

to

against

or

requested

of

the

in

designate

as

the

conveyed)

an

triggered

the

days

60

additional

in

Developer shall pay all

free

and

clear

of

all

liens

and

when

and

by

matters

any

Developer) .

closing date.

created

Income

City may

Developer may,

Property.

designee

(which

Developer originally
City ( or when City acquired the

rendered

prorated

be

existing

the

be

be

exceed

shall

those

to

interests

in the

or 60 days after acceptance

acquisition.

signage

shall

its

than

to

or

equipment

in,

for

Spaces

City

third party

paragraph)

not

Conveyance

other

interests

the date provided for in the

frame may be extended by Developer for a

period

funding

closing.

encumbrances

this

City'

of

later of

City from

the

time

which

purchase

the

under

additional

obtain

conveyed

than

by

obtained

of

Developer,

by

later

no

the

on

close

not

its

at

and
sell

sole

joined

by,

expenses
parts

of

option,

City' s interest in the Property.

This paragraph shall not apply to any conveyance by the City to a
successor governmental authority,
but shall be binding on such
a

of

fact

the

this

the

public/ private

with

another

the

right

to

object

the

price

to

be

foregoing
occur

paid

right

for

of

the

Parties

Developer

Property,

less

If

Developer

first

contemplate,

and

not

have

the grounds

that

City

paragraph

on

shall

what

it would otherwise have received

does

not

or

the

sole

exercise

City'
to

right

interest

the

thereto does

pursuant

the

of

to

elect

closing

conveyance

have

shall

this

of

than

refusal

upon

Accordingly,

party.

provisions

is

reason,

any

private

to

third party.

that

venture

that Developer would not have entered into a transaction of

type

from

the

acquire

This provision is agreed to in recognition of the unique

successor.

aspects

to

operate

the

in

not

the

Garage,

or

to engage a third party contractor designated by Developer to do so

i.

the

e.

or

City'

approve

10.

transferee

the

have

no

right

to

operate

the

Garage

Miscellaneous.
Specific. Performance.

a.

contained

in

this

violation

or

breach

2, 3 (

shall

operator) .

d)., . 5'(

a) - (

Declaration

a) ( 1)

of

any

and

of

d) ,

Anything to the contrary

in the event of a

notwithstanding,

the provisions contained in paragraphs

7,

and

of

this

Declaration,

specific

performance and/ or injunctive relief shall specifically be available,

it

being

and

would

not,

agreed

be

an

however,

that

damages

inadequate

preclude

would,

at

best,

remedy in any

specific

be difficult

event.

performance

The

to

foregoing shall

injunctive

and/ or

ascertain

relief

in

the event of a violation or breach of any other provisions of this

Declaration,_ or
of

violation

would

be

breach

of

an

acknowledgment

any

other

that

provisions

damages
of

this

in the event
Declaration

readily ascertainable or an adequate remedy.

b.

TRIAL.

constitute
or

Prevailing Party Attorneys'

Fees;

WAIVER OF JURY

The prevailing Party in any action in connection with this

102

MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

Declaration
to

the

fees

award

at

of

or

not

contract

and

is

suit

instituted.

shall be entitled

otherwise)

attorneys'

and

paralegals'

The

Parties,

each being represented

intentionally and voluntarily WAIVE TRIAL BY

their

successors

pertaining to the
Estoppel

C.

or

reasonable

levels and in connection with all proceedings,

themselves,

proceedings

tort,

costs

knowingly,

counsel,

JURY ( for

in

court

tribunal

all

whether

by

( whether

and

Certificates.

in all actions or

assigns)

subject matter of
Each

this Declaration.

from time to time

owner

of

the

to

furnish from time to time to any other such owner in writing such

Property,

truthful

or

agrees,

promptly upon request,

information and/ or one or more confirmatory easements

estoppel

the

of

confirmatory

thereof,

portion

any

general

easements

hereby) as may be

granted

reasonably requested.
d.
be

construed

general

No
as

Covenant

e.

binding

be

shall

upon

Running

the

executed

f.

be

service,

that

regardless

upon

or

its

or

shall

received,
which

Any

notices

mail,

( or

to

by

the

anyone
with

else)

guests,

shall

the

of

any

receipt

FedEx

address

Except
to

any tenants,

foregoing.

required to be given hereunder

return

or

respect

or

specified

as

and

notices

of

to

by hand

requested,

similar

overnight

in the

the

introductory

extent

change

of

courier

expressly

address,

in the manner aforestated shall be effective

or

with

not
or

they

are

similar

FedEx

transmission

receipt

owner

joined by their

Property,
of

or

actually

overnight

similar

received)

courier

overnight

confirmation

if

upon mailing

service,

courier

if

service,

sent by facsimile

if hand delivered.

Any Party hereto may change

for notice by notifying the other Parties hereto in the

provided

address

to

of

employees,

assigns,

invitees and mortgagees.

the

of

joinder

in connection

machine

FedEx

with

upon

address

manner

given

whether

The

such

Declaration.

deposited

receipt

machine

any

required

with

owners

any) .

prepaid,

are
of

depositing

of

facsimile
this

of

successors,

this Declaration may be abrogated,

then

certified

for below

provided

mailed

by

postage

paragraph

or

be

the

Notices.

given

delivery, by

by

invitees
not

This

rescinded or amended in whole or in part by an

mortgagees ( if

specifically

Modifications.

licenses,

guests,

foregoing,

respective

or

their

Property,

instrument
licensees

Land;

with

running with the land and shall be

to the benefit of the owners from time to time

tenants,

terminated,

modified,

notices

Nothing contained herein shall

the easements granted herein to the

of

covenant

the

of

customers,

Notwithstanding

inure

and

.portion

every

agents,

shall

Dedication.

public.

Declaration

of

Public

dedication

for

not

above;

be

provided,

effective

however,

unless

and

that

until

notices

of

change

of

they are actually

delivery is refused or they are returned because the address

they

were

sent

is

no

longer

103
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

current

address and the Party

sending such notice was not properly furnished a notification of change

of

Party

shall

portion

notice

has

of

address

that

of

Governing
This

illegal

fullest

or

in

remain

extent

the

Property,
transfer

furnished to
be

shall

of

as

such

for giving
such holder' s
holder.

effective

as

Notice

if given

but

in

all

to

which

Journal

its

Declaration,

mean

the

the

reason,

remaining portions

the - time

to

the

shall be relieved of personal

portion

of

term

This

be

such

instrument

deemed an

same

document.

Terms;_ Construction.

in this -Declaration,

used

if

or

similar

to

subsequent

transferred.

each of which shall

rate

period

so

constitute one and the

shall

per

from time to

successor,

publication

Liability After Sale;.

governed

Upon sale of any portion of the

thereof

Whenever

rate

prime

or

for any

Certain Defined

Rate". shall

the

be

shall

counterparts,

of

i)
Default

Invalidity;

law.

by

related

respect

executed

Law;

force and effect and shall be enforceable to the

permitted

h.

other

Party

unenforceable

full

transferor

with

original

above

be

above

notice

by the laws of the

If any portion of this Declaration shall be or

hereunder

liability
may be

for

provided

Party giving

notices

Declaration

of , Flor.ida.

shall

manner

for any

any mortgage encumbering the

Party if the holder of any such

such

the

of

Party.
g.

become

that

attorney

Counterparts.
State

by

the

address)

requested

holder

the

owned

( in

notified

. the

to

given

Property

change

and

by

given

the

any notices required to be given to another

of

be

also

of

mortgage

by

Copies

address.-

annum

two

the

term

percent

( 2%-)

time published in the Wall Street

it

has

no

successor,

newspaper

or

Whenever used in. this

stature.

" Collection

to

equal

Costs"

include

shall

all

costs

and

reasonably incurred in enforcing the applicable obligation( s)

this Declaration,
including, without limitation, reasonable

expenses
under

attorneys'
with

all

and

ii)
Initial

fees

paralegals'

proceedings,

and

Whenever

Construction"

at

whether

shall

all
or

in

used

mean

levels,

tribunal

not

is

suit

this

instituted.

Declaration,

construction

in connection

of

the

the

term

retail/ office

and

improvements

initially contemplated to be constructed on the

Property in accordance with the Development Agreement.

garage

iii) Whenever
used

herein,

they

shall

refer

the
to

terms

the

" presently"

date

of

or

" existing"

are

recording of this

Declaration.

iv)

Use

hereinabove, " " hereof"

this

Declaration

section,

as

paragraph

the

of

and

"

words

herein, "

" hereinafter, "

in this Declaration refer to

a whole and not merely to the .partcular article,

provision in which such words appear,
unless the

or

104
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

"

hereunder, "

context

otherwise

Declaration
such

that

it is

Whenever

requires.
either

Party may,

shall

indicated in this

or

will

perform

act,

any

then

shall be performed at the sole cost and expense of the

act

performing Party unless otherwise specifically indicated to the

Use of the word " including" shall be deemed illustrative and
contrary.
not

exclusive,

limited

to"

and

i.
for

are

this

the

scope

j .
the

and

the

by

term

" but

not

The captions appearing in this Declaration

reference

intent.

or

or

subject

connected

No

only

this

of

Partnership.

in

and

way define,

no

Declaration,

limit

or

nor in any way affect

associates

or

construed

as

partners_,

joint

of each other in the operation of the Property

to

Party

either
with

Nothing in the Declaration shall

in any way to be

Parties

venturers

the

qualified

Declaration.

cause

or

deemed

used.

_
Captions.

convenience

describe

be

shall

whenever

arising

any obligations, loss, charge or

from the operation or use of the

expenses

Property by

other.

k.
Declaration

Time
to

as

each

the

of

Time

terms,

is

of

the

conditions,

essence

of

this

obligations

and

contained herein or required hereunder.

performances

1.
strict

Essence.

of

Waiver.

performance

of

No

any

failure by either Party to insist upon the

covenant,

agreement,

term or condition of

this Declaration or to exercise any right or remedy consequent upon a

breach or default thereof,
no forbearance by either Party to enforce
the

one

or

more

and

no

acceptance

of

remedies

herein

provided

upon

an

event

of default, -

of

full or partial payment of any amount payable

under this Declaration during the continuance of any such breach or
default,

shall

such

covenant,

term

or

by

constitute

agreement,

term

condition

either

Party

this

of

and

waiver

of

such

any

condition.

breach or .default
No

covenant,

or

of

agreement,

Declaration to be performed or complied with

breach

no

or

default

or

thereof shall be waived,

instrument executed by the

altered

or -modified ' except

other.

No - waiver of any breach or default shall affect or alter this

Declaration,
of

this

respect

but

each

Declaration

and

shall

by

every

written

covenant,

agreement,

in full

continue

term and condition

force and effect with

to any other then existing or subsequent breach or default

thereof.

Entire Agreement.

M.

terms

the

of

Declaration
entire

This Declaration and the surviving

Development Agreement

is

executed

agreement

between

( the

the

in furtherance of which this

" Development

Agreement")

Parties

respect

with

to

contains

the

the

subject

matter

hereof and all negotiations .between the Parties are merged herein.
Without

limiting

the.

foregoing,

but

105
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

in furtherance

thereof,

the

Parties

acknowledge

that

agreements,

guarantees,

either

express

there

are

no

implied,

or

inducements,

promises,

warranties,

representations

written

or

oral,

assurances,

or

as

except

solicitations,

and

to

the

extent

specifically recited and contained herein or in the Development

Agreement.

orally,

but

against

whom

discharge

This

Declaration

only

by

enforcement

in

changed,

in writing

waiver,

any

modified

executed.

change,

or

terminated

the

by

Party

modification

or

is sought.
Remedies

n.

for

of

be

cannot

instrument

an

this

Declaration

Cumulative.

Each right and remedy provided

cumulative and shall be in addition to

be

shall

every other right or remedy provided for in this Declaration or now or

existing by law.
The exercise or beginning of the exercise

hereafter
of

any one

or

more

rights

or

remedies

shall

not

the

preclude

simultaneous or later exercise of any or all other rights or remedies,

nor shall
it
constitute a forfeiture or waiver of any amounts owed.
Independent Covenants.
Each and every covenant and
contained in this Declaration shall be deemed separate and
o.

agreement

independent

and

not

dependent

Declaration

and

the

damages

deemed in

addition

accruing by
this

to

and

separate

of

the

breach

Force

p.
delayed

in

Majeure.

fulfilling,

Declaration

by

reason

pre- emption

or

priorities

national

other

or

of

weather

public

conditions;

equipment

beyond

its

prevention

foregoing

or

reasonable

be

shall

shall

not

Declaration.

more

strictly

or

other

fact

that

initial

Parties,
extensive

it

the

same

covenant

shall be

damages

the

of

this

of

contained in

or

controls
or

delay

one

or

to

time

severe

supplies

or

adverse

inspection delays;

breakdown;

or any other cause

the

time

herein.

However,

for paying any

sums

the

due under

This Declaration shall not be construed

Party

than

against

the other by virtue of the

by counsel for one of

prepared

that this Declaration is the product

between the Parties and that both Parties

contributed

this

substantially
Declaration.

in

this

Declaration

Third
are

and

materially to the

Party Beneficiaries.

for

the

sole

106
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

fulfill,

recognized

negotiations

No

fuel,

of

accident;

period

drafts may have been

being

to

the period of such delay or such

added

the

unable

in connection with a

shortages

governmental

malfunction
control,

Party is

its obligations under this

other labor trouble; governmental

of .God;

acts

of

r.

or

emergency

deemed

against

either

of

other

Construction.

q.

have

any

If

permitting

machinery

this

the

provisions

perform

independent

and

of

any

strike

labor resulting therefrom;

of

other

any

failure to

Declaration.

is

or

reason

upon

for

benefit

The
of

final preparation

provisions

the

Parties,

contained

and

their

respective

rights

by

successors

or

on

behalf

and

of

assigns,

anyone

107
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

and

other

shall

than

not

such

give

rise to any

parties..

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EXHIBIT F

PERMITTED EXCEPTIONS FOR CITY SPACES

1.

Taxes and assessments for the year of conveyance and subsequent years.

Covenants, conditions and restrictions as set forth in the Special Warranty Deed recorded
in Official Records Book 12745, Page 3829, of the Public Records of Miami-Dade County,
2.

Florida.

3.

The effects of Orders recorded in Official Records Book 16293, Page 506, and in

Official Records Book 22847, Page 3528, both of the Public Records ofMiami-Dade County,
Florida.

Any Florida form 9 title insurance coverage shall be inapplicable to this item.

Reservations for oil, gas, mineral, metal, phosphate and petroleum contained in Deed
recorded in Deed Book 162, Page 398, of the Public Records of Miami-Dade County, Florida.
4.

Note:

the right of entry and exploration has been released pursuant to FS Section 270. 11.

108
MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

EXHIBIT G

FORM DEED FOR CITY SPACES

AND TRANSIT ELEMENTS

Prepared by and return to:

Arnold A.
Bilzin

2500

Brown,

Wachovia

Miami,

Florida

Part

of

Esq.

Baena

Sumberg

Price &

Axelrod

LLP

Financial Center
33131

Folio Nos. :
SPECIAL WARRANTY DEED

SPECIAL

THIS
A. D. ,

200_,

WARRANTY

AR& J

by

DEED,

Sobs,

made

LLC,

as

the

of

day of
liability

limited

Florida

company,
whose
post
office
address
is c/ o Berkowitz
party of the first part,
Development,
2665
South
Bayshore
Drive,
Suite
1200,
Grove,
Coconut
Florida
Beach,

post

hereinafter

33133,

Florida

office

Florida

is

address

33139.,

Attn:

the

term

instrument

" Grantor"

and

the

WITNESSETH:

Dollars
of

adequacy
sells,

all

"

and

legal

which

are

other

hereby

remises,

that

The

City

Miami

of

Identification No.

Grantee

include

the

all

representatives

for

and

valuable

wherever

used

to

the

assigns

of

parties

and

in

consideration

consideration,

hereby

acknowledged,

releases,

certain

the

and assigns of corporations) :

successors

and

to

Federal

whose

called

Grantee"

That. Grantor,

-($10. 00)

aliens,

Grantee,

and

heirs,

the

and

individuals,

Ten

Manager,

hereinafter

herein

Grantor,

party of the second .part, whose

Convention
Center
Drive,
Beach,
Miami

corporation,

1700

City

is

the

called

municipal

land

conveys

situate

in

and

of

the

the

receipt

of

and

bargains,

grants,

confirms

Miami- Dade

sum

unto

County,

the

Florida,

viz:

Units

5th

and

condominium,

Condominium

Page

County,

recorded
I

of

Alton,

Declaration

of

and

the

to

according
thereof,

Book

Miami- Dade

of

in Official

the

Public

Records

Records

of

Florida.

Subject. to:

1.

Taxes

and

assessments

for

the

year

200_

and

subsequent

years.

2.

Zoning

and

other

governmental

ordinances...

109
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

rules,

regulations

and

Easements

3.

to

4.

and

reimpose

Facts

TOGETHER

with

if

without

any,

intent

current

and

accurate

or

survey

visual

the property might disclose.

of

all

record,

same hereby.

reinstate

which

inspection

of

restrictions

or

the

hereditaments

tenements,

and

appurtenances

thereto belonging or in anywise appertaining.

TO

HAVE AND

AND

TO

Grantor

lawfully

seized

HOLD

the

hereby

of

said

in fee simple

same

covenants

in

property

Grantee

with

fee

forever.

simple

that

has

and

Grantor

good

right

is
and

lawful
the

authority to sell and convey said property; and hereby warrants

title to said property and will defend the same against the lawful

claims

of

all

persons

Acceptance
the

Memorandum

Book

and

of

claiming

recording

Development

Page

Florida,

acknowledge

that

Grantor
said

of

through or under
this

Deed

Agreement

the

of

between

by,

and

Memorandum

Public
Grantee
of

constitutes

recorded

Records
and

said Grantor.

in

of

release

Official

Miami- Dade

joins

Grantee

Development Agreement

of

Records

County,

herein

to

shall have no

further force or effect.

IN

WITNESS

executed

Signed,

as

of

WHEREOF,

Grantor

has

this

caused

instrument

to

be

the day and year first above written.

sealed- and delivered

in the presence of:

AR& J
Sign

Name:

Print

Sobe,

LLC, - a

Florida limited liability

Name.:

company

Sign Name:
Print

Name:

STATE

OF

By:
Jeffrey

L.

Berkowitz,

Manager

SS:

COUNTY

OF

The
of

Sobe,

LLC,

foregoing instrument was acknowledged before

200_,
by Jeffrey L. Berkowitz, as.
a

Florida

limited

liability

1. 10
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

company,

me

this

Manager

in the capacity

day
of

AR& J

such

aforestated;

driver'

license

is personally
identification.

known

person

as

to

me

has

or

produced

FLORIDA,

Sign Name:
Print

My Commission

Name:

Expires:

Notary Public
Serial

No.

if

( none

blank) :

NOTARIAL

WITNESSES:

CITY

OF

MIAMI

municipal

State of

SEAL]

BRACH,

corporation

of

the

Florida

By:
Print

Name

Print

Name

David

Dermer,

Mayor

ATTEST:

By:
Print

Name

Print

Name

STATE

OF

Robert

Parcher,

City Clerk

SEAL]

FLORIDA
SS:

COUNTY

OF MIAMI- DADE

The

day
as

foregoing

of

City

corporation.

driver'

of

instrument

200_,

Clerk,

corporation

of

the

the

by

CITY

State

was

David

of

acknowledged

Denver,

OF

MIAMI

Florida,

as

BEACH,
on

before

Mayor,

and

FLORIDA,

behalf

of

this

me

Robert

Parcher,

municipal

such

municipal

They are personally known to me or produced valid Florida

licenses

as

identification.

Notary Public
Type,

Print or Stamp Name

My Commission Expires:

111
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

EXIOIT H

IntentinaUl Omitted

MIAMI 699472. 17 71982,17084

5/ 20/ 05 2: 13. PM

112

EXHIBIT I

LOCATION OF CITY SPACES,

TItA.NSIT ELEMENTS AND DEVELOPER SPACES

To be reasonably and in good faith agreed upon between the Developer and City, acting through
its City Manager, prior to Developer's Construction Application Notice, and memorialized in
writing promptly upon the request of either party

113
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

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EXHIBIT K

LEGAL DESCRIPTION OF ALLEY

That

certain

20-foot wide alley, bounded on the east by the west boundary of Lots
3 according to the plat

I through 8, Block 104, Ocean Beach Florida Addition No.

thereof as recorded in Plat Book 2, Page 81 of the Public Records of Miami-Dade

County, Florida; bounded on the west by the-east line of Lots 9 through 16, of said
Block 104; bounded on the north by the north line of Lot 1 of said Block 104
projected westerly; and bounded on the south by the north line of the south 10 feet
of Lot 8 of said Block 104 projected westerly.

115
MIAMI 699472. 17 7198217084
5/ 20105 2: 13 PM

EXHIBIT L

CITY' S RIGHT OF FIRST OFFER TO PURCHASE PROJECT

Developer hereby agrees that in the event Developer desires to sell all.of the Property to an
unaffiliated third party, Developer shall first notify City of the material terms.pursuant to which
Developer

so desires to sell( the" Offer"), and City shall have 10 business days after receipt
thereof within which to elect in writing whether to pursue a transaction in accordance with the

terms

of the

Offer. The material terms pursuant to which Developer desires to sell shall be the

purchase price, terms and conditions and timing for payment of the purchase price, and timing
for closing. In the event City timely elects to pursue a transaction in accordance with the terms
of the Offer, Developer and City shall, within 30 days thereafter, negotiate the terms of a binding
contract that is consistent with the terms of the.Offer and otherwise on terms reasonably
acceptable to Developer( terms that are customary for similar as- is transactions in the community

in which the Property is located, with no representations or warranties except of customary

limited matters that cannot be independently verified through other sources, shall be deemed
In the event City fails to timely elect to pursue a transaction in accordance with the
terms of the Offer or, having done so, in the event the parties are unable to agree on the terms of
a binding contract in respect of same within said 30 day period, Developer shall be free to pursue
reasonable).

an offer from others on the terms set forth in the Offer and otherwise on terms acceptable to
Developer. . Developer

shall notify City of any material changes to the Offer that would make the
Offer more beneficial to City and City shall have five business days after receipt thereof to elect
to pursue the Offer, as modified, and if City timely so elects, the a.forestated provisions regarding
negotiation of a binding contract shall be applicable( with the time frame reduced to 15 days,
however); provided, however, that, in the event the parties were previously unable to reach a

binding contract, the issues that prevented the parties from reaching such a binding contract shall
be resolved in favor of Developer in the event City elects to pursue the Offer, as modified.
but

The foregoing right of first offer shall not be applicable to sales to affiliates of Developer
any such transfer shall be binding upon such affiliates), shall be void and of no further

after

force and effect upon default beyond applicable cure period by City under the terms of any

binding agreement respecting the Property that is entered into between Developer and City, or
affiliates thereof, in furtherance of the Offer, and shall be null and void and of no further force

and effect upon recording of any notice of the right of first offer contained herein by or on behalf
of City, including the filing of any notice of lis pendens in connection therewith.
The right of first offer contained herein is personal to Developer named herein and its

affiliates, on the one hand, and City, on the other hand, and shall be of no further force and effect
from

and after

twelve( 12) years from the Effective Date.

In amplification of the foregoing, the

right of first offer contained herein shall not be binding on any party unaffiliated with Developer
named herein that may acquire the Property or any portion thereof, including Developer's lender
or a purchaser at foreclosure.

Notices under this right of first offer shall be given in the manner provided for in the
Development Agreement to which this right of first offer is an exhibit.

MIAMI 699472. 17 7198217084

5120105 2: 13 PM

116

City shall be fully liable to Developer for any and all losses, damages, costs or expenses
including, without limitation, reasonable attorneys' and paralegals' fees and costs at all tribunal
levels) incurred by Developer in the event that( a) a cloud on title to Developer's interest in any
portion of the Property arises by virtue of the provisions contained herein as a consequence of
any act or omission of City, or anyone affiliated with City or claiming by, through or under City,
or( b) City, or anyone affiliated with City, wrongfully claims a breach or default by Developer of
the right of first offer contained herein which directly or indirectly results in or causes
Developer's sale or contemplated sale to any third party to not be completed.

117
MIAMI 699472. 17 719.82.17084
5/ 20/ 05 2: 13 PM

EXHIBIT M

FORM OF DEDICATION DEED FOR TRANSIT FACILITY DEDICATION AREA

Prepared by and return to:'
Arnold A. Brown,
Esq.
Bilzin Sumberg Baena Price &

Axelrod LLP

2500 Wachovia Financial Center

Miami,

Florida

Part

of

33131

Folio

Nos. :

SPECIAL WARRANTY

THIS

SPECIAL

A. D. ,

200_,

party

of

by

WARRANTY

AR&J

first

the

Development, . 2665
Florida
Beach,
post

33.133,

office

Florida

33139,

is

1700

Manager,

and

the

term

instrument

and

individuals,

" Grantor"

the

WITNESSETH:
Dollars

sells,

which

aliens,

Grantee,

County,

That

all

other

hereby

are

remises,

that

Florida,

Grantor,

and

land

is

1200,

the

Drive,

for

in

and

valuable

Beach,

( wherever

and

used

to

the

assigns

of

parties

corporations) :

consideration

hereby

conveys

( the "

whose

Miami

the

all

and

Property")

of

the

consideration,

acknowledged,

Miami

part,

Identification No.

- representatives

of

Grove,

of

City

Grantee

include

and assigns

Coconut

second

Federal

company,
Berkowitz

c/ o

The

the

Center

whose

of

liability

to

of

party

Grantee"

releases,

certain

Suite

called

legal

successors

($10.. 00)

of

adequacy

"

heirs,

the

and

and

day

address

Grantor,

Convention

hereinafter

herein

Ten

the

limited

Drive,

called

the

of

office

corporation,

City

is

post

Bayshore

municipal

as

Florida

whose

South

Attn:

made

LLC,

part,

address

WITH RESERVATION OF EASEMENT RIGHTS)

DEED,

Sobe,

hereinafter

Florida

DEED (

grants,
confirms

situate

in

the

sum

receipt

of
and

bargains,
unto

the

Miami- Dade

viz :

legal

Insert

description

for

Transit

Facility

Dedication Area]
Subject

to:

1.

Taxes

and

for

assessments

the

year

and

200_

subsequent

years.

2.

Zoning

and

other

governmental

rules,

regulations

and

ordinances.

3.

Easements
to

4.

and. restrictions

reimpose

Facts

or

which

inspection

of

reinstate
a

the

current

property

118
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

of

record,

if

any,

without

intent

same hereby.
and
might

accurate

disclose.

survey

or

visual

TOGETHER

the

all

with

hereditaments

tenements,

and

appurtenances

thereto belonging. or in anywise appertaining.

TO

HAVE

is

It
Grantee

and

the

when

assigns

have

be

and

to

time

for

to

convey

to

transit

mass

discontinued,

permanently

immediately
its

re- possess

easement

from

public

Grantor,

and

to

expressly provided that

shall

immediately

perpetual

is

and

property

assigns,

improvements

for
It

area.

forever.

instrument,

this

lawfully

described

right

reserves

the

support

the

by

property

waiting

shall

above

fee simple

Grantor,

of

successors

shall

in

same

described

use

the

Grantor
to

the

pedestrian

said

to

its

Grantor,

intent

above

stop

title

HOLD

TO

the

the

intermodal
if

AND

the

to
and

same.

erection

located

time

revert

successors

of

columns

above

said

property, and for utility and drainage facilities within said columns,
in locations reasonably approved by Grantee that will not materially
of
said
intended
adversely interfere with the use
property for its
public

include

shall

Grantor

install,

to

facilities

intermodal

transit

mass

easement

rights

maintain,

items

and

all

that

pedestrian

stop

repair

is

Grantor

enable
to
necessary
from time to time, the

reasonably
and

replace

permitted

Said

area.

waiting

install

to

in,

above

or

below said property.

Grantor

shall

perform

and
sweeping
cleaning)
finish,
to
canopy and,
elevator,

Grantor'

within

obtaining

service

the

of

Finishes

Grantee' s

Grantee
sole

such

Grantee'

at

benches

as

annual

(
if
s

and

repairs
on

waste

and
a

maintain,

containers)

or

Grantee'

cost,

to
of

repair

related

the

and

similar

items

Grantee

that

at

for

Transit

approved

shall,

at

replace

signage,

the

including

Grantee

reasonably
Grantee

as

wall

Finishes")

maintenance

replacement

budget

transit

any

tile

acceptable

reconciliation.

( such

finishes,

" Transit

other

reasonable

desired) ,

option)

all

maintenance

at

(the

Property

perform

based.

cost,

to

install

cost,

remove,

shall

day

column

installed

extent

elevator) ,

subject

and

sidewalk,

the

contract

maintenance
at

the

serving

Grantor

cost.

or

to

day

routine

the

of

by
its
(or

furniture

withing

the

Property.
Grantor

AND

lawfully
lawful
the

seized

authority
to

title

claims

of

IN

sell

and

day

and

will

by,

Grantor
year

with

in

convey

and

claiming

WHEREOF,

the

covenants

property

property

persons

WITNESS
of

said

to

said

all

executed ' as

hereby

of

fee

5/ 20/ 05 2: 13 PM

and

has

Grantor

good

right

is
and

said property;
and hereby warrants
defend the same against the lawful

through or under said Grantor.

has

caused

this

first above written.

119
MIAMI 699472. 17 7198217084

simple

instrument

to

be

Signed,

in

sealed and delivered

the presence

of:
AR& J

Sign
Print

Sobe,

LLC,

Florida limited liability

Berkowitz
by
company,

Name:
Name:

Partnership,
Berkowitz,

its
LLC,

Limited

manager,

its

by

general

partner

Sign
Print

Name:

By:

Name:

Jeffrey

120
MIAMI 699472. 17 7198217084
5/ 20/ 05 2: 13 PM

L.

Berkowitz,

Manager

STATE

OF

SS.
COUNTY

OF

The
of

foregoing instrument
200_,
by

Berkowitz,

LLC,

manager

AR& J

of

capacity

as

general

Sobe,

aforestated;

produced ' a

driverls

LLC,
such

license

was

Jeffrey

partner

acknowledged

of

Florida

L.

before

as

day

Manager

Berkowitz

limited

Limited Partnership,
liability company, in

is personally
identification.

person
as

this

me

Berkowitz, .

known

to

me

or

of

as

the

has

Sign. Name:

Print Name:

My Commission

Expires:

Notary Public
Serial

No.

none

if blank) :

NOTARIAL

121
MIAMI 699472. 17 7198217084

5/ 20/ 05 2: 13 PM

SEAL]

EXHIBIT N

INTENTIONALLY OMTTED

MIAMI 699472: 17 7198217084

5/ 20/ 05 2: 13 PM

OR
E' K
23.610
UAST
PAGE

PG

2254

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to

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cc

cn

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cT

888888888888888' 88
w

Ca

Ln

X8888SSBSSSS88S88SSSS8

I
it

OFF'.

REC.

o 44-7-

99R463 144 1799 SEE' 03 14100

AGREEMENT OF LEASE
between

CI'T'Y OF MUM REACH, FLORIDA

Owner)

and

LINCOLN PLAZA PARTNERS, LLC

Tenant)

Dated

1999

as of

LINCOLN PLAZA PROJECT

Prepared By and Record and Return to:

t

Joel N. Masker, Esq.

of

Joel N. Masker, P.A. of

Bloom& Minsker

1401 Brickell Avenue

7th Floor

Miami, Florida 33131

i
r

R% GNSKBR%
C M B\ M obigan-i
August 30, 1999( 2: 49PM)

inwln Plaz Wm inPlaz%Gmdlse8- 17a( Ax) wpd

EXHIBIT 1

c
orr

tt:

1 87701 448

TABLE OF CONTENTS
RECITALS ...............

o.

o.

e..

o..

e --

1-

TERMS OFAGREEMENT .................................. -

Article 1 - Definitions .............

Definitions .................
Section 1. 1

a.

Ar ti cle 2- Demise

of

Land

and

Term

of Lease

0000...

Demise

Section2.2

NoEncumbrances

Section 2.3

Sale

of Entire

ads..

a.

13-

e..

aaaaaa.

Rent .........................

Section 3.3

Percentage Rent ..........................

Impositions ........................

Section 3. 5

Net Lease ............................................ .

Section 3. 6

Security Deposit ......... .......................

Article 4 Late Charges.......

Late Charges................ ..........
Section 4. 1
0...

14-

0000 -

14-

aaaa0aa9

ea9a.....

0..

00

17-

e........... -

0000..............

e....

22-

d..

o..

22-

a00a.

dead

ease*.

0...

68..

19-

a....... -

d.

e.

Articles- InflationAdjustment ............

Inflation Adjustment ................
Section 5. 1

a...

0000..

Use .

Section 6.2

Prohibited Uses...

Section 6. 3

Garage

2323-

e............ ... -

23-

a0100... -

23-

a............ -

23-

Use ..................... ....................................... -

Section 6. 1

1414-

a.........

a....

15-

Section 3.4

e..

esees

a........

of Payment .............

e. -.-

e.

13m

gas..............

0000..........

Section 3.2

as

a.

................................. -

Interest. .....................

Article 3- Rent ..............................

Method and Place
Section 3. 1

Article 6

o.

e...

Land for Term ............................... -

Section 2. 1

of

s..

a..

0000 -

r.....................................

a...

e............

e -

a...,..

a...

23-

2425-

Parking Rates ............................ ....... -

Article 7- Insurance ..............................................

Insurance Requirements ................................. Section 7. 1

sae....

25-

25
26-

Section 7.3

Proceeds .
General Provisions Applicable to All Policies .....

Section 7.4

Additional Coverage ............. ....................... -

28-

No Representation as to Adequacy of Coverage .............. BIanket or Umbrella Policies ............................. -

29-

Section 7.2

Section 7.5

Sect-ion 7.6

Treatment

of

0.

0.......

Section 7.8

Liability Insurance Requirements . ..................

Property Insurance Requirements ...................

Section 7.9

Other Insurance Requirements ......................

Section 7.10

Construction Insurance Requirements .........

Section 7.7

P:11vlA1SKBRIC M B1Mlchipn-Lincoln P1a7A\Unc61nP1anGmd1sc8- 17a(Bx) wpd

August 30. 1999( 2: 49PM)

1 1...... -

27-

29p

Does*

a.. -

e........ -

a -

d -

293032-

33-

0'44.9

Section 7. 11

Annual Aggregates ......

Section 7. 12

Determination

Section 7.13

Master Subleases ..........

Section 7.14

Additional Interests ......

e...

of Replacement

Value ...........

9999...

34-

34-

4.......... -

34-

a........................... -

44-

a.........

a....................

35-

Article 8- Damage, Destruction and Restoration ............................. Notice to Owner ........................................ Section 8.1
Restoration .....

Section 8.2

Casualty

Section 8. 3

Restoration Funds ...................................... -

Section 8. 4

Effect

Section 8.5

Collection

of

Casualty

on

38-

a.

a..

o..

Less Than Substantial

Section 9. 3

Restoration Funds ................. ............

Section 9.4

Temporary Taking........

Section 9.5

Governmental Action Not

Taking. ........
0&

aa0940..

s0...........

Section 9. 2

9.

eaa0aaa

aa..

.....................

Collection

Section 9. 7

Negotiated Sale

Section 9. 8

Intention of Parties .......

Section 9. 9

No Waiver. .....................................
Effect of Taking on This Lease ............................ -

Section 9. 10

4.

Article 10- Sale of the Project, Transfer and

Section 10. 1 Purpose of Restrictions

goes

a -

9. -

e..

Transfer. ..........

383839-

4042-

a.. -

4343-

a............. -

e0968....

9606.

aa...

a.....#

a -

43-

a....

a_

43-

e..

43

a. -

44-

Subletting .............
on

Resulting in a Taking ............. -

Section 9. 6

696..

9.

a:

00aa0.....

aaaa99

a9a

aaaaaaa9a0oaaa..

a......

of Awards

3537-

................................... -

Article 9- Condemnation ......

Substantial Takings...
Section 9. 1
4.

35-

This Lease .......................... -

of Proceeds

as.

350. -

Does.....

meow.....

4..

a...

a....

0.

0..

9.

e -

a -

4444,

44-

Section 10. 2

Definitions. ................

Section 10. 3

Restrictions

Section 10. 4

Transfers. ........................................... . -

49-

Section 10.5

Required Notices ....................................... -

50-

on

Sale

Section 10. 6

Effectuation of Transfers

Section 10.7

Office

Article 11-

Mortgages ..

and

of the

Project

and

9..

or

Sales

9...

Tran s fer.

of the

a.

. -

e.. -

6868.............

e......

0906.

0960.......

Section 11. 2

Definitions ............................................. Effect

of

Section 11. 4

Notice

and

Section 11. 5

Recognized Mortgagee or its Designee as

Section 11. 6

Tenant Under this Lease ................................. Execution of New Tenant' s Documents .......

Section 11. 7

Application of Proceeds from Insurance or

50-

0644. -

51-

51-

5252-

Mortgages ..................................... -

Section 11. 3

45-

51-

Retail Master Subleases. ........................ -

Right to Mortgage ...... .... ............................. -

Right to Cure Tenant Defaults .................. -

5355"

a............. -

56-

Condemnation Awards .................................. -

59-

Appearance' st Condemnation Proceedings.................. -

59-

FAMINSKEMC M Bwichlgan-Lincoln Plena\Linco1nP1a= 0md1se8- M(Ex) wpd

August 30, l 999( 2: 49PM)

......

Project. ........... -

Section 11. 1

Section 11. 8

ort

REC.

Section 11. 9

18770?0 450

59-

Rights Limited to Recognized Mortgagees ................. -

Section 11. 10 No Surrender

or

60-

Modification ............................ -

Section 11. 11 Recognition by Owner of Recognized

Mortgagee Most Senior

Lien

in

60,

s "

60-

Section 11. 12 Recognized Mortgagee' s Assignment Rights ............ Section 11. 13 Notices Under

Mortgage...

62.

a.... ............ -

a.

Article 12- Subordination ..............

Section 12. 1 Subordination of Percentage Rent ......................... -

Section 12.2
Section 12. 3

see

goal,....

a....

62-

No Subordination of Owner' s Proprietary Interest in Land

Tenant' s Interest in the Premises Subject to Title Matters...... -

Description

of

63636363-

the Project ............................... -

Article 14- Maintenance, Repair and Alterations ......

Section 14. 1 Maintenance Standards ......................

a..

a.

o -

Section 14. 2

Removal of Building

No Obligation to Repair

or

Section 14. 4

Waste Disposal .................

Section 14. 5

Alterations ................

to

64-

64-

Supply Utilities ............ "

64-

a... -

6666.............

aa...

aa....

a. "

a...

Managements

and

Operation

Comply With Requirements. ....

of Project

a..

67a. -

68-

Project ....... ........................... -

Management

Section 16.2

Garage Revenue Control Equipment....................... -

69-

Section 16.3 ' Transfer of Acceptable Operator' s Interest

in the Management Agreexment. ................ Section 16.4

Section 16.5
Section 16.6

70-

and

o "

Article 17- Discharge of Liens ........

Section 17.1 Creation of Liens ....................................... 6096..

Sections 17.2

Discharge

Section 17.3

No

of

too

a..

6999....

0a...

a060aa0.

72-

Contract in Name

of

72-

72-

Liens ...................................... -

Authority to

74-

Owner ............. ... -

see**

74r

g',

No Brokers

71-

72-

Article 18- Representations

Section

70-

Remedies. .........
Repair, Renovation and Replacement Reserve Accounts ....... More Than One Acceptable Operator. ..................... Owner' s Rights

6868-

............................. -

Section 16. 1

of

67-

o... -

a.....

a.........

6467-.

Article 15- Requirements .......... ........................................ Section 15. 1 Tenant' s Obligation to Comply With Requirements .......... -

Section 15. 2 Definition

Section 15.3. Owner' s Obligation to

6363,

6..... -

Equipment .......................... -

Section 14. 3

Article 16-

62-

6666 -

Article 13- Project Construction ............................................ Section 13. 1 Tenant' s Obligation to Construct Project ................... -

Section 13. 2

62-

so.

sa.

se...

1
F vAwsKERNc M Bwiclilgan- Lincola PIaza\ Uaco9nPh= Grnd1sa- 17a(&)
August 30, 1999( 2: 49PAQ

wpd

a..

a0a

v..

a-

4-

OPC 4.51A `

EC
EC.

Section 18. 2

74"

No Other Representations ................................ -

75-

Injury or Damage ................................. Section 19. 1 Liability of Owner or Tenant ............................. -

Article 19- No

Liability

for

Section 19.2

Owner' s Exculpation ...........

Section 19.3

Notice

Section 19. 4

Tenant' s Exculpation .................................... -

Section 19.5

No Punitive Damages. ..............

Section 19.6

Survival. ......... ..................................... -

of

Injury

41

e..

e.....

41

Section 20.2

Indemnification
Contractual
Notification

Section 20. 6

Governs Lease

Section2l2

41

77"

41..... "

7777-

e.... -

e..

Tenant...............

e. -

41.............

79-

41. -

41

o..................

4141...

a...........

4141.....

Waste

79-

Inspection

and

79-

4141.. -

so-

e. _

e..............

4141....

4141.

41..

41:

4141........

e. ..................

78-

78-

Payment ................................ -

and

Survival .......

Article 21- Covenant

Sectlon21. 1 Waste.

77-

41.

Claim, Etc .........

Defense

Section 20. 5

Section 20. 7

76e.

e.

e.

Liability ................................. -

Section 20. 4

of

of

76-

Damage............................... -

or

Article 20- Indemnification ................................................ Section 20. 1 Indemnification of Owner...

Section 203

7576-

e -

80p

owe*

o...

eeaseoo

boo.

Inspectionof Premises. ...

e.

so

eo -

e000

8080-

e. -

80-

Article 22- Owner' s Security Interest in Building Equipment .................... Section 22. 1 Grant of Security Interest ................................ -

So-

81-

Article 23- Leasehold Condominium .. .................................... Section 23. 1 Creation of Leasehold Condominium. .................
Article 24

Right to Perform the Other

Party' s Obligations .................

Party' s Obligations .............. -

Section 24. 1

Right to Perform the Other

Section 24. 2

Discharge

e... -

81-

4141.. -

84,

84-

Section 24.3

........................... ........... Reimbursement for Amounts Paid Pursuant to this Article .... -

Section 24. 4

Waiver, Release

and

Assumption

of

a..........

Enforcement of Performance; Damages

and

Expiration

Section 25. 4

Waiver

of

Section 25.5

Receipt

of Moneys

Section 25. 6

Strict Performance ..............................

Section 25. 7

Right to Enjoin Defaults

Section 25.8

Remedies Under

Rights

of Tenant and

After Notice

4141.

Owner........
or

Bankruptcy

and

j
1
i

85-

85-

4141.. -

87-

Termination ..... -

87-

88-

e... _

88-

Termination ...... ..... _

89-

4141.... _

e.

4141...........................

F 1MINSKERIC M Michigan-Lincoln P1azdNL1nwJnP1ar Gmdlse847s(Hx) wpd

August 30, 1999( 2 49PM)

85-

Termination of Lease ...................... -

Section 25.3

and

85-

Obligations ............. .

Article 25- Events of Default, Conditional Limitations, Remedies, Etc. ............ Section 25. 1 Definition ..........................
Section 25. 2

84-

of Liens

Insolvency Codes .......... .

e "

8990-

c. 18770 G 452
Section 25.9

Funds Held

Article 26- Notices, Consents

and

Service

Consents

eaa.

a.

ap.

and

Certificate

of

91-

Other Communications............... -

Approvals .

@9*

pa.

to*

seeress

see

eoaa -

pe

poo.

a'

a..

96-

a.. -

aa

aaa90aape

e -

a........

a......................... -

100-

Section 29. 2

Delivery of SubleasesEtc............................... -

Section 29.3

Title to Improvements

Section 29.4
Section 29. 5

Title to Reserve Account..........................

Cash and Accounts Receivable ..

Section 29.6

Personal

Section 29. 7

Survival Clause ...

p.

a.

a..

a..

Article 30- Quiet Enjoyment ..............................

Section 30. 1 Quiet Enjoyment .........

pae.

a.....

a......

Property. ...........

rose

eeae.

p.

a..

40

e.

a. .

a....

Section 32. 3

Requirement Contest

Section 32. 4

Owner' s Participation in Contest Proceedings .............. -

aooeoeo

Article 32...

eo

ae

ae.

e...............

Article 35- Environmental Matters ........................................... Section 35. 1 Definitions .................. .................... ...... Section 35. 2 representations and Warranties of Tenant ............... F:VvMSKERIC M BUichigan-Lincoln PIam\LiocobiP1a= 0mdisa- 17a(Ex) wpd

103-

a. -

104-

o... -

104-

104-

Article 34- Indictment, Investigations, Etc. .......

Section 34. 1 Cooperation in Investigations ............................. -

August 30, 1999( 2:49PM)

a -

104o

a................................ -

101-

102-

spa -

e.

Article 33- Nondiscrimination ........................................ .

Section 33. 1 Nondiscrimination ....

a.

101-

102-

p.. -

eose@0aa000e

401-

102,

p...... -

a......

a.....

o.

100-

102-

e. -

Imposition Contest Proceedings

100-

101-

.............. .

Section 32. 2

of this

aa -

a..........................

Judicial Proceedings, Contests, Etc...

a.

e -

a.........

a.

p -

101-

eaa..

Tax Contest Proceedings .................

Nonapplicability

p......

a.

Section 32. 1

Section 32.5

a.... -

eaeea.

pa

Article 31 - Reserved .....................

and

100-

a......

e..

a.

96-

100-

Article 29- Surrender at End of Term ............

Section 29. 1 Surrender of Premises ................................... .

95'

96-

Owner .................................... -

93-

95-

Article 28- Financial ReportsandRecords..............

Section 28.1 Hoops and Records; Audit Rights ....... .

Article 32- Administrative

91-

a -

91-

Article 27- Certificates By Owner and Tenant..........................

Section 27.1 Certificate of Tenant. .................................... Section 27.2

o.

ae

Approvals .................................. -

of Notices and

Section 26.1

Section26.2

91-

By Tenant............................. .

Section 25. 10 Inspection ...........................

a.. -

104104-

105105106-

off.

R C

187708 453

107-

Materials ............................. -

of Hazardous

Section 35. 3

Use

Section 35.4

Tenant Indemnification

Section 35. 5

Compliance ..................

of

107-

Owner ...................
41..

41

a.

0.

1,..

0.

0.

se.....

107-

Section 35.6

Notices ................................................ -

107-

Section 35. 7

Owner' s Remedies ..................................... -

107-

Section 35.5
Section 35. 9

Defaults .............................***.
Owner

00 -

8690066069.

Responsibility. .................................. -

109-

Section 35. 10 Survival ...........

Article 36- Reciprocal Rights

of

109-

First Refusal ................................ -

Section 36.1

Tenant' s Reciprocal Right

Reciprocal Right

Offer................... -

109-

First Refusal ................. -

110-

of First

Section 36. 2

Owner' s

Section 36.3

Assignment ........................................... -

112-

Section 36.4

No Merger. ........................................... -

112-

of

Article 37- Miscellaneous ............

Section 37. 1

3
Sec ion.3'}7/..
Section 37. 4.4

and

Interpretation

Cyounteerpart0
T

Section 37. 6

E/

SectionSection 37. 8
Section 37.9

112-

of

112-

Lease .................... -

11/3{-

alive8'

a..

a..................

pp...
Modification,
Etc ......
8......

oyfOther

a...

41

41

a.

0a.

a.

a%

aa.......

a.

0a......

0.

113-

4141. -

114-

41

114-

a000aaaa0a.....

a....

0.

a.....

41

41..

Section 37. 14 Notice

Section 37. 15 No

of Defaults.

of

s...

6.

115115-

115-

s...... -

of Owner or

115-

Tenant.. -

116-

Interest...................... ............... -

a.......

0.

F WINSKBRT M B1M Aigan-Lincoln Plaza\LincolnPla= Grndlse8- 17o( Bx) wpd

0....

0.............

114,

115-

116116-

a. -

00400400a0000

116117-

Section 37.20 Radon Notice ......................................... Section 37.21 No Third Party Beneficiaries ............................ -

Aupst 30, 1999( 2:49PM)

6-

a............ -

Section 37. 17 No Partnership or Joint Venture ......................

Section 37.18 Time Periods ......................................... Section37. 19 Time is of the Essence ........... ..........

...................

114-

115-

..............................

Liability of Officials and Employees

Section 37.16 Conflict

0. -

Assigns ................................. -

Section 37.12 Successors

Section 37. 13 Recording of Lease .......... .............
and

11-

0.. -

a.. -

a...

0.

a.

Transactions .........................

fyfectry* ility ................

Merger..

a.....

Remedies Cumulative ..................

Section 37.10 Performance at Each Party' s Sole Cost and Expense ........ Section 37. 11 Recognized Mortgagee Charges and Fees .................. -

of Exhibits

112-

4141... -

EntireEntire Agreement...................................... -

Section 37. 5
37. 7

Governing Law ........................................ -

Section 37.2

List

105

109

117-

0....

a ... -

119-

Fr.

SEC.

454

81T0

AGREEMENT OF LEASE

X1999 ( the
day of-CdP
Commencement Date'), by and between the Crff OF MIAMI BEACH,FLORIDA, a municipal
corporation duly organized and existing under the laws of the State of Florida, as Owner, and
LINCOLN PLAZA PARTNERS, LLC, a Florida limited liability company, as Tenant.
TIUS AGREEMENT OF LEASE, dated

as of

the

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 ofpublic-private
parking facilities in the

area of south

Dade Boulevard(" UP");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 ofparking
on privately owned property; and

WI EREAS,

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 liability company and RDP Lincoln Plaza LLC, 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 ofthe City to enter into an Agreement ofLease and Development Agreement with Lincoln
Plaza Partners LLC for the development of the aforementioned Project Site.
TERMS OF AGREEMENT

NOW, THEREFORE, it is hereby mutually covenanted and agreed by and between the
parties hereto that this Lease is made upon the terms, covenants and conditions hereinafter set forth.
I

F W NSKERT M 131Miebigao- Lincoln PlazalLincolnPlazaOmdlse6. 17e( Ex) wpd

August 309 1999( 2:49PM)

18770N 455
Article 1- Definitions

Section 1. 1

Definitions.

For all purposes of this Lease the terms defined in this Article 1 shall have the following
meanings and the other provisions of this Article I shall apply:
Acceptable Operator"

means any corporation or Person which has the following

qualifications:

1.

The Acceptable Operator must be, or have a management contract with, a

Property Manager.
2.

The Acceptable Operator must establish and maintain an on site property

management office within a portion ofthe Project.

The Acceptable Operator and any Property Manager hired by the Acceptable
Operator shall have no outstanding building code violations for which notice has been served( other
3.

than those which are being corrected or contested diligently and in good faith) against any property
owned or managed by such Acceptable Operator within the City of Miami Beach, Miami-Dade,
County and any cities located within Miami-Dade Cou*.
The Acceptable Operator must have been in the business ofoperating similar
projects and parking garages for the past five( 5) years( or have management personnel who have
4.

been in the business

5.

of operating similar projects and

parking

garages

for

at

least five( 5)

years).

The Acceptable Operator must have been in the business of managing retail

or office space for at Ieast five ( 5) years ( or have management personnel who have been in the

business of managing retail or office space for at least five( 5) years).

Any entity contracted as an Acceptable Operator must continue to meet the above throughout its
service as an Acceptable Operator hereunder unless certain ofsaid qualifications were waived by the
Owner, in writing.
6.

An Acceptable Operator shall not be a Foreign Instrumentality.

Accounting principles" means generally accepted accountingprinciples as promulgated by

the American Institute ofCertified Public Accountants, except as otherwise provided by this Lease,
with such changes as Owner and Tenant shall mutually agree are consistent with this Lease in order
to reflect technologies and methodologies not addressed in the Accounting Principles.

Affiliate" or" Affiliates" means, with respect to any Person, any other Person that directly

or indirectly, through one or more intermediaries, controls or is controlled by, or is under common
I

i
F 1MINSKER\C M Michipan- Lincoln P1a7a\L(nco1nP1azaQmdlsa8- 17a( 3x) wpd
August 30, 1999( 2 49PM)

2-

a UVAN 456
control with, such

by"

Person. For purposes hereof, the term"

and" under common control with")

control'( including the terms" controlled

shall mean the possession of a Controlling Interest.

Alterations" has the meaning provided in Section 14.5( a).

11Annual Financial Statements" has the meaning provided in Section 28.1( c).

Annual Report" has the meaning provided in Section 27.1( b).

Assignee" has the meaning provided in Section 10.2( b).
Assignment" has the meaning provided in Section 10.2( a).
Back Rent"

has the meaning provided in Section 10.2( c).

Base Rent" has the meaning provided in Section 12(c).

Building Equipment" means all installations incorporated in, located at or attached to and
used or usable in the operation of,or in connection with, the Premises and shall include, but shall not

be limited to, machinery, apparatus, devices, motors, engines, dynamos, compressors, pumps, boilers
and burners, heating, lighting, plumbing, ventilating, air cooling and air conditioning equipment;
i

chutes, ducts, pipes, tanks, fittings, conduits and wiring; incinerating equipment; elevators, escalators
and hoists; washroom, toilet and lavatory plumbing equipment; window washing hoists and
equipment; and all additions or replacements thereof excluding, however, any personal property
which is owned by subtenants, licensees, concessionaires or contractors( except to the extent any of
the foregoing are Affiliates of Tenant).
Building

Index"

has the meaning provided Section 7. 12(b).

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
Business

Day"

or "

order to be closed and are, in fact, closed

Casualty Restoration" has the meaning provided in Section 8.2(a).

Certificate of Occupancy" means the document by that name that is required prior to the
occupancy of any premises by Section 307. 1 of the South Florida Building Code as amended from
time to tune; provided, however, that such definition shall not apply to a temporary certificate of
occupancy if issued only for the Garage and retail portions of the Project and only for a period not
to exceed twelve ( 12)

months prior

to the office

portion of

the Project receiving

Certificate

of

Occupancy. Such term shall include both Temporary CO and Final CO, as the context may require.

City" means the City ofMiami Beach, Florida, a municipal corporation duly organized and
existing under the laws of the State of Florida.
F 11Vl1NSKBRIC M B1Michignn-Lincoln P1a= Unco1nP1amGrnd1sc& 17a(Bx) wpd
August 30, 1999( 2; 49PM)

457.
CO Date" means the date on which Tenant receives a Certificate of Occupancy for any of
the Garage, office building or retail space, whichever occurs first.

Commencement Date" has the meaning provided in the preamble ofthis Lease.
Commissioner" means a duly elected or appointed member ofthe City Commission ofthe
City of Miami Beach.

Condemnation Restoration" has the meaning provided in Section 9.2( b).

Condominium Tenant" has the meaning provided in Section 211(b)(H).

Consenting Party" has the meaning provided in Section 26.2(c)(1).

Construction Agreements"

means all agreements executed in connection with any

Construction Work affecting the Premises and the Improvements, including, without limitation, a
Restoration, Alteration or other Construction Work performed in connection with the use,
maintenance or operation of the Premises.
Construction Commencement Date"

Agreement. .

0 r,.

a,/. r.:

Y . e, ,

E:: -

has the meaning provided in the Development

,

ia e

Construction Phase" means the period beginning on the Possession Date and ending on the
CO Date.

Construction Work" means any construction work performed under any provision ofthis

Lease affecting the Premises and the Improvements, including, without limitation, the initial
construction of the Project, a Restoration, Alteration or other construction work performed in
connection with the use, maintenance or operation of the Premises.

Controlling Interest" means the ownership ofgreater than fifty percent( 5011/ 6) ofthe voting
a Person or the ownership of greater than fifty percent ( 50%) of the votes
Equity
necessary to elect a majority ofthe Board of Directors or other governing body of such Person.
Interests in

CPI" means the Consumer Price Index for All Urban Consumers for the United States, all
items, index base period 1982- 84100( commonly referred to

as

CPI-L), as published periodically

by the United States Bureau of Labor Statistics.

Date of Taking" has the meaning provided in Section 9. 1( c)( i).
Debt"

has the meaning provided in Section 11.2( a).

Debt Service" means all payments in respect ofprincipal and interest on ] Debt( including,
without limitation, the net cost to Tenant of interest rate protection agreements and arrangements,

1
F:W NSKEK\C M DWIchlgan-Lincoln Plaza)LincolnPlm(3mdlse8- 17a(Ex) wpd
August 34, 1999( 2 49PM)

V794 45B
and any and all fees paid to the lender( s), administrative fees and charges, extension fees, and the
like). Yn the event, and only during the period in which, a Recognized Mortgagee or its Designee

becomes Tenant under this Lease by virtue ofa foreclosure ofits Recognized Mortgage or by virtue
of an assignment or conveyance in lieu thereof, Debt Service shall mean the payments that would
have been due under the Recognized Mortgage ifforeclosure or conveyance in lieu thereofhad not
occurred and there had been no acceleration ofthe Recognized Mortgage, and in the event that the

maturity date ofthe Recognized Mortgage has occurred or occurs in such period, Debt Service shall
mean the amount that would have been due in order to make monthly payments, calculated on a level
debt service basis, of(a) interest on the remaining unpaid principal indebtedness( i.e., the" balloon")
secured by the Recognized Mortgage computed at the contract( i.e., non-default) rate specified in the
maturing Recognized Mortgage, plus( b) principal payments using the same amortization period as
the maturing Recognized Mortgage( i.e., ifthe maturing Recognized Mortgage had a ten( 10) year
term with a twenty-five( 25) year amortization period, the amortization period for calculating the
monthly principal payments on the remaining principal balance shall be twenty-five( 25) years).
Declaration" has the meaning provided for in Section 23. 1( x).
Default" means any condition or event, or failure ofany condition or event to occur, which

constitutes, or would after the giving ofnotice and lapse oftime( in accordance with the terms ofthis
Lease) constitute, an Event of Default.
Default Notice" has the meaning

Delay
y
four(
24)
twenty-

ate" means
months after

provided

in Section 25. 1( b).

the earlier to occur of i

the

ossession

Delay).

G I

Nee,

,-.

the CO Date or ii the date which is

Da ( which date shall not be subject to Unavoidable

-

2 4A,Q-

6/1 log

DEP" means the State of Florida Department of Environmental Protection.

DERM"

means the Miami-Dade County Department of-Environmental Resources

Management.

Development Budget" has the meaning provided in the Development Agreement.

Environment" has the meaning provided in Section 35.1( c).

Environmental Compliance" has the meaning provided in Section 35.5.

Environmental Condition" has the meaning provided in Section 35.1( d).
I

Environmental Damages" has the meaning provided in Section 35. 1( e).

Environmental Laws" has the meaning provided in Section 35.1( b).

P.XMINSKSRIC M B1Michigan-Lincoln PlazalT

August 30, 1999( 2 49PM)

awInPI=

Gmdlsa$- 170x) wpd

187AN
EPA" means the] Environmental Protection Agency of the United States.
I

Equity Interest" has the meaning provided in Section 10.2( d).

Event of Default" has the meaning provided in Section 25.1.
Expiration of the Terra" means the expiration of the initial Term of this Lease, or the

expiration ofany extensions thereof,as the case may be, or on such earlier date as this Lease may be
terminated as provided herein.
Fair Market Rent"

means the rent that the Land should bring if it were raw and

unimproved( i.e., all existingImprovements shall be disregarded) and ifit were available for use only
for the same uses as the Project as it is then being used, in a competitive and open market under all
conditions requisite to a fair lease, Owner and Tenant each acting prudently, knowledgeably, and

assuming the rent is not affected by undue stimulus. Implicit in this definition is consummation ofa
lease as of a specified date under conditions whereby:
i)

Owner and Tenant are typically motivated;

ii)
Both parties
consider their own best interests;

are well-informed or well-advised and acting in what they

iii)

A reasonable time is allowed for exposure in the open market;

iv)

Payment is made in terms of cash in U.S. dollars or in terms of

financial arrangements comparable thereto; and

v)

The rent represents the normal consideration for property leased unaffected

by special or creative financing or concessions granted by anyone associated with the lease.
Final CO", means a certificate(s)

ofoccupancy issued by the City's Building Department for

all or a portion of the Improvements, other than a Temporary CO(s).

First Transferee" has the meaning provided in Section 11. 12( e).
Fixed Expiration Date"

means the date which is the last day of the month in which the

fiftieth( 50th) anniversary of the Delay Date shall occur, provided, however, that in the event the
Terrni is extended as provided herein, Fixed Expiration Date shall mean the last day ofany extension
or extensions of the Terns in accordance with the provisions of Section 2. 1 hereof.
i
Foreclosed Tenant"

has the meaning provided in Section 11. 12( e).

Foreclosure Transferee"

and "

Foreclosure Transfer" have the meanings provided in

Section 11. 12( c).

i
1Anco1nPl=
F VAN5KSRIC M B1MicWgan- Uncoln P1sza%
August 30, 1999( 2:49PM)

Gmdlse9- 17a( Ex) wpd

6-

460
Foreign Instrmenah y mews a foreign( i.e., non-United States ofAmer>ca) government
or instrumentalitythereofor a Person controlled thereby. A Person shall be deemed to be" controlled
by" a foreign government or instrumentality if such government or instrumentality, directly or
indirectly, directs or causes the direction of the management and policies of such Person

Garage" means the part ofthe Premises consisting of approximately seven hundred( 700)
parking spaces, a portion ofwhich shall be available as a public parking facility subject to the terms
and conditions of Section 6.1( b).

Governmental Authority or Authorities" means the United States ofAmerica, the State
the City( acting in its governmental, not proprietary, capacity), Miami-Dade County, and

of Florida,

any agency, department, commission, board, bureau, instrumentality orpolitical subdivision( including
any county or district) of any ofthe foregoing, now existing or hereafter created, havingjurisdiction
over Tenant, or any owner, tenant or other occupant of,or over or under the Premises or any portion
thereof or any street, road, avenue or sidewalk comprising a part of,or in front of the Premises, or
any vault in or under the Premises, or airspace over the Premises.
hnposition( s)"

has the meaning provided in Section 3.4(b).

building ( including footings and foundations), Building

Equipment, and other improvements and appurtenances ofevery kind and description now existing
Improvement(s)" means any

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" means a Person which, at the time it bpA

l Lender

it

WaucMiair-

yor representative( such as an

agency) capacity];

her acting individ yo'

an insurance company organized and

existing under the laws of the United States ofAmerica or any state thereof or a foreign insurance
company [ in each case whether acting individually or in a fiduciary or representative( such as an
agency) capacity]; an institutional investor such as a publicly held real estate investment trust, an
entity that qualifies as a" REMIC" under the Internal Revenue Code of 1986, as amended, or other

public or private

investment entity in each case whether acting as principal or

agent);

a brokerage or

investment banking organization [ in each case whether acting individually or in a fiduciary or

agency) capacity as principal or agent];% n employees' welfare, benefit,
1
pension or retirement fund; an institutional leasing compan ,
representative( such as an

RIFSPany governmental agency or entity insured by a

governmental agency or any combination of Institutional Lenders; provided that each of the above
entities shall qualify as an Institutional Lender only if(at the time it becomes an Institutional Lender)
for

inflation and( b) not be an Affiliate ofTenant( it being further agreed that none ofthe standards set
forth in this definition shall be applicable to participants or co- lenders in a loan secured by a Mortgage
which is held by an Institutional Lender[ whether acting individually or in a fiduciary or representative

it

shall( a)

have

assets of not

less than One Hundred Million Dollars($ 100, 000,000)

PA/WSKERT M B1Michigan-Unooln P]azsU,tncolnPlaz Umdlsa& 17a(Bx),wpd

August 30, 1999( 2:49PM)

adjusted

oFC.

RAC.

such as an

agency) capacity].

18770H

461.

The term " Institutional Lender" also includes an Affiliate of an

Institutional Lender as described in this paragraph.

Joint Board" means the Joint Historic Preservation and Design ReviewEoard created and

established pursuant to the Land Use Regulations or any board or body which may succeed to its
functions.

Land" means the real property and Or rights, ifany, described on Exhibit A attached hereto
and incorporated by reference herein.
Late Charge Rate" has the meaning provided in Article 4.

Lease" means, collectively, this Agreement ofLease 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 Lease or by mutual agreement ofthe parties.

Lease Year" means( a) the period commencing on the Delay Date, and expiring on the Oast
day

of

the next occurring December which is at least twelve ( 12) months thereafter; ( b) each

succeeding 12-month period during the Term; and( c) the final shorter period, if any, ending on the
last day ofthe Term.
Major Alteration" has the meaning

provided

in Section 14.*)(

vi).

Management Agreement" means a written agreement between Tenant and Acceptable

Operator pursuant to which Acceptable Operator has agreed to manage and operate the Premises in
accordance with the terms thereof,and any replacements, substitutions, restatements or modifications
thereof.

Managing Member(s)" means the Member(s) who can legally bind the limited liability
company.

Master Sublease( s)"

has the meaning provided in Section 10.2(fl.

Master Subtenant" has the meaning provided in Section 10.2( g).

i

Mayor" means the Mayor of the City.

Member( s)"

means a Person who owns an Equity Interest in a limited liability company.

Membership

Interest(s)"

Mortgage"

F%

means the Equity Interest of a Member.

has the meaning provided in Section 11. 2( b).

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462
Mortgagee" means the holder of a Mortgage.

Net Condemnation Award" has the meaning provided in Section 9. 1( eXi ).

Net Insurance Proceeds" has the meaning provided in Section 8.2(a).

Notice" has the meaning provided in Section 26.1.

Notice of Failure to Cure" has the meaning provided in Section 11.4( a).
Operating

Expense( s)" means, without duplication, all costs and expenses incurred in

owning, maintaining, conducting and operating the Premises, other than Debt Service and any other
payments ofpricipal or interest( whether or not permitted hereunder( and this reference thereto not
constituting consent or approval thereo fl], Rental, depreciation, amortization and the original costs
of constructing

the Improvements pursuant to the Development Agreement.

Operating Expenses

shall include, without limitation, all operating costs; all wages and benefits and payroll taxes; other
goods, supplies, utilities and services; all repairs and maintenance; all professional fees and expenses;

all costs of advertising, marketing and promotion; all costs incurred by Tenant or any Affiliate of
Tenant under any leasing agreement, management agreement or other similar agreement regarding
the leasing or management of the Project entered into by Tenant or any Affiliate of Tenant; all
Impositions, all insurance costs; all payments under equipment leases; all real estate, personal
property and other taxes, assessments,
income taxes, unless imposed in lieu
Impositions);

governmental charges and other

of

any

of

the

foregoing

taxes,

Impositions ( other than

assessments,

charges or

provided, however, that no deduction shall be permitted for Alterations which under

this Lease require the consent of Owner( unless such consent has been obtained or is deemed to be

Any Operating Expense payable to an Affiliate of Tenant or Acceptable Operator shall

be deemed an Operating Expense only to the extent ofthe fair market value ofthe goods or services
supplied by such Affiliate.
obtained),

Owner" paeans the City, acting in its proprietary capacity, and any assignee or transferee of
the entire Owner's Interest in the Premises, from and after the date of the assignment or transfer
pursuant to which the entire Owner's Interest in the Premises was assigned or transferred to such
assignee or transferee.

Owner Indemnified Parties" means, collectively, the City( and any successor Owner), and
their respective elected and appointed officials( includingthe City's Mayor and City Commissioners),
directors, officials, officers, shareholders, members, partners, holders of other ownership interests,
employees,

successors, assigns, agents, contractors, subcontractors, experts, licensees, lessees,

mortgagees, trustees, partners, principals, invitees and Affiliates. An" Owner IndemnAfled Party"

shall mean any of the foregoing.

Owner' s Interest in the Premises" means Owner's interest inthe Land and Owner's interest
in this Lease.

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463
Parties" means Owner and Tenant.
i

Permit" has the meaning provided in Section 35.10.

Permitted Transfer" has the meaning provided in Section 16.3(c)(iii).

means an individual, corporation, partnership, joint venture, limited liability
company, limited liability partnership, estate, trust, unincorporated association or other entity; any
Person"

Federal, state, county or municipal government or any bureau, department, political subdivision or

agency thereof; and any fiduciary acting in such capacity on behalf ofany ofthe foregoing.
Plans

and

Specilicatiolns"

has the meaning given to such term in the Development

Agreement.
Possession Date"

means the earlier

to

occur of(

i)

one(

1) year( which is not subject to

Unavoidable Delays) from the Commencement Date or( ii) the date upon which Tenant elects to take
possession of the

Land.

741.&4- t- 0-'4'

Xk

1-

oa

Premises" means, collectively, the Land and the Improvements.

Prohibited Uses" has the meaning provided in Section 6.2(a),

Project"

has the meaning provided in Section 13. 1.

Project Opening Date" means the date on which the Project is opened to the-public for
business, but not later than the date that is thirty( 30) days following the issuance of a CO for the
entire Project.
Project Revenue( s)"

has the meaning provided in Section 33(c).

Property Manager" means a commercial real estate property manager licensed to do

business in the State of Florida and the City.
Public Company" means a Person that is required to comply with the reporting
requirements under the Securities Exchange Act of 1934, as amended, or any successor statute.
Recognized

Accounting

Firm"

means

Ernst &

Young/Kenneth Leventhal; Coopers &

Lybrand; Arthur Andersen; Price Waterhouse; Deloitte& Touche; KPMO Peat Marwick; Pannell,
Kerr& Foster; Mallah, Furman, Berkowitz, Dick, Pollack& Burnet; Rachlin, Cohen& Holtz; or any

successor entity ofany ofthe foregoing or any other certified public accountants mutually acceptable
to Tenant and Owner.

Recognized Mortgage" has the meaning provided in Section 11.2( c).

i
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18770?0 464
RecoWdzed Mortgagee" means the holder ofa Recognized Mortgage; provided, however,
that,

except

to the

extent permitted

by Section 11. 2( c), a Recognized Mortgagee may not be an

Affiliate of Tenant( except if Tenant is an Affiliate of a Recognized Mortgagee that has caused this

Lease to be assigned to such Affiliate in lieu of foreclosure of the Recognized Mortgage of such
Recognized Mortgagee).

Reinstatement Date" has the meaning provided in Section 11.5(a).

Release" has the meaning provided in Section 35.1( 8).

Replacement Value" has the meaning provided in Section 7.12( a).
Rental" means rent, Base Rent, Percentage Rent, adjustments and any other sums, costs,
expenses or deposits which Tenant is obligated, pursuant to any provisions of this Lease, to pay
and/ or deposit.
Request for Proposals"
Amended))

or "

RFlF"

means

Request for Proposals ( RFP Igo. 20- 97/ 98

issued by the City on December 30, 1997, with respect to the Land.

Requesting Party" has the meaning provided in Section 26.2( c)( li).
Requirements" has the meaning provided in Section 15.2.
r

Reserve Account"

has the meaning provided in Section 16.5( a).

Restoration" means either a Casualty Restoration or a Condemnation Restoration, or both.

Sale of the Project" has the meaning provided in Section 10.2( e).
Security Deposit" has the meaning provided in Section 3.6.

Significant Alteration" has the meaning provided in Section 14.5( x)().

Substantial Completion" has the meaning provided in the Development Agreement.
South Florida

Building Code"

means

the South Florida Building Code( Revised 1994),

as

amended from time to time, or any successor thereto.

Substantial Controlling Interest" means the ownership ofgreater than fiftypercent( 50%)
of the

Equity Interests in a Person and the ownership of greater than fifty percent( 50%) of the votes

necessary to elect a majority ofthe Board of Directors or other governing body of such Person.

Temporary CO" means a temporary certificate ofoccupancy, as the same may be amended
from time to time, issued by the City's Building Department for all or a portion ofthe Improvements.
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Tenant" means Lincoln Plaza Partners, LLC, a Florida limited liability company, and any
assignee, transferee or subtenant ofthe entire Tenant's Interest in the Premises that is permitted under
this Lease from and after the date ofthe permitted assignment, transfer or sublease pursuant to which
the entire Tenant's Interest in the Premises was assigned, transferred or sublet to such assignee,
transferee or subtenant.

Tenant Indemnified Parties" means Tenant and its directors, officers, shareholders,

employees, successors, assigns, subtenants, agents, contractors, subcontractors, experts, licensees,

lessees, mortgagees, joint venturers, members, holders of other ownership interests, partners of a

partnership constituting a partner or Member of Tenant, Members of a limited liability company

constituting a partner or Member ofTenant, trustees, partners, principals, invitees and Affiliates. A
Tenant Indemnified Party" shall mean any of the foregoing.
Tenant' s Interest in the Premises" means Tenant' s interest in this Lease and Tenant' s

ownership of the Improvements as provided in Section 293.

Terin" means the term ofyears commencing on the Commencement Date and, subject to
earlier termination as provided hereunder, expiring at 11: 59 p.m. on the Fixed Expiration Date.
Term," as the context may require, shall include the initial period from the Commencement Date to
the Fixed Expiration Date and any extensions or renewals thereof.

Threat of Release" has the meaning provided in Section 35.1( h).

Tide Matters" has the meaning provided in Section 2.1.

Transfer" has the meaning provided in Section 10.2(1~1).

Transferee" has the meaning provided in Section 10.2(1).

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, eminent
domain, catastrophic weatherconditions, 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 ofsuch alleging party or Affiliates( or present
or former employees, officers, partners, members or shareholders ofsuch 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 inthe
loss

of

any benefit

or right granted

to the delayed party

under

this Lease.

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
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caused by Tenant) with.respect to suchparty and( ii)any delay arising from aparty's( or its Affiliate's)
i

default under this Lease or the Development Agreement constitutes an" Unavoidable Delay" with

respect to suchparty's obligations hereunder. The times forperformance set forth in this Lease( 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 Lease.
U.S. Government" means the federal government of the United States of America,

including all agencies and departments thereof.

Article 2- Demise of Land and Term of Lease

Demise of Land for Term.

Section 2.1

Owner does hereby demise and lease to Tenant, and Tenant does hereby lease

a)
and

take from Owner, the Land, together with all the

hereditaznents thereto, " AS IS"

subject

to ( i)

appurtenances, rights, privileges and

the terms and conditions of this Lease and( ii) the

matters set forth in Exhibit 2. 1( the" Title Matters") attached hereto and incorporated by reference
herein, to have and to hold unto Tenant, its successors and assigns for an initial Term commencing
511
on the Commencement Date and continuing until the fiftieth(
anniversary of the Delay Date:--:
unless sooner terminated pursuant to the terms hereof; provided, however, that as a condition
5011)

las

precedent to Tenant' s entering upon and taking possession of Parcel l (as described on Exhibit A
attached

hereto),

Tenant shall deliver to Owner special warranty deeds( subject only to the matters

set forth in Exhibit 2.1 hereto and further subject to a right of reverter in the event that this Lease

is terminated for anyreason prior to the Commencement ofConstruction, and free ofany other liens,
charges or encumbrances other than taxes not yet due and payable) to Parcel 2( as described on said
Exhibit A) to the City, as grantee. Upon satisfaction of the condition precedent set forth in the

immediately preceding sentence, Tenant' s right to possession and control ofthe Land shall extend
Unless( A) this Lease has been previously
terminated in accordance with the provisions hereof,or( B) there exists an uncured Event ofDefault
to Parcels 1

and

2 ( as described

on said

Exhibit A).

ofTenant on the date the current Term is scheduled to end, or( C) Tenant notifies the City within the

last twenty-four( 24) months ofthe end ofthe Term in question that it is not going to elect to extend
this Lease for each extension provided in this Section 2.1 on the terms and conditions provided

herein, this Lease shall be automatically extended for up to two( 2) additional Terms oftwenty( 20)
years each,

for

total

possible maximum

Term

of

ninety ( 90)

years (

plus the period from the

Commencement Date to the Delay Date). Notwithstanding anything contained inthis Section 2.1( a)
to the contrary, the Land shall not include Parcel 2 until such time as said Parcel is conveyed to
Owner as set forth in this Section 2. 1( a).

Notwithstanding anything to the contrary contained herein, Tenant shall have

the right to be released from its liability and obligations[ except the obligation to pay Rental and/or
b)

Impositions

prior

to the Possession Date

Development Agreement

and

this Lease

pursuant

prior

to Section 3. 2( a)] and to terminate the

to the Possession Date because ( i)

changes

to 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
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13-

judgment of Tenant,( ii) the Project cannot meet concurrencyrequirements under Section 163. 3180,
Florida Statutes ( 1997), or the costs of concurrency mitigation are, in the reasonable business

judgment ofTenant, economically unfeasible, or( iii) Tenant, after good faith efforts, has been unable
to obtain a full building permit for the Project pursuant to the Plans and Specifications submitted by
Tenant. In the event of termination ofthe Development Agreement and this Lease pursuant to this

Section 2.1, each Party shall bear its own costs and expenses incurred in connection with the
Development Agreement and this Lease and neither Party shall have any father liability to the other.
No Encumbrances.

Section 2.2

Owner will not permit or suffer any encumbrance, mortgage, pledge or hypothecation of
Owner's Interest in the Premises except with respect to those matters( such as utility easements and

nonmonetary reciprocal easement agreements) reasonably approved by Tenant in writing and which
Pe
J
P
do not adversely
Y affect the operation
or development
of the Project.
At Tenant' s request, Owner
shalljoin in any utility easements and other easements necessary for the Project. Tenant shall pay all
of Owner' s reasonable attorneys' fees and costs associated therewith and shall indemnify and hold
harmless Owner from any and all liability and expenses associated therewith. Notwithstanding the

foregoing, Owner shall have the absolute right to pledge its interest in the Rental and/or Impositions
payable hereunder so long as such pledge does not include a pledge of Owner's Interest in the
Premises(

other

than the Rental

and/ or

Impositions payable hereunder), and the pledgee shall have

no rights under this Lease other than the right to receive payments ofRental and/or Impositions. Any
pledge of Rental and/ or Impositions permitted hereunder shall not create any rights in the pledgee
thereunder to

enforce

any

of the provisions of this

Lease.

Owner shall deliver to Tenant and any

Recognized Mortgagee, within fifteen( 15) days after the effective date thereof, a true and correct

copy ofany pledge instniment permitted hereunder.

Section 2.3

Sale of Entire Interest.

Owner shall not sell, transfer, convey or assign Owner's Interest in the Premises, except for
a sale, transfer,.conveyance or assignment of the entire Owner's Interest in the Premises.
Article 3- Rent
Section 3. 1

Method and Place of Payment.

Except as otherwise specifically provided herein, all Rental and/or Impositions shall be paid
without notice or demand. All Rental and/or Impositions payable to Owner( except Impositions, if

the Requirements governing such payments are to the contrary) shall be paid by good checks( payable
upon presentment) drawn on a United States or state chartered bank, in currency ofthe United States
of

America.

Rental and/or Impositions that are payable to Owner( other than Impositions, if the

Requirements governing such payments are to the contrary) shall be payable at the address ofOwner
set forth herein or at such other place as Owner shall direct by notice to Tenant. Impositions that are

not payable directly. to Owner shall be payable in the form and at the location provided by
Requirements governing the payment of such.
f

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Rent.

Section 32

Rent Prior to the' Possession Date.

a)

On the Commencement Date, in

consideration ofthe execution ofthis Lease by Owner, Tenant shall pay Owner the lump sum ofFifty
Thousand Dollars($

50,000), which sum shall be full and complete consideration for the period from

the Commencement Date to the Possession Date, and a portion of which represents reimbursement

to Owner for certain expenses incurred by Owner pursuant to Section 82-39 ofthe Miami Beach City
Code, as amended.

b)

Rent After the Possession Date. Tenant and Owner agree that Owner will

lose significant parking revenues during the Construction Phase. In order to compensate Owner for
said

lost

revenues,

Tenant

shall

pay One Hundred

and

Seventy- Five Thousand Dollars($

175, 000)

per year as rent, commencing on the Possession Date and ending on the earlier to occur of(i)the CO
Date and( ii) the Delay Date.
c)

Rent After the

Delay

Date.

Tenant shall pay Owner annual rent for each

Lease Year, including any adjustments thereto( the" Base Rent"), during the Term commencing on
the Delay Date. The initial Base Rent shall be Two Hundred Fifty Thousand Dollars($ 250, 000), and
shall

be increased as described in Sections 3.2( d), 32(e) and 3.2( f)hereof,until the Expiration ofthe

Term. In no event shall Base Rent during an adjustment period be less than the Base Rent during any
prior period.

d)

Adjustments to Base Rent. ( i) The Base Rent shall be increased to Three

300,000) per annum, commencing on the first month ofthe sixth( 6 )

Lease Year, and( ii) the Base Rent shall be further increased by the lesser oftwelve percent( 12%)
Hundred Thousand Dollars($

or the cumulative CPI over the previous five( 5) year period and shall be adjusted commencing with
the first(

Ifi)

month of the eleventh(

e)

11 s')

Lease Year and every five( 5) Lease Years thereafter.

Appraisal Adjustments to Base Rent. Sometime

during the 49' (

if the

Term has been extended) and 60( if the Term has been extended) Lease Years, the Parties shall

cause to be made appraisals ofthe Fair Market Rent according to the provisions set forth below, for
the purpose of adjusting the Base Rent, which adjustments shall be effective at the beginning ofthe
fiftieth(

501)(

if the Term has been extended)

and seventieth(

70')( ifthe Term has been extended)

Lease Years, while maintaining the Percentage Rent payments as provided in Section 3.3 herein:
i)

Appraisals shall be made by three( 3) real estate appraisers, each of

which( i) shall be a member of the American Institute of Real Estate Appraisers, and( ii) shall have
not less than ten( 10) years experience in managing and appraising real estate. One appraiser shall
be selected and appointed by Owner( the" Owner' s Appraiser"), and shall be paid by Owner, one
shall be selected and appointed by Tenant( the" Tenant' s Appraiser") and shall be paid by Tenant; and
the third

shall

be

selected and

appointed

by the first

two ( 2) appraisers so

appointed ( the

" Third

Appraiser"). The cost of the Third Appraiser shall be evenly split between Tenant and Owner. In the

event of a failure of Owner' s Appraiser and Tenant' s Appraiser to agree on the Third Appraiser
within

fifteen ( 15)

days after their appointment, the Third Appraiser shall be appointed by the

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President ofthe American Institute ofReal Estate Appraisers( or its successor) on the application of

either appraiser appointed by Owner or Tenant on ten( 10) days' notice to the other appraiser so
appointed.

ii)
In the event either Owner or Tenant shall fail to appoint an appraiser
within fifteen( 15) days after demand from the other to make the appointment, then the appraiser

appointed by the party not in default shall appoint the second appraiser, and the two( 2) appraisers
so appointed shall appoint the Third Appraiser. If the first two( 2) appraisers so appointed shall fail
to agree on such Third Appraiser within fifteen( 15) days after their appointment, the Third Appraiser
shall be appointed in the same manner provided in Subsection 3.2( e)( i) herein.

After.appointment, the three( 3) appraisers, after having been duly

sworn to perform their duties with impartiality, sha11 proceed promptly to prepare an appraisal ofthe
Fair Market Rent. The Fair Market Rent determined by the appraisers shall be binding and conclusive
on Owner and Tenant. The appraisers shall have the right, by maj ority vote among them.,to determine
the procedure to be adopted in arriving at the Fair Market Rent( but in so doing they must apply the
definition ofFair Market Rent as provided herein), and may, in their discretion, dispense with formal
hearings, it being agreed that their task will be solely that of appraisal.
iii)

iv)

Ifprior to the expiration ofthe initial Term or any extended Terns the
Fair Market Rent has not been determined for any reason, Tenant shall continue to pay rent as
calculated pursuant to Section 3.2( c) utilizing the Base Rent in effect for the year prior to the

expiration

date

of

the initial Term

or

any

extended

Term. When the Fair Market Rent has been

determined, the Base Rent will be increased as provided retroactively to the expiration date of the
initial Term or any extended Term, and the rent payments shall be recalculated in accordance with
Section 3. 2( c). Ifthe adjusted Base Rent results in rent due Owner, Tenant shall pay to Owner with
the next installment of rent, the amount ofrent due, ifany. In no event shall the adjusted Base Rent
result in a decrease in the Base Rent in effect for the year prior to the expiration ofthe initial Term,

or any extended' Perm, as applicable.

f)

Additional Adjustment to Base Rent. It is the intention of Owner, and

Tenant acknowledges, that the City will derive an additional benefit from the Premises being placed
on the tax roll. Therefore, as a condition to Owner' s agreement to enter into this Lease and subject
to the provisions of Section 3.4(h) hereof, Tenant agrees that the Premises shall be subject to real

estate taxes which Tenant is required to pay hereunder and Tenant shall not seek, based on immunity
from taxation, exemption from taxation, classified use, restrictive covenant, applicable judicial
limitation, local or state land use regulation, historic preservation ordinance, moratorium or other
limitation, to reduce or eliminate the assessed value ofthe Premises nor reduce, eliminate, abate or
defer the real estate taxes thereon. If after the CO Date, the Premises are not subject to real estate

taxes or ifthe real estate taxes are reduced, waived, abated, deferred or exempted due to legislation,

judicial action or otherwise, Tenant shall, for each applicable year during the remaining Term ofthis

Lease and any extensionsthereof,make payments to the Cityin lieu ofreal estate taxes, in an amount
equal to the City' s portion and, for so long as aredevelopment trust fund and/ or tax increment district
exists,

the Miami- Dade

County portion of real estate taxes on the Premises for every year as if they

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had been imposed. Payment in lieu ofreal estate taxes will be added to Ease Rent under this Lease.
For the purposes of this Section 12(f), the amount ofthe payment in lieu ofreal estate taxes for any
calendar year shall be equal to the sum of the assessed value( in use) of the Land, plus an amount
equal to the value ofthe Improvements determined in accordance with the assessment methodology

used for other comparable non-exempt, non-classified commercial properties in the area multiplied

by the then applicable millage rate for that calendar year.

Payment ofRent and Base Rent. On and after the Possession Date, rent and

g)

Base Rent shall be paid in monthly installments equal to one-twelfth ofthe then applicable annual rent
and Base Rent and shall be paid in advance, on the first day of each and every calendar month
thereafter during the Term. All rent and Base Rent which is due for any period of less than a full
month or a full calendar year shall be appropriately apportioned.
h)

Interim Garage Rent. Notwithstanding anything to the contrary contained

in this Lease, in the event that the Garage is substantially completed and receives a temporary

certificate of occupancy prior to the office portion ofthe Project, for the period commencing on the

date such temporary certificate of occupancy is issued and ending on the earlier of( i) twelve( 12)
from the date such certificate of occupancy is issued,( ii)the CO Date or( iii)the Delay Date,
Tenant shall pay to Owner an additional Twenty-Five Thousand Dollars($ 25,000) per year as Base
months

Rent, prorated on a monthly basis with respect to the Garage.

Interim Retail Rent. Notwithstanding anything to the contrary contained in

i)

this Lease, in the event that the retail portion ofthe Project is substantially completed and receives

a temporary certificate of occupancy prior to the office portion of the Project, for the period
commencing on the date such temporary certificate ofoccupancy is issued and ending on the earlier
of( i) twelve(

12)

months

from the date

such certificate of occupancy

is issued,( ii) the CO Date or

iii) the Delay Date, Tenant shall pay to Owner an additional Twenty-Five Thousand Dollars
25, 000) per year as Base Rent, prorated on a monthly basis, with respect to the retail portion of
the Project.
Section 3. 3

Percentage Rent.

Tenant shall pay Owner annual percentage rent for each Lease Year( the

a)

Percentage Rent")

during the Term in an amount equal to two and one-half percent( 2'/

2%)

of the

amount ofProject
Revenue for each Lease Year commencingg on the earlier to occur of i the ninth
3
h)
rovided, however, for the initial and final Lease Years, the
e,
9' Lease Year or
ale:D
e
Percentage Rent
ted ac ording to the actual number of days in such Lease Year.
eu
7 r
\%
a

b)
Rent due in

annual

Payment of Percentage Rent. Tenant shall pay the full amount ofPercentage
installments, in

arrears, within

sixty( 60) days

after

the end

of each

Lease Year

91)

Lease Year shall

for the preceding Lease Year. The Percentage Rent that accrues in the ninth(
payable in ten( 10) equal annual installments, without interest. Each of such ten( 10) annual
9P)
Lease Year shall be paid to Owner at the same
installments of the Percentage Rent for the ninth(

be

time

as

the Percentage Rent that is due

and payable

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Project Revenue shall be computed on a cash basis in accordance with the

Accounting Principles.

The following shall, however, be excluded from Project Revenue:

Federal, state and municipal excise, sales, resort, use, and other taxes

1)

collected from patrons or guests as a part of or based upon the sales

price of any goods or services, including with limitation, gross

receipts, room, bed, admission, cabaret, or similar taxes;
2)

Any gratuities collected;

3)

Allowances, rebates and refunds not included in Project Revenue in

accordance with the Accounting Principles;

4)

The proceeds of any financing or refinancing;

5)

Interest on funds in the Reserve Account;

6)

Proceeds from the Sale of the Project;

7)

Real estate commissions and management fees;

8)

any reimbursements paid by the tenants to Tenant for increases in

amounts paid by Tenant to Owner pursuant to the terms ofthis Lease
to the extent such increases occur during the term ofthe respective
tenant' s lease);

9)
Section 3. 4

and

Payments to the Reserve Account.

Impositions.

Pay Impositions. In addition to the payment of Rental, from

and after the Possession Date, Tenant shall pay or cause to be paid, in the manner provided in this
a)

Obligation to

Section 3.4, all Impositions that atany time thereafter are assessed, levied, confirmed, imposedupon,
or charged to Owner or Tenant with respect to( i) the Premises, or( ii) any vault, passageway or space

in, over or under any sidewalk or street in front of or adjoining the Premises, or (iii) any other
appurtenances of the

Premises,

or(

iv) any personal property, Building Equipment

or other

facility

used in the operation thereof,or( v) any document to which Tenant is a party creating or transferring
an interest or estate in the Premises of, by or to Tenant, or ( A) the use and occupancy of the
Premises, or( vii) this transaction.

I
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b)

Definition.

Ibnposhion"

or" Impositions" means the following imposed by a Governmental

Authority:
C)

real property taxes and general and special assessments( including,

withoutlimitation, any special assessments for business improvements
or imposed by any special assessment district);
personal property taxes;

iii)

sales and/ or use taxes on Rental;

iv)

water, water meter and sewer rents, rates and charges;

v)

excises;

A)

levies;

vii)

license and Permit fees;

viii)

any other governmental levies of general application, fees, rents,

assessments or taxes and charges, general and special, ordinary and

extraordinary, foreseen and unforeseen, now or hereafter enacted of

any kind whatsoever;
ix)

service charges of general application with respect to police and fire

protection, street and highway maintenance, lighting, sanitation and

water supply; and
x)

any fines, penalties and other similar governmental charges applicable

to the foregoing, together with any interest or costs with respect to
the foregoing.

c)

Payment

i)

of

Impositions.

Subject to the provisions of Section 32.2 hereof, from and after the

Possession Date, Tenant shall pay each Imposition or installment

thereof not later than the date the same may be paid without interest
or

penalty( which is the date

of

delinquency).

However, if by law of

the applicable Governmental Authority any Imposition may at the

taxpayer's option be paid in installments( whether or not interest shall
accrue on the unpaid balance of such Imposition), Tenant may

exercise the option to paythe Imposition in such installments and shall

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be responsible for the payment of such installments with interest, if

any.
ii)

If Tenant twice fails within any thirty-six( 36) month period to make
anypayment ofan Imposition( or installment thereof) on or before the
date the same may be paid without penalty, Tenant shall, at Owner's
request, and notwithstanding paragraph( i)above, pay all Impositions
or installments thereof thereafter payable by Tenant not later than
twenty( 20) days before the date ofdelinquency. However, if Tenant
thereafter makes all such payments as required in this paragraph( ii)

for thirty-six( 36) consecutive months without failure, the Imposition

payment date in paragraph( i) above shall again become applicable,

unless and until there are two further failures within a thirty-six( 36)
month period, in which case Tenant shall again have the right to cure

the failure so that the payment date in paragraph( i) above shall again
be applicable, and this provision shall continue to be applicable to each

situation in which there are two further failures within athirty-six( 36)
month period. Nothing in this paragraph shall be construed to limit
Owner's Default remedies as set forth elsewhere in this Lease after

failure by Tenant timely to pay any Imposition.

d)
Evidence ofPayment. Tenant shall furnish to Owner, within thirty( 30) days
after the date of( Owner's request therefor, an official receipt of the appropriate taxing authority or
other proof reasonably satisfactory to Owner, evidencing the payment thereof.

Evidence ofNon-Payment. Any certificate, advice or bill ofthe appropriate

official designated by lawto make or issue the same or to receive payment ofany imposition asserting
e)

non-payment ofsuch Imposition shall be prima facie evidence that such imposition is due and unpaid

at the time of the making or issuance of such certificate, advice or bill, at the time or date stated
therein. Tenant shall, immediately upon receipt ofany such certificate, advice or bill, deliver a copy
of the same to Owner.
f)

Apportionment ofImposition. Any Imposition relating to afiscal period of

the taxing authority, a part of which occurs after the Possession Date and a part of which occurs
before the Possession Date or after the Expiration ofthe Term, shall be apportioned pro rata between
Owner

and

Tenant.

g)
Exclusions from Impositions. Except as expressly set forth above, nothing
contained herein shall be construed to require Tenant to pay or to be charged for any portion of(i)

municipal, state or federal income or gross receipts taxes assessed against Owner( other than sales

or use taxes imposed on Rental, notwithstanding that Owner may be primarily liable by law for the
ii)municipal, state or federal capital levy, estate, succession, inheritance, transfer
or gains taxes, of Owner;( iii) corporation or franchise taxes imposed on Owner or any corporate
payment thereof);(

i
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8n,1M / 415
l

owner ofthe fee ofthe Land; or( iv) any penalties or late charges assessed against Owner( unless the
same result from Tenant's failure to timely pay Impositions).
Tax Abatements

h)

and

Reductions. Subject to the provisions of Section

3.2(f)which shall control over this Section 3.4(h) when in conflict, Tenant shall be entitled to the

benefit ofany tax abatements and reductions as are, or may be, available under applicable law as if
Tenant

were

the fee

owner of

the Premises.

Owner shall not be required to join in any action or

proceeding in connection with such abatement orreductionunless the provisions ofany Requirement
at the time in effect require that such action or proceeding be brought by and/or in the name of
If so required, Owner shall join and cooperate in such proceedings or permit them to be
brought by Tenant in Owner' s name, in which case Tenant shall payall reasonable costs and expenses
Owner.

including, without limitation,-ettomeys' fees and disbursements) incurred by Owner in connection

therewith.

Section 3.5

Net Lease.

It is the intention ofOwner and Tenant that( a) Rental be absolutely net to Owner without any
abatement, diminution, reduction, deduction, counterclaim, setoffor offset whatsoever, except to the

extent expressly set forth in this Lease, and( b) Tenant pay all costs, expenses and charges ofevery
kind or nature( except as expressly provided for herein to the contrary) relating or allocable to the

Premises that may arise or become due or payable during or after( but attributable to a period falling
within) the Term.
Section 3. 6

Security Deposit.

On the Possession Date and continuing until the CO Date, Tenant shall either( i) deposit with
Owner the sum of Two Hundred Fifty Thousand Dollars($ 250,000) in cash or( ii) post an irrevocable

standby letter of credit in form and substance reasonably acceptable to Owner, payable on
in favor ofOwner in the amount ofTwo Hundred Fifty Thousand Dollars
Security Deposit") and payable according to the following:

presentation( site credit),

250, 000)( the"

This letter ofcredit may be drawn upon in full by the beneficiary hereunder upon the
presentation to the bank of a statement signed by the Mayor, City Manager or any

Assistant City Manager ofbeneficiary that an uncured Event ofDefault exists under
the Agreement of Lease between the beneficiary and Lincoln Plaza Partners, LLC
i

dated[ insert date]."

IfTenant elects to post the Security Deposit in cash, it shall be placed by Owner in an interest

bearing account with interest earned to follow the money. The Security Deposit shall be considered
as

security for the payment of all of Tenant' s obligations, covenants and

agreements under this

Lease.

Withinthirty( 30) days after the CO Date, Owner shall( provided that Tenant is not in Default under
the terms ofthis Lease) return the Security Deposit to Tenant less any portion that Owner shall have

Default by Tenant, Owner shall

used

to

make good

any Default of Tenant. In the event of any

such

have the right, but not the obligation, to apply all or any portion of the Security Deposit to cure the
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Default, in which event the Tenant shall be obligated to deposit with Owner the amount necessary

to restore the Security Deposit to the amount in eft prior to the deduction. If a Default exists on
the CO Date and ifTenant diligently and an good faith proceeds to cure the Default and, in fact, cures
the Default, then, in that event, the Security Deposit shall be returned to Tenant.
Article 4- Late Charges
Section 4. 1

Late Charges.

If Tenant shall fail to make any payment of Base Rent, Percentage Rent, or other Rental
and/ or Impositions within thirty( 3 0) days after the some shall be due, the late payment shall bear
interest from the date due
of(a)

Four Percent( 4%)

until

the date paid

at a rate(

the" Late Charge Rate")

equal to the lesser

per annum in excess ofthe prime rate in effect from time to time at Citibank,

N.A.(or The Chase ManhattanBank,N.A.,ifCitibank,N.A.shall not then have an established prime

rate; or the prime rate ofany major banking institution doing business in New York City, as selected
by Owner, ifnone ofthe aforementioned banks shall be in existence orhave an established primerate)
and( b) the maximum interest rate permitted by law. All interest payable under this Section 4.1 shall
be deemed Rental( but shall not be compounded) and shall be due and payable by Tenant on fifteen
15) days demand. The collection by Owner of any interest under this Section 4.1 shall not be
construed as a waiver of Tenant's default or ofTenant's obligation to perform any term, covenant or
condition of this Lease nor shall it affect any other right or remedy ofOwner under this Lease.
Article S- Inflation Adjustment
Section 5. 1

Inflation. Adjustment.

Unless otherwise expressly provided hereunder, any dollar amount described in this Lease as
adjusted

for inflation"

or" subject

to adjustment for inflation"( or words of similar import) shall

be adjusted by multiplying such amount by a fraction, the numerator of which shall be the CPI for
the calendar year immediately preceding the date ofsuch adjustment, and the denominator ofwhich
shall be the CPI for the calendar year during which the Delay Date occurred. All amounts subject to
adjustment hereunder shall be adjusted effective as ofJanuary 1 ofeach year pursuant to the formula
described

above.

If the CP1 ceases to be published, and there is no successor thereto, such othe

reasonably similar index as Owner and Tenant mutually designate shall be substituted for the CPI.
No such adjustment shall result in Base Rent being an amount that is less.than the Base Rent prior
to the adjustment.

Article 6- Use
i
Section 6. 1

Use.

a)

Continuous Legal Ilse. Tenant shall use and operate the Premises throughout

the Term only as permitted by this Lease. In any event, the Premises shall be used only in accordance
with the final Certificate[ s] of Occupancy therefor which from time to time exist( or temporary
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4.U.

Certificate[ s] ofOccupancy, to the extent that final Certificate[ s] ofOccupancy have not been issued
1

therefor).

b)

Scope of Use. In accordance with Tenant's obligations to meet and comply

with the maintenance and operating standards set forth in Article 14 and other provisions of this

Lease, Tenant shall, from and after the Project Opening Date, operate the Premises as an office, retail
and commercial( excluding any apartments, hotels, apartment hotels or residential uses) project and
parking garage containing not less than seven hundred( 700) parking spaces. The number ofparking
spaces required by the Land Development Regulations for the uses within the Premises shall be
available to Tenant to sublease or license to its subtenants; provided, however, that the remainder of

the parking spaces in the Garage( but in no event less than one hundred( 100) parking spaces) shall
be available for use by members ofthe general public at all times and all ofthe spaces in the Garage

shall be available for use by members ofthe general public during non-office hours to the extent not
by subtenants. Furthermore, Tenant shall provide not less than fifty( 50) parking spaces for
monthly parking for members ofthe general public who are not subtenants ofthe Premises at monthly
used

garage parking rates established by Tenant, which rates shall not be higher than the highest rate paid

by any subtenant in the Premises. Notwithstanding the preceding sentence, Tenant reserves the right
to close or restrict access to any portion ofthe Premises in connection with Alterations undertaken
in accordance with the provisions of this Lease or to such extent as may, in the reasonable opinion
ofTenant' s counsel, be legally necessary to prevent a dedicationthereofor the accrual ofprescriptive
rights to any Person or Persons.
c)
Character and Operation of the Premises. The parties recognize and
acknowledge that the manner in which the Premises are developed, operated and maintained are

matters of critical concern to the City by reason of the need to alleviate a serious parking shortage
within the City, and Tenant hereby agrees to develop, operate and maintain the Premises and all other
and equipment located thereon which are owned., leased or maintained by Tenant in a
manner consistent with other comparable first class projects of similar age and in good order,
condition, repair and appearance, and in compliance with Article 14. To accomplish this result,

property

Tenant shall establish such reasonable rules and regulations governing the use and operation ofthe

Premises by subtenants as Tenant shall deem necessary or desirable in order to comply with Article
16 and assure the level of quality and character of operation of the Premises required herein, and it
will use all reasonable efforts to enforce such rules and regulations.

Section 6.2

Prohibited Uses.
a)

'

Without limiting the provisions ofSection 6.1, Tenant shall not use or occupy

the Premises or any part of the Premises, and neither permit nor suffer the Promises to be used or
occupied,

for any

of the

following(" Prohibited Uses"):

i)

for any unlawful or illegal business, use or purpose, including, but not
limited to businesses,

uses

or purposes

which are

immoral

or

disreputable( including" adult entertainment establishments" and" adult

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bookstores"),

or any business, use or purpose that is extra hazardous,

or which will violate the Environmental Laws;

u)

for any use which is a public nuisance;

iii)

tatoo parlors, psychics, palm and tarot card readers, body piercing

shops or as a gambling casino or facility, in the event that gambling is

ever made a legal activity under Federal, state or local law;
iv)

in any manner that will violate any Certificate of Occupancy for the
Premises, or which will violate any laws, ordinances or other rules or
regulations applicable to the Premises;

y),

in such manner as may make void or voidable any insurance then in

force with respect to the Premises; or

A)

for any use involving any ownership structure such as time share, time
interval, cooperative or condominium ( commercial or otherwise),
except as provided herein.

b)

Immediately upon its discovery ofany Prohibited Use, Tenant shall take all

reasonably necessary steps, legal and equitable, to compel discontinuance of such business or use,
including, if necessary, the removal from the Premises of any subtenants, licensees, invitees or
concessionaires, subject to applicable Requirements.
Section 63

Garage Parldng Rates.

All charges forparking in the Garage, including, but not limited to, the hourly, daily, weekly,
monthly and evening flat rates, shall not be less than garage parking rate being charged by the City
or the

Miami Beach Redevelopment Agency and shall not be g

Mier than comparable garage parking

rates being charged in Miami-Dade County, Florida. Parking rates shall not be increased for special
events such as Art Deco Weekend, boat shows or any similar events or activities that create high
demand for parking spaces in the area of the Project.

i
Article 7- Insurance
Section 7. 1

Insurance Requirements,
a)

expense, shall

Liability Insurance. At all tunes during the Tema, Tenant, at its sole cost and
against liability with respect to the Premises and

in an amount ofnot less than

Dollars
($
Five
25,000,000)
per
occurrence,
subject
to
adjustment for inflation,
Million
Twentythe

carry or cause to be carried insurance

operations related

thereto, whether conducted on or off the Premises

combined single limit, and designating Tenant as a named insured, and Owner and, ifrequired by a
t
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Recognized Mortgage, a Recognized Mortgagee as additional insureds. Such insurance shall meet
all of the standards, limits, minimums and requirements described in Section 7.7.
b)

Property Insurance. At all times during the Term, Tenant at its sole cost and
to be carried" All Risk"( or its equivalent) property damage insurance
protecting Tenant, Owner and any Recognized Mortgagees as their interests may appear against loss
expense, shall

carry

to the Premises

or cause

Improvements

and

and

greeting

all of

the

standards,

limits,

minimums and

requirements described in Section 7.8.

Other Insurance.

c)

At all times during the Term, Tenant shall procure and

carry insurance meeting all ofthe standards, limits, minimums, and requirements described in Section
7.9.

Construction Insurance. Prior to the commencement of any Construction

Work, Tenant shall procure or cause to be procured, and after such dates shall carry or cause to be
d)

carried, until final completion of such work, in addition to and not in lieu of the insurance required
a),( b), and( c), the insurance described in Section.7.10.

by the foregoing subsections(

Garage Liability/Garagekeeper' s Liability Insurance. From and after the

CO Date, Tenant shall procure or cause to be procured, and after such date shall carry or cause to
be carried with respect to the Garage, Garagekeeper's legal liability coverage in an amount not less
e)

than Five Million Dollars($ 5, 000, 000), subject to adjustment for inflation, per occurrence, with a

by Owner, but not more than Fifty Thousand Dollars ($ 50, 000) per loss,
subject to adjustment for inflation; and( ii) automobile liability insurance covering any automobile

deductible determined
owned, non- owned or

hired in an amount not less t1m Twenty-Five Million Dollars($ 25, 000,000),

subject to adjustment for inflation, per occurrence, with a deductible determined by Tenant ofnot
more

than Ten Thousand Dollars($ 10,000) per loss, subject to adjustment for inflation.

Section 7.2

Treatment of Proceeds.
I

Proceeds of Casualty Insurance in General. Insurance proceeds payable

a)
with respect to a property loss shall be payable either to Owner or any Recognized Mortgagee or
other Institutional Lender pursuant to a mutually acceptable insurance trust agreement, either of

which shall hold such proceeds intrust for the purpose ofpaying the cost ofthe Casualty Restoration,
or shall be payable to Tenant with respect to insurance proceeds not exceeding One Million Dollars

1, 000, 000), adjusted for inflation, per occurrence, and such proceeds shall be applied to the

payment in full ofthe cost ofsuch Casualty Restoration in accordance with the provisions ofArticle
8.

Proceeds of Rent Insurance. Rent Insurance referred to in Section 7.9 shall

b)
be

carried

in the

name of Tenant as named

insured

and shall

be payable to Owner

and

Tenant to be

applied to Rental and/ or Impositions for the period from the occurrence ofthe damage or destruction
until completion of the Restoration as determined in accordance with the provisions of Article 8.
Without

limiting

the

foregoing

provisions of this

Section 7.2( b),

if required by a Recognized

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Mortgage, such amounts shall be paid to a Recognized Mortgagee so long as all Rental and/ or
Impositions are first paid to Owner subject to the provisions of Section 12. 1 herein.
c)
Cooperation in Collection ofProceeds. Tenant, Owner and any Recognized
Mortgagee shall cooperate in connection with the collection of any insurance proceeds that may be
due in the event of a loss, and Tenant, Owner and any Recognized Mortgagee shall as soon as
practicable execute and deliver such proofs of loss and other instruments as may be required of
Tenant, Owner or any Recognized Mortgagee, respectively, for the purpose ofobtaining the recovery
of any such insurance proceeds.

Adjustments for Claims.

All property insurance policies required by this

Article 7 shall provide that all adjustments for claims with the insurers involving a loss in excess of
One Million Dollars($ 1, 000,000) adjusted for inflation be made jointly with Tenant, Owner and the
d)

Recognized Mortgagee.
Section 73

General Provisions Applicable to All Policies.

Insurance Companies. All ofthe insurance policies required bythis Article

a)
shall be procured from companies licensed or authorized to do business in the State of Florida that

have a rating in the latest edition of" Best's Key Rating Guide" of" A:VHI" or better or another
comparable rating reasonably acceptable to Owner, considering market conditions.
b)

Required Forms. All references to forms and coverages in this Article 7 shall

by the Insurance Services Organization ( ISO) or equivalent forms reasonably

satisfactory to Owner in all material respects.
be those

used

Required Certificates. Certificates ofinsurance evidencing the issuance of

all insurance required by this Article 7 to the extent then required, describing the coverage and
providing for thirty( 30) days prior notice to Owner by the insurance company of cancellation or
non-renewal, shall have been delivered to Owner by the Possession Date, and in the case of any
policies replacing or renewing any policies expiring during the Term, not later than fifteen( 15) days
before the expiration dates of any expiring policies. The certificates ofinsurance shall be issued by
or on behalf of the insurance company and shall bear the original signature of an officer or duly
authorized agent having the authority to issue the certificate. The insurance company issuing the
c)

insurance, or its duly authorized agent, shall also deliver to Owner proofreasonably satisfactory to

Owner that the premiums for at least the first year ofthe term ofeachpolicy( or installment payments
to the insurance carrier then required to have been paid on account of such premiums) have been

During the performance of any Construction' Work, Tenant shall deliver to Owner an entire
duplicate original or a copy( certified by Tenant to be true, complete and correct) ofeach policy. At
all other times, Tenant shall deliver to Owner an entire duplicate original or a copy( certified by
paid.

Tenant to be true, complete and correct) of each policy within a reasonable period of time after
Owner's

request

therefor.

Tenant

shall

notify Owner

of

any

material changes

in the

coverage

provided under any policy promptly after requesting an insurance company to make such change or
receiving any notice from an insurance company advising Tenant of any such change; provided,
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however, that no such change may reduce or otherwise modify the insurance coverage required under
this Lease.

d)

Compliance with Policy Requirements. Tenant shall not violate or permit

to be violated any ofthe conditions, provisions or requirements ofany insurance policy required by
this Article, and Tenant shall perform, satisfy and comply with, or cause to be performed, satisfied
and complied with, all conditions, provisions and requirements of all insurance policies.
Required Insurance Policy Clauses.

Each policy of insurance required to

be carried pursuant to the provisions ofthis Article and each certificate issued by or on behalfofthe
insurer shall contain( i) a provision stating substantially that no act or omission of Tenant( or any
other Person) or any use or occupation of the Premises for purposes more hazardous than are
permitted by the policy shall invalidate the policy as to Owner or affect or limit the obligation ofthe
insurance company to pay to Owner the amount of any loss sustained and that no act or omission of
Owner shall invalidate the policy as to Tenant or affect or limit the obligation of the insurance
e)

company to pay to Tenant the

amount of any

loss; ( ii) a written waiver of the right of subrogation

against all ofthe named insureds and additional insureds, including Owner in its capacity as owner
of the Land and any Recognized Mortgagee named in such policy, with respect to losses payable
under such policy;( iii) a clause designating Owner, and any Recognized Mortgagee as loss payee or
additional insured, as their interests may appear for losses in excess of One Million Dollars
1, 000, 000), adjusted for inflation; and( iv) an agreement by the insurer that such policy shall not
be canceled, materially modified, or denied renewal without at least thirty( 30) days prior written
notice to Owner and the holder ofthe Recognized Mortgage named under a standard New York form

ofmortgagee endorsement or its equivalent, specifically covering, without limitation, cancellation or

non-renewal
whichever

is

for

non-payment of premium, except

greater, shall

be

given with respect

that ten(

only to

10) days' notice or statutory notice,

non-payment of premium,

I
i

Separate Insurance.

f)

Tenant shall not carry separate liability or property

insurance concurrent in form or contributing in the event ofloss with that required by this Lease to
be furnished
additional

by

Tenant,

insureds

with

unless

Owner

any Recognized Mortgagee are included therein as

or loss payee with respect to property, as their interests

and

respect to liability

may appear, with loss payable as in this Lease provided. Tenant shall immediately notify Owner of
the carrying ofany such separate insurance and shall cause the same to be delivered as in this Lease
hereinbefore required.

g)

Duration of Policies. Tenant shall procure policies for all insurance required

by any provision ofthis Lease for periods of not less than one( 1) year and shall procure renewals
thereoffrom time to time at least fifteen( 15) days before the expiration thereof, except that Builders'

Risk Insurance shall only be renewed for the term of any construction period.
Section 7.4

Additional Coverage.
a)

Other Insurance.

Tenant shall maintain such other insurance, in such

amounts as from time to time reasonably may be required by Owner, against such other insurable
r

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i

d1err.

f1LL+

hazards as at the time are commonly insured against in the case ofmixed-use garages in South Florida
I

of a size, nature and character similar to the size, nature and character of the Project.

b)

Adjustment ofLimits. All ofthe limits ofinsurance required pursuant to this

Article 7 shall be subject to review by Owner and, in connection therewith, Tenant shall carry or
cause to be carried such additional amounts as Owner may reasonably require from time to time, but
Owner may not impose such new limits any more frequently than once in every five( 5) year period
from the CO Date. Any request by Owner that Tenant carry or cause to be carried additional
amounts ofinsurance shall not be deemed reasonable unless such additional amounts are commonly
carried in the case of similar projects in South Florida of a size, nature and character similar to the
size, nature and character of the Project; provided, however, that the provisions of this subsection

b) shall not relieve Tenant ofits obligation to carry or to cause to be carried All Risk insurance in
an amount not

less than the Replacement Value

as provided

in Section 7. 12( a). Tenant shall be

responsible for all deductibles.

Section 7. 5

No Representation as to Adequacy of Coverage.

The requirements set forth herein with respect tothe nature and amount ofinsurance coverage

to be maintained or caused to be maintained by Tenant hereunder shall not constitute a representation

or warranty by Owner or Tenant that such insurance is in any respect adequate.
Section 7. 6

Blanket or Umbrella policies.

The insurance required to be carried by Tenant pursuant to the provisions ofthis Lease may,

at Tenant's election, be effected by blanket, wrap-up and/ or umbrella policies issued to Tenant
covering the Premises and otherproperties owned or leased by Tenant or its Affiliates, provided such
policies otherwise comply with the provisions ofthis Lease and allocate to the Premises the specified

coverage, including, without limitation, the specified coverage for all insureds required to be named
as insureds or additional insureds hereunder, withoutpossibility ofreduction or coinsurance by reason
because of damage to, any other properties named therein. Ifthe insurance required by this
Lease shall be effected by any such blanket or umbrella policies, Tenant shall furnish to Owner, upon
Owner's request, certificates of insurance and copies( certified by Tenant to be true, complete and
of, or

correct) of such policies as provided

in Section 7, 3( c), together with schedules annexed thereto

setting forth the amount of insurance applicable to the Premises.

Section 7. 7

Liability Insurance Requirements.

The insurance

required

by Section

7. 1( a)

shall consist of commercial general liability

insurance protecting against liability for bodily injury, death, property damage and personal injury.
Such insurance shall( within the limits of the insurance required by Section 7.1( a)):

include a broad form property damage liability endorsement with fire legal
liability limit of not less than Fifty Thousand Dollars($ 50,000), subject to adjustment for inflation;
a)

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contain blanket contractual liability insurance covering written and oral

contractual liability;
c)

contain

contractual

liability

insurance

specifically covering Tenant's

indemnification obligations under Article 20, to the extent such indemnification obligation is for an
insurable risk;

d)

contain independent contractors coverage;

e)

contain a notice of occurrence clause;

f)

contain.a knowledge of occurrence clause;

g)

contain an errors and omissions clause;

h)

contain coverage for suits arising from the use ofreasonable force to protect

persons and property;

i)
contain an endorsement providing
covered and the" XCU" exclusions have been deleted;

0)
S

that excavation and foundation work are

contain a waiver of completion and occupancy condition;

k)
contain no exclusions unless specifically approved in each instance by Owner,
other than the industry standard exclusions for projects of similar size and location;

1)

contain Products Liability/Completed Operations coverage; and

m)

provide for a deductible determined by Tenant, but not more than Fifty

Thousand Dollars($ 50,000) per loss, subject to adjustment-for inflation.

Section 7.8

Property Insurance Requirements.

The insurance required by Section 7.1( b) shall consist at least ofproperty damage insurance
All Risk" policy or its equivalent covering the Premises and all Improvements with

under an "

replacement cost valuation and an Agreed Amount Endorsement( to be effective not later than

promptly following the CO Date) in an amount not less than the full Replacement Value( determined
in accordance with Section 7.12) and including the following coverages or clauses:
a)

coverage for physical loss or damage to the Improvements;

b)

a replacement cost valuation without depreciation or obsolescence clause;

c)

debris removal coverage;

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provision for a deductible determined by Tenant, but not more than Fifty

d)

Thousand Dollars($ 50,000) per loss( for other than flood or windstorm, with regard to which the

deductible

following

be

shall

commercially

reasonable amount),

subject to adjustment for inflation;

e)

contingent liability from operation of building laws;

f)

demolition cost for undamaged portion coverage;

g)

increased cost of construction coverage;

h)

an Agreed Amount Endorsement ( to be effective not later than promptly

in an amount not less than the full Replacement Value negating any

the CO Date)

coinsurance clauses;

i)

flood coverage( to the extent available at commercially reasonable rates, limits

and deductibles);

0)

windstorm coverage( to the extent available at commercially reasonable rates,

limits and deductibles);

k)

coverage for explosion caused by steam pressure-fired vessels( which coverage

may be provided under a separate policy reasonably approved by Owner);

0)
m)

business interruption coverage in accordance with Section 7.9;

a clause designating Owner and a Recognized Mortgagee as additional

insureds, as their interests may appear; and

contain no exclusions unless approved in writing by Owner, other than the

industry standard exclusions for projects of similar size and location.
n)

Tenant shall be named insured, and Owner and any Recognized Mortgagee shall be additional
insureds, as their interests may appear. The recognized Mortgagee or Owner shall be designated loss
payee on such" All Risk" policy for the benefit of Owner, Tenant and any Recognized Mortgagee.
If not included within the" All Risk" coverage above, Tenant shall also carry or cause to be carried
coverage against damage due to( 1) water and sprinkler leakage and collapse, which shall be written
with limits ofcoverage ofnot less than the full Replacement Value per occurrence, with a deductible
of not more than Fifty Thousand Dollars($ 50, 000), subj eat to adjustment for inflation and( ii) flood,

which shall be written with limits of coverage of not less than Twenty-Five Million Dollars
25, 000, 000), with a deductible of not more than Two Hundred Fifty Thousand Dollars($ 250,000),
subject to adjustment for inflation, to the extent available at commercially reasonable rates and
deductibles.

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If Tenant elects to insure Tenant's personal property used in connection with the Premises,
the replacement value ofsuch personal property shall,be added to the amount ofinsurance required
by this Section.

For the purposes of this Section 7.8, any rate, limit or deductible shall be " commercially
reasonable" if such rate, lianit or deductible is comparable to the rates, limits or deductibles in the

insurance carried by similar projects in South Florida of a size, nature and character similar to the
size, nature and character of the Project.
Section 7. 9

Other Insurance Requirements.

The insurance required by Section 7.1( e) shall consist at least of the following:
a)

Business Interruption Insurance to include Rent Insurance on an" All Risk"

basis in an amount equal to( i) prior to the CO Date, not less than the annual Base Rent and( ii)

following the CO Date, not less than the aggregate amount ofannual Rental and/ or Impositions. The
insurance specified in this subsection shall:
1)

provide coverage against all reasonablyinsurable risks ofphysical loss

or damage to the Improvements;

ii)

Extra Expense coverage, with a limit of at least One Million Dollars

1, 000, 000),

adjusted

for inflation, to cover overtime and other

extra costs incurred to expedite repairing or rebuilding the damaged

portion of the Premises;
iii)

provide for coverage through the attainment ofpre-existing business

levels;

iv)

contain flood and windstorm coverage to the extent available at

commercially reasonable rates, limits and deductibles;

v)

contain explosion caused by steam pressure fired vessels coverage

which coverage may be provided under a separate policy reasonably

approved by owner);
vi)

provide for a deductible determined by Tenant, but for not more than
Fifty Thousand
windstorm,

Dollars ($ 50,000) per loss( other than for flood or

with

regard

to

which

the

deductible

shall

be

commercially reasonable amount), subject to adjustment for inflation;

vii)

designate Owner, Tenant and any Recognized Mortgagee as loss

payee

but

shall

be

payable

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with respect. to

Business

EC.

X67" 140.

Interruption proceeds not exceeding One Hundred Thousand Dollars

100,000), subject to adjustment for inflation, per occurrence; and

I
viii)

contain no exclusions, unless approved by Owner, otherthan industry

standard exclusions for projects of similar size and location.

Statutory Workers' Compensation and any other insurance required by law

covering all employees of Tenant or any entity performing work on or for the Premises or the
Improvements( unless and to the extent provided by such other parties), including Employers Liability
coverage, all in amounts not less than the statutory minimum, except that Employers Liability
b)

coverage shall

be in an amount not less than One Million Dollars($ 1, 000,000), subject to adjustment

for inflation.
c)

After CO Date, Boiler and Machinery Insurance, covering the entire heating,

ventilating and air-conditioning systems, in all its applicable forms, including Broad Form, boiler
explosion, extra expense and loss of use in an amount not less than the replacement cost of such

heating, ventilating and air conditioning systems, located on any portion ofthe Premises and other
Machinery located on anyportion ofthe Premises, which shall designate Tenant as named insured and
loss payee and designate Owner and any Recognized Mortgagee as additional insureds.
d)
Automobile liability insurance covering any automobile or other motor vehicle
used in connection with the Project in an amount not less than ' Twenty--Five Million Dollars
25, 000, 000), subject to adjustment for inflation, per occurrence, with a deductible determined by
Tenant ofnot more than Ten Thousand Dollars($ 10,000) per loss, subject to adjustment for inflation.
Section 7. 10

Construction Insurance Requirements.

The insurance required by Section 7.1( d) shall consist at least of the following:
a)

Builders Risk Insurance( standard" All Risk" or equivalent coverage) in an

amount not less than the cost ofconstruction, written on a completed value basis or a reporting basis,
the general contractor, and any Recognized
Mortgagee, with a deductible determined by Tenant of not more than Fifty Thousand Dollars
for property- damage protecting Tenant, Owner,

50,000), subject to adjustment for inflation( except as to flood and windstorm, with regard to which

the deductible shall be a commercially reasonable amount), to include rental payment coverage from
the date ofprojected completion and extending for at least twelve( 12) months following such date
of projected completion.

b)

Automobile liability insurance covering any automobile or other motor vehicle

used in connection with work being performed on or for the Premises in an amount not less than Five
Million Dollars($ 5, 000,000), subject to adjustment for inflation, per occurrence, with a deductible
determined by Tenant of not more than Ten Thousand Dollars($ 10,000), subject to adjustment for
inflation.

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c)

The insurance required pursuant to Section 7.7.

1
Annual Aggregates.

Section 7. 11

Excluding Umbrella/Excess Liability Insurance, ifthere is imposed under any liability

insurance policy required hereunder an annual aggregate which is applicable to claims other than

products liability and completed operations, such an annual aggregate shall not be less than two( 2)
times the per occurrence limit required for such insurance.
Determination of Replacement Value.

Section 7. 12

a)

The current replacement value of the Improvements( the

Definition.

Replacement Value")

shall be the full cost of replacing the Improvements according to

Requirements in effect at that time, including, without limitation, all hard costs ofconstruction as well
as the costs ofpost-casualty debris removal, and soft costs, including without limitation, architects',
engineers', surveyors', assessors' and other professional fees and development fees. Onthe CO Date,
Replacement Value ofthe Improvements shall be deemed to be an amount equal to the actual costs

incurred or expended in connection with the construction ofthe Premises as certified by the architect
upon completion of the Premises, other than foundations and financing and other soft costs not
applicable to replacement, adjusted for each year after completion ofthe Premises in accordance with
the

percentage change

in the

Building Index. If the insurance required by Section 7.8 above is not

sufficient to cover the Replacement Value, then within fifteen( 15) days after such adjustment, said

fully cover such Replacement Value. In no event

shall such Replacement Value be reduced by depreciation or obsolescence of the Improvements.
insurance

shall

be increased

b)

or supplemented

Building

Index. As

to

used

herein, the "

Building Index"

shall mean the

Marshall and Swift Cost Index or such other published index of construction costs which shall be

selected from time to time by Owner and reasonably agreed to by Tenant, provided that such index
shall be a measure of construction costs widely recognized in the insurance industry and appropriate
to the type and location of the Improvements.
Section 7. 13

Master Subleases.

All Master Subleases shall require the Master Subtenant to carry liability insurance naming
Tenant, Owner and any Recognized Mortgagee as additional insureds with limits reasonably prudent
under the circumstances.

Section 7.14

Additional Interests.

All insurance policies in this Article 7 shall contain aprovision substantially to the effect that

the insurance provided under the policy is extended to apply to Owner, as its interests may appear.

Any holder ofa Recognized Mortgage which, pursuant to the Recognized Mortgage, is required to
be named under any ofthe insurance carried hereunder shall be named under a standard New York
form

of mortgagee endorsement or

its

equivalent.

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Article 8- Damage, Destruction and Restoration

t
Section 8.1

Notice to Owner.

If the Premises are damaged or destroyed in whole or in any material part by fire or other
casualty, Tenant shall notify Owner of same as soon as reasonably possible after Tenant's discovery
of same.

Section 8. 2

Casualty Restoration.
a)

Obligation to Restore. Ifall or any portion ofthe Premises are damaged or

destroyed by fire or other casualty, ordinary or extraordinary, foreseen or unforeseen, whether prior
to or after completion of the initial construction of the Project, Tenant shall, in accordance with the

provisions ofthis Article 8 and Article 2 ofthe Development Agreement( a copy ofwhich is attached
hereto as Exhibit 8.2; the provisions of which shall be deemed to apply to all Construction Work
necessary to complete the Casualty Restoration, to the extent the same are not inconsistent with the
terms hereof) restore the Premises to the condition thereof as it existed immediately before such
Casualty Restoration'), regardless of whether the Net Insurance Proceeds shall be

casualty(

a "

sufficient

therefor. " Net Insurance Proceeds" shall mean the actual amount of insurance proceeds

paid following a fire or other insured casualty.

b)

Commencement

of

Construction Work. Subject to Unavoidable Delays,

Tenant shall commence the Construction Work in connection with a Casualty Restoration within

ninety( 90) days after receipt ofthe Net Insurance Proceeds by the Recognized Mortgagee or Owner
arising from the damage or destructionwhich caused the need for such Casualty Restoration and shall
diligently pursue the completion of such Casualty Restoration.
c)

Pay Down

of

Mortgages Prohibited.

No Mortgagee ( Recognized or

otherwise) shall have the right to apply any insurance proceeds paid in connection with any casualty
toward payment of the sum secured by its Mortgage to the extent that this Lease requires that Tenant
effect a Casualty Restoration with such proceeds.
Section 8.3

Restoration Funds.

a)

Insurance Proceeds

Except as may be otherwise required by any Recognized Mortgage, all Net

shall,

if in

an amount equal

to Five Hundred Thousand Dollars ($ 500,000),

adjusted for inflation, or less per occurrence, be paid to Tenant and applied as provided herein. If
greater than Five Hundred Thousand Dollars($ 500, 000), adjusted for inflation, then all Net Insurance
Proceeds shall be deposited with the Recognized Mortgagee, or, if none, with another Institutional

Lender pursuant to a mutually acceptable trust agreement. Provided Tenant is conducting the
Casualty Restoration in accordance with this Lease, the Net Insurance Proceeds shall be paid out
from time to time as the Casualty Restoration progresses, upon the written request ofTenant, which
request shall be accompanied by the following:

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i)

A certificate signed by Tenant and the architect or engineer in charge

ofthe Casualty Restoration, reasonably satisfactory to Owner, dated
not more than fifteen( 15) days prior to such request, setting forth:
1)

that the sum then requested either has been paid by Tenant of
is justly due to contractors, subcontractors, materialmen,
engineers, architects or other persons who have rendered
services or furnished materials for the work specified, and

stating that no part of such expenditures has been or is being

made the basis ofanyprevious orthen pending request for the
withdrawal of the Net Insurance Proceeds;
2)

a brief description of the services and materials;

3)

that, except for the amount described in Section 8.3(a)( 0(1),

there is no outstanding indebtedness actually known to the

persons signing such certificate, after due inquiry, which is
then due for labor, materials, or services in connection with

the Casualty Restoration;

as estimated by the persons signing such

certificate, of the work required to complete the Casualty
Restoration does not exceed the amount ofthe remaining Net
Insurance Proceeds, plus any amount deposited by Tenant to
defray the expenses of the Casualty Restoration; and

4)

that the

5)

that the work described has been completed in accordance

with the plans and specifications applicable thereto, in a good
and workmanlike manner and in accordance with all

cost,

Requirements.

u)

Lien waivers, title insurance company reports or such other evidence,

reasonably satisfactory to Owner, to the effect that there has not been
filed with respect to the Premises, any vendor's, mechanic's, laborer's,
materialman's or other lien which has not been discharged ofrecord,

except such as will be discharged by payment of the amount then

requested; and

iii)

Such other documentation regarding the Casualty Restoration as

Owner or the Recognized Mortgagee shall reasonably require.

b)
Tenant shall, prior to the commencement ofthe Casualty Restoration, furnish
to Owner an estimate of the total cost of the Casualty Restoration certified by the architect or
engineer

in

charge of

the

Casualty Restoration. If such cost estimate or any subsequent estimate

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provided pursuant to Section 8.3( a) shall show that the cost ofcompleting the Casualty Restoration
is in excess ofthe amount ofthe Net Insurance Proceeds then available, Tenant shall promptly deposit
with

the

holder

of

the Net Insurance Proceeds

an amount equal

to

such excess.

The amount so

deposited shall be included in the Net Insurance Proceeds for all purposes of this Article 8.

Upon compliance by Tenant with the foregoing provisions of this Article 8,

the holder ofthe Net Insurance Proceeds shall pay, to Tenant or the persons named in the certificate
referred to In Section 8.3( a), from the Net Insurance Proceeds, an amount equal to ninety percent
90%) ofthe cost ofthe Casualty Restoration which is evidenced by the request. At the completion
of each contract or subcontract in connection with the Casualty Restoration, the balance ofthe Net
Insurance Proceeds relating to that portion of the work, to the extent of and as required to complete
the payment ofCasualty Restoration costs relating to that portion ofthe work, shall be paid to' Tenant
and Tenant shall provide to Owner reasonable evidence that the Casualty Restoration relating to that
c)

portion of the work has been paid for in full.

d)

If the amount of any Net Insurance Proceeds, excluding deposits made by

Tenant pursuant to Section 8.3( b) above, shall exceed the entire cost of the Casualty Restoration,
such excess, upon completion ofthe Casualty Restoration, shall, ifthis Lease shall be in full force and
effect, and not in default, be disbursed to Tenant, or ifthis Lease is no longer in full force and effect

or is in default, such excess shall be paid to and retained by Owner and shall be( i) credited against

any amounts due hereunder which are in default, or( ii) deemed to be Percentage Rent hereunder to
the extent that Percentage Rent was reduced during Casualty Restoration and not reimbursed from
insurance proceeds and ifany balance remains then, in that event, said remaining balance to Tenant
as Project Revenue. Any amounts deposited by Tenant pursuant to Section 8.3( b) hereof shall be
returned to Tenant to the extent the same are not necessary to fund the cost of the Casualty
Restoration.

Section 8, 4

Effect of Casualty on This Lease,

This Lease shall not terminate, be forfeited or be affected in any manner, and there shall be
no reduction' or abatement of Rental( except to the extent Owner receives the net proceeds of the
insurance described in Section 7. 8), by reason of damage to, or total or partial destruction of, or

untenantability of, the Premises or any part thereof resulting from such damage or destruction.
Tenant's Rental obligations hereunder shall continue as though the Premises had not been damaged
or destroyed and shall continue without abatement, suspension, diminution or reduction whatsoever.

Subject to Unavoidable Delays and taking into account Tenant's Casualty Restoration obligations

including, without limitation, the effect ofthe casualty and the Casualty Restoration on the Tenant's
ability to comply

with

the

maintenance obligations under

Article 14 hereof), Tenant's non-Rental

obligations hereunder shall continue as though the Premises had not been damaged or destroyed and
shall continue without abatement, suspension, diminution or reduction whatsoever.

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Section 8.5

Collection of Proceeds.

Each ofthe parties shall execute such documents as may be reasonably required to facilitate
collection of any insurance proceeds paid or payable in connection with any casualty affecting the
Premises.
Article 9- Condemnation
Section 9. 1

Substantial Faking.

a)
Termination of Lease for Substantial Taking. Ifall or Substantially All of
the Premises are taken( excluding a taking of the fee interest in the Premises if,after such talang,
Tenant's rights under this Lease are not affected and no rights of any Recognized Mortgagee are
affected) 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, Tenant, Recognized

Mortgagee and those authorized to exercise such right, this Lease shall terminate on the Date of

Taking andthe Rental and/orImpositions payable by Tenanthereunder shall be apportioned andpaid

to the Date of Taking.
b)

Disbursement ofAward. Ifall or Substantially All ofthe Premises are taken

or condemned as provided

in Section 91( a), the Net Condemnation Award paid or payable to

Owner, Tenant or any lender or mortgagee claiming through either of them in connection with such
taking

or condemnation shall

be

paid as

follows:( 1) there shall first be paid to Owner an amount

equal to the Net Condemnation Award multiplied by a fraction, the numerator of which is the
appraised value ofthe Land immediately prior to such condemnation, and the denominator ofwhich
is the appraised value of the Premises immediately prior to such condemnation;( 2) there shall next
be paid to the Recognized Mortgagee so much of the Net Condemnation Award as shall equal the

unpaid principal indebtedness secured by such Recognized Mortgagee with interest thereon atthe rate
specified therein to the date of payment( including any prepayment fees therm and any so- called
yield maintenance" or" make-whole" amounts or other sums intended to assure to the Recognized

Mortgagee a certain rate ofreturn under the loan secured by the Recognized Mortgage, ifany, as well

as any costs payable by Tenant in connection with such Recognized Mortgage pursuant to any" swap"
or other interest rate protection or hedging mechanism); and( 3) the remaining Net Condemnation
Award shall be disbursed to Tenant. The appraised values referred to in Section 91(b)( 1) shall be
determined using the appraisal process outlined in Section 3. 2( e), except that the appraised values
shall be based upon" fair market value" and not Fair Market Rent.
c)

Definitions.

i)

" Date

of Taking" means the earlier of( 1) the date on which actual

Substantially All of the Premises, or any part

thereof, as the case may be, is acquired by any lawful power or

authority pursuant to the provisions of applicable law or( 2) the date

possession of all or

on which title to all or Substantially All of the Premises, or any part

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thereof, as the case may be, has vested in any lawful power or
authority pursuant to the provisions of applicable law.

"Substantially All

ii)

of

the Premises" means such portion of the

Premises as, when so taken, would leave, in Tenant's good faith

determination, a balance ofthe Premises that, due either to the area so
taken or the location of the part so taken in relation to the part not so
taken, would not under economic conditions, physical constraints,
zoning laws, building regulations and other Requirements then

existing, readily accommodate a new or reconstructed building or

buildings and other improvements of a type fully comparable to the
Improvements existing at the Date of Taking. Tenant shall notify
Owner, on or about the Date ofTaking, in writing ofits determination

as to whether or not" Substantially All ofthe Premises has been taken.

If Tenant does not determine that Substantially All of the Premises"
has been taken, then this Lease shall notterminate and expire but shall
continue in force and effect, subject to the other provisions of this

Article 9. IfTenant determines that Substantially All ofthe Premises"

has been taken, then this Lease shall terminate and expire on the Date

of Taking pursuant to Section 9.1( a).

iii)

" Net Condemnation Award" shall mean the actual amount ofthe

award paid in connection with or arising from the acquisition or other

taking ofall or Substantially All ofthe Premises or any portion ofthe

Premises by any authority, less all reasonable out-of-pocket expenses

incurred by Owner, Tenant or Recognized Mortgagee in connection
with obtaining such award, including, without limitation, all
reasonable attorneys' fees and disbursements incurred in connection
therewith.

Section 9.2

Less Than Substantial Taking.

a)

Taking

of

Less than

Substantially

All

of

the Premises.

If less than

Substantially All ofthe Premises are taken for any public or quasi-public purpose by any lawful power
or authority by the exercise ofthe right ofcondemnation or eminent domain or by agreement among
Owner, Tenant, any Recognized Mortgagee and the entity authorized to exercise such right, whether
prior to or after the completion ofthe initial construction ofthe Project, this Lease shall continue for
the remainder of the Term( subject to paragraph( b) below) without diminution of any of Tenant's
obligations hereunder, but with a fair and equitable abatement of Rental and, in the event Tenant is
then

making

payments

to Owner pursuant to Section 3. 2( t),

such payments, taking into account,

amongst other things, that the Net Condemnation Award( if not sufficient for the Condemnation

Restoration) is insufficient to complete the Condemnation Restoration.

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b)

Premises

are

taken

Obligation to Restore the Premises.

as provided

If less than Substantially All ofthe

in Section 9.2( a), whether prior to or after the completion of the

initial construction of the Project, Tenant shall, in accordance with the provisions of this Article 9

and Article 2 ofthe Development Agreement( a copy of which is attached hereto and incorporated

by reference herein as Exhibit 8.2; the provisions of which shall be deemed to apply to all
Construction Work necessary to complete the Condemnation Restoration, to the extent the same are
not inconsistent with the terms hereof) restore the remaining portion ofthe Premises, to the extent
feasible, to the condition thereof as it existed immediately before such taking( a" Condemnation
Restoration"), regardless of whether the Net Condemnation Award shall be sufficient therefor.
Disbursement.

c)

provided

in Section 9.2( a),

If less than Substantially All of the Premises are taken as

the Net Condemnation Award payable to Owner, Tenant and any lender

claiming through
Condemnation Restoration; ( 2)
or mortgagee

either of them shall

be

paid as

follows: ( 1) first to the cost of the

second to Owner for payment of any amounts due and payable

hereunder which are in default other than Percentage Rent;( 3) third to the Recognized Mortgagee
for any amounts due and payable under its Recognized Mortgage which are in default;( 4) fourth to
Owner for any accrued, but unpaid, Percentage Rent;( 5) fifth to Recognized Mortgagee to the extent

required by the Recognized Mortgage as a result of the less than Substantial Taking; and( 6) sixth
pursuant

to Section 91( b)( 1).

d).
Commencement of Construction Work Subject to Unavoidable Delays,
Tenant shall commence the Construction Work in connection with a Condemnation Restoration

within ninety( 90) days after receipt ofthe Net Condemnation Award arising from the taking which
caused the need for such Condemnation Restoration and shall diligently pursue the completion of
such Condemnation Restoration.
e)

Pay

Down

of

Mortgages Prohibited.

No Mortgagee ( Recognized or

otherwise) shall have the right to apply any award proceeds paid in connection with any taking
toward payment ofthe sum secured by its Mortgage to the extent that this Lease requires that Tenant
effect a Condemnation Restoration with such proceeds.
Section. 9. 3

Restoration Funds.
a)

If in connection with a taking the Net Condemnation Funds are in excess of

Five Hundred Thousand Dollars ($ 500,000), adjusted for inflation, then the Net Condemnation

Award shall be deposited with the Recognized Mortgagee, or, if none, with an Institutional Lender
pursuant

to a mutually

acceptable

trust

agreement.

Except as may otherwise be required by a

Recognized Mortgagee, if such Net Condemnation Funds are less than Five Hundred Thousand
Dollars($
provided

500,000) adjusted for inflation, the same shall be paid directly to Tenant to be applied as
Provided Tenant is conducting the Condemnation Restoration in accordance with

herein.

this Lease, the Net Condemnation Award shall be paid out from time to time as the Condemnation

Restoration progresses, upon the written request of Tenant, which request shall be accompanied by
the following:

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49

A certificate signed by Tenant and the architect or engineer in charge

of the Condemnation Restoration, reasonably satisfactory to Owner,

dated not more than fifteen( 15) days prior to such request, setting
forth:

that the sum then requested either has been paid by Tenant or
is justly due to contractors, subcontractors, materialmen,

1)

engineers, architects or other persons who have rendered

services or furnished materials for the work specified, and

stating that no part ofsuch expenditures has been or is being

made the basis ofany previous or then pending request for the
withdrawal of the Net Condemnation Award;
a brief description of the services and materials;

2)

that, except for the amount described in Section 9.3( a)( i,(1),

3)

there is no outstanding indebtedness actually known to the

persons signing such certificate, after due inquiry, which is

then due for labor, materials, or services in connection with
the Condemnation Restoration;
4)

that the

cost,

as

estimated

by

the

persons

signer

such

certificate, ofthe workrequired to complete the Condemnation

Restoration does not exceed the amount of the remaining Net

Condemnation Award, plus any amount deposited by Tenant to

defray the expenses ofthe Condemnation Restoration; and
that the work described has been completed in accordance with
the plans and specifications applicable thereto, in a good and
workmanlike manner and in accordance with all Requirements;

5)

ii)

Lien waivers, title company reports

or such other evidence,

reasonably

satisfactory to Owner, to the effect that there has not been filed with
respect

to

the

Premises,

any

vendor's,

mechanic' s,

laborer's,

materialman's or other lien which has not been discharged of record,

except such as will be discharged by payment of the amount then

requested; and

iii)

Such other documentation regarding the Condemnation Restoration as

Owner or the Recognized Mortgagee shall reasonably require.

b)

Tenant shall, prior to the commencement of the Condemnation Restoration,

furnish to Owner an estimate of the total cost of the Condemnation Restoration certified by the
architect or engineer

in

charge of

the Condemnation Restoration,

If such cost estimate or any

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1677OR 495

subsequent estimate provided pursuant to Section 93(a)( 1)( 4) shall show that the cost ofcompleting

the Condemnation Restoration is in excess of the amount of the Net Condemnation Award then

available, Tenant shall promptly deposit with the holder ofthe Net Condemnation Award an amount
equal to such excess. The amount so deposited shall be included in the Net Condemnation Award for
all purposes of this Article 9.

Upon compliance by Tenant with the foregoing provisions ofthis Article, the
holder ofthe Net Condemnation Award shall pay, to Tenant or the persons named in the certificate
c)

referred

90%

to in Section 93(a)( i),from the Net Condemnation Award, an amount equal to ninety percent

of

the cost of the Condemnation Restoration

which

is

evidenced

by

the

request.

At the

completion of each contract or subcontract in connection with the Condemnation Restoration, the

balance ofthe Net Condemnation Award relating to that portion ofthe work, to the extent ofand as
required to complete the payment of Condemnation Restoration costs relating to that portion of the
work, shall be paid to Tenant and Tenant shall provide to Owner reasonable evidence that the

Condemnation Restoration relating to that portion of the work has been paid for in frill.

If the amount ofany Net Condemnation Award, excluding deposits made by

d)
Tenant

pursuant

to Section 9. 3( b)

above,

shall exceed the entire cost of the Condemnation

Restoration, such excess, upon completion ofthe Condemnation Restoration, shall, ifthis Lease shall
be in full force and effect, be disbursed to Tenant or ifthis Lease shall not be in full force and effect,

such excess shall be paid to and retained by Owner and shall be deemed to be Percentage Rent to the
extent that Percentage Rent was reduced during Casualty Restoration and not reimbursed from
insurance proceeds and if any balance remains then, in that event, said remaining balance to Tenant
as Project Revenue hereunder. Any amounts deposited by Tenant pursuant to Section 9.3( b) above
shall be returned to Tenant to the extent the same are not necessary to fund the cost of the
Condemnation Restoration.
Section 9.4

Temporary Taking.
a)

Notice

of

Temporary Taking. If the temporary use of the whole or any

portion of the Premises is taken for a public or quasi-public purpose by a lawful power or authority

by the exercise ofthe right ofcondemnation or eminent domain or by agreement between Tenant and
those authorized to exercise such right, Tenant shall give Owner notice within five( 5) Business Days
thereof. The Term shall not be reduced or affected in anyway by reason ofsuch temporary taking and

Tenant shall continue to pay to Owner the Rental and/or Impositions without reduction or abatement;
provided, however, if such temporary taking is for a period in excess of ninety( 90) days, then such

taking shall be deemed a permanent taking and the provisions of Sections 9. 1 and 9.2, as applicable,
shall apply.

b)

Temporary Taking Not Extending] beyond

the Term. If the

temporary

taking is for a period not extending beyond the Term( including ataking restricted entirelyto' Tenant's
Interest in the Premises

and not

affecting Owner' s interest in any way),

Tenant shall apply the award

it receives in compensation therefor toward a Condemnation Restoration in accordance with Section

i

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18alX 4

9.3, and Tenant shall, subject to the rights of any Recognized Mortgagee, be entitled to retain any
remaining amount of such award.
c)

Temporary Taping Extending Beyond the Expiration ofthe Term. Ifthe

temporary taking is for a period extending beyond the Expiration ofthe Term, the award or payment
shall first be disbursed pursuant to Section 9.3 to be applied toward such restoration of the

Improvements as may have been necessitated by such taking, and the remainder shall be equitably
apportioned between Owner and Tenant as of the Expiration of the Terns.
Section 9. 5

Governmental Action Not Resulting in a Taking.

In case ofany governmental action not resulting in the taking or condemnation ofany
portion of the Premises but creating a right to compensation therefor, such as the changing of the

grade ofany street upon which the Premises abut, then this Lease shall continue in full force and effect
without reduction or abatement ofRental and/ or Impositions. Any award payable thereunder shall be
applied( i) first to reimburse Tenant for any Construction Work performed by Tenant resulting from
such governmental action and for attorneys' fees and costs related thereto as well as to Owner for its
attorneys' fees and costs related thereto; provided, however, that Owner was not acting in its
governmental capacity,( ii) second, any remaining amount shall be used to cure any monetary defaults
under this Lease, and( iii) the remainder shall be paid to Tenant.
Section 9.6

Collection of Awards.

Each of the parties shall execute such documents as may be reasonably required to facilitate

collection of any awards made in connection with any condemnation proceeding referred to in this
Article 9.
Section 9. 7

Negotiated Sale.

In the event ofa negotiated sale ofall or a portion ofthe Premises in lieu ofcondemnation, the
proceeds shall be distributed as provided in cases of condemnation.
Section 9. 8

Intention of Parties.

The existence ofanypresent or future law or statute notwithstanding, Tenant waives all rights
to quit or surrender the Premises or any part thereof by reason of any condemnation or taking of less
than Substantially All of the Premises.
Section 9.9

No' Waiver.

contained here'm,
n
the City,
ty, acting in its g
governmental
contrary
Notwithstanding anything to theco

capacity, does not waive, and hereby reserves, its right to consent or withhold consent to any
acquisition of property owned by or belonging to the City, including the Premises.
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4
Section 9. 10

Effect of Taking on This Lease.

Except as provided in Section 9.1, this Lease shall not terminate, be forfeited or be affected

in any manner, and there shall be no reduction or abatement of Rental and/ or Impositions, by reason
taking of the Premises or any part thereof. Except as provided in Section 9. 2( a), Tenant's
Rental and/ or Imposition obligations hereunder shall continue as though the Premises had not been
taken and shall continue without abatement, suspension, diminution or reduction whatsoever. Subject
of any

to Unavoidable Delays and taking into account Tenant's Condemnation Restoration obligations,
Tenant's non-Rental obligations hereunder shall continue as though the Premises had not been taken
and shall continue without abatement, suspension, diminution or reduction whatsoever.
Article 10-

Section 10. 1

Sale of the Project, Transfer and Subletting

Purpose of Restrictions on Transfer.

Subject to the provisions of this Article 10; this Lease is granted to Tenant solely for the
purpose ofdevelopment ofthe Land and its subsequent use in accordance with the terrors hereof,and
for speculation in landholding. Tenant recognizes that in view of the importance of the
development of the Land to the general welfare of the community, the qualifications and identity of

not

Tenant

are of particular concern

to the community

and

Owner. Tenant further recognizes that it is

because ofsuch qualifications and identity that Owner is entering into this Lease with Tenant and, in
so doing, is further willing to accept and rely on the obligations ofTenant for the faithful performance
of all undertakings and covenants by it to be performed.
Section 10.2

Definitions.
a)

"

Assignment" means a sale, exchange, assignment, transfer or other disposition

by Tenant of all or a portion of Tenant's Interest in the Premises, whether by operation of law or
otherwise, which is not a Transfer or a Master Sublease. The creation or granting of a Mortgage shall
not constitute an Assignment or a Transfer.
b)

" Assignee" means a purchaser, assignee, transferee, or other Person which

acquires all or any portion of Tenant's Interest in the Premises.

c)

"

Back Rent" means the amount of unpaid Rental ( other than accrued, but

unpaid, Percentage Rent) as ofthe Reinstatement Date, including accrued simple interest on the unpaid
Rental (

other

than

accrued,

but

unpaid,

Percentage Rent) from the date due at the default rate

specified in the Recognized Mortgage, as well as reasonable attorneys' fees and costs at the trial court

and all appellate levels and other expenses incurred by Owner in connection with enforcing this Lease.
i

d)

" Equity Interest"

means, with respect

to any entity,( 1) the legal( other than

as a nominee) or beneficial ownership ofoutstanding voting or non-voting stock ofsuch entity ifsuch
entity is a business

corporation, a real estate

investment trust

or a similar

entity,( 2) the legal( other

than as a nominee) or beneficial ownership ofany partnership, Membership Interest or other voting
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or non-voting ownership interest in a partnership,joint venture, limited liability company or similar

a legal( other than as a nominee) or beneficial voting or non-voting interest in a trust ifsuch

entity,( 3)

entity is a trust and( 4) any other voting or non-voting interest that is the functional equivalent ofany
of the foregoing.
e)

"

Sale ofthe Project" means( il) any Assignment or Master Sublease by Tenant

of fifty percent( 505S) or more of Tenant' s Interest in the Premises or( ii) any change, by operation
of law or otherwise, in the ownership of an Equity Interest in Tenant wherein such change in

ownership, directly or indirectly, produces any change in the Substantial Controlling Interest of
Tenant.

Sublease( s)"
Master
"

f)

means any sublease( including a sub-sublease or any

further level ofsubletting) ofall or any portion ofthe Premises, but does not include subleases serving
the functional equivalent of a Recognized Mortgage or subleases to actual space users or other

subleases entered into in the ordinary course ofbusiness forparking, retail, office or other space at the
Premises; provided, however, that in the event of a sublease of greater than Twenty Percent( 20%)

ofthe parking on the Premises( other than to subtenants ofspace in the Project to meet their parking
needs),

Owner shall have the right to approve the subtenant.

g)

"

Master Subtenant" means anyparty granted rights by Tenant under a Master

Sublease or by any other Master Subtenant( immediate or remote) under a Master Sublease.
h)

" Transfer"

means ( i) any change, by operation of law or otherwise, in the

ownership ofan Equity Interest in Tenant, wherein such change in ownership, directly or indirectly,
does not produce any change in the Substantial Controlling Interest ofTenant, or( ii) any transaction

or series oftransactions, by operation oflaw or otherwise, including, without limitation, the issuance
of additional Equity Interests or the direct or indirect revision ofthe beneficial ownership or control
structure of the management or operation of Tenant or any direct or indirect constituent entity of

Tenant, which, in either case, does not produce any change, by operation of law or otherwise, in the
Substantial Controlling Interest in Tenant.
i)

Section 10. 3

Restrictions on Sale of the Project or Transfer.

a)

any Sale

ofthe

"Transferee" means a Person to which a Transfer is made.

No Sale

of

the Project

or

There shall

Transfer Prior to CO Date.

Projector Transfer prior to the CO Date

other

than

as permitted

not

be

by the provisions in

Section 10.4 and other than a Foreclosure Transfer.

D

b)

No Sale

of

the Project

or

Transfer to

Notwithstanding anything in this Lease to the contrary, there

any Transfer to a Foreign Instrumentality.

shall not

Foreign

Instrumentality. "

be any Sale

of the

Project

or

1"

4&

I,

Al

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DEC.

extraction on

c)

Sale

of

the Pro'

a twovisions of Section

ec t.

here

i)

a real estate investor or real estate investment entity( including without

limitation, a real estate investment trust) investing funds for its own
account,

ii)

a pension fund, pension fund advisor or investment advisor investing

on behalf of others, or

a developer who either invests, for its own account( with or without
additional

equity investors

investing

with said

developer), in or

develops commercial real estate projects located within or outside the

United States;
i

provided, however, that such Permitted Buyer in fact meets or exceeds and certifies to Tenant and
Owner that it meets or exceeds the criteria described in subsections A through G below

Wrany time within the thirty( 30) day period described

in

last

paragraph of

this Section 10. 3( c),

Owner shall be entitled to engage an independent

accounting fm to review the books, records and other information upon which the certifications and
financial statements described below were based for the purpose of determining whether the
certifications or the financial statements described below are accurate and complete.
A)

Together, with the Permitted Buyer' s Affiliates, has equity

ownership in

real estate ( or,

in the

case of pension

fund

advisors or investment advisors, current real estate equity

under management) plus cash and/or cash equivalent ofat least

Twenty Million Dollars($ 20, 000, 000), adjusted for inflation,

of which not

less than Ten Million Dollars ($ 10, 000,000),

adjusted for inflation, must be equity ownership in real estate]

such real estate may either be owned or, in the case ofpension
fund advisors or investment advisors, under management by
Affiliates owned or controlled by such Permitted Buyer or its
principals),

as set forth in the most recent year end financial

statements of the persons or entities used to arrive at said

Twenty Million Dollars($ 20,000, 000), adjusted for inflation.

Said financial statements shall be examined b
certifierpume

a66ounting

an

inde

adent

m and shall be accompanied b

MEN in epeen ent certifiedpublic accounting firna7s Flexamined

P
eats

reP o ,
m
lished by the

accor ance with

attestatlon

standards

erican Institute of Certified Public

i
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8T0
Accountants, stating that the sum of the Permitted Buyer' s

eARV ownership in real estate based upon current

VITURe ARM

ent ofwhichat least Ten Million

juste
or inflation, consists ofequity

ZEE or c

equty

ownership in real estate) exceeds Twenty Million Dollars .

20, 000, 000), adjusted for inflation, ( or, if such examined -

financial

statements

are

not available,

such equity may

alternatively be established by evidence reasonably satisfactory

to Owner' s independent certified public accounting firm,
however, such alternative evidence must be submitted to

Owner and approved by Owner' s independent certified public

accounting film prior to any Sale ofthe Project being effective.
Such approval shall be deemed given ifthe alternative evidence

has not been disapproved in writing, with reasons given for

disapproval, within forty-five( 45) days of all such evidence,
being submitted to Owner);
B)

is not( nor is any of the individuals or entities included for

purposes of the calculation of the Twenty Million Dollars
20,000,000), adjusted for inflation, equity plus cash and/ or
cash

equivalent

described

in ( A)

above),

Foreign

Instrumentality;
C)

Must not have been( nor are any ofthe individuals or entities
included for purposes ofthe calculation ofthe Twenty Million
Dollars($ 20, 000, 000), adjusted for inflation, equity plus cash
and/or cash equivalent described in( A) above) within the seven

7) years preceding the date of the Sale of the Project, in an

adversarial relationship in litigation or are not in an adversarial

relationship inlitigation currently pending with Owner,in both

rases including but not limited to, litigation with respect to
ordinances,

charter provisions or resolutions of the City,

including building codes or tax code violations( but excluding

zoning appeals and appeals of property tax assessments);
D)

Must not be owned, controlled or run by entities or individuals

including for this purpose, all entities and individuals included
for purposes of the calculation ofthe Twenty Million Dollars
20, 000,000), adjusted for inflation, equity plus cash and/or
cash

equivalent

described in ( A)

above)

who have been

convicted, orare presently under indictment, for felonies under

the laws

of any

foreign

or

domestic jurisdiction;

j
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E)

Must not( including for thispurpose all entities and individuals

included for purposes ofthe calculation ofthe Twenty Million

adjusted for inflation, equity plus cash

Dollars($ 20,000,000),

and/or cash equivalent described in( A) above) have filed or

been discharged from bankruptcy, reorganization or insolvency

proceedings within the past seven years( bankruptcy filings by
Affiliates shall not disqualify an assignee, unless such Affiliates
were included for purposes ofdetermining the Twenty Million
Dollars($ 20,000, 000), adjusted for inflation, equity plus cash
and/or cash equivalent calculation described in( A) above);

F')

Must not in its charter or organizational documents( defined as

the articles of incorporation and bylaws for any corporation,

the operating agreement of any limited liability company, the

partnership agreement and partnership certificate for any
partnership, the trust agreement for any trust and the
constitution ofthe relevant government for any governmental
entity, but expressly excluding any
actions

or

allegations

not

statements, positions,

contained

in

charter

such

organizational documents) expressly advocate or have as its

stated

purpose: ( x)

resistance against,

the

violent

overthrow

of, or

armed

the U.S. Government; or ( y) genocide,

violence, hatred or animosity toward persons based solely on

their race, religion, creed, color, sexual orientation or national
origin; and

G)

Unless the Permitted Buyer ispublicly held, musthave an entity

within the group of entities included for purposes of the
calculation of the Twenty Million Dollars ($ 20,000,000),
adjusted for inflation, equity plus cash and/ or cash equivalent
described in( A) above which has not less than a five( 5) years

operating history or must have entered into a Management

Agreement with an Acceptable Operator.

log

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1

d)
] Foreclosure Transfer. A Foreclosure Transfer pursuant to the provisions of
Section 11. 12 shall not require the consent of Owner.
Section 10. 4

Transfers.

Tenant represents and warrants that Tenant has not made, created or suffered any Transfers
as ofthe Commencement Date and that the entities and individuals who or which have an ownership
interest in Tenant on the Commencement Date are listed, together with their percentage and character
ownership, in Exhibit 10. 4 attached hereto and incorporated by reference herein.
permitted, pursuant to Sections 10.4( a)-( c) herein, no Transfer may or shall be made,
of

Except as

suffered or

created by Tenant, its successors, assigns ortransferees without complying withthe terms ofSections
10.5 and 10.6 and other sections herein applicable thereto. The following Transfers shall be permitted
hereunder without the consent of Owner or any other action by Owner:
Any Transfer ofa Member' s interest in Tenant or the admission of additional
Members to Tenant provided that, after all such Transfers, the previous Managing Member(s) of
Tenant shall maintain, underthe operating agreement ofTenant, control overthe development and day
a)

to day operation and leasing ofthe Project( subject, however,to any contract made with an Acceptable
Operator);

Any Transfer by a Person who is a Member of Tenant of his Membership

interest in Tenant into a charitable trust, a blind trust, or for estate planning purposes; and
b)

A Transfer from the holder

c)

mother,

father,

combination

spouse,

thereof,

of

brother,
that

of an

sister or child ( an "

holder; ( 2)

Equity Interest in Tenant( 1) to his or her

Immediate Family Member"), or any

to a trust whose sole beneficiary(ies) is( y) a holder of an

Equity Interest in Tenant or( z) an Immediate Family Member of a holder of an Equity Interest in
Tenant; ( 3)

to a personal representative of the estate of a deceased holder of an Equity Interest in

4) to a Person in which a holder of an Equity Interest in Tenant holds, directly or indirectly,
the Substantial Controlling Interest; or( 5) to any other holder ofan Equity Interest in Tenant in which
Tenant;(

Transferee does

not

become ( unless such Transferee already

was)

the holder of a Substantial

Controlling Interest as a result of such Transfer;( for purposes of this Section 10.4( c) only, the term
Transfer" shall include a transfer of an Equity Interest in a Person or Persons having an Equity

Interest, directly or indirectly, in Tenant).

d

at

the time

of a requested
q

Trsfer

under

ptions

10. 4( x) or 10.4( b),

Tenant is a corporation or other type of entity, then the references to Ifinled liability company shall

be changed to the type entity in question and the Membership Interest being transferred shall be
changed to the appropriate ownership interest.
Any

consent

to a Transfer

shall not waive

any

of

Owner' s

rights

to consent to a

subsequent

Transfer. Any Transfer made in violation ofthe terms hereof shall be null and void and of no force
and effect.

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T3
Section 10.5

Required Notices.

t-

Tenant shall

a)

give notice

to Owner of every pro

ale o

os

which notice shall contain the following information: i thename and address ofproposed

Pro' e

ii) the name and address ofproposed transferor;( iii)the nature ofthe transaction;( iv) the
percentage interest conveyed; and( v) such other additional information as Owner shall reasonably
Transferee;(
uest

in

connection with

however Owner

i formation.

Transfer

th

shall make such

nest within

and/ or

p--!-- c

osed

rovided,

Tenant' s

Transfer other than those described in Sections

ten

addition, with respect to any proposed

ro

10 Business Da

s after receipt of

10.4(x) through 10.4(c) above and with respect to any Sale ofthe Project, Tenant shall give or cause
to be given to Owner written notice requesting approval of the proposed Transfer and/ or proposed
Sale of the Project and submit all information necessary for Owner to make an evaluation of the
proposed Transferees and/ or proposed purchaser of a Substantial Controlling Interest and the
proposed

Transfer

and/ or

Sale

of the

Project

and

to

obtain

Owner' s

consent

to same. Owner shall,

within sixty( 60) days of its receipt ofsuch information, advise Tenant if it shall consent to same. If
Owner shall fail to respond during such sixty( 60) days, it shall be deemed to have consented to the
proposed-Transfer and/or proposed Sale of the Project in question. If Owner shall not consent to a

proposed Transfer and/or proposed Sale of the Project, Owner shall state all of its reasons for such
disapproval in its notice to Tenant withholding its consent.
b)
reimburse
ft-

suc

Owner, u

In addition to all otherobliagdot s LmMs2LuXonTenant hereunder Tenant shall

n

lemand, LoLan reasonable costs incurred by Owner in connection with an

Transfer and/ or Sale ofthe Project and/ or Master Sublease, includin

o - pocket cos
35075'r-purchaser

itatio

the out-

ofthe ro osed Transferee

akin in uines and investigations into the acceptabili
e
Sublessee,
and the reasons
or Master
of a Substantial Controlling Interest ii

re-gcosts incurred, if any, in connection therewith.

Section 10. 6

Effectuation of Transfers and Sales of the Project.

No Sale of the Project or Transfer ofthe nature described in Sections 10.3 and 10.4 shall be
effective unless and until:

executed copies ofthe documents and other agreements between the parties
a)
to effectuate the Sale of the Project and/ or Transfer are delivered to Owner; and
b)

in the case of a Sale ofthe Project, the entity to which a Sale ofthe Project is

made, by inslr amentinwriti.ng and in form and substance satisfactory to Owner and in form recordable
among the land records, shall, for itself and its successors and assigns, and especially for the benefit
of Owner, expressly assume all of the obligations of Tenant under this Lease and agree to be
personally liable and subject to all conditions and restrictions to which Tenant is subject; provided,
however, that a Recognized Mortgagee shall not be liable under this Lease with respect to any matter

arising prior to its actual ownership of the Project, except:

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SO4
i)

unpaid

Rental

and/ or

Impositions ( but Percentage Rent, Back Rent

and/or Impositions only to the extent the Recognized Mortgagee is

obligated

this

to pay such Percentage Rent, Back Rent

and/ or

Impositions

to Article 11),

other monetary obligations of Tenant under

Lease, including defaults which can be cured by the payment of

pursuant

money and are in a liquidated amount, non-monetary defaults which a

Recognized Mortgagee can cure or remedy without title and
possession,( all such defaults to include any then existing event, matter
or occurrence which, with the passage of time or the happening of
future events, matters or occurrences, becomes an Event of Default),
ii)

as provided in Article 11( it being understood, nevertheless, that the

limitation of any such liability of Recognized Mortgagee shall not
impair, impede or prejudice any other right or remedy available to
Owner for default by Tenant and/ or the then current transferee).

Recognized Mortgagee shall not be liable under this Lease with respect to any matter arising

subsequent to the period of its actual ownership of the Project; provided however, that the fact that

Recognized Mortgagee has no liability for matters arising subsequent to the period of its actual

ownership shall not relieve or except any subsequent transferee or successor of or from such
obligations, conditions or restrictions, or deprive or limit Owner of or with respect to any rights,
remedies or controls with respect to the Project or the construction of the Improvements.
Section 10. 7

Office and Retail Muster Subleases.

Subject to the terms and conditions of this Lease, Tenant shall have the right to enter into

individual office, retail, parking and commercial subleases at any time and from time to time during
the term ofthis Lease with such subtenants, but only for uses that are not prohibited under Article 6,
and upon such commercially reasonable terms and conditions as Tenant shall, in its sole discretion,
deem fit and proper. At Owner' s request, Tenant shall allow Owner to review and inspect any and
all subleases for individual office, retail, commercial andparking spaces in the Project. Upon receipt
ofa written request from Tenant or any sublessee under an office or retail sublease, Owner shall enter
into attornment and non-disturbance agreements with sublessees in the office, retail, commercial and

parking spaces ofthe Premises. Such attornment and non-disturbance agreements shall be entered into
upon such terms and conditions as are customary for such agreements.
Article 11- Mortgages

Section 11. 1

Right to Mortgage.
a)

Except as otherwise expressly provided for in this Lease, Tenant shall not

mortgage, pledge, hypothecate or otherwise encumber Tenant's Interest in the Premises.

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C. 187708 505
Tenant shall have the right to mortgage, pledge, hypothocate or otherwise

b)

encumber Tenant' s Interest in the Premises to secure Debt by a Recognized Mortgage(s) without
Owner's approval.
Section 11. 2

Definitions.
a)

"

Debt" means the principal amount of debt and interest thereon secured by

Tenanfs Interest in the Premises,

together with any other amounts owed by Tenant under a

Recognized Mortgage to a Recognized Mortgagee. In addition, Debt shall include any debt obtained
in connection with( i) a required Casualty Restoration or Condemnation Restoration, as applicable,
if the Net Insurance Proceeds are, or the Net Condemnation Award is, inadequate to achieve the

required Casualty Restoration or Condemnation Restoration, as applicable and( ii) any advances made

by a Recognized Mortgagee with respect to Tenant' s Interest in the Premises for the payment oftaxes,
assessments, insurance premiums or other costs incurred for the protection ofTenant' s Interest in the

Premises or the liens created by the Recognized Mortgage, and reasonable expenses incurred by such
Recognized Mortgagee, by reason of a default by Tenant under such Recognized Mortgage or under
this Lease.
b)

"

Mortgage" means any mortgage or deed oftrust, and all extensions, spreaders,

sputters, consolidations, restatements, replacements, modifications and amendments thereof, that

constitutes a lien on all or a portion of Tenant's Interest in the Premises, and any security interest in
or assignment of the Lease or the rents, issues or profits related thereto.

Recognized Mortgage" means a Mortgage( i) that is held by a Person( other

ii) which expressly provides that it is subject and
subordinate to the terms of this Lease and, except as expressly set forth herein regarding Owner' s
c)

"

than an Affiliate) which is an Institutional Lender,(

subordination in certain circumstances of its right to Percentage Rent, to Owner' s Interest in the
Premises, and ( iii) a photostatic copy of which is, following the execution and delivery thereof,
delivered to Owner, together with a certification by Tenant confirming that the photostatic copy is a
true copy of the Mortgage and a certification by the Recognized Mortgagee thereunder confirming
the address of such Recognized Mortgagee for notices. Notwithstanding anything contained herein
to the contrary, an Affiliate may be part of a lending group constituting a Recognized Mortgagee for

so long as such Affiliate( i) does not own more than a forty-nine percent( 4911/ e) beneficial interest in
the debt held by such Recognized Mortgagee with respect:to Tenant or the Project and( ii) is not the
lead lender or agent for the lending group.
Section 11. 3

Effect of Mortgages.
a)

Owner' s Interest. No Mortgage shall extend to or be alien or encumbrance

upon, Owner' s Interest in the Premises or any part thereof or any appurtenant rights thereto which
have

not

been

granted

to Tenant

under

this Lease.

A Mortgage may extend to and be alien or

encumbrance upon the entire Tenant' s Interest in the Premises.

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b)

Mortgagee' s Rights Not Greaterthan Tenant's. The execution and delivery

ofa Recognized Mortgage shall not give or be deemed to give a Recognized Mortgagee any greater

rights against Owner than those granted to Tenant hereunder, except as otherwise expressly provided
in this Lease.
Section 11. 4

Notice and Might to Care Tenant Defaults.

a)

Notice to Recognized Mortgagee.

Owner shall give to the Recognized

Mortgagee, in the planner provided by the provisions of Section 26. 1 at such address as such
Recognized Mortgagee may confirm to Owner in the certification delivered to Owner pursuant to
Section 11. 2(c) or given by notice to Owner in accordance with Section 26.1, a copy of each notice

ofDefault at the same time as it gives notice ofDefault to Tenant, and no such notice ofDefault shall

be deemed effective with respect to any Recognized Mortgagee unless and until a copy thereof shall
have been so received by or refused by such Recognized Mortgagee, as applicable. Owner shall also
give

the Recognized Mortgagee notice(" Notice of Failure to Cure") in the event Tenant fails to cure

a Default within the period, if any, provided in this Lease for such cure, promptly following the
expiration of such period( i.e., an Event of Default). Only Events of Default expressly described in
the Notice of Failure to Cure may give rise to a termination of this Lease by Owner pursuant to its
termination rights hereunder.
b)

Right and Time to Cure. The Recognized Mortgagee shall have aperiod of

sixty( 60) days after receipt of the Notice of Failure to Cure, in the case of any Event ofDefault, to
1)

cure the Event of Default referred to in the Notice ofFailure to Cure or( 2) cause it to be cured,

subject to the provisions of Section

25.1( b).

Nothing contained herein shall be construed as imposing

any obligation upon any Mortgagee to so perform or comply on behalfofTenant. Anything contained
in this Lease to the contrary notwithstanding, Owner shall have no right to terminate this Lease prior
to the delivery ofa Notice ofFailure to Cure or following the delivery ofa Notice ofFailure to Cure
if, within sixty ( 60)
Mortgagee shall:

days after receipt of Owner's Notice of Failure to Cure, any Recognized

i)

notify Owner ofsuch Recognized Mortgagee's desire to cure the matter

described in such Notice of Failure to Cure;

pay or cause to be paid all Rental and/ or Impositions then due and in
arrears as specified in the Default Notice from Owner to such
Recognized Mortgagee ( provided, however, that such Recognized

Mortgagee shall not be required to pay or cause to be paid any

amounts payable by Tenant under Section 28.1( b) to the extent such
amounts relate to any Lease Year other than the Lease Year for which
the most recent Annual Financial Statements have been made available
to Owner; provided further, however, in the event that the Recognized
Mortgagee ( A)

11. 4( b)( i),

and (

receipt of the

provides

B) files

Notice

notice

of Failure

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to

foreclosure

Owner pursuant to Section

within

to Cure and

sixty ( 60) days of its

diligently prosecutes such

57
foreclosure, the Recognized Mortgagee' s curative obligations with
regard to an Event of Default as provided in this Section 11.4( b)(ii)

shall be excused, subject to the provisions of Section 11. 4(b)(iv),

which shall be applicable during the pendency of a foreclosure);

iii)

cure all Defaults by Tenant in the observance or performance of any

term, covenant or condition of this Lease on Tenant's part to be
observed or performed (

Impositions),

other than the payment of Rental and/or

or if any such Default is of such a nature that it cannot

reasonably be

remedied within such

sixty ( 60)

day

period (

but is

otherwise reasonably susceptible to cure), Recognized Mortgagee shall,

i) within sixty( 60) days after the giving ofsuch Notice of Failure to
Cure,- advise Owner of such Recognized Mortgagee's intention to

institute all steps( and from time to time, as reasonably requested by

Owner, such Recognized Mortgagee shall advise Owner of the steps

being taken) necessaryto 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, it being
acknowledged by Owner that ifpossession or control ofthe Premises
is required to effect such cure, the diligent prosecution of a foreclosure
of a

Recognized Mortgage,

such

foreclosure,

and the continuing efforts by such

Recognized. Mortgagee to effect such cure following completion of
shall constitute a part of the steps necessary to

remedy such Default. Nothing in this Lease shall require a Recognized

Mortgagee or its Designee or Foreclosure Transferee to cure any

default of Tenant not reasonably susceptible of being cured by such

( h), 0) and
Person( e. g., defaults stated in Section 25. 1( e), ( f), g),(
k); and

iv)

ifsuch Recognized Mortgagee files a foreclosure, during the pendency

of such foreclosure, pays or causes to be paid all current monthly

Rental and/ or Impositions due beginning upon the filing of such
foreclosure; provided, however, Percentage Rent shall be due only if,
and

to the

extent

that,

Project Revenues are sufficient to pay

Percentage Rent after the payment of Operating Expenses and Debt

Service,

and

the Recognized Mortgagee

shall provide

monthly statement setting forth Project Revenues

Expenses.

to Owner

and

Operating

I
i

Notice

of

Recognized

Section 11. 4( b),

following the delivery of

following the written request of any
Mortgagee ( which request may be contained in the notice from such Recognized

Notwithstanding the foregoing

a

Failure to Cure,

Mortgagee to Owner

within

given pursuant

provisions of this

five ( 5) Business Days

to Section 11. 4( b)( i)),Owner shall

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deliver to

such

Recognized

i
f

1570-8 508
Mortgagee a statement certifying the aggregate amount ofRental and/ or Impositions then due and in
I

arrears hereunder and the estimated per diem increase in such amount, but no such request shall

increase any of the time periods provided for in this Section 11.4(b).
c)

Acceptance of Mortgagee' s Perfamance. Owner shall accept performance

by a Mortgagee ofany covenant, condition or agreement on Tenant's part to be performed hereunder

with the same force and effect as though performed by Tenant.

d)

Other lights

Mortgagees.

Notwithstanding any other provision of this

Lease, no payment made to Owner by any Mortgagee shall constitute the Mortgagee's agreement that
of

such payment was, in fact, due under the terms of this Lease.

Ovlrner's Self-Help Rights. Notwithstanding the foregoing provisions of this

any reason) to cure any Default by Tenant
described in Section 11. 4( b)(iii) within sixty( 60) days following receipt of the Notice of Failure to
Cure regarding such Default, then Owner may upon notice, but shall be under no obligation to,
perform-the obligation of Tenant the breach of which gave rise to such Default, without waiving or
releasing Tenant from its obligations with respect to such Default. Tenant hereby grants Owner access
to the Premises in order to perform any such obligation. Any amount paid by Owner in performing
Tenant's obligations as provided in this Section 11. 4( e), including all costs and expenses incurred by
e)

Section 11. 4, if

Recognized Mortgagee fails ( for

Owner in connection therewith, shall constitute Rental hereunder and shall be reimbursed to Owner

within thirty( 30) days following Owner's demand therefor, together with a Hate charge on amounts
actually paid by Owner, calculated at the Late Charge hate 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)

Acceptance

of Owner' s

Performance. Tenant shall cause all Mortgages to

contain a provision requiring that all Mortgagees shall accept performance by Owner, within the
applicable grace periods available to Tenant, to cure defaults under any covenant, condition or
agreement on Tenant' s part to be performed under such Mortgages with the same force and effect as

though performed by Tenant.

Section 1105

Recognized Mortgagee or its Designee as Tenant Under this Lease.

If a Recognized Mortgagee or its Designee becomes Tenant under this Lease, then, in that

event, such Recognized Mortgagee or such Designee shall, during the period of its tenancy:
a)

pay all current Rental and/ or Impositions less the Percentage Rent commencing

as of the date such Recognized Mortgagee or such Designee becomes Tenant( the" Reinstatement
Date"); Percentage Rent which was due for periods prior to the Reinstatement Date shall be forgiven
and shall not thereafter be payable;
b)

comply with all the covenants and conditions of this Lease, except that the

payment of Rental and/or Impositions shall be as specified in this Section 11. 5;

i

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pay all Back Rent and/or Impositions as of the Reinstatement Date in the

c)

following manner:
i)

Monthly, but only to the extent sufficient funds are received by such
Recognized Mortgagee or such Designee from Project Revenue after

deducting Operating Expenses, Debt Service( which shall be retained

by the Recognized Mortgagee or its Designee) and amounts paid in
Section 11. 5(a);
ii)

Back Rent and/ or Impositions shall continue as an obligation of the

Recognized Mortgagee or its Designee until paid in full; and

d)

pay all Percentage Rent which accrues subsequent to the Reinstatement Date

as follows:
i)

For so long as the Recognized Mortgagee or its Designee is Tenant

under this Lease, Percentage Rent shall be payable monthly, but only
to the extent that funds are available therefor after making the
payments set

Rent

shall

forth in Section 11. 5( x),( b) and( c) above. Percentage

be

waived ( and not accrued)

to the extent that Project

Revenue in any Lease Year is not sufficient to pay Percentage Rent

after payments have been made with respect to amounts set forth in
Sections 11. 5( a)-( c).
ii)

Upon

Foreclosure Transfer,

any amounts of Percentage Rent

accrued, but unpaid, shall be forgiven.

Section 11. 6

Execution of New Tenants Documents.

Notice

of Termination.

If this Lease is terminated by reason of an Event of

Default, or by reason ofthe rej ection thereof by or on behalfofTenant in bankruptcy or for any other
a)

reason, Owner shall give prompt notice thereof to each Recognized Mortgagee.
b)
60) days

Request for

of receipt of

the

and

Execution

notice referred

of Now

Tenants Documents. If,within sixty

to in Section 11. 6( x), the Recognized Mortgagee shall

in writing, a new lease( the" New Tenant' s Documents"), to the Recognized Mortgagee or
Designee or Foreclosure Transferee identified in such request ( other than a Foreign

request,

to

Instrumentality( if the Premises are owned by the City or any instrumentality of the Agency or the
City) or an Affiliate of Tenant), then, subject to the provisions of Sections 11. 6( c) and 11. 7, within

ninety( 90) days after Owner shall have received such request, Owner shall execute and deliver New
Tenant' s Documents covering the remainder of the Term to the Recognized Mortgagee or to any
Designee or Foreclosure Transferee that has satisfied the requirements set forth in Section 10.3, 10.4,
and such Recognized Mortgagee( or its Designee or Foreclosure Transferee) shall execute and deliver
f

such New Tenant' s Documents to Owner within thirty( 30) days following receipt thereof by such
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Recognized Mortgagee(

or

Designee

or

Foreclosure Transferee). Such New Tenant' s Documents

shall be effective upon the executions thereof by both Owner and such Recognized Mortgagee or its
Designee or Foreclosure Transferee. The New Tenant' s Documents shall be at the then current Rental
and/ or Impositions( subject, however, to Sections 11. 4 and 11. 5 as to Percentage Rent, Back Rent

and/or Impositions) and otherwise contain all ofthe covenants, conditions, limitations and agreements,
Tenant's rights and remedies, contained in this Lease ( including, without limitation, a
conveyance by Owner of all then- existing Improvements); provided, however, Owner shall not be
deemed to have represented or covenanted that such New Tenant' s Documents are superior to claims
and all of

ofTenant, its other creditors or ajudicially appointed receiver or trustee for Tenant; provided further,
however, such New Tenant' s Documents will have the same priority over any encumbrances on the
estate of Owner which Tenant has or had by virtue of this Lease and the Recognized Mortgagee( or
its Designee or Foreclosure Transferee) will not have any obligation to perform any acts under this
which shall at such time have already-been performed by Tenant. Simultaneously with the

Lease

making ofsuch New Tenant' s Documents, the party obtaining suchNew Tenant' s Documents and all
other partiesjunior inpriority ofinterest in the Premises shall, at the option the Recognized Mortgagee
or its Designee or Foreclosure Transferee, execute, acknowledge and deliver such new instruments,

including new mortgages and new Master Subleases, as applicable, and shall make such payments and
adjustments among themselves, as shall be necessary and proper for the purposes ofrestoring to each
of such parties as nearly as reasonably possible, the respective interest and status with respect to the
Premises which was possessed by the respective parties prior to the termination of this Lease as
aforesaid.

Concurrently with the execution and delivery ofsuch New Tenant' s Documents, Owner shall
assign

to the tenant, declarant or co- declarant( the"

New Tenant") named therein all ofits right, title

and interest in and to moneys( including, without limitation,( i) subrents collected which have not been

applied or are not being held for application to Rental and/or Impositions and the costs incurred by
Owner to operate, maintain and repair the Premises and( ii) insurance and condemnation proceeds

which have not been applied or are not being held for application to the costs incurred by Owner to
restore the Premises), ifany, then held by or payable to Owner which Tenantwould have been entitled
to receive but for termination of this Lease or Owner's exercise of its rights upon the occurrence of
an Event of Default; provided, however, that Owner shall not be required to assign such moneys to
such New Tenant unless and until such New Tenant shall have cured all Events ofDefault that existed
under this Lease prior to the execution of such New Tenant' s Documents to the extent such Events

of Default are reasonably susceptible to cure by such New Tenant.

Upon the execution and delivery of New Tenant' s Documents under this Section 11.6( b), all
Master Subleases which theretofore may have been assigned to Owner shall be assigned and

transferred.,without recourse, representation or warranty, by Owner to the New Tenant named in such
New Tenant' s Documents. Between the date of termination of this Lease and the date of execution

and delivery ofthe New Tenant' s Documents( but not later than thirty( 3 0) days following receipt of
such New Tenant' s Documents by such Recognized Mortgagee, as provided in Section 11. 6( b)), if
a Recognized Mortgagee shall have requested such New Tenant' s Documents as provided in this
Section 11. 6 b) Owner

shall not enter

into

new

Master Subleases,

cancel or moth
modify

anY then

existing Master Subleases or accept any cancellation, termination or surrender thereof( unless such
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termination shall be effected as a matter of law on the termination of this Lease) without the written
consent of a Recognized Mortgagee, except as permitted in the Master Subleases.

For so long as the Recognized Mortgagee( or its Designee or Foreclosure Transferee) shall
have the

right to enter

into

a new ground

lease with Owner pursuant to this Section 11. 6( b), Owner

shall not enter into a new lease ofthe Land with any Person other than the Recognized Mortgagee( or
its Designee

or

Foreclosure Transferee), without the prior written consent of the Recognized

Mortgagee. The provisions ofSection 11.6( b) shall survive the termination, rejection ordisaffirmance

of this Lease and shall continue in full force and effect thereafter to the same extent as if Section
11. 6( b)

were a separate and independent contract made by Owner, Tenant and any Recognized

Mortgagee and, from the effective date of such termination, rejection or disafrma nce of this Lease

to the date ofexecution and delivery of such new ground lease ifsuch Recognized Mortgagee( or its
Designee or Foreclosure Transferee) has requested the New Tenant' s Documents within sixty( 60)
days after receipt ofthe aforesaid notice from Owner, the Recognized Mortgagee may use and enjoy
the leasehold estate created by this Lease without hindrance by Owner. The aforesaid agreement of
Owner to enter into a new ground lease with the Recognized Mortgagee shall be deemed a separate
agreement between Owner and such Recognized Mortgagee, separate and apart from this Lease as

well as a part of this Lease, and shall be unaffected by the rejection ofthis Lease in any bankruptcy
proceeding by any ply.
c)

Conditions Precedent to Owner' s Execution of New Tenant' s Documents.

The provisions of Section 11.6( b) notwithstanding, Owner shall not be obligated to enter into New
Tenant' s Documents with a Recognized Mortgagee or its Designee or Foreclosure Transferee unless:
i)

the Recognized Mortgagee or its Designee or Foreclosure Transferee

shall pay to Owner, concurrently with the execution and delivery ofthe New Tenant' s Documents, all
unpaid Rental and/ or Impositions due under this Lease( subject, however, to Sections 11. 4 and 11. 5
as

to Percentage Rent, Back Rent and/ or Impositions)

up to and including the date of the

commencement of the terra of the New Tenant' s Documents and all reasonable out-of-pocket

expenses, as evidenced byreceipted-bills therefor, including, without limitation, reasonable attorneys'

fees and disbursements and court costs, incurred in connection with the Default or Event ofDefault,
the termination of this Lease and the preparation of such New Tenant' s Documents, less the net

revenue ofthe Premises actually received by Owner from the date oftermination ofthis Lease to the
date of execution of the New Tenant' s Documents, with any excess of the total of such sums and

expenses to be applied by Owner to the payment of Base Rent and Percentage Rent ( subject to
Sections 11. 4 and 11. 5) due under such New Tenant' s Documents; and
ii)

in the case ofa Default or Event ofDefault, the Recognized Mortgagee

or its Designee or Foreclosure Transferee shall promptly after execution of the New Tenant' s
Documents, satisfy all obligations and cure all Events of Defaults existing or continuing under this
Lease at the time of its termination ( as though the Term had not been terminated) and which are

reasonably susceptible to cure by such Recognized Mortgagee ( or its Designee or Foreclosure

Transferee).
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d)

No Waiver of Default. The execution ofNew Tenant' s Documents shall not

constitute a waiver ofany Default existing or continuing immediately before termination ofthis Lease
and, except as to a Default which is not reasonably susceptible of being cured by the Recognized
Mortgagee or its Designee or Foreclosure Transferee( e.g., the insolvency ofTenant), theNew Tenant
under the New Tenant' s Documents shall cure, within the applicable periods in such Now Tenant's
Documents(

which periods shall

be identical to the

periods set

forth in Section 25.1), all Defaults

existing under this Lease immediately before its termination. Nothing in this Lease shall require a
Recognized Mortgagee or its Designee or Foreclosure Transferee, as a condition to the exercise of

its right to enter into New 't'enant' s Documents, to cure any default of Tenant not reasonably
susceptible of being cured by such Person( e. g., a bankruptcy-related default).
e)

Payments

under

Lease. If the Recognized Mortgagee or its Designee or

Foreclosure Transferee shad enter into New Tenant' s Documents pursuant to this Article and if,upon

such terminatlon ofthis Lease, Tenant, but for such termination, would have been entitled to receive

any amount pursuant to the provisions ofthis Lease, then Owner agrees that, subject to any rights of
setoff Owner may have, the same shall be paid to the Recognized Mortgagee or its Designee or
Foreclosure Transferee, as the New Tenant under the New Tenant' s Documents, in the same manner

and to the salve extent as it would have been paid or apply the same to or for the benefit of the
Recognized Mortgagee or its Designee or Foreclosure Transferee as if this Lease had not been
terminated.

f)

Section 11. 7

The provisions of this Section 11. 6 shall survive the Expiration of the Term.

Application of Proceeds from Insurance or Condemnation Awards.

To the extent that this Lease requires that.insurance proceeds paid in connection with any
damage or destruction to the Premises, or the proceeds of an award paid in connection with a tatting

referred to in Article 9, be applied to restore any portion of the Premises, no Mortgagee shall have

the right to apply the proceeds of insurance or awards toward the payment ofthe sum secured by its
Mortgage, except for the reasonable costs of collection thereof.
Section 11. 8

Appearance at Condemnation Proceedings.

A Recognized Mortgagee shall have the right to appear in any condemnation proceedings and

to participate in any and all hearings, trials and appeals in connection therewith.
Section 11. 9

Rights Limited to Recognized Mortgagees.

The rights granted to a Recognized Mortgagee under the provisions of this Lease shall not

apply in the case of any Mortgagee that is not a Recognized Mortgagee.

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Section 11. 10 No Surrender or 1VModilllication.

r

Owner agrees not to accept a voluntary surrender, termination or modification ofthis Lease
at any time while such Recognized Mortgage(s) shall remain a lien on Tenant's leasehold estate. It is
further understood and agreed that any such Recognized Mortgagee(s) shall not be bound by any
surrender, termination or modification ofthis Lease unless such surrender, termination or modification

is made with the prior written consent of such Recognized Mortgagee, and this Lease shall not
by merger or otherwise as long as the lien of the Recognized Mortgage( s) remains

terminate

undischarged. The foregoing is not meant to and shall not prohibit a sale ofthe fee to Tenant so long
as no merger of estates shall result therefrom unless all Recognized Mortgagees are satisfied

Notwithstanding the foregoing, Owner's waiver or postponement of any

obligation of Tenant or any remedy Owner may have under this Lease shall not constitute a
concurrently therewith.

modification for purposes hereof.

Section 11. 11 Recognition by Owner of Recognized Mortgagee Most Senior in Lien.

If there is more than one Recognized Mortgagee, only that Recognized Mortgagee, to the
exclusion ofall other Recognized Mortgagees, whose Recognized Mortgage is most senior in lien shall

be recognized as havingrights under Sections 11.4, 11. 5 or 11.6, 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.

Section 11. 12 Recognized Mortgagee' s Assignment Rights.

Notwithstanding anything contained in Article 10 or elsewhere in this Lease

to the contrary, a Foreclosure Transfer( other than to a Foreign Instrumentality for so long as the City
is Owner) shall not require the consent of Owner or constitute a breach of any provision of or a
Default under this Lease. Upon any such Foreclosure Transfer, Owner shall recognize the Foreclosure
a)

Transferee as Tenant hereunder, provided, however, that such new Tenant shall deliver to Owner, or
to be delivered to Owner, within thirty ( 30) days after the execution thereof, the

shall cause

appropriate instruments provided in Sections 10. 5 and 10.6 ( subject to the provisions of Section

b)
Except as expressly provided otherwise in this Lease, no Mortgagee or other
Foreclosure Transferee shall be liable under this Lease unless and until such time as it becomes Tenant

hereunder, and then only for so long as it remains Tenant hereunder.

c)

Definitions:

i
i)

"Foreclosure

Transfer" means a transfer occurring as a result of the

foreclosure ofa Recognized Mortgage, or any sale ofTenant's Interest

in the Premises, or any other transfer or assignment ofTenant's Interest
in the Premises by judicial proceedings pertaining to a Recognized

Mortgage or by virtue of the exercise of any power contained in a

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mth:

Recognized Mortgage, or by an assignment-in-lieu or other consensual

conveyance, or otherwise:

x)

by or on behalf of Tenant or pursuant to foreclosure

proceedings to a Recognized Mortgagee ( or its Designee or
Foreclosure Transferee);

y)

or

by or on behalf of Tenant or a Recognized Mortgagee( or its

Designee or Foreclosure Transferee) or pursuant to foreclosure

proceedings to a purchaser of Tenant's Interest is the Premises

at a foreclosure sale pursuant to a Recognized Mortgage or by

a Recognized Mortgagee ( or its Designee or its Foreclosure
Transferee) after consummating a Foreclosure Transfer as

described in clause( x) above or after such foreclosure sale.

ii)

'Foreclosure Transferee" means the purchaser, transferee or other

assignee in a Foreclosure Transfer.

iii)

" Designee" means an A.ffilfiate of a Recognized Mortgagee that is the

designee or nominee of such Recognized Mortgagee.

d)

If a Recognized Mortgagee or its Designee acquires Tenant' s Interest in the

Premises pursuant to a Foreclosure Transfer, all accrued but unpaid Percentage Rent shall be forgiven
and shall not thereafter be due and payable[ except to the extent that the Recognized Mortgagee has

failed to pay amounts it was required to pay pursuant to Section 11. 4(b)(iv)].
e)

If a Recognized Mortgagee or its Designee acquires Tenant' s Interest in the

Premises and thereafter conveys or assigns Tenant' s Interest in the Premises to athird party( the" First
Transferee") then, in that event,
i)

all accrued but unpaid Percentage Rent at the time of the conveyance
to the First Transferee shall be forgiven and shall not thereafter be due
and payable[ except to the extent the Recognized Mortgagee has failed

to pay amounts it was required to pay pursuant to Section 11. 5( d)];

ii)

for

five ( 5) years after the First Transferee acquires the

Tenant' s Interest in the Premises, Percentage Rent shall not accrue or
a period of

be due and payable( it being understood that Percentage Rent shall be

during such five year period); and

waived

iii)

Subsequent to the five ( 5) year period referenced in Section

11. 12( e)( ii) above, Percentage Rent shall thereafter accrue and be due
and payable in accordance with the provisions of this Lease.

i
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f)

Notwithstanding the provisions ofSection 11.12(e), there shall be no abatement

of Percentage Rent if any portion of the Equity Interest in the Person that is the First Transferee is
owned, either legally or beneficially, by the tenant wader this Lease that was foreclosed upon( the
Foreclosed Tenant") or any Person who had a legal or beneficial interest in the Foreclosed Tenant.
Section 11. 13 Notices Under a Mortgage.

Tenant shall give to Owner copies of all notices ofdefault received from a Mortgagee within

ten( 10) days after receiving written notice of same from Mortgagee.
a)

Notices. Tenant shall cause all Mortgages to contain aprovision requiring that

all Mortgagees shall send to Owner, simultaneously with the sending ofsuch default notices to Tenant,
copies ofall default notices or other notices relating to the failure ofTenant to keep any Mortgage in
good standing, which notices are sent pursuant to any loan document or security document to Tenant.
b)

Estoppel Requests, Tenant shall cause all Mortgages to contain a provision

shall comply with all reasonable estoppel requests of Owner. Owner

requiring that the Mortgagee

shall comply with all reasonable estoppel requests of any Mortgagee.

Article 12- Subordination

Section 12. 1

Subordination of Percentage Rent.

In the event of a foreclosure under the Recognized Mortgage, Owner' s right to Percentage

Rent shall be subordinate, expressly as described in this Lease. This subordination shall not extend

to( a) any Mortgage, other than a first mortgage by a Recognized Mortgagee on Tenant' s Interest in
or hereafter existing, ( b) any other liens or encumbrances hereafter affecting
Tenant' s Interest in the Premises or( c) any Master Sublease or any mortgages, liens or encumbrances

the Premises, now

now or hereafter placed on any Master Subtenant' s interest in the Premises.

Section 12.2

No Subordination of Owner' s Proprietary Interest in Land.

Owner's proprietary interest in the Land, including, without limitation, Owner' s interest in this
Lease, as the same may be modified, amended or renewed in accordance with the provisions of this
Lease, shall not be subject or subordinate to( a) any Mortgage now or hereafter existing,( b) any other

liens or encumbrances hereafter affecting Tenant's Interest in the Premises or( c) any Master Sublease

or any mortgages, liens or encumbrances now or hereafter placed on any Master Subtenant's interest
in the Premises.

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101.

Tenant' s Interest in the Premises Subject to Title Matters.

Section 12. 3

Tenant' s Interest in the Premises, including, without limitation, this Lease and the leasehold
estate ofTenant hereby created and all rights ofTenant hereunder are and shall be subj ect to the Title
Matters.

Article 13

Project Construction

Tenant' s Obligation to Construct Project

Section 13. 1

The parties acknowledge that Tenant shall construct the Improvements on the Land described
in Section 13.2 and other improvements described in the Plans and Specifications in accordance with

the terms of the Development Agreement and the terms hereof( together with any and all permitted
additions and/ or alterations

thereto and replacements thereof, the " Project"). If, with respect to a

matter relating to the Construction Work for the initial construction of the Project, a conflict arises
between the terms of the Development Agreement and the terms of this Lease, the terms of the

Development Agreement shall govern until the Project Opening Date, and thereafter the terms ofthis
Lease shall govern.
Section 13.2

Description of the Project.

Subject to the provisions of Section 14.5, the Project will consist of a mixed-use project
spaces and rentable area
a with approximately seven hundred 700) ark'
containing a parking g
as defined in accordance with ANSIUBOMA Z65. 1 - 1996 Standards) of approximately one hundred

thousand to

one

hundred

thirty

approximately

twenty

thousand to

thousand ( 100, 000 to 120, 000)

forty

square feet of office space and

thousand ( 30,000 to 40,000) square feet of retail and/ or

commercial space; provided, however, that in no event shall the Project exceed the floor area ratio

permitted under applicable City Requirements.

Article 14- Maintenance, Repair and Alterations
Section 14. 1

Maintenance Standards.
a)

Tenant shall, at its own cost and expense, take good care of, and keep and

maintain, the Premises in good and safe order and condition, and shall make all repairs therein and

thereon, interior and exterior, structural and nonstructural, ordinary and extraordinary, foreseen and
unforeseen, necessary to keep the Premises in good and safe order and condition, as other comparable
first class projects in similar usage and of similar age are kept( reasonable wear and tear excepted).
shall, at its own cost and expense, maintain the Garage in accordance with the

Further, Tenant
standards set

forth in the

Parking Garage Maintenance Manual( August

1996),

published by the

National Parking Association/Parking Consultants Council, a copy of which is attached hereto and
incorporated by reference herein as Exhibit 14. 1( a), as the same may be revised from time to time and
shalt at all times adhere to the operating schedules and standards set forth in Exhibits 14.1( b) and
14. 1( c) attached hereto and incorporated by reference herein.
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Tenant shall not commit, and shall use all reasonable efforts to prevent, waste,

b)

damage or injury to the Premises.

All repairs, replacements and renovations made by Tenant shall be substantially

equal in quality and class to the original quality ofthe Improvements being repaired and shall be made
c)

in compliance with the Requirements.

d)
' Tenant shall keep clean and free from dirt,
obstructions and physical encumbrances all areas of the Premises.
Section 14.2

mud, standing water, rubbish,

Removal of Building Equipment.

Tenant shall not, without the consent ofOwner, remove or dispose of any Building Equipment
from the Premises unless such Building Equipment( i) is promptly replaced by Building Equipment of
at least equal utility and quality, or( ii) is removed for repairs, cleaning or other servicing, provided
Tenant reinstalls such Building Equipment withreasonable diligence; except, however, Tenant shall not
be required to replace any Building Equipment that performed a function that has become obsolete,
unnecessary or undesirable in connection with the operation of the Premises in accordance with the
terms of this Lease.
Section 14. 3

No Obligation to Repair or to Supply Utilities.

Owner( in its proprietary capacity only) shall not be required to supply any facilities, services
to the Premises. Owner shall not have any duty or obligation to make any

or utilities whatsoever

alteration, change, improvement, replacement, Restoration or repair with respect to the Premises.
I

Section 14. 4

Waste Disposal.

Tenant shall dispose ofwaste from all areas ofthe Premises in accordance with Requirements

and in a prompt and sanitary manner.

Section 14. 5

Alterations.

a)

Subject to the terms and conditions ofthis Article 14 and the other applicable

provisions of this Lease, Tenant may, at any time and from time to time, at its sole cost and expense,
make alterations, additional installations, substitutions, improvements, renovations or betterments
collectively, " Alterations"); in and to the Premises or any portion thereofprovided that:
i)

no Alterations( or series of related Alterations) estimated to cost more

than One Hundred

Fifty

Thousand Dollars ($ 150, 000), adjusted for

inflation( as estimated by Tenant' s architect or engineer)( a" Significant

Alteration") and no Alteration affecting the structural portions, roofs

or the healing, air conditioning, elevator, plumbing, electrical, sanitary,

mechanical or other service or utility systems shall be undertaken except
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under the supervision of a licensed architect or licensed professional

engineer,

ii)

the Alterations will not result in a violation of any Requirement or

change the use permitted in Section 6.1 or violate any other provision
of this Lease;

iii)

the outside appearance, character or permitted use ofthe Premises shall

not be materially adversely affected unless approved pursuant to the

provisions of Section

14. 5( 4), and the Alterations shall not materially

1) weaken or impair the structure,( 2) reduce the size or( 3) lessen the

value of the Premises;

iv)

the proper functioning ofany ofthe heating, air conditioning, elevator,

plumbing, electrical, sanitary, mechanical and other service or utility

systems of the Premises shall not be materially adversely affected;

v)

ifany Alteration( excluding interior subtenant improvements that do not

materially affect the major building components) is( or related series of
Alterations are) estimated to cost more than Five Hundred Thousand
Dollars ($ 500, 000),

adjusted for inflation ( as estimated by Tenant's

architect or engineer),'

tenant shall obtain the prior written consent of

Owner for such Alterations(

a"

Major Alteration") in accordance with

the provisions of 26.2 below; and

vi)

no

Major Alteration in

excess of

One Million Dollars($ 1, 000,000),

adjusted for inflation, shall be undertaken prior to Tenant' s delivering

to Owner, at Tenant's option, either( x) a performance bond and a labor

and materials payment bond( issued by a surety company reasonably

satisfactory to Owner and licensed to do business in the State of
Florida), each in an amount equal to one hundred percent( 100%) of the

estimated cost and otherwise in form reasonably satisfactory to Owner

or( y) suchother security for the completion ofthe Major Alteration, as
may be reasonably satisfactory to Owner; provided, however, this
Section 14.5 shall not apply to a Recognized Mortgagee or its Designee
during the period that it is Tenant under this Lease.
b)

Reimbursement of( Owner' s Expenses. Tenant shall reimburse Owner for all

actual out-of-pocket architectural and engineering expenses for architectural and engineering review

reasonably incurred by Owner in connection with its decision to grant or withhold consent to a

proposed Maj or Alteration and inspectingthe Major Alterationto determine whether the same is being
or has been p
performed in accordance with the terms ofthis Lease includin g onl
. y the actual reasonable

fees and expenses of any architect or engineer employed for such purposes. Any Major Alteration for
which consent has been received shall beperformed substantiallyin accordance withthe approved Plans
r

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and Specifications, and no material amendments or material additions to the Plans and Specifications
shall be made without the prior consent of Owner in accordance with the terms hereof.
Approvals.

Tenant, at its expense, shall obtain all necessary permits and

certificates from Governmental Authorities for the commencement and prosecution ofany Alterations
and finial approval from Governmental Authorities upon completion, promptly deliver copies ofthe
c)

same to Owner and cause the Alterations to be performed in compliance with all applicable

Requirements and requirements of Mortgagees and insurers of the Premises, and any Board of Fire

Underwriters, Fire Insurance Rating Organization, or other body having similar functions, and in good
and workman like manner, using materials and equipment at least equal in quality and class to the
original quality of the installations at the Premises that are being replaced.
d)

Submission and Review ofAlterations. Tenant shall submit to Owner plans

and specifications showing in reasonable detail anyproposed Major Alteration. Owner shall reviewthe
plans and specifications for any proposed Major Alteration and shall approve the same provided that
the proposed Major Alteration will not:
i)

impair the structural integrity ofthe Premises; or

ii)

reduce Project Revenues after completion of the Major Alterations; or

iii)

reduce Floor Area or parking spaces, unless Tenant agrees, in writing,

to restore the portion ofthe Premises so modified to the original condition upon request ofOwnerprior
to the Expiration of the Term; or
iv)

change any exterior ofthe building, unless the DRB, BPB orJoint Board,

as applicable, approves the change; or

deviate from any approved uses of the Premises.

v)

Within thirty( 34) days after Owner's receipt of such plans and specifications, the City Manager of
Owner shall notify Tenant of its approval or disapproval thereof and, in the event of the Owner' s
disapproval, the reasons therefor. If Tenant desires to modify in any material respect previously
approved plans and specifications ( as such may have been modified by approved plans and
specifications), Tenant shall submit any such proposed modifications to Owner for Owner's approval.
Within fifteen( 15) days of its receipt of the proposed modifications, Owner shall notify Tenant in

writing with specificity ofany material inconsistencies ofwhich Owner disapproves between theplans
and specifications as modified and the plans and specifications previously approved by Owner. Tenant

shall, at its election, have the option of(x) submitting Owner's disapproval to arbitration as to the( i)
materiality of the inconsistency and/or( ii) reasonableness of disapproval or( y) submitting revised
modifications to the plans and specifications to meet Owner's objections( which revised plans and

specifications shall be reviewed as herein above provided),

e)

Costs

of

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The costs of all Alterations shall be borne by Tenant.

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f)

PrevailingWages. All Persons employed by Tenant with respect to Alterations

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 31A-27, as amended, but only to the
extent such Prevailing Wage Ordinance is applicable to the Alteration of the Improvements.
Article 15- Requirements

Section 15. 1

Tenant' s Obligation to Comply With Requirements.

In connection with any Construction Work, and with the maintenance, management, use and
operation ofthe Premises and Tenant's performance ofits obligations hereunder, Tenant shall comply

promptly with all Requirements, without regard to the nature ofthe work required to be done, whether
extraordinary or ordinary, and whether requiring the removal of any encroachment( but Tenant may
seek to obtain an easement in order to cure an encroachment, if permitted by Requirements), or
affecting the maintenance, management, use or occupancy ofthe Premises, or involving or requiring
any structural changes or additions in or to the Premises and regardless of whether such changes or
additions are required by reason ofany particular use to which the Premises, or any part thereof,may
be put. No consent to, approval ofor acquiescence in any plans or actions of Tenant by Owner, in its
proprietary capacity as landlord under this Lease, or Owner's designee shall be relied upon or construed
as bbing a determination that such are in compliance with the Requirements, or, in the case of
construction plans, are structlnmily sufficient, prudent or in compliance with the Requirements.
Section 15.2

Definition.

11Reguirements" means:
a)

any and all laws, rules, regulations, constitutions, orders, ordinances, charters,
statutes,

codes,

executive orders and requirements of all Governmental

Authorities having jurisdiction over a Person and/ or the Premises or any street,
road, avenue or sidewalk comprising a part of,or lying in front of,the Premises

or any vault in, or under the Premises( including, without limitation, any ofthe
foregoing relating to handicapped access or parking, the Building Code ofthe
City and the laws, rules, regulations, orders, ordinances, statutes, codes and
requirements of any applicable Fire Rating Bureau or other body exercising
similar functions);
b)

the temporary and/ or permanent certificate or certificates of occupancy issued

for the Premises as then in force; and

c)

any and all provisions and requirements of any property, casualty

insurance policy required to be carried by Tenant under this Lease.

or other

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Section 153.

Owner' s Obligation to Comply With Requirements.

In connection with the performance of Owner' s obligations hereunder, Owner shall comply
promptly with all Requirements.
Article 16- Management and Operation of Project
Section 16.1

Management of Project,

Lease, Tenant

shall

Following the Project Opening Date, and continuing throughout the Term ofthis

a)

be

an

Acceptable Operator

or shall enter

into

one (

1) or more Management

Agreement(s) with an Acceptable Operator(s) and shall prudently manage and operate, or cause the
Premises to be prudently operated and managed by the Acceptable Operator pursuant to Section
16.3(d) and in accordance with the terms and conditions of this Lease, and pursuant to a written

Management Agreement:

i)

Providing for services, and containing terms and conditions, reasonable

and customary for the operation of comparable first-class buildings of similar age and design;
ii)

including

and condition,

Providing that the Premises are operated and maintained in good order
such repair, replacement, renovation, and maintenance,

as necessary,

reasonable wear and tear excepted; and

iii)

Consistent with the standards for garage operation and for public area

maintenance and operation as set forth, respectively, in the:

1)

Parking Garage Maintenance Manual( August 1996), published

by the National Parking A-ssociation/Paddng Consultants Council, a copy ofwhich is attached hereto
Exhibit 14. 1( x), as the same may be revised from time to time;

as

2)

Exhibit 14. 1( b),

as

the

same

Owner's Garage Maintenance Standards, attached hereto as

may be

revised

from time to time

by

mutual consent of

Owner

and

Tenant; and

3)

Owner's

Operating Standards, as set forth in Exhibit 14.1( c), as

same may be revised from time to time by mutual consent of Owner and Tenant.
b)

The services to be performed by the Acceptable Operator shall include, without

limitation, the following:
i)

Acceptable Operator will provide technical services to assist Tenant in

the furnishing and equipping, maintenance and operation ofthe Premises. These services will include,
among

other

fixtures

things, ( 1) review and approval of architectural plans, plans for design, and plans for

and equipment

to

ensure

that the

Garage

will meet

the standards set forth in this Lease;( 2)

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10.

develop criteria forfixtures and equipment and assist in obtaining sources ofsupply; and( 3) assistance
I

in coordinating purchases and installation of fixtures and equipment.

Acceptable Operator will provide required services to Tenant to prepare
the Garage for opening, including, without limitation,( 1) recruiting, training and employing personnel;
2) pre- opening marketing and advertising;( 3) negotiating contracts for supplies and similar items;( 4)
ii)

assistance in obtaining necessary licenses and permits; and( S) assistance inpurchasing initial operating
supplies.

c)

Tenant shall provide in the Management Agreement that Acceptable Operator

shall operate and manage the Premises in accordance with the provisions of this Lease, including
without limitation, Article 6 hereof. Acceptable Operator shall have authority to operate the Premises
in the name of,and for the account of, Tenant.

d)

Tenant hereby agrees to incorporate the covenants and agreements contained

in this Article in the Management Agreement as covenants and agreements ofthe Acceptable Operator.

The Acceptable Operator's interest in the Management Agreement shall be

subject and subordinate to( i) the Owner's Interest in the Premises; and( ii) the terms and conditions of
e)

this Lease. As between Owner and Tenant, in the event ofany conflict between the terms ofthis Lease
and the terms ofthe Management Agreement, the terms ofthis Lease shall govern. Tenant shall remain

responsible for performing all of its obligations hereunder notwithstanding the fact that the Promises

is being managed by the Acceptable Operator.

f)

Notwithstanding anything to the contrary contained in this Section 16.1, the

Premises may be managed by an operator( including Tenant) that is not an Acceptable Operator,

provided that such operator is approved by the Owner, which approval may be granted or withheld in
Owner' s

sole and absolute

discretion, for any

reason or

for

no reason whatsoever.

Any operator

approved by Owner pursuant to this Section 16.1( 1) shall be deemed to be an Acceptable Operator for
all purposes of this Lease.
Section 1602

Garage Revenue Control Equipment.

a)

Tenant shall, at all times from the CO Date to the earlier to occur of( i) the date

on which this Lease is terminated for any reason or( ii) the Fixed Expiration Date, maintain and utilize
fully automated garage revenue control equipment.
b)

On

or prior

to the

earlier

to

occur of(

i) the date on which this Lease is

terminated for any reason or( ii)the Fixed Expiration Date, Tenant shall provide fully automated garage
revenue control equipment in the Garage that is compatible with the equipment that the City uses for

its municipal parking system, in the event that the equipment used for the Garage is not compatible at
that time.
i

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Section 16.3

Transfer of Acceptable Operator' s Interest in the Management Agreement.

IfAcceptable Operator effectuates a( i) transfer ofthe Management Agreement;( ii) termination

of Management Agreement or( iii) engagement of a new Manager for the Permises, Owner shall be

notified in writing ten( 10) days prior to the date thereof.- The notice required by this Section 16.3
shall contain the following information:
i)

the name and address of the new Acceptable Operator or transferee;

ii)

the nature of such transaction and the percent interest to be conveyed;

iii)

in the case of a Management Agreement, a true and complete copy of

the instruoaent effectuating such transaction; and
iv)

a. copy of any new Management Agreement or any modifications to

an existing Management Agreement.
Section 16.4

Owner' s Rights and Remedies.

a)

under

Tenant will( i) perform or cause to be performed Tenant's material obligations

the Management Agreement, ( ii)

enforce the performance by Acceptable Operator of all of

Acceptable Operator's material obligations under the Management Agreement; and( iii) give Owner

prompt written notice and a copy ofany notice ofdefault, event of default, termination or cancellation
sent or received by Tenant.
b)

Upon termination of this Lease, Acceptable Operator shall:

i)

to the extent of Acceptable Operator's interest and to the extent

permitted by Requirements, surrender and assign to Owner or its designee any and all licenses, permits
and/ or governmental authorizations required for the operation of the Premises;
ii)

deliver to Owner any and all ofOwner's properties within the possession
ofAcceptable Operator, including, without limitation, all keys, locks and safe combinations, ledgers,
bank statements for the Premises accounts, books and records, insurance policies, bonds and other
documents, agreements, leases and licenses required for the operation of the Premises; and
iii)

remit to Owner the balance,of any account of the Premises.

iv)
Owner shall not incur any liability to Project Manager under the
Management Agreement except to the extent Owner has liability under this Lease;
c).

The rights of Owner set forth in this Section 16.4 shall, to the extent in conflict

with the rights of any Recognized Mortgage, be subject to the rights of such Recognized Mortgagee

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off.
BE*.

provided such Recognized Mortgagee is in the process of,and is diligently, exercising its rights under
the applicable Recognized Mortgage.
Section 16.5

Repair, Renovation and Replacement Reserve Account.

Maintenance and operation of the Premises will be at no cost to Owner, and

a)

Tenant

shall

itself,

or cause (

and the Management Agreement shall so provide) the Acceptable

Operator, in Tenant's name and for the benefit of Tenant, to establish a separate interest bearing
account( the" Reserve Account") for the purpose of funding the repair, renovation and replacement
of fixtures and equipment required for the operation ofthe Premises in accordance with the terms of
this Lease, as well as to assure that funds are available for maintenance ofthe Premises from and after
the CO Date. To fund the Reserve Account, Tenant shall deposit, or shall cause the Acceptable

Operator to deposit, within thirty( 30) days after the end ofeach month during the Term ofthis Lease
from and after the CO Date for such month one-twelfth( 1112) ofan amount which is equal to the sum
of

Twenty-Five Cents($ 0.25) per square foot annually ofoffice space( including common areas) times

the

number of square

feet

of office space

in the Premises,

annually times the number of square feet in the Garage(

plus

Ten Cents($ 0. 10) per square foot

including common areas). No deposit need be

made to the Reserve Account for the square footage of retail space within the Premises.

Owner, in its sole and absolute discretion, for any reason and for no reason whatsoever, may consider
a reduction ofthe required payments to the Reserve Account as set forth in this Section 16.5(x) above

any time after the CO Date.

i

b)

Tenant shall cause the Acceptable Operator to make expenditures from the

Reserve Account for the purposes permitted hereunder as is necessary to maintain or improve the
Premises in accordance with this Lease( including capital expenditures); provided, however, that in the
event that a Recognized Mortgage provides for a method or procedure for making or authorizing
expenditures from the Reserve Account, the provisions ofsuch Recognized Mortgage shall control over
the provisions hereof.
c)

Tenant hereby grants to Owner a security interest in the Reserve Account, and

all profits and proceeds thereof; in order to secure Tenant's obligations under this Section 16.5, which

security interest in such Reserve Account shall be automatically fully subject and subordinate only to
the rights of the Recognized Mortgagee and any purchase money lender with regard to Reserve
Account.
other

Tenant hereby agrees not to grant a security interest in the Reserve Account to any Person

than

Recognized Mortgagee, Owner

or a purchase

money lender. Owner shall execute and

deliver all such instruments as any Recognized Mortgagee or purchase money lender shall reasonably
require in order to confirm Owner's subordination of its security interest as aforesaid.
d)

Funding ofReserve Account during Foreclosure or while Recognized Mortgagee

or its DesigMee is Tenant. During the period that( i) a Recognized Mortgagee is pursuing a foreclosure
against Tenant; or( ii) a Recognized Mortgagee or its Designee is the Tenant under this Lease, such

Recognized Mortgagee or its Designee shall have the option of( 1) not funding the Reserve Account;
provided, however, such relief from funding shall not be deemed to affect in any way the operational
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OFF

rte.

and maintenance standards

imposed

upon the

25
Project

pursuant

to this Lease (

including, without

provided further, however, such relief from funding, in any event, shall end
upon the earlier to occur of(A) four( 4) years after the date of the earlier to occur of(i) the filing of
limitation, Section 6. 4);

such foreclosure, or( ii) the date upon which such Recognized Mortgagee or its Designee becomes the
Tenant under this Lease; or( B) the date a Foreclosure Transferee other than a Recognized Mortgagee

or its Designee becomes the Tenant under this Lease; or( 2) funding the Reserve Account as provided
in this Section 16.5.

Notwithstanding anything to the contrary herein contained, to the extent that a

Recognized Mortgage contains provisions requiring Tenantto maintain aReserve Account forthe same
e)

purpose as this Section 16.5, the provisions ofthis Section 16S shall be waived and the provisions of

the Recognized Mortgage shall be controlling. In no event shall Tenant be required to maintain more
than

one(

1) Reserve Account for the purposes set forth herein.

Section 16. 6

More Than One Acceptable Operator.

Tenant may, in its discretion, cause different components ofthe Premises to be operated and
maintained by different Acceptable Operators.
Article 17- Discharge of Liens

Section 17. 1

Creation of Liens.

Tenant shall not create, cause to be created, or suffer or permit to exist( i) any
lien,encumbrance or charge upon this Lease, the leasehold estate created hereby, the income therefrom
a)

or the Premises or any part thereof or appurtenance thereto, which is not removed within the time
period required pursuant

to Section 17.2,(

ii) any lien, encumbrance or charge upon any assets of,or

funds appropriated to, Owner, or( iii) any other matter or thing whereby the estate, rights or interest
of Owner in and to the Premises or any part thereof or appurtenance thereto might be materially
impaired. Notwithstanding the above, Tenant shall have the right to execute Mortgages, subleases and
other instruments( including, without limitation, equipment leases) as provided by, and in accordance
with, the provisions of this Lease.
b)

Owner shall not create, cause to be created, or suffer or permit to exist( i) any

lien, encumbrance or charge upon this Lease, the leasehold estate created hereby, the income therefrom
except as otherwise set permitted in Article 2) or the Premises or any part thereof or appurtenance
thereto,

which

is

not removed within

the time period

required pursuant

to Section 17. 2,(

ii) any lien,

encumbrance or charge upon any assets of,or funds appropriated to, Tenant, or( iii) any other matter
or thing whereby the estate, rights or interest ofTenant in and to the Premises or any part thereof or
appurtenance thereto might be materially impaired.
Section 17.2

Discharge

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 ofTenant by law or by a provision of
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this Lease) is filed against the Premises or any part thereof,or ifany public improvement lien created,
or caused or suffered to be created by Tenant shall be filed against any assets of,or funds appropriated
to, Tenant or Owner, Tenant shall, within thirty( 30) days after Tenant receives notice ofthe fling of
such mechanic's, laborer's, vendor's, materialmanIs or similar statutory lienor public improvement lien,
cause it to be discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. However, Tenant shall not be required to discharge any such lien if Tenant
shall have( a) furnished Owner with, at Tenant'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) reasonably satisfactory to Owner, in an amount sufficient to pay
the lien with interest and penalties and( b) brought an appropriate proceeding to discharge such lien and

is prosecuting such proceeding with diligence and continuity; except that if,despite Tenant's efforts to
seek discharge ofthe lien, Owner reasonably believes that a court judgment or order foreclosing such
lien is

about

to be

entered or granted and so notifies

Tenant, Tenant

shall,-within

ten(

10) days after

from Owner ( but not later than three ( 3) business days prior to the entry or
granting of such j udg went or order of foreclosure), cause such lien to be discharged ofrecord or Owner
notice

to

such effect

may thereafter discharge the lien in accordance with Section 24.2 and look to the security furnished
by Tenant for
contained

reimbursement of

its

cost

in

so

doing. Notwithstanding anything to the contrary

in this Section 17.2( x), in the case of a public improvement lien which provides for

installment payments as a means of satisfying such lien, Tenant shall be required only to pay, on
a timely basis, all installments when due.
b)

Notwithstanding anything to the contrary contained in Section 17.2, 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 Owner by law or by a provision ofthis Lease) is filed against the
Premises or any part thereofor Tenant's interest therein as a result ofany action ofOwner, its officers,
employees, representatives or agents, Owner shall, within thirty( 3 0) days after Owner receives notice

ofthe 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 Tenant with, at Owner's option, a cash deposit, bond, letter of credit from an Institutional

Lender( in form reasonably satisfactory to Tenant) or other security( such as apersonal guaranty or title

company indemnity) reasonably satisfactory to Tenant, 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,despite Owner's efforts to
seek discharge ofthe lien, Tenant reasonably believes that a courtjudgment or order foreclosing such
lien is about to be entered or granted and so notifies Owner, Owner shall, within ten( 10) days ofnotice

to such effect from Tenant( but not later than three( 3) business days prior to the entry or granting of
such

judgment

or order of

foreclosure),

cause such lien to be discharged of record or Tenant may

thereafter discharge the lien in accordance with Section 24.2 and look to the security furnished by
Owner for reimbursement of its cost in so doing.

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TT.

orr.

REC.

Section 173
i

No Authority to Contract in Name of Owner.

Nothing contained in this Article 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 Premises or any part thereof, nor as giving
Tenant 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 ofany lien, mortgage or other encumbrance
against Owner's interest in the Land or any part thereofor against assets of Owner, or Owner's interest
in any Rental and/ or Impositions. Notice is hereby given, and Tenant 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 Premises or any part thereof for Tenant or any Master
Subtenant or for any materials furnished or to be.furnished to the Premises or any part thereof for any
ofthe foregoing, and nomechanic's, laborer's, vendor's, materialman's or other similar statutory lien for
such work or materials shall attach to or affect Owner's interest in the Land or any part thereof or any
assets ofOwner, or Owner's interest in any Rental and/ or Impositions. The foregoing shall not require
Tenant to request advance waivers of lien from contractors or subcontractors.
Article 18- Representations
Section 18. 1

No Brokers.

Each of Owner and Tenant represents to the other that it has not dealt with any broker, finder

or like entity in connection with this Lease or the transactions contemplated hereby, and each party shall
indemnify the other against any claim for brokerage commissions, fees or other compensation by any
Person alleging to have acted for or dealt with the indemnifying party in connection with this Lease or
the transactions contemplated hereby.
Section 18. 2

No Other Representations.

Tenant acknowledges, represents and confirms that it or its authorized representatives have

visited the Premises and are fully familiar therewith, the physical condition thereof(including but not
limited to subsurface conditions) and Title Matters affecting the Premises. Tenant accepts the Premises
in existing condition and state of repair and Tenant confirms that: except for the representation
contained

in Section 18. 1 (

and

any

other representation

expressly

set

forth in this Lease), ( i) no

representations, statements, or warranties, express or implied, have been made by, or on behalf of,
Owner with respect to the Premises or the transactions contemplated by this Lease, the status oftitle
thereto(

except as set forth

in Exhibit 2. 1), the physical condition thereof,the zoning, wetlands or other

laws, regulations, rules and orders applicable thereto or the use that may be made ofthe Premises, or
the presence

or absence of" hazardous substances"(

Response, Compensation
the Premises, ( ii)

and

as defined in the Comprehensive Environmental

Liability Act of 1980, as amended, 42 US CA 9601

et

seq.)

on or under

Tenant has relied on no such representations, statements or warranties, and ( iii)

Owner shall not be liable to Tenant, in any event whatsoever, to correct any latent or patent defects in
the Premises.
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OR Article 19-

Section 19. 1

81RAX .59B

No Liability for Injury or Damage

Liability of Owner or Tenant.

OwnerNotLiableforlujury orDamage, Etc. The Ownerindemnified Parties

shall not be liable to any Tenant Indemnified Party for, and Tenant shall indemnify and hold Owner
Indemnified Parties harmless from and against, any loss, cost, liability, claim, damage, expense
a)

including, without limitation, reasonable attorneys' fees and disbursements), penalty or fine incurred

in connection with or arising from any injury( whether physical( including, without limitation, death),
economic or otherwise) to Tenant or to any other Person in, about or concerning the Premises or any
damage to, or loss( by theft or otherwise) of,any of Tenant's property or of the property ofany other
Person in, about or concerning the Premises, irrespective of the cause of injury, damage or loss
including, without limitation, the acts or negligence of any tenant or occupant ofthe Premises or of
any owners or occupants ofadjacent or neighboring property or caused by any Construction Work or

by operations in construction ofanyprivate, public or quasi-public work) or any latent orpatent defects
in the Premises, except to the extent any of the foregoing is due to the gross negligence or willful

misconduct ofany Owner Indemnified Party. The Owner Indemnified Parties shall notbe liable, to the
extent of insurance proceeds paid by insurance carriers under Tenant' s insurance policies, for any loss
or damage to any Person or property even if due to the gross negligence or willful misconduct of any
Owner Indemnified Party and, to that extent, Tenant relieves Owner Indemnified Parties from such
liability. Without limiting the generality of the foregoing, except to the extent caused by the gross
negligence or willful misconduct ofany of Owner Indemnified Parties( and then only in such Owner
Indemnified Party's proprietary capacity as opposed to its governmental capacity), Owner Indemnified
Parties shall not be liable for( i) any failure of water supply, gas or electric current,( ii) any injury or
damage to person or property resulting from gasoline, oil, steam, gas, electricity, or hurricane, tornado,
act ofClod, act of war, enemy action, flood, wind or similar storms or disturbances, water, rain or ice,
or( iii) leakage of gasoline or oil from pipes, appliances, sewer or plumbing works.

Zoning Changes. Except when Owner( if Owner, at the time ofapplication is

City), acting in its proprietary capacity, is the applicant, Owner hereby assigns to Tenant any and
b)

the

all rights of Owner, as owner of the Land, under Requirements to execute objections or waivers of

objections to applications for variances or other exceptions or exemptions from zoning or other
Requirements by the owner ofany property with respect to which, under applicable Requirements, the
owner of the Land would have the right to object or consent to variances or other exceptions or
exemptions

from zoning

or other

Requirements.

Such assignment shall in no way limit or otherwise

restrict any other rights of the City, any instrumentalities of the City, or any elected or appointed

officials or employees ofthe City, in its respective governmental capacities, from taking or refraining
from taking any action or expressing any views and opinions in connection with such application. If
Owner is required tojoin in such application by Requirements, Owner shall do so provided Tenant pays
all costs, including reasonable attorneys fees, for same.

i
l
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Sfi.

WNM 2

Owner'S Exculpation.

Section 19.2

Except as such liability may be eliminated or reduced by any constitutional,

statutory, common law or other protections afforded to public bodies or governments( for such time
as Owner is a Governmental Authority), including, but not limited to, sovereign immunity statutes, the
liability of Owner ( including, without limitation, with respect to any gross negligence or willfal
misconduct), or of any other Person who has at any time acted as Owner( for such time as Owner is
a Governmental Authority) hereunder, for damages or otherwise, arising out of or in connection with
a)

any breach of this Lease or any injury( whether physical( including death) economic or otherwise)
incurred in connection with this Lease or the Premises, shall be limited to One Million Dollars
1, 000,000), adjusted for inflation, under this Lease and the Development Agreement, in the
As

in the preceding

the terms " breach"

injury" shall include all

breaches and injuries arising out ofthe facts and circumstances resulting in such breach or injury.
aggregate.

used

b)

sentence,

and "

Except for conversion, fraud or willful misconduct( and then only to the extent

such party acted in its proprietary capacity as opposed to its governmental capacity), none ofthe Owner
shall have any liability( personal or

Indemnified Parties( except Owner as provided in Section 19. 2( x))

otherwise) hereunder, and except for Owner's Interest in the Premises ( to the extent permitted by
Requirements),

no property or assets ofthe Owner Indemnified Parties shall be subject to

enforcement procedures for the satisfaction ofTenant's remedies hereunder or any other liability ofthe
applicable

Owner Indemnified Parties arising from

or

in

connection with

this Lease or the Premises.

Nothing

contained herein shall be deemed a waiver of any equitable remedies available to Tenant.
Nothing contained in this Section 191 or elsewhere in this Lease is in any way
intended to be a waiver ofthe limitation placed upon Owner's liability as set forth in 768.28, Fla.Stat.,
or of any other constitutional, statutory, common law or other protections afforded to public bodies
c)

or governments.

Section 19. 3

Tenant

Notice of Injury or Damage.

shall

notify Owner

within

thirty( 30) days of any occurrence

at the

Premises

of which

Tenant has notice and which Tenant believes could give rise to a claim of One Hundred Thousand
Dollars($ 100, 000),

adjusted for inflation, or more, whether or not any clafin has been made, complaint

filled or suit commenced; however, Tenant's failure to so notify Owner shall not constitute or result in
a breach or default of any of the terms or conditions of this Lease or result in a loss of any benefit or
right granted to Tenant under this Lease.
Section 19.4

Tenant' s Exculpation.

Except for( a) Tenant' s

liability for conversion, willfid

misconduct or

fraud,( b) liabilities of

Tenant arising under applicable Requirements when Owner is acting in orpursuant to its governmental
capacity, and( c) liability with respect to Tenant's obligation to pay Rental and/or Impositions that is
past due but not yet paid, and except with respect to any rights or remedies for non-monetary relief

including, without limitation, equitablerelief),the liability ofTenant under this Lease and with respect
I
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lip, 5,M
d,

sv

to the Premises for damages or other monetary amounts shall be limited to One Million Dollars
1-,000,000) adjusted for inflation, under this Lease and the Development Agreement, in the aggregate.

Notwithstanding anything to the contrary in this Lease, Owner' s right to terminate this Lease and force
Tenant to surrender title to and possession of the Improvements to Owner shall not be subject to the
limitation of liability contained in this Section 19. 4. Other than Tenant's Interest in the Premises, no

other property or assets of Tenant shall be subject to levy ofexecution or enforcement procedure for
the satisfaction of Owner's remedies hereunder or any other liability of Tenant arising from or in
connection with this Lease or the Premises. Without limiting the preceding sentence, if,and only if,
a Tenant Indemnified Party other than Tenant engages in conversion, fraud or willful misconduct, then
such Tenant Indemnified Party shall have personal liability hereunder and the property and assets of
such Tenant Indemnified Party shall be subject to levy ofexecution or enforcement procedure for the
satisfaction of

misconduct.

Owner's

remedies

hereunder

with respect

to

such conversion,

fraud or willful

Nothing contained herein shall be deemed a waiver ofany equitable remedies available

to Owner.

Section 19.5

No Punitive Damages.

Neither Owner nor Tenant shall be liable to the other for any punitive damages in connection
with this Lease and Owner and Tenant agree not to seek punitive damages from each other in

connection with any lawsuit or other claim relating to this Lease.

Section 19. 6

Survival.

The provisions of this Article 19 shall survive the Expiration of the Term.
Article 20- Indemnification
Section 20. 1

Indemniflication of Owner.

Tenant shall indemnify and hold Owner Indemnified Parties harmless from all
loss, cost, liability,claim, damage and expense( including, without limitation, reasonable attorneys' fees
and disbursements), penalties and fines, incurred in connection with claims by a Person against an
Owner Indemnified Party arising from( a) the use or occupancy or manner of use or occupancy ofthe
Premises by Tenant or any Person claiming through or under Tenant or( b) any acts, omissions or
a)

negligence.of Tenant or any Person claiming through or under Tenant, or of the contractors, agents,
servants, employees, guests, invitees or licensees of Tenant or any Person claiming through or under
such Person, in each case to the extent in, about or concerning the Premises either during or after the

expiration of,the Term, including, without limitation, any acts, omissions or negligence in connection
with any Construction Work or in the making or performing of any repairs, restoration, alterations or
improvements, except to the extent any of the foregoing is caused by the gross negligence or willful
misconduct of any of the Owner Indemnified Parties.
b)
compel

disclosure

In the event that any suit, action or proceeding is brought against Owner to
of any

document described in Article 27

or

Article 28, whether such suit, action

or

I
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RM

proceeding is brought under Chapter 119, Florida Statutes or any otherprovision oflaw,Tenant agrees
to defend, indemnify and hold the Owner Indemnified Parties harmmless from and against any loss, claim,

damage, expense( including, without limitation, reasonable attorneys' fees and disbursements, including
both in-house and outside counsel, and also including any attorneys' fees and disbursements which any
court ofcompetentjurisdiction may award to the plaintiffin such suit, action or proceeding, in all cases
including any appeals thereof or postjudgment proceedings relating thereto), penalty or fine incurred
in connection with or arising from such suit, action or proceeding. Owner shall notify Tenant of any
such public records request but failure to give such notice shall not impose any liability on Owner.
Notwithstanding the foregoing, in the event that Owner receives a proper notice under Chapter 119,
Florida Statutes, as amended, to produce a document, and Owner has such document in its possession
and Owner fails to produce such document due to Owner' s own negligence, malfeasance or

misfeasance, Tenant shall not be liable for any loss, claim, damage, penalty or fine as aforesaid.
Section 20.2

Indemnification of Tenant.

Owner shall indemnify and hold the Tenant Indemnified Parties harmless from all loss, cost,
liability, claim, damage and expense ( including without limitation, reasonable attorneys' fees and
disbursements),

penalties and fines, incurred in connection with claims by a Person against a Tenant
Indemnified Party arising from any acts, omissions or negligence of Owner made in its proprietary
capacity

or

any Person claiming through

or under

Owner( in its proprietary capacity only), or of the

contractors, agents, servants, employees, guests, invitees or licensees of Owner( in its proprietary
capacity only) or any Person claiming through or under such Person, in each case to the extent in, about
or concerning the Premises either during, or after the expiration of,the Term, except to the extent any
of the foregoing is caused by the gross negligence or willful misconduct of any of the Tenant
Indemnified Parties.
Section 20.3

Contractual Liability.
a)

The obligations of Tenant under this Article 20 or Article 19 shall not be

affected in any way by the absence or presence of insurance coverage ( or any limitation thereon,

including any statutory limitations with respect to Workers' Compensation insurance), or by the failure
or refusal ofany insurance carrier to perform an obligation on its part under insurance policies affecting
the Premises; provided, however, that if Owner actually receives any proceeds of Tenant's insurance
with respect to an obligation ofTenant under this Article, the amount thereof shall be credited against,

and applied to reduce, any amounts paid and/or payable hereunder by Tenant with respect to such
obligation.

b)

The

obligations of

Owner

under

this Article 20

or

Article 19

shall not

be

affected in any way by the absence or presence ofinsurance coverage, or by the failure or refusal ofany
insurance carrier to perform an obligation on its part under insurance policies affecting the Premises;
provided, however, that ifTenant actually receives any proceeds ofOwner's insurance with respect to
an obligation of Owner under this Article, the amount thereof shall be credited against, and applied to

reduce, any amounts paid and/or payable hereunder by Owner with respect to such obligation.

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Section 20.4

Defense of Claim, Etc.

a)

If any claim; action or proceeding is made or brought against any Owner

Indemnified Party by reason of any event to which reference is made in Section 20.1 or Article 19,
then, upon demand by Owner or such Owner Indemnified Party, Tenant shall either resist, defend or
satisfy such claim, action or proceeding in such Owner Indemnified Party's name, by the attorneys for,
or approved by, Tenant's insurance carrier( ifsuch claim, action orproceeding is covered by insurance)
or such other attorneys as

Owner

shall

reasonably

approve.

The foregoing notwithstanding, such

Owner Indemnified Party may at its own expense engage its own attorneys to defend such Owner
Indemnified Party, or to assist such Owner Indemnified Party in such Owner Indemnified Party's
defense of such claim, action or proceeding, as the case may be.
b)

If any claim., action or proceeding is made or brought against any Tenant

Indemnified Party by reason of any event to which reference is made in Section 20.2 or Article 19,
then, upon demand by Tenant or such Tenant Indemnified Party, Owner, or any successor owner, as

applicable, shall either resist, defend or satisfy such claim, action or proceeding in such Tenant
Indemnified Party's name, by the attorneys for, or approved by,Owner's insurance carrier( ifsuch claim,
action or proceeding is covered by insurance) or by such other attorneys as Tenant shall reasonably
approve. The foregoing notwithstanding, such Tenant Indemnified Party may at its own expense
engage its own attorneys to defend such Tenant Indemnified Party, orto assist such Tenant Indemnified
Party in such Tenant Indemnified Party's defense of such claim, action or proceeding, as the case may
be.
Section 20. 5

Notification and Payment.

a)

Each Owner Indemnified Party shall promptly notify Tenant ofthe imposition

of,incurrence by or assertion against such Owner Indemnified Party ofany cost or expense as to which

Tenant has agreed to indemnify such Owner Indemnified Partypursuant to the provisions ofthis Article
20. Tenant agrees to pay such Owner Indemnified Party, as Rental hereunder, all amounts due under
this Article 20 within sixty( 60) days after receipt of the notice from such Owner Indemnified Party.
b)

Each Tenant Indemnified Party shall promptly notify Owner of the imposition

of,incurrence by or assertion against such Tenant Indemnified Party ofany cost or expense as to which
Owner has agreed to indemnify such Tenant Indemnified Party pursuant to the provisions ofthis Article
20. Owner agrees to pay such Tenant Indemnified Party all amounts due under this Article 20 within
sixty( 60) days after receipt of the notice from such Tenant Indemnified Party.
Section 20. 6

Governs Lease.
I

The provisions ofthis Article 20 shall govern every other provision ofthis Lease. The absence
of explicit reference

to diminish the

to this Article 20 in any particular

application of this

Article 20 to

provision of this

such provision.

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Lease

shall not

be construed

533
Section 20. 7

Survival.

The provisions of this Article 20 shall survive the Expiration of the Term.
Article 21- Covenant Against Waste and Inspection

Section 21. 1

Waste.

Except as otherwise permitted by this Lease, Tenant covenants not to do or suffer any
demolition, waste or damage, disfigurement or injury to the Premises or any part ofit. The provisions
of this Section 21. 1 shall not apply to any demolition or disfigurement involved with repairs,
renovations, upgrading or new construction.
Section 21. 2

Inspection of Premises.

Owner, its agents, employees and authorizedrepresentatives may enter the Premises at anytime

in response to an emergency, and at reasonable times as Owner deems necessary to, incident to, or
connected with the performance of Owner duties and obligations hereunder or in the exercise of its
rights and functions.
Article 22-

Section 22. 1

Owner' s Security Interest in Building Equipment

Grant of Security Interest.

Solely for the purpose of securing Tenant's obligations to deliver to Owner the Improvements
upon Expiration ofthe Term, Tenant hereby grants to Owner a security interest in all ofthe Building
Equipment now or hereafter located on the Premises and owned by Tenant, and in all products and

proceeds thereof; provided, however, that Owner's security interest shall be automatically fully
subordinate and subject to any purchase money financing permitted hereunder and any Recognized

Mortgagee's security interest in the Building Equipment. Upon the Expiration ofthe Term, Owner shall
be entitled to all ofthe rights, remedies, powers and privileges available to a secured party under( and

subject to the provisions of) the Uniform Commercial Code enacted by the State of Florida. Tenant
shall execute and deliver all such instruments and take all such action as Owner, from time to time, may

reasonably request in order to obtain the full benefits ofthe security interest described in this Section
22.1 and of the rights and powers herein created and to maintain and perfect the security interest
granted above. To the extent permitted by Requirements, Tenant irrevocably authorizes Owner to file

financing statements and continuation statements with respect to the foregoing collateral without the
signature of

Tenant.

Owner

shall execute and

deliver

all such

instruments

as

any Recognized

Mortgagee or permitted purchase money lender shall reasonably require in order to confirm Owner's
Tenant may, during the
Term, remove, replace and otherwise deal with the Building Equipment in the ordinary course ofthe
subordination of

its security interest

as aforesaid.

Subject to Section 14.2,

operation of the Project.

1
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T?M 534

Article 23- Leasehold Condominium

Section 23. 1

Creation of Leasehold Condominium.

a)
Tenant shall have the right to create a leasehold condominium for Tenant' s Interest in
the Project, provided that at the time of creation of said leasehold condominium, the declaration of
condominium(

the" Declaration") is in compliance with Chapter 718, Florida Statutes, as amended,

and this Article 23; and further provided that the original Tenant, the declarant, shall not self, convey,

assign or otherwise transfer any ofthe condominium units until Substantial Completion ofthe Project.
Owner shall consent to the Declaration, provided, however, that Owner shall have the right to approve

the form and substance ofthe Declaration. Tenant shall pay all reasonable costs ofOwner' s review of
the proposed Declaration, including, but not limited to reasonable fees and costs ofOwner' s outside
counsel.

Forpurposes ofthis Lease, in the event ofthe creation ofa leasehold condominium, the

b)

following terms and provisions shall apply to said leasehold condominium and the Declaration shall so
provide:

i)

The leasehold condominium shall be limited to three( 3) units consisting of an

office unit, a retail unit and a garage unit. The garage unit shall be the Garage,
as defined in this Lease.

ii)

Unless

otherwise

provided

in the Declaration, the new Tenant( the

Condominium Tenant") shall be a Florida not-for-profit condominium

association, created to operate and maintain the leasehold condominium. The

Declaration may provide, as agreed to by Owner and Tenant prior to the

recording

of

the Declaration, that Rental

and/ or,

if payable to Owner,

Impositions shall be paid directly by unit owners to Owner, rather than to the
condominium association, in proportions reasonably acceptable to Owner;
provided, however, that in no event shall the mechanism or procedure for the

payment of Mental and/ or Impositions, or any other amounts required by this

Lease to be paid to Owner, affect the priority ofOwner' s right to receive Rental
and/ or, if payable to Owner, Impositions or any other payments due under this
Lease. Tenant shall, at Tenant' s sole cost and expense, provide Owner with an
opinion of counsel( which counsel shall be acceptable to Owner) to the effect

that the aforementioned provisions ofthe Declaration do not affect the priority
of Owner' s right to receive Rental and/ or Impositions or any other payments
under this Lease.

iii)

There shall be an Acceptable Operator for each unit and there may be a
Property Manager and a Management Agreement for each unit.

1
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iv)

535

IC/ s ' 1

RL`Vo `

There may be a Recognized Mortgagee and a Recognized Mortgage for eacb

unit, and the rights and obligations of said Recognized Mortgagees shall be

limited to the units burdened by their respective Recognized Mortgages.

v)

vi)

vii)

If a lease ofa unit meets the definition ofMaster Sublease as to such unit, such
lease shall be treated as a Master Sublease for purposes of this Lease.
Percentage Rent shall be based upon Project Revenue derived from the
operations of each of the three( 3) units, individually.

Article 10 relating to transfers and sales shall be separately applied to each of

the individual condominium units; provided, however, that the Twenty Million
Dollar($ 20, 000, 000),

Section 10. 3( c)( A),

adjusted for inflation, equity requirement described in

be

shall

changed

to Ten Million Dollars($ 10,000,000),

adjusted for inflation, for each unit at the time of acquisition and provided
further, however, if a Person acquires two ( 2) units, the aggregate equity

requirement computed pursuant to Section 10.3(c)(A) for such Person shall be

Ten Million Dollars($ 10, 000, 000), adjusted for inflation, or ifa.Person acquires
three ( 3)

units, such aggregate equity requirement shall be Twenty Million

Dollars($ 20,000, 000),

adjusted for inflation. All other provisions ofthis Lease

shall be separately applied to each of the individual condominium units.

viii)

A Recognized Mortgagee holding a Recognized Mortgage on a unit shall not

become the Tenant under this Lease; provided, however, the Condominium

Tenant's obligation to pay Percentage Rent derived from a condominium unit

which has been transferred to a Recognized Mortgagee pursuant to a
Foreclosure Transfer shall be subordinated as provided in this Lease, and
Percentage Rent derived from such unit, when payable, shall be paid to Owner
in

accordance with

Article 11

and

Article 12

of this

Lease. The rights and

obligations of a Designee and a First Transferee from such Recognized

Mortgagee relative to Percentage Rent shall similarly apply.
ix)

Owner's rights to review financial records ofCondominium Tenant shall include

the right to review corresponding financial records ofall ofthe unit owners. To
the extent Condominium. Tenant is obligated to pay costs and fees to Owner
relating to such review, Condominium Tenant shall pay such additional costs
and fees resulting from reviews ofthe financial records ofthree( 3) unit owners
as opposed to a single Tenant.
x)

The Declaration

shall

provide

for

appropriate

easements,

covenants and

restrictions such that the operation, use and management of the condominiarn

is consistent with this Lease including, without limitation, Article 6 hereofand

all applicable Land Development Regulations( as such term is defined in the
Development Agreement).

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tlrr

A unit owner which is in default of its obligations under the Declaration, after

xi)

reasonable notice and grace periods as provided in the Declaration, shall lose its

right to vote as a member, officer, director or in any other capacity of the

condominium association so long as the default remains uncured.
In the event a unit owner fails to pay any condominium assessment to Owner

xii)

or Condominium Tenant, as applicable, which includes that unit's proportionate

share of Rental and/ or, if payable to Owner, linpositions, Owner shall accept
payments of Rental and/or Impositions to the extent paid to Condominium

Tenant, and/or by the other unit owners, and the balance ofthe Rental and/ or
Impositions shall be treated as Back Rent and/ or Iinpositions, and Owner shall
not proceed with remedies available to Owner for non-payment ofRental and/ or
Impositions unless and until Condominium Tenant and the Recognized

Mortgagee holding a Recognized Mortgage on the defaulting unit have failed

to diligently proceed with their respective remedies against the defaulting unit
owner. In the event the Condominium Tenant by foreclosure or deed in lieu of
foreclosure of its lien for assessments, or a Recognized Mortgagee or its
Designee, obtains title to the unit after such a default, the obligations of such
new unit owner relative to payment of Back Rent and/ or Impositions and

Percentage Rent under such circumstances shall be governed by the applicable

provisions of this Lease.
xiii)

The condominium a'ssociation's lien for the payment ofassessments for common

expenses, including Rental and/ or Impositions, shall be subordinate to the lien

of

any

and all

Recognized Mortgages

on

the

respective units, provided,

however, that in no event shall the relative priority of said condominium

association' s lien affect the superior priority of Owner' s right to receive Rental

and/ or Impositions or any other payments due under this Lease. Tenant shall,
at Tenant' s sole cost and expense, provide Owner with an opinion of counsel
which

counsel . shall

be

acceptable

to

Owner) to the effect that the

aforementioned provisions ofthe Declaration concerning the relative priority of

said condominium association' s lien do not affect the superior priority of
Owner' s right to receive Rental and/ or Impositions or any other payments due
under this Lease.

ix)

The Declaration shall cease to exist and shall become null and void as of the
Fixed Expiration Date.

The Declaration provided for in this Article 23 shall not alter the legal effect of any of the
provisions of this

Lease

which were

in effect prior to the recording

of such

Declaration( i.e., the legal

dmi

rights of Owner

shall not

be impaired,

finished or improved after the recording ofsuch Declaration

specifically provided in this Article 23). Therefore, to effectuate the provisions

of this Section 23. 1, all legal issues and interpretations under this Lease regarding the rights and
except as otherwise

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obligations of Owner, including but not limited to all payments due Owner, shall be made as ifthe
Declaration did not exist subject to the provisions of this Article 23.
Article 24-

Section 24.1

Right to Perform the Other Party' s Obligations.

Right to Perform the Other Party' s Obligations.

If a Default shall occur and be continuing beyond any applicable grace period,
Owner may, but shall be under no obligation to, perform the obligation ofTenant the breach ofwhich
gave rise to such Default, without waiving or releasing Tenant from any of its obligations contained
herein, provided that Owner shall exercise such right only in the event ofa bonafide emergency or after
five (5) Business Days notice, and Tenant hereby grants Owner access to the Premises in order to
a)

perform any such obligation.

b)

Ifa default by Owner under this Lease shall occur and be continuing beyond any

applicable grace period, Tenant 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 or event of default, without waiving or releasing Owner from any of
its obligations contained herein, provided that Tenant shall exercise such right only in the event of a
bonafide emergency or after five( 5) Business Days notice to Owner or the City, as applicable.
i

Section 24.2

Discharge of Liens.

If Tenant fails to cause any mechanic's, laborer's, vendor's, materialman's or

similar statutory lien( including tax liens, providing the underlyingtax is an obligation ofTenant bylaw
or by a provision ofthis Lease) to be discharged ofrecord in accordance with the provisions ofArticle
17, Owner may, but shall not be obligated to, discharge such lien ofrecord either bypaying the amount
claimed to be due or by procuring the discharge of such lien by.deposit or by bonding proceedings. If
Owner's title is threatened or a material interest of Owner is impaired, Owner may also, ifTenant has
a)

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 ofthe amount ofthe judgment in favor ofthe lienor with interest, costs
and allowances.

b)
If Owner fails to cause any mechanic's, laborer's, vendor's, materialman's or
similar statutory lien( including tax liens, providing the underlying tax is an obligation ofOwner by law
or by aprovision ofthis Lease) to be discharged ofrecord in accordance with the provisions ofA.rticle
17, Tenant may, but shall not be obligated to, discharge such lien ofrecord either by paying the amount
claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings. If
or any portion thereof) is threatened or a material interest
if Owner has not done so( or bonded such lien), compel the

Tenant's leasehold interest in the Premises(

of Tenant

is impaired, Tenant may

also,

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.
i

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M.Section 24. 3

Reimbursement for Amounts Paid Pursuant to this Article.

f
a)

Any amount paid by Owner in performing Tenant's obligations as provided in

this Article 24, including all costs and expenses incurred by Owner in connection therewith, shall
constitute Rental hereunder 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.

Any amount paid by Tenant in performing Owner's obligations as provided in

this Article 24, including all costs and expenses incurred by Tenant in connection therewith, shall be
b)

reimbursed

to Tenant

within

thirty ( 30) days of Tenant's demand, together with a late charge on

amounts actually paid by Tenant, calculated at the Late Charge Rate from the date ofnotice ofany such
payment by Tenant to the date on which payment ofsuch amounts is received by Tenant.
Section 24. 4

Waiver, Release and Assumption of Obligations.

a)

Owner's payment or performance pursuant to the provisions ofthis Article 24

shall not be, nor be deemed to constitute, Owner's assumption ofTenant's obligations to pay or perform

any ofTenant's past, present or future obligations hereunder.

Tenant's payment or performance pursuant to the provisions ofthis Article 24
shall not be, nor be deemed to constitute, Tenant's assumption ofOwner's obligations to pay or perform
b)

any of Owner's past, present or future obligations hereunder.

Article 25-

Section 25. 1

Events of Default, Conditional Limitations, Remedies, Etc.

Definition.

Each of the following events shall be an" Event of Default" hereunder:

if Tenant fails to make any payment ( or any part thereof) of Rental and/ or
Impositions due hereunder and such failure continues for a period of thirty( 30) days after notice is
given by Owner that the same is past due;
a)

b)

if Tenant shall default in the observance or performance of any term, covenant

or condition ofthis Lease on Tenant's part to be observed or performed( other than the covenants for
the payment of Rental and/ or Impositions or as expressly set forth below) and Tenant shall fail to
after notice by Owner of such Default ( the " Default
remedy such Default within thirty ( 30) days
Notice"), or ifsuch a Default is ofsuch a nature that it cannot reasonably be remedied within thirty( 30)
otherwise susceptible to cure), Tenant shall not( i) within thirty( 30) days after the giving
ofsuch Default Notice, advise Owner ofTenant's intention to institute all steps( and from time to time,
taken) necessary to
as reasonably requested by Owner, Tenant shall advise Owner of the steps being

days( but is

remedy such Default( which such steps shall be reasonably designed to effectuate the cure of such
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Default in a professional

manner),

and( ii) thereafter diligently prosecute to completion all such steps

necessary to remedy the same;

failure ofTenant to deliver the special warranty deeds subject to the provisions

c)

of Section 2.1( a) to Parcel 2( as described on Exhibit A) on or before the Possession Date;

d)

ifTenant fails to operate the Garage as a parking facility as described in Section

6.1( b) in which event such failure shall be treated as a Default as described in Section 25.1( b);
e)
if a default by Tenant under the Development Agreement shall have occurred
and be continuing beyond any applicable cure period, including any cure period applicable to a

Recognized Mortgagee;

f)
to the extent permitted by law, if Tenant admits, in writing, that it is generally
unable to pay its debts as such become due;

to the extent permitted by law, ifTenant mares an assignment for the benefit of

g)
creditors;

to the extentpermitted by law, ifTenant files a voluntary petition under Title 11

ofthe United States Bankruptcy Code, or if Tenant files a petition or an answer seeking, consenting
h)

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 ofTenant, ofall or any substantial part ofits properties,

or ofall or any part ofTenant's Interest in the Premises, and the foregoing are not stayed or dismissed
within one hundred and fifty( 150) days after such filing or other action;
i)
the

commencement

to the extent permitted by law, if,within one hundred and fifty( 150) days after
of a

proceeding

against

Tenant 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 and
eighty( 180) days after the appointment, without the consent or acquiescence ofTenant, ofany trustee,
receiver, custodian, assignee, sequestmtor, liquidator or other similar official of Tenant, of all or any

substantial part of its properties, or of all or any part of Tenant's interest in the Premises, such
appointment has not been vacated or stayed on appeal or otherwise, or if, within one hundred and

eighty( 180) days after the expiration of any such stay, such appointment has not been vacated;
j)

ifa levy under execution or attachment in an aggregate amount ofOne Hundred

adjusted for inflation, at any one time, is made against the Premises or

Thousand Dollars($ 100,000),

any part thereof or rights appertaining thereto( except for a levy made in connection with actions taken
by Owner( other than solely as holder of Owner' s Interest in the Premises)), the income therefrom, this
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Lease or the leasehold estate created hereby and such execution or attachment is not vacated or

removed by court order, bonding or otherwise within a period ofsixty( 60) days after Tenant becomes
aware of such levy or attachment, subject to Unavoidable Delays; or
k)

if any of the representations made by Tenant in Article 18 is proved to be or

becomes false or incorrect in any material respect and the circumstances are not cured or modified so

as to eliminate such material incorrectness within thirty( 30) days after notice;
1)

any event described in Section 35.8 which is not cured by Tenant as provided

in Section 35.8.

In the event of a Default which with the giving of notice to Tenant and the passage of time
would constitute an Event of Default, Owner's notice of such Default to Tenant shall state with

specificity the provision ofthis Lease 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, and
that the failure of TwanLto cure such Default by the date set forth in such notice will result in Owner
having the right to terminate this Lease.

Notwithstanding the foregoing, no Event ofDefaultshall be deemed tohave occurred until such
time as Owner shall have given Tenant notice of the occurrence of an Event of Default( an" Event of
Default Notice").
Section 25. 2

Enforcement of Performance; Damages and Termination.

Ifan Event ofDefault occurs and Owner chooses to pursue a remedy with respect to that Event
Owner shall elect to:( a) enforce performance or observance by Tenant of the applicable

of Default,

provisions of

this Lease; (

b) recover damages for breach of this Lease; or( c) terminate this Lease

to Section 25.3( x). 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 ofthe remedies available to Owner
hereunder with respect to any other Event of Default.
pursuant

Section 25.3

Expiration and Termination of Lease.

a)

If an Event of Default occurs, provided Owner has elected the remedy of

Owner may, within ten( 10) Business Days after the date of entry by a court of a final
judgment that an Event ofDefault exists( but without Tenant waiving any rights it may have to stay the
termination pending appeal), give Tenant and any Recognized Mortgagee notice stating that this Lease
termination,

and the Term shall terminate on the date specified in such notice, which date shall not be less than ten

10) days after the giving ofthe notice, and this Lease and the Term and all rights of Tenant under this
Lease shall expire and terminate as if the date specified in the notice were the Fixed Expiration Date,
and Tenant shall quit and surrender Tenant' s Interest in the Premises and possession thereofforthwith.
If such termination is stayed by order of any court having jurisdiction over any case described in
Sections 25. 1( h)

or

25. 1( i), or by federal

or state statute, then, following the expiration of any such

stay, or if the trustee appointed in any such case, Tenant or Tenant as debtor-in-possession fails to
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541.
assume Tenant's obligations under this Lease within the period prescribed therefor by law or within
thirty( 3 0) 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 ofthe court havingjurisdiction over such case, shall have the right,
at its election, to terminate this Lease on live( 5) daysnotice to Tenant, Tenant as debtor-in-possession

or the trustee. Upon the expiration ofthe five( 5) day period, this Lease shall expire and terminate and
Tenant, Tenant as debtor-in-possession and/or the trustee immediately shall quit and surrender Tenant' s
Interest in the Premises and possession thereof forthwith.
b)

If this Lease is terminated as provided in Section 25.3( x), Owner array, without

notice, re-enter and repossess t'enant' s Interest in the Premises( which may include, but not be limited
to, re-entering and repossessing the Premises) and may dispossess Tenant by summary proceedings,
writ ofpossession, proceedings in bankruptcy court or otherwise, subject to applicable Requirements.
If this Lease is terminated as provided in Section 253(a);

c)

i)

Tenant shall pay to Owner all Rental and/or Impositions payable tinder
this Lease by Tenant to Owner to the date upon which the Term shall
have expired and come to an end and Tenant shall surrender to Owner
Tenant' s Interest in the Premises( and possession thereof)in the manner

required by this Lease, and both parties shall be relieved of all further
obligations hereunder, except to the extent this Lease expressly provides
that an obligation hereunder shall survive the] Expiration of the Term;
and

ii)

In no event shall Tenant be entitled to receive any credit or payment

with respect to the value of the Land and Improvements, title to which

shall automatically vest in Owner upon such termination.

Section 25.4

Waiver

of Rights of

Tenant

and

Owner.

To the extent not prohibited by law, Owner and Tenant hereby waive and release all rights now
or hereafter conferred by statute or otherwise that would have the effect of/igniting or modifying any
of the provisions of this

Article.

Notwithstanding the foregoing,( i) neither party shall be deemed to

have waived the benefit ofany automatic stay provisions under any present or fillture bankruptcy code
and(

ii) Owner

shall not

be deemed to have

waived or released

any rights

conferred

by any sovereign

immunity conferred by statute or otherwise, as provided in Section 19.2(c) hereof.

Section 25.5

Receipt of Moneys After Notice or Termination.

No receipt of money by Owner from Tenant after the termination of this Lease, or after the

giving of any notice of the termination of this Lease, shall reinstate, continue or extend the Term or
affect

any

notice

theretofore given to Tenant, or operate as a waiver of the right of Owner to recover

Tenant' s Interest in the Premises( which may include, but not be limited to, recovering possession of
the Premises)

by

proper

remedy.

After the

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to terminate this Lease or the

commencement of any suit or summary proceedings or after a final order or judgment for the
possession ofTenant' s Interest in the Premises( which may include, but not be limited to, ajudgement
for possession of the Premises), Owner may demand, receive and collect any moneys due or thereafter
falling due without in any manner affecting the notice, proceeding, order, suit orjudgment, all such
moneys collected being deemed payments on account ofthe use and occupation of Tenant' s Interest
in the Premises ( including,

without

limitation, the

use and occupation of

the Premises) or, at the

election of Owner, on account of Tenant's liability hereunder.

Section 25. 6

Strict Performance.

No failure by Owner or Tenant to insist upon strict performance ofany covenant, agreement,
term or condition ofthis Lease or to exercise any right or remedy available to such party by reason of

the other party's default or an Event ofDefault, and no payment or acceptance offull or partial Rental
and/or Impositions during the continuance ( or with Owner's knowledge of the occurrence) of any
Default or Event ofDefault, shall constitute a waiver ofany such Default or Event ofDefault or ofsuch
covenant, agreement, term or condition or of any other covenant, agreement, term or condition.
Subject to Section 11. 11, no covenant, agreement, term or condition of this Lease to be performed or

compliedwith by either party, and no default by either party, shall be waived, altered or modifiedexcept

by a written instrument executed by the otherparty. No waiver ofany Default or Event ofDefault shall
affect or alter this Lease, but each and every covenant, agreement, term and condition of this Lease
shall continue in full force and effect with respect to any other then existing or subsequent Default.
Payment by Tenant to Owner ofany Rental and/ or Impositions shall be without prejudice to, and shall

not constitute a waiver of,any rights of Tenant against Owner provided for under this Lease or at law
or in equity. Tenant's compliance with any request or demand made by Owner shall not be deemed a
waiver of Tenant's right to contest the validity of such request or demand.
Section 25. 7

Right to Enjoin Defaults.

In the event of Tenant's Default or Event of Default, Owner shall be entitled to seek to enjoin

the Default or Event ofDefault 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. In the event of any default by Owner of any term, covenant or condition under
this Lease, Tenant 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 Tenant's
remedies are expressly limited by the terms hereof Provided however, in the event ofany such default,
Tenant shall be required to give Owner notice of such default and Owner shall have thirty( 30) days
from receipt of such notice to effect a cure of such default or if such default is not reasonably

susceptible ofbeing cured within such thirty( 30) day period, Owner shall have a reasonable time to
effect a cure of such

default

so

long

as

Owner is

diligently

prosecuting

such cure.

Each right and

remedy ofOwner and Tenant provided for in this Lease shall be cumulative and shall be in addition to
every other right or remedy provided for in this Leaso or now or hereafter existing at law or in equity
or by statute or otherwise except to the extent Owner's remedies and Tenant's remedies are expressly
limited by the tens hereof, and the exercise or beginning ofthe exercise by Owner or Tenant of any
one or more ofthe rights or remedies provided for in this Lease or now or hereafter existing at law or
I
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18T10 c 543

in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by Owner or
Tenant ofany or all other rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise, except to the extent Owner's remedies and Tenant's
remedies are expressly limited by the terms hereof.
Section 25. 8

Remedies Under Bankruptcy and Insolvency Codes.

If an order for relief is entered or if any stay of proceeding or other act becomes effective
against Tenant or Tenant's Interest in the Premises or Owner or Owner's Interest in the Premises as

applicable, in anyproceeding which is commenced by or against Tenant or Owner, as applicable, under

the present or any future Federal Bankruptcy Code or in a proceeding which is commenced by or
against

Tenant

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 Tenant, 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 Lease, including, without limitation, such rights and remedies as may be
necessary to adequately protect Owner's or Tenant's, as applicable, right, title and interest in and to the
Premises or this Lease or any part thereof and adequately assure the complete and continuous future
performance of the other
patty's obligations under this Lease. Owner or Tenant, as applicable, may
petition the Bankruptcy Court to determine that adequate protection of Owner's or Tenant's, as
applicable, right, title and interest in and to the Premises or this Lease, and adequate assurance ofthe

complete and continuous future performance of the other party's obligations under this Lease, shall
include, without limitation, all of the following requirements:
a)

that the other party shall comply with all of its obligations under this Lease;

b)
in the case ofa proceeding concerning Tenant, that Tenant shall continue to use
the Premises in the manner required by this Lease;
c)

in the case ofa proceeding concerning Tenant, that Owner shall be permitted

to supervise the performance of Tenant's obligations under this Lease;

d)

in the case of a proceeding concerning Tenant, that Tenant shall hire such
securitypersonnel as may be necessary to insure the adequate protection and security ofthe Premises;
e)

in the case of a proceeding concerning Tenant, that Tenant shall have and will

continue to have unencumbered assets after the payment of all secured obligations and administrative
expenses to assure Owner that sufficient funds will be available to fulfill the obligations ofTenant under
this Lease; and
f)

in the case of a proceeding concerning Tenant, that Owner shall be granted a

security interest acceptable to it in property ofTenant to secure the performance ofTenant's obligations
under this Lease, subject to the rights of any Recognized Mortgagee under the Recognized Mortgage.
I
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Section 25.9

Funds Held By Tenant.

From and afterthe date, ifany, on whichan Event ofDefault( including, without limitation, any
Event of Default that occurs during the course ofthe Construction Work for the initial construction
ofthe Project) has been deemed to have occurred and while such Event ofDefault shall be continuing,

Tenant shall not pay, disburse or distribute any rents, issues or profits of the Premises, or portion
thereof, the proceeds of any insurance policies covering or relating to the Premises or any portion
thereof, or any awards payable in connection with the condemnation ofthe Premises or any portion
thereof (except to the extent such insurance proceeds or condemnation awards are required in

connection with any Restoration to be performed pursuant to Article 8 or 9) or any undistributed

proceeds from any sale or financing except to( i) creditors which are not Affiliates, in payment of
amounts

then due

and

owing

by

Tenant to

such creditors with respect

to

work at

the Premises,(

ii)

Affiliates, in payment ofamounts then due and owing by Tenant to suchAffiliates for items and services
provided to Tenant in connection with its operations conducted at the Premises or any portion thereof,
only to the extent such amounts do not exceed that which is customarily and reasonably paid in
arms-length transactions to Persons who are not Affiliates for comparable items and services, and( iii)
the holder of a Recognized Mortgage, in payment of the principal amount of,and all unpaid and

accrued interest then outstanding under, such Recognized Mortgage and any other amounts payable
pursuant to such Recognized Mortgage and any instruments and documents related thereto.
Section 25.10 Inspection.

Owner and its representatives shall have the right, upon twenty-four( 24) hours prior notice to
Tenant, to enter upon the Premises( a) to inspect the operation, sanitation, safety, maintenance and use
ofthe same( but Owner shall not thereby assume any responsibility or liability for the performance of
Tenant's obligations hereunder, nor any liability arising from the improper performance thereof and
b) to conduct inspections for the purpose of determining whether a Default or Event of Default has
occurred, provided that Owner shall be accompanied by a representative of Tenant( in areas of the
Project

readily available to the general public), and provided further that such entry
unreasonably interfere with the operation of the Premises. Tenant agrees to make a

other

shall not

than

areas

representative of Tenant available to accompany Owner on any such inspection.

Article 26- Notices, Consents and Approvals
Section 26. 1

Service of Notices and Other Communications.

Writing. Whenever it is provided herein that notice, demand, request,

consent, approval or other communication shall or may be given to, or served upon, either ofthe parties
a)

In

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 Premises,

communication( referred

each

to in this

such

notice,

Section 26. 1

demand,

as a"

request,

Notice")

consent,

approval

or other

shall be in writing( whether or not so

indicated elsewhere in this Lease) and shall be effective for any purpose only if given or served by
i

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certified or registered U.S. Mail, postage prepaid, return receipt requested, personal delivery with a
signed receipt or a recognized national courier service, addressed as follows:
Lincoln Plaza Partners LLC.

if to Tenant:

clo 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:

Aj R
aA

City of Miami Beach

City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139

with a copy to:

City of Miami Beach

City Attorney

1700 Convention Center Drive

Miami Beach, Florida 33139

and with a copy to:

Bloom& Minsker

Suite 700
1401 Brickell Avenue
Miami, Florida 33131

Attention: Joel N. Minsker, P.A.

Any such Notice may be given, in the manner provided in this Section 26. 1,( x) on either party's behalf

by its attorneys designated by such party by notice hereunder, and( y) at Tenant'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 Lease to the" date" ofNotice shall mean the

effective date, as provided in the preceding Section 26.1( b).

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Section 26.2

Consents and Approvals.

Effect ofGranting orFailare to Grant Approvals or Consents. All consents

and approvals which may be given under this Lease shall, as a condition of their effectiveness, be in
writing. The granting by a party ofany consent to or approval ofany act requiring consent or approval
sunder the tenns of this Lease, 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 partywhose consentwas
required of its right to require such consent or approval for any other act.
a)

Standard. All consents and approvals which maybe given by aparty under this
Lease shall not( whether or not so indicated elsewhere in this Lease) be unreasonably withheld or
b)

conditioned by such party and shall be given or denied within the time period provided, and ifno such
time period has been provided, within a reasonable time. In furtherance ofthe 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.

c)

Deemed Approval.
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,
as otherwise provided in Section 26. 2( c)( ii) and( iii), and
provided that the request for consent or approval( and the envelope in

then, except

which such request is transmitted to the extent permitted 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
ZTME PERIOD PROVIDED IN THE LEASE AGREEMENT
BETWEEN CITY OF MIAMI BEACH, FLORIDA [NAME OF
CURRENT TENANT] SHALL CONSTITUTE AUTOMATIC

APPROVAL OF THE MATTERS DESCRIBED HEREIN WITH

RESPECT TO SECTION[ FILL IN APPLICABLE SECTION] OF

SUCH LEASE AGREEMENT.

ii)

If the

matter

Article 10

to

or

which consent or approval i s

requested pertains to

Article 16, then such matter shall not be deemed

consented to or approved unless( i) the Consenting Party fails to timely

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respond

1877M 54.7

to the other party's( the"

Requesting Party' s") initial request,

which request( and the envelope in which such request is transmitted to

the extent permitted by the carrier) shall bear the legend set forth above
and( ii) the Requesting Party shall thereafter send a second request to
the Consenting Party which request( and the envelope in which such
is transmitted to the

by the carrier)
conspicuously bears the legend set forth above, and Owner shall fail to

request

extent

permitted

timely respond to such second request.

iii)

Notwithstanding anything to the contrary contained in this Lease,

including, without limitation, Sections 26.2(c)( i) and 26.2(c)( ii)above,
if the

City

or

any

instrumentality

of

the

City

shall

be the " Owner"

hereunder and the matter( other than a matter referred to in Section

26.2( c)( iv)) to be consented to or approved requires the consideration
of the City Commission and/ or the governing body of such

instrumentality' of the City as applicable ( whether pursuant to

Requirements or the written opinion of the City Attorney, or the chief
legal officer of such other instrumentality of the City) then, provided
Owner gives Tenant notice ofsuch 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 Tenant's
request( or second request if the provisions of Section 26.2( c)( v) are

applicable) by the date which is fifteen( 15) days after the Pint regular
meeting of the City Commission( and/ or such other instrumentality's
governing body, as applicable) which occurs no earlier than ten( I0)
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.

iv)

Ownerhereby agrees, for so long as the City or anyother Governmental

Authority shall be the " Owner" hereunder, that, subject to
Requirements, the City Manager or the chief operating officer of such
other Governmental Authority, as applicable, shall be authorized to
grant consents or approvals on behalf of the City and/ or other

Governmental Authority as applicable, with respect to the following

Sections

of

and Sections 8. 3, 9. 3, 10. 7 ( for

instruments), 14.2, 14. 5, 16. 1, 20.4, 27.2, 32.2( b) and

this Lease: Article 7

execution of

32.3.
v)

The foregoing provisions of this Section 26.2( c) shall not be construed

to modify or otherwise affect a party's right to litigate 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 litigate

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shall not serve to delay the time period withinwhich a grant or denial of

such request is required hereunder.

Remedy for Refusal to Grant Consent or Approval. If,pursuantto the terms

of this Lease, any consent or approval by Owner or Tenant is alleged to have been unreasonably
d)

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 litigation. Inthe 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 Requesting Party shall be entitled to any and all damages resulting therefrom, subject
to the limitations provided in this Lease.
e)

No Fees, etc. Except as specifically provided herein, no fees or charges ofany

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 Lease( 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).
f)

Governmental Capacity. Notwithstanding anything to the contrary contained

in this Section 26.2, the City shall not be required bythis Lease to give its consent to any matter arising
from or in connection with this Lease when the City is acting in its governmental capacity.
Article 27Section 27.1

Certificates By Owner and Tenant

Certificate of Tenant.

days after notice by Owner, execute,

acknowledge and deliver to Owner, or any other Person specified by Owner, awritten statement( which
a)

Tenant

shall,

may be relied upon by such Person)(

within

fifteen ( 15)

a) certifying( i) that this Lease is unmodified and in full force and

effect( or ifthere are modifications, that this Lease, as modified, is in full force and effect and stating
such modifications)(
complete

and, if so requested, that the annexed copy of this Lease is a true, correct and

copy of thi s Lease),

and( ii) the date to which each item ofRental and/ or hnpositions payable

by Tenant hereunder has been paid, and( b) stating( i) whether Tenant has given Owner written notice

of any default, or any event that, with the giving of notice or the passage of time, or both, would
constitute a default, by Owner in the performance ofany covenant, agreement, obligation or condition
contained in this Lease, which default or event has not been cured, and ( ii) whether, to the actual
knowledge of Tenant( but without independent inquiry), Owner is in default in performance of any

covenant, agreement, obligation or condition contained in this Lease, and, ifso, specifying in detail each
such default.

Tenant shall file with Owner at least annually, a sworn affidavit, signed by an
authorized officer of Tenant, to the effect that since the date ofthe last such affidavit( or in the case
b)

of

the

first

operating

such affidavit, since

the Commencement Date)( 1)

agreement or other organic

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under which

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no changes have been made to the

Tenant is

organized (

the " Tenant

KC,
Documentf4),

or, if changes shall have been made to the Tenant Document, a statement as to the
specific nature of the changes and a notification to Owner that the amended or modified Tenant

Document is on file at the office of Tenant located in Miami-Dade County, Florida, and that it is
available for inspection by Owner,( 2) the full names and addresses ofholders ofmembership interests
in Tenant(

who

hold at least two percent( 2%)

interest in Tenant) are only those that are listed in such

affidavit, and that the Managing Member(s) confirms its continued ownership in Tenant( ifTenant is
an entity different than a limited liability company, this provision shall apply to the nature of the
appropriate

ownership interests for the entity in

question),

and( 3) the obligation ofTenant' s Members

to each other related thereto under the operating agreement have not been amended or modified in any
way that is materially adverse to Owner, and( 4) ifthe Managing Member ofTenant is a corporation,
it remains a Florida.corporation in good standing and the annual report of said corporation, required
to be Filed with the Department of State of the State of Florida pursuant to Chapter 607, Florida
Statutes,

the " Annual Report"),

and any fees required for the filing thereof, are not
delinquent; or, ifnot a Florida corporation, it is a corporation properly authorized to do business in the
State ofFlorida, and a statement to the effect that the Substantial Controlling Interest in said Managing
Member or any successor thereto has not changed. A copy of the latest Annual Report of the
Managing Member of Tenant shall be attached to the aforesaid certificate.
as amended(

Section 27.2

Certificate of Owner.

Owner shall, within fifteen( 15) days after notice by Tenant, execute, acknowledge and deliver
to Tenant, or such other Person specified by Tenant, a written statement( which may be relied upon by
such Person)( a) certifying( i)that this Lease is unmodified and in full force and effect( or ifthere are
modifications, that this Lease, as modified, is in full force and effect and stating such modifications)
and, if so requested, that the annexed copy of this Lease is a true, correct and complete copy of this
Lease), and( ii) the date to which each item ofRental and/or Impositions payable by Tenant hereunder
has been paid, and( b) stating( i) whether an Event ofDefault has occurred or whether Owner has given
Tenant notice of any event that, with the giving of notice or the passage of time, or both, would
constitute an Event ofDefault, which Default or Event ofDefault has not been cured, and( ii) whether,
actual knowledge of Owner ( but without independent inquiry), Tenant is in default in the

to the

performance of any covenant, agreement, obligation or condition contained in this Lease, and, if so,
specifying, in detail, each such Default or Event of Default.
Article 28- Financial Reports and Records
Section 28. 1

Books and Records; Audit Rigbts.

a)

separate

Tenant shall at all tames during the Term of this Lease keep and maintain

from any of Tenant's other books, records

and accounts),

and shall cause the Project Manager

to keep and maintain, accurate and complete records pertaining to the Premises related thereto,
including, without limitation, books of account reflecting the Project Revenue of the Acceptable
Operator and such other matters referenced in this Lease, in accordance with the Accounting Principles
with such exceptions as

may be

provided

for in this Lease,

and provided

that Tenant ( and the

Acceptable Operator) may make such reasonable modifications in such books of account as are
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consistent with Acceptable Operatoes standard practice in accounting for its operations under
management contracts generally. Owner and its representatives shall have, during normal business
hours and upon reasonable advance notice, access to inspect the books and records of Tenant and the

Acceptable Operator pertaining to the Project Revenue, including, without limitation, books ofaccount

properly reflecting the operations of the Premises, which books and records shall be kept at the
Owner shall have the right to cause an audit by Owner' s internal auditors( in accordance

Premises.

with the Accounting Principles) of such books and records to be made at any time (but not more
frequently
Revenue),

than
at

one (

Owner's

1) time in any twelve ( 12)

month period and only with respect to Project

expense( a copy ofwhich shall

be delivered to Tenant). Such right ofinspection

and audit may be exercised at any time within three( 3) years after the end ofthe Lease Year to which
such books and records relate, and Tenant and Acceptable Operator shall maintain all such books and .

records for at least such period of time.and, ifany Dispute between the parties has arisen and remains
unresolved at the expiration of such period oftime, for such further period of time until the resolution
of such

Dispute.

Notwithstanding anything to the contrary contained herein, at Tenant' s option, the

audit described in this Section 28.1( a) shall be performed by Owner' s external auditors( which shall
a Recognized Accounting Firm), in which case Tenant shall pay the reasonable fees and expenses
of said external auditors; and, provided further that in the event that Owner determines to have such

be

audit performed by its external auditors, Owner shall pay the fees and expenses or said external
auditors.

b)
Tenant

or

if,upon any audit by Owner as described above of the books or records of

Acceptable Operator, ( i)

an error( which shall mean a mistake in calculation of Project

Revenue, an accounting error, but shall exclude any error based on assertions dud Tenant acted

imprudently or unwisely in connection with the collection of the Project Revenue) shall be revealed
which results in there being due to Owner Percentage Rent for any Lease Year for which Annual
Financial Statements are

being

audited pursuant

to Section 28. 1( a),

the amounts of any such

underpayments of Percentage Rent which may be disclosed by such audit, together with interest
accrued thereon at the Late Charge Rate from the date on which such underpayment was made until

the date ofpayment ofthe correct amount, shall be paid to Owner upon thirty( 30) days demand or( ii)
an error( as defined in clause( i) above) shall be revealed which resulted in an overpayment by Tenant
to Owner of Percentage Rent, Owner shall remit the amount ofsuch overpayment( less the cost ofsuch
audit) to Tenant within thirty( 30) days after the completion of such audit. If Owner does not notify

Tenant of any error in the calculation of Percentage Rent within three( 3) years after the end of any
Lease Year, then Owner shall be deemed to have conclusively waived any and all objections with

respect to any Percentage Rent payments with respect to such Lease Year.
c)

As soon as available, but in no event later than the date which is one hundred

fifty( 150) days after the end of each Lease Year, Tenant shall make available at the Prelises for
inspection and examination( or photocopying) by Owner or its representatives a copy of the annual
financial statements( the" Annual Financial Statements") for such Lease Year( which statements shall
be audited by any Recognized Accounting Firm) accurately reflecting receipt of Project Revenue
prepared and

certified by Tenant and such independent

certified P
public accountant in accordance with
p

the Accounting Principles.

i
1

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each month,

d)
Tenant

18770P0

As soon as available, but in no event later than thirty( 30) days after the end of
shall make available at

the Project for inspection and

examination ( or

photocopying) by Owner or its representatives an unaudited statement ofProject Revenue for both the
current month and

Lease Year to

date.
r

e)

As soon as available, but in no event later than thirty( 30) days prior to the

commencement of each Lease Year, Tenant shall make available at the Project for inspection and

examination( or photocopying) by Owner or its representatives an informational copy ofa projected

income and expense statement reflecting the budget for the Project for such coming Lease Year( the
Budget").

f).
Notwithstanding any ofthe foregoing provisions ofthis Article 28, so long as
Owner is the City or any instrumentality ofthe City,the following provisions shall be applicable to the

books and records of the Project, the Annual Financial Statements, the Budget and any other
documents ( collectively, the " Project Documents") required to be delivered or made available to
Owner under this Article 28:

W
ii)

All Project Documents shall be maintained at the Premises.

All Project Documents shall be made available to Owner and its
representatives as provided above.

iii)

If a copy of any Project Document is made by Owner or any ofits

representatives and delivered to Owner' s offices, there shall be attached
to the front of the first page of such Project Document a sheet ofpaper

bearing the legend set forth below in capital letters and in a type size not
less than that provided below:

THE ATTACHED DOCUMENT CONTAINS BUSINESS OR

FINANCIAL INFORMATION. THE ATTACHED DOCUMENT
IS TO BE KEPT SOLELY IN THE OFFICE OF THE CITY
ATTORNEY OF THE CITY OF MIAMI BEACH, FLORIDA.
THE ATTACHED DOCUMENT IS TO BE REVIEWED ONLY
IN SUCH OFFICE AND SHALL BE RELEASED SOLELY IN
ACCORDANCE WITH APPLICABLE LAW."

Any third party representatives( including, without Limitation, any Recognized

of Owner that review any Project ]Documents shall execute a confidentiality
agreement mutually acceptable to Owner and Tenant, If a copy of any Project Document is made by
Accounting

g)
Firm)

any such representative for use in the offices ofsuch representative, there shall be attached to the front

ofthe first page of such Proj ect Document a sheet ofpaper bearing the legend set forth below in capital
letters and in a type size not less than that provided below:

FWWSKERT M B1MUdgan-Lincoln P1axaW= o1nP1uaGmd1se8- 176( E%)wpd

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arr: 18770PO 552

TIM

ATTACHED

'

DOCUMENT

FINANCIAL INFORMATION.

CONTAINS

BUSINESS

OR

THE ATTACHED DOCUMENT IS

SUBJECT TO A CONFIDENTIALITYAGREEMENT AND SHALL BE

KEPT SOLELY IN THE OFFICES
OF [ INSERT NAME OF
REPRESENTATIVE]. THE ATTACHED DOCUMENT IS TO BE
REVIEWED ONLY IN SUCH OFFICES AND SHALL BE RELEASED
SOLELY IN ACCORDANCE WITH SUCH CONFIDENTIALITY
AGREEMENT AND APPLICABLE LAW.'
h)
Promptly following receipt ofa request under any Requirement for the release
ofa copy ofany Project Document, Owner shall send notify Tenant ofsuch request, but neither Owner

nor any Owner Indemnified Party shall incur any liability to' Tenant or any Tenant Indemnified Party
ifOwner fails to provide any such notice.
i)
Neither Owner nor any Owner Indemnified Party shall incur any liability to
Tenant or any Tenant Indemnified Party in the event any Project Document is stolen, misplaced or
otherwise released in violation ofthe foregoing provisions of this Section 25.1.

j)

The obligations of Tenant and Owner under this Article 25 shall survive the

Expiration of the Term.

k)

Any third party representatives( including, without limitation, any Recognized

Firm)

Accounting
of Owner that review any Project Documents shall execute a confidentiality
agreement mutually acceptable to Owner and Tenant. Ifan extract of any Project Document is made

by any such representative for use in the offices ofsuch representative, there shall be attached by Owner
or its representative to the front of the first page of such Project Document a sheet ofpaper bearing
the legend set forth below in capital letters and in a type size not less than that provided below;
THE ATTACHED DOCUMENT CONTAINS BUSINESS OR
FINANCIAL INFORMATION THAT HAS BEEN DESIGNATED AS

CONFIDENTIAL

BY [ INSERT

NAME

OF

TENANT].

THE

ATTACHED DOCUMENT IS SUBJECT TO A CONFIDENTIALITY

AGREEMENT AND SHALL BE DEPT SOLELY IN THE OFFICES OF
INSERT

NAME

OF

REPRESENTATIVE].

THE

ATTACHED

DOCUMENT IS TO BE REVIEWED ONLY IN SUCH OFFICES AND

SHALL BE RELEASED SOLELY IN ACCORDANCE WITH SUCH
CONFIDENTIALITY AGREEMENT AND APPLICABLE LAW."

i
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553,
Article 29- Surrender at End of Terns

Section 29.1

Surrender of Premises.

Upon the Expiration ofthe Term( or upon a re-entry by Owner upon the Premises pursuant to Article
Tenant, without any payment or allowance whatsoever by Owner, shall surrender the Premises to

25),

Owner in good order, condition and repair, reasonable wear and tear excepted and( subject to the

provisions ofArticle 8) damage from casualty excepted, free and clear ofall Master Subleases, liens
and encumbrance other than as set forth below and the Title Matters. Tenant hereby waives any notice

now or hereafter required by law with respect to vacating the Premises on the Expiration ofthe Term.
Section 29. 2

Delivery of Subleases, Etc.

Upon the Expiration of the Term( or upon a re-entry by Owner upon the Premises pursuant to Article
Tenant shall deliver to Owner the following( to the extent then in Tenant's possession or control):

25),

Tenant's original executed counterparts, if available ( and if not available, true and correct copies
thereof),

of all subleases then in effect, any service and maintenance contracts then affecting the

Premises, true and complete maintenance records for the Premises, all original licenses and permits then

pertaining to the Premises, permanent or temporary certificates of occupancy then in effect for the
Premises, and all warranties and guarantees then in effect which Tenant has received in connection with

any work or services performed or Building Equipment installed in the Premises( such to be delivered
by Tenant), together with a duly executed assignment thereof
without recourse) to Owner in form suitable for recording, and all financial reports required byArticle

without representation or

warranty

28 and any and all other documents of every kind and nature whatsoever relating to the operation of
the Premises and the condition of the Improvements.
Section 293

Title to Improvements.

Owner recognizes and agrees that until Expiration of the Term, ownership of and title to the
Improvements shall be in Tenant and that until such time, Tenant has, and shall be entitled to, all rights
and privileges of

ownership

of such

Improvements.

Ownership

of and

to all Improvements

shall

automatically vest in Owner upon the Expiration of the Term, without the payment of consideration
therefor, and without the necessity for the execution and delivery by Tenant of any instrument
transferring title. Notwithstanding the foregoing, Tenant covenants and agrees that uponthe Expiration
of the Term, Tenant shall, upon Owner's request, execute and deliver to Owner any instrwnent or

document reasonably requested by Owner to confirm title to said Improvements in Owner.

Section 29. 4

Title to Reserve Account.

Ownership of and to the Reserve Account and all proceeds thereof shall automatically vest in
Owner( subject to the lien therein of the Recognized Mortgagee) upon the Expiration of the Term,
without the payment ofconsideration therefor, and without the necessity for the execution and delivery
by Tenant of any insi menttransferring titlethereto. Notwithstanding the foregoing, Tenant covenants
and agrees that upon the Expiration of'the Term, Tenant shall, upon Owner's request, execute and
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deliver to Owner any instrument or document reasonably requested by Owner to confirm title to said
1

Reserve Account and proceeds thereof in Owner.

Section 29.5

Cash and Accounts Receivable.

Tenant shall retain the right to all cash and accounts receivable on or in connection with the

Premises existing as of the Expiration of the Term and Owner shall pay Tenant for all unopened
consumable supplies located at the Premises upon the Expiration ofthe Term( based on Tenant's actual
cost

therefor); provided,

receivables

and

however that Tenant

other payments

for periods

after

shall

turn over to Owner

the Expiration

of the

Term.

all

deposits,

accounts

K after the Expiration

ofthe Tenn, Owner collects any accounts receivable to which Tenant is entitled, Owner shall promptly
remit such amounts to Tenant, subject to the rights of any.Recognized Mortgagee,
Section 29. 6

Personal Property.

Any personal property of Tenant or of any Master Subtenant which remains on the Premises
after the termination ofthis Lease or after the removal of Tenant or such Master Subtenant from the

Premises, may, at the option ofOwner, be deemed to have been abandoned by Tenant or such Master
Subtenant, and either may be retained by Owner as its property or be disposed of, without

accountability, in such manner as Owner may see fit, in its absolute and sole discretion, but in
compliance with applicable Requirements. Owner shall not be responsible for any loss or damage

occurring to any such property owned by Tenant or any Master Subtenant.

Section 29. 7

Survival Clause.

The provisions of this Article 29 shall survive the Expiration of the Term.
Article 30- Quiet Enjoyment
Section 30.1

Quiet Enjoyment.

Owner covenants that as long as this Lease is in full force and effect without an Event of
Default existing hereunder, Tenant shall and may( subject to the exceptions, reservations, terms and

conditions ofthis Lease) peaceably and quietly have, hold and enjoy Tenant' s Interest in the Premises
for the Term without molestation or disturbance by or from Owner( solely in its proprietary capacity)

or any Person claiming by, under or through Owner( solely in its proprietary capacity).

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Article 31- Reserved

Article 32- Administrative and Judicial Proceedings, Contests, Etc.

Section 32.1

Tenant

Tax Contest Proceedings.

shall

have the

to the

right( subject

provisions of

Section 32. 2), at its sole cost and

expense, to seek reductions in the valuation ofthe Premises assessed forreal property tax purposes and
to prosecute any action or proceeding in connection therewith by appropriate proceedings diligently
conducted in good faith and in accordance with applicable Requirements.
Section 32.2

Imposition Contest Proceedings.

Tenant shall have the right to contest, at its sole cost and expense, the amount or validity, in
whole or in part, of any Imposition by appropriate proceedings diligently conducted in good faith, in
which event payment ofsuch Imposition may be postponed, subject to Requirements, if,and only as
long as:
Neither the Premises

by reason of such
postponement or deferment, be, in the reasonable judgment of Owner, in danger ofbeing forfeited to
a Governmental Authority and Owner is not in danger ofbeing subj ected to criminal liability orpenalty
a)

nor

any

part

thereof would,

or civil liability orpenalty in excess ofthe amount for which Tenanthas furnished security as provided
in Section 32.2(b) by reason ofnonpayment thereof; and
Tenant has deposited with aRecognized Mortgagee, ifany( or ifnot,with a third

b)

party escrow agent proposed by Tenant, subject to Owner's consent, not to be unreasonably withheld
failure to respond within fifteen( 15) days after notice being conclusively deemed approval)), cash in

the amount so contested and unpaid or, alternatively, at Tenant's option, a surety company bond or an
irrevocable letter ofcredit issued by an Institutional Lender( in form reasonably satisfactoryto Owner)
or other security( for example, a personal guaranty) reasonably satisfactory to Owner, in the mnount
so contested and unpaid, together with all interest oadpenaities in connection therewith and all charges

relating to such contested Imposition that may or might, in Owner's reasonablejudgment, be assessed
against, or become a charge on, the Premises or any part thereof in or during the pendency of such
proceedings; provided, however, any amount deposited with any governmental entity, the making

of which deposit is required by law in order for Tenant to contest such matters, shall be considered
the amount so required of Tenant by Owner ( the intent being that Tenant shall not be

part of

required

to

make

duplicitous deposits

under

this Section 32. 20). Upon the termination of such

proceedings, Tenant shall pay the amount of such Imposition or part thereof as finally determined in
such proceedings, the payment of which was deferred during the prosecution of such proceedings,
together with any

costs,

fees (

including,

without

limitation,

reasonable

attorneys'

fees and

disbursements), interest, penalties or other liabilities in connection therewith, and, upon such payment,

any Recognized Mortgagee or escrow agent holding any amount or other security deposited with it
i

with respect to such Imposition shall( subject to the terms of any agreement between Tenant and any
Recognized Mortgagee or escrow agent) return the same, together with the interest, if any, earned
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However, if such Recognized Mortgagee or escrow agent is so requested by Tenant, such

Recognized Mortgagee or escrow agent shall disburse said moneys on deposit with it directly to the
Person to whom or to which such Imposition is payable. Ifat any time during the continuance ofsuch
thereon.

proceedings Owner, in its reasonable judgment, deems insufficient the amount or nature ofthe security

deposited, Tenant, within ten( 10) days after Owner's demand, shall make an additional deposit ofsuch
additional sums or other acceptable security as Owner may request, and upon failure of Tenant to so
do, the amount theretofore deposited, together with the interest, if any, earned thereon, shall, upon

demand by Owner, be applied by such Recognized Mortgagee or escrow agent tothepaymeA removal
and discharge ofsuch Imposition and the interest and penalties in connection therewith and any costs,

fees ( including, without limitation, reasonable attorneys' fees and disbursements) or other liability
accruing in any such proceedings and the, balance, if any, remaining thereafter, together with the
interest, ifany, earned thereon and remaining after application by Owner as aforesaid, shall be returned
to Tenant or to the Person entitled to receive it. If there is a deficiency, Tenant shall pay the deficiency
to Owner or the Person entitled to receive it within ten( 10) days after Owner's demand.
Section 32. 3

Requirement Contest.

Tenant shall have the right to contest the validity ofany Requirement orthe application thereof

During such contest, compliance with any such contested Requirement may be deferred by Tenant
provided that before instituting any such proceeding, Tenant shall furnish such Recognized Mortgagee,
if any( or if not, with a third party escrow agent proposed by Tenant, subject to Owner's consent, not
to be unreasonably withheld( failure to respond within fifteen( 15) days after notice being conclusively
deemed approval)), with a surety company bond or, alternatively at Tenant's option, a cash deposit, an
irrevocable letter ofcredit issued by an Institutional Lender or other security( e.g., a personal guaranty),

in form and amount reasonably satisfactory to Owner, securing compliance with the contested
Requirement and payment ofall interest, penalties, fines, civil liabilities, fees and expenses in connection
therewith; provided, however, any amount deposited with any governmental entity, the making of

which deposit is required by law in order for Tenant to contest such matters, shall be considered part
ofthe amount so required of Tenant by Owner( tile intent being that Tenant shall not be required to
make duplicitous deposits under this Section 32. 3). Any such proceeding instituted by Tenant shall
be commenced as soon as possible after the issuance of any such contested Requirement and shall be
prosecuted
with
pre

disposition

diligence
dill
to final adjudication,
settlement, compliance or other mutually acceptable
J

of the

Requirement

so contested.

The furnishing of any bond, deposit, letter of credit or

other security notwithstanding, Tenant shall comply with any such Requirement in accordance with the
provisions of Section 15. 1 if, in Owner's reasonable judgment_(i) noncompliance therewith would
create an

emergency

condition

involving the health or safety of persons,( ii) the Premises, or any part

thereof, are in material danger ofbeing forfeited to an authority( other than Owner when the Agency

or the City or an instrumentality thereof is Owner) or( iii) Owner is in danger of being subjected to
criminal liability or penalty, or civil liability in excess of the amount for which Tenant shall have
furnished security as hereinabove provided by reason of noncompliance therewith, and any security

posted by Tenant shall( subject to the terms of any agreement between Tenant and any Recognized
Mortgagee or escrow agent) be returned to Tenant with any interest accrued thereon.

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Section 32.4

Owner' s Participation in Contest Proceedings.

Owner shall not be required tojoin in any action or proceeding referred to in this Article 32.4
unless the provisions of any law, rule or regulation at the time in effect require that such action or

proceeding be brought by and/ or in the name ofOwner. Ifso required, Owner shall join and cooperate
in such proceedings or permit them to be brought by Tenant in Owner's name, in which case Tenant
including, without limitation, attorneys' fees and
disbursements) incurred by Owner in connection therewith. Notwithstanding the foregoing, Owner's
joinder and cooperation shall be limited to actions necessary to enable Tenant to satisfy technical
shall

pay

all reasonable costs and expenses .(

requirements of any such action or proceeding and in no event shall Owner be required to join in any
such action or proceeding in any substantive capacity.
Section 32.5

Nonapplicability of this Article 32.

None of the rights granted to Tenant in this Article 32 shall apply to any matters covered by
Section 3. 2( f). The provisions of Section 3.2( f)shall govern and control over the provisions ofthis

Article 32 when in conflict.

Article 33- Nondiscrimination

Section 33. 1

Nondiscrimination.

Tenant shall be an equal opportunity employer, and shall not engage in any unlawful

discrimination against any Persons because ofrace, religion, creed, national origin, sex, age, disability,
marital status or sexual orientation.

Article 34- Indictment, Investigations, Etc.

Section 34. 1

Cooperation in Investigations.

To the extent required by Requirements, Tenant shall cooperate fully and faithfully with any

investigation, audit or inquiry conducted by any Govermnental 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, Tenant shall promptly report in writing to the City Attorney ofthe City ofMiami
Beach, Florida any

solicitation, of which

Tenant'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 ofthe City or other Person relating to the procurement or obtaining ofthis Lease by Tenant
or affecting the performance of this Lease.

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MUM 5.5
Article 35- Environmental Matters
t

Section 35. 1

IDefmitions.

For the purposes of this Lease, the following terms shall have the following definitions:
a)

"

Hazardous Materials"

shall mean(

i) petroleum and its constituents;( ii) radon

gas, asbestos in any form which is or could become friable, urea formaldehyde foam insulation,
transformers or other equipment which contain dielectric fluid containing levels of polychlorinated
biphenyls in excess of federal, state or local safety guidelines, whichever are more stringent;( iii) any

substance, gas, material orchemical which is or may hereafter be defined as or included in the definition
of "

hazardous

substances," "

hazardous

materials,"

"

hazardous

wastes," " pollutants

or

or words of similar import under any Requirement including the

Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C.
contaminants," " solid wastes"

9061

et lea.:

the Hazardous Materials Transportation

the Resource Conservation

Act, as

and

Recovery

Act,

Water Pollution Control Act, as

amended,

33 U.S. C. 1251,

as amended,

amended,

49 U.S. C.

42 U.S. C. 6901,
ktt sec..;

It

1801, et mg,;

etc.-,

the Federal

and Florida Statutes, Chapters

376 and 403; and( iv) any other chemical, material, gas or substance, the exposure to or release of

which is regulated by any governmental or quasi-govermnental entity having jurisdiction over the
Premises or the operations thereon;

b)

"

Environmental Laws" shall mean all Requirements relating to the protection

ofhuman health or the Environment, including:
i)

all

Requirements

relating

to

reporting, licensing, permitting,

investigation and remediation of Releases or Threat of Release into the

Environment, or relating to the manufacture, processing, distribution,

use, treatment; storage, disposal, transport or handling of Hazardous
Materials; and

ii)

all Requirements pertaining to the protection ofthe health and safety of

employees or the public;

c)

"

Environment"

shall mean soil, surface waters, groundwaters, land, stream

sediments, surface or subsurface strata and ambient air;

" Environmental Condition"

shall mean any condition with respect to the

Premises, whether or not yet discovered, which could or does result in any Environmental Damages,
d)

including any condition resulting from the operation of Tenant's business or the operation of the
business of any subtenant or occupant ofthe Premises or that of any other property owner or operator
in the vicinity ofthe Premises or any activity or operation formerly conducted by any Person on or off
the Premises;

1
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559

ffe)

including

"

Environmental Damages"

punitive damages),

shall

mean

all

claims,

judgments, damages

losses, penalties,
ties, fines, liabilities( including
g strict liability), encumbrances,

liens, costs and expenses ofinvestigation and defense ofany claim, whether or not such is ultimately
defeated, and of any settlement or judgment, of whatever kind or nature, contingent or otherwise,
matured or unrnatured, foreseeable or unforeseeable, any ofwhich are incurred at any time as a result
of the assessment, monitoring, remediation or mitigation of an Environmental Condition( and shall
include any damages for the failure to do so), including, without limitation, fees incurred for the
services of attorneys, consultants, contractors, experts, laboratories and all other costs incurred in

connection with investigation and remediation, including the preparation ofany feasibility studies or
reports and the performance of

any

remedial, abatement, containment, closure, restoration or

monitoring work;
"Permit"

shall mean any environmental permit, license, approval, consent or

authorization issued by a federal, state or local governmental or quasi-governmental entity;
f)

g)

"

Release" shall mean anyreleasing, seeping, spilling,leaking,pumping, pouring,

emitting, emptying, discharging, injecting, escaping, leaching, disposing or dumping of a Hazardous

Material into the Environment; and
h)

" Threat of Release" shall mean a substantial likelihood of a Release which

requires action to prevent or mitigate damage to the Environment which may result from such Release.
r

Section 35.2

Representations and Warranties of Tenant.

Tenant represents and warrants that it has made such physical inspection ofthe Land, and has

inspected such records ofthe City, Miami-Dade County, Florida, the State ofFlorida, and the United
States ofAmerica, as Tenant deemed necessary to make an informed business decision that it would
enter into this Lease with the knowledge that Tenant shall be solely responsible forthe remediation and

abatement of any Environmental Condition existing as of the Commencement Date, including any
Environmental Condition caused by Owner or any prior owner ofthe Land, that must be remediated
and/ or abated pursuant

to any Environmental Laws.

Tenant agrees to expeditiously undertake such

assessment, remediation, and monitoring of the soil and ground water as required under applicable

Environmental Laws; and to take such action as necessary to obtain allo Further Action determination
from DERM or DEP, if required under Environmental Laws as soon as may be practical after the

Possession Date, and, in any event; prior to the commencement ofconstruction ofthe Project. Tenant
agrees that in connection with any remediation or abatement pursuant to this Section 35.2 it will
provide to Owner all correspondence, reports, studies and other documents exchanged.between Owner,

its consultants, and DERM or DEP promptly after those documents are provided to or received from
DERM or DEP.

1
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Section 35.3

Use of Hazardous Materials.

Tenant shall not cause or permit any Hazardous Material to be brought on, kept or used in or
about the Premises except as necessary or useful to Tenant's business and in compliance with all
Environmental Laws.
Section 35.4

Tenant Indemnification of Owner.

Tenant hereby indemnifies and holds harmless the Owner Indemnified Parties from and against
any and all Environmental Damages to the Premises during the term of this Lease except for
Environmental Damages to the Premises caused by any of the Owner Indemnified Parties during the
Term. Such obligation ofTenant shall include the burden and expense ofdefending all claims, suits and
administrative proceedings( with counsel

reasonably satisfactory to Owner), even if such claims, struts

or proceedings are groundless, false or fraudulent, and conducting all negotiations ofany description,
and paying and discharging, when and as the same become due, any and all judgments, penalties or
other sums due against any of the Owner Indemnified Parties. Without limiting the foregoing, if the
presence or Release on or from the Premises caused or permitted by Tenant results in contamination
ofthe Premises, Tenant shall promptly take all actions at its sole cost and expense as are necessary to
remediate the Premises in compliance with Environmental Laws in effect from time to time and to

comply with any requirements imposed by any Governmental Authorities; provided that Owner's
approval of such actions shall first be obtained.
Section 35.5

Compliance.

Tenant, at its

sole cost and expense( except as otherwise provided

in this Lease), shall comply

and cause the Acceptable Operator, all Master Subtenants and all subtenants to comply with all
Environmental Laws with respect to the use and operation of the Premises.
Section 35.6

Notices.

If Tenant or Owner receives any notice of a Release, Threat of Release or Environmental

Condition or a notice with regard to air emissions, water discharges, noise emissions, recycling,

violation of any Environmental Law or any other environmental, health or safety matter affecting
Tenant or the Premises ( an " Environmental Complaint") independently or by notice from any
Governmental Authority having jurisdiction over the Premises, including the EPA, or with respect to

any litigation regarding Environmental Conditions at or about the Premises, then such party shall give
prompt oral and written notice ofsame to the other party detailing all relevant facts and circumstances.
Section 35. 7

Owner' s Remedies.
i

Provided Tenant does not diligently commence to remediate the applicable Environmental
Conditions promptly after becoming aware of the same and thereafter diligently pursue the completion

any event in accordance with Requirements), Owner shall have the

right, but not the obligation, to enter onto the Premises and remediate the Premises in compliance with

thereof in a reasonable time(

and in

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Ilse of Hazardous Materials.

Section 35.3

Tenant
about the

any Hazardous Material to be

necessary or useful to Tenant's busine

shall not cause or permit

Premises

except as

p"

ffv A
Ul )

Environmental Laws.

Tenant Indemnification of Owner.

Section 35. 4

Tenant hereby indemnifies and holds harmless the Owner Indemnified Parties from and against

any and all Environmental Damages to the Premises during the term of this Lease except for
Environmental Damages to the Premises.caused by-any of the Owner Indemnified Parties during the
Term. Such obligation ofTeaant shall incude the burden and expense ofdefending all claims, suits and
administrative proceedings( with counsel reasonably satisfactory to Owner), even ifsuch claims, suits

or proceedings are groundless, false or fraudulent, and conducting all negotiations ofany description,

and paying and discharging, when and as the same become due, any and all judgments, penalties or
Owner Indemnified Parties.

Without limiting the foregoing, if the

presence or Release on or from the Premises caused or permitted by Tenant results in contamination
of the Premises, Tenani shall promptly take all actions at its sole cost and expense as are necessary to
other suns

due

against

any

of the

remediate the Premises in compliance with Environmental Laws in effect from time to time and to

comply with any requirements imposed by any Governmental Authorities; provided that Owner's
approval of such actions shall first be obtained.
Section 35. 5

Compliance.

Tenant, at its

sole cost and

expense( except as otherwise provided

in this Lease), shall comply

and cause the Acceptable Operator, all Master Subtenants and all subtenants to comply with all
Environmental Laws with respect to the use and operation of the Premises.
Section 35. 6

Notices.

If Tenant or Owner receives any notice of a Release, Threat of Release or Environmental

Condition or a notice with regard to air emissions, water discharges, noise emissions, recycling,

violation of any Environmental Law or any other environmental, health or safety matter affecting
Tenant

or the

Premises (

an "

Environmental Complaint") independently or by notice from any

Governmental Authority having jurisdiction over the Premises, including the EPA, or with respect to
any litigation regarding Environmental Conditions at or about the Premises, then such party shall give
prompt oral and written notice ofsame to the other party detailing all relevant facts and circumstances.
Section 35. 7

Owner' s Remedies.

Provided Tenant does not diligently commence to remediate the applicable Environmental
Conditions promptly after becoming aware ofthe same and thereafter diligently pursue the completion
thereof in

a reasonable time( and

in any event in accordance

with

Requirements), Owner shall have the

right, but not the obligation, to enter onto the Premises and remediate the Premises in compliance with
1; AM1NSKEK%
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'

Environmental Laws in effect from time to time and to comply with any requirements imposed by any
Governmental Authorities, at Tenant' s sole cost and expense, upon its obtaining knowledge of such
matters independently or by receipt of any notice from any Person, including the EPA.
Section 35. 8

Defaults.

From and after the Possession Date, the occurrence of any of the following events shall
constitute an Event of Default under this Lease:

ifthe EPA or any other federal, state or local body or agency creates a lien upon
the Premises which is not discharged by payment or bondingwithin ninety( 90) days except inthe event
said lien is the result ofEnvironmental Damages caused by any ofthe Owner Indemnified Parties during
a)

the Tenn; or

b)

if the EPA or any other federal, state or local body or agency makes a claim
which shall mean, for the purposes ofthis Section 35.8, issuance ofa warning notice, citation, notice
ofviolation or adminisirative complaint) against Tenant( or any subtenant, licensee or other occupant
of the Premises), the Premises or Owner, for damages or cleanup costs related to a Release or an
Environmental Complaint on or pertaining to the Premises; provided however, such claim shall not

constitute an Event of Default if,within thirty( 30) days ofthe lien or claim:
i)

Tenant has

commenced and

is

diligently

pursuing

either: ( x) cure or

correction of the event which constitutes the basis for the lien or claim

and continues diligently to pursue the cure or correction to the

satisfaction of the Governmental Authority that asserted the lien or
claim and obtains the discharge ofany lien, or( y) proceedings for an
injunction, restraining

order,

administrative

or

other

appropriate

emergency relief contesting the validity ofthe claim and, if such relief
is granted, the emergency relief is not thereafter dissolved or reversed
on appeal; and

ii)

Tenant has posted a bond, letter of credit or other security satisfactory

in form and substance to Owner to secure the proper and complete cure
or correction ofthe event which constitutes the basis ofthe claim. The

amount ofthe bond, letter ofcredit or other security shall be determined

in the

following

manner: (

consultants shall use

A) Owner, Tenant

their best

efforts

and

their

respective

to agree upon the most probable

cost to cure or correct the event which constitutes the basis ofthe claim;

B) in the event Owner and Tenant are unable to agree despite their best
efforts, Owner' s consultant and Tenant' s consultant shall select a third
consultant who shall provide an estimate of the most probable cost of

curing or correcting the event which constitutes the basis ofthe claim.

Owner and Tenant shall each pay the cost oftheir own consultant under

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this 35.8( b)(ii) and shall share evenly the cost of the third consultant

should use of a third consultant become necessary.

Section 35. 9

Owner Responsibility.

Owner( in its proprietary capacity) is responsible for all Environmental Damages resulting from
an Environmental Condition caused by any of the Owner Indemnified Parties during the Term.
Section 35.10 Survival.

The provisions ofthis Article 35 shall survive the Expiration of the Term.
Article 36- Reciprocal] nights of First Refusal

Section 36. 1

Tenant' a Reciprocal Right of First Offer.

a)

If, during the Term, Owner shall desire to sell, convey or otherwise transfer,

directly or indirectly, all of such Owner' s estate in and to the Premises ( a" Right of First Offer
Transaction"),

such

Owner shall first deliver to Tenant

a Notice( an"

Offer Notice") thereof setting

forth the material terms of such proposed Right ofFirst Offer Transaction. For a period offorty-five
45) days after Tenant' s receipt of the Offer Notice, Tenant shall have the right to elect in writing to
consummate the Right of First Offer Transaction described therein at the price and upon such other
i

material terms set forth in the Offer Notice. As used in this Section 36.1, the material terms ofa Right
of First

Offer Transaction

shall

be the terms

set

forth in Exhibit 36. 1( a) attached hereto and

incorporated by reference herein.

k

b)

If Tenant does not consummate a Right ofFirst Offer Transaction pursuant to

this Section 36. 1, Owner shall have the right to consummate the proposed transaction with any other
Person upon such terms and conditions as shall be no less favorable to Owner than those which are set

forth in the Offer Notice, within one hundred eighty( 180) days following the earlier of(i) the expiration
of such forty-five (45) day period or( ii) the receipt by Owner of a notice from Tenant stating that
Tenant does

not elect

to

consummate such

Right

of

First Offer Transaction. If Owner shall fail to

consummate the Right of First Offer Transaction as set forth in such Offer Notice within such one
hundred eighty
Y ),
subject to extensions not to exceed in the aggregate, sixty( 60) days),
( subject
g tY( 180
) daYP eriod
the provisions of this Section 36. 1 shall be applicable to any future Right ofFirst Offer Transaction,

Notwithstanding anything to the contrary contained herein, Owner may, in good faith, negotiate with
any other Person the terms and conditions ofa Right ofFirst Offer Transaction that Tenant has elected
not to consummate; provided, however, that if the material terms of such Right of First Offer
Transaction are modified so that such terms, when so modified, are less favorable to Owner, then such

transaction shall be deemed a new Right ofFirst Offer Transaction and the provisions ofthis Section

including, without limitation, Section 36. 1( a)), shall be applicable with respect to such Right of
First Offer Transaction; provided, further, however, that such Owner may modify the material terms
of any such Right of First Offer Transaction and provide notice thereof to Tenant as provided herein,
36. 1(

only once. Owner shall give twenty( 20) days' notice to Tenant ofthe terms ofany Right ofFirst Offer
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Transaction as so modified prior to consummating the same, so that Tenant may determine whether
such modifications are sufficiently material that Tenant now desires to consummate such Right ofFirst
Offer Transaction. IfTenant does not elect to consummate a Right ofFirst Offer Transaction pursuant

to this Section 36. 1, Owner shall provide Tenant with a true, complete and correct copy of the
executed purchase agreement for such Right ofFirst Offer Transaction not less than ten( 10) days prior

to the closing of such Right of First Offer Transaction.

Owner and Tenant shall diligently undertake to consummate any Right of First
Offer Transaction involving Tenant under this Section 36.1 as soon as practicable after Tenant' s
c)

election as hereinabove described. If Tenant defaults in its obligation to close the Right ofFirst Offer
Transaction in accordance with the terms thereof( subject to reasonable extensions not to exceed, in
the aggregate, sixty( 60) days), the foregoing right of first offer shall be null and void with respect to
any f tture Right of First Offer Transaction.

d)
other

interests

In addition, Owner may not sell such interest in the Premises together with any
Any sale of the Premises together with any other interests or other

or other assets.

assets, shall be null and void and of no effect.

e)

If Tenant does not exercise its right offirst offer and Owner consummates its

Right of First Offer Transaction, the purchaser shall be deemed to have acquired the Premises subject
to the provisions of this Lease and the purchaser shall be deemed to have assumed the obligations of

Owner hereunder accruing from and after the effective date of such consummation, and Owner shall
deliver to Tenant, or shall cause to be delivered to Tenant, within ten( 10) business days after the

execution thereof, a true, complete and correct copy ofan executed instrument of transfer and a true,
complete and correct copy of an instrument of assumption by the transferee of Owner' s obligations
under this Lease accruing from and after the date of such transfer.

If an owner does not comply with the terms ofthis Section 36.1, any Right of
First Offer Transaction entered into by such owner shall have no validity and shall be null and void and
f)

without effect.

g)

Notwithstanding the foregoing provisions ofthis Section 36.1, Owner may not

institute the procedures set forth herein for a Right of First Offer Transaction more than once in any
fiscal year, except with respect to any modifications ofthe Right ofFirst Offer Transaction asprovided
in Section 36.1( b).
Section 36.2

Owner' s Reciprocal Right of First Refusal.

a)

If,during the Term, Tenant shall desire to sell, convey or otherwise transfer,

directly or indirectly, all of such Tenant' s estate in and to the Premises ( a " Right of First Offer
Transaction"),

such

Tenant

shall

first deliver to Owner

Notice(

an"

Offer Notice") thereof setting

forth the material terms of such proposed Right ofFirst Offer Transaction. For a period offorty-five
45) days after Owner' s receipt of the Offer Notice, Owner shall have the right to elect in writing to
consummate the Right of First Offer Transaction described therein at the price and upon such other
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material terms set forth in the Offer Notice. As used in this Section 36.2, the material terms ofa Right
I

of

First Offer Transaction

shall

be the terms

set

forth in Exhibit 36.2( x) attached hereto and

incorporated by reference herein.

b)

If Owner does not consummate a Right of First Offer Transaction pursuant to

this Section 36.2, Tenant shall have the right to consummate the proposed transaction with any other
Person upon such terms and conditions as shall be no less favorable to Tenant than those which are set

forth in the OfferNotice, within one hundred eighty( 180) days following the earlier of(i)the expiration
of such forty-five (45) day period or( ii) the receipt by Tenant of a notice from Owner stating that
Owner does

not elect to consummate such

Right

of First

Offer Transaction. If Tenant shall fail to

consummate the Right of First Offer Transaction as set forth in such Offer Notice within such one

hundred eighty( 180) dayperiod( subjectto extensions not to exceed, in the aggregate, sixty( 60) days),
the provisions of this Section 36.2 shall be applicable to any future Right ofFirst Offer Transaction.

Notwithstanding anything to the contrary contained herein, Tenant may, in good faith, negotiate with

any other Person the terms and conditions ofa Right ofFirst Offer Transaction that Owner has elected
not to consummate; provided, however, that if the material terms of such Right of First Offer
Transaction are modified so that such terms, when so modified, are less favorable to Tenant, then such
transaction shall be deemed a new Might ofFirst Offer Transaction and the provisions of this Section

including, without limitation, Section 36.2( x)), shall be applicable with respect to such Right of
First Offer Transaction; provided, further, however, that such Tenant may modify the material terms
36. 2(

ofany such Right ofFirst Offer Transaction, and provide notice thereofto Owner as provided herein,
only once. Tenant shall give twenty( 20) days' notice to Owner ofthe terms ofany Right ofFirst Offer
Transaction as so modified prior to consummating the same, so that Owner may determine whether
such modifications are sufficiently material that Ownernow desires to consummate such Right ofFirst
Offer Transaction. IfOwner does not elect to consummate a Right ofFirst Offer Transaction pursuant
to Section 36.2, Tenant shall provide Owner with a true, complete and correct copy of the executed
purchase agreement for such Right of First Offer Transaction not less than ten( 10) days prior to the

closing of such Right of First Offer Transaction.

Tenant and Owner shall diligently undertake to-consummate any Right of First
Offer Transaction involving Owner under this Section 36.2 as soon as practicable after Owner' s
c)

election as hereinabove described. If Owner defaults in its obligation to close the Right of First Offer
Transaction in accordance with the terms thereof( subject to reasonable extensions not to exceed, in
the aggregate, sixty( 60) days), the foregoing right of first offer shall be null and void with respect to
any future Right of First Offer Transaction.
d)
other

interests

In addition, Tenant may not sell such interest in the Premises together with any
Any sale of the Premises together with any other interests or other

or other assets.

assets, shall be null and void and of no effect.

e)
IOwner does not exercise its right of first offer and Tenant consummates its
Right ofFirst Offer Transaction, the purchaser shall be deemed to have acquired the Premises subject
to the provisions of this Lease and the purchaser shall be deemed to have assumed the obligations of

Tenant hereunder accruing from and after the effective date of such consummation, and Tenant shall
f

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deliver to Owner,

or shall cause

to be

555

delivered to Owner,

within

ten ( 10)

business days after the

execution thereof, a true, complete and correct copy of an executed instrument oftransfer and a true,
complete and correct copy of an instrument of assumption by the transferee of Tenant' s obligations
under this Lease accruing from and after the date of such transfer.
0

If a tenant does not comply with the terms of this Section 36.2, any Right of

First Offer Transaction entered into by suchtenant shall have no validity and shall be null and void and
without effect.

g)

Notwithstanding the foregoing provisions ofthis Section 36.2, Tenant may not

institute the procedures set forth herein for a Right of First Offer Transaction more than once in any

fiscal year, except with respect to any modifications ofthe Right ofFirst Offer Transaction as provided
in Section 36.2( b).
Section 36.3

Assignment.

The rights of Tenant pursuant to Sections 36. 1 and 36.2 above shall not be severed from
Tenant's Interest in the Premises and shall be assigned, transferred or otherwise conveyed to the

transferee only upon a Sale of the Project or a Foreclosure Transfer.

Section 36.4

No Merger.

Notwithstanding anything set forth to the contrary in Sections 36.1 through 36.3, under no
circumstances shall the fee estate ofOwner and the leasehold estate created hereby merge, even though

owned by the same party, without the prior written consent ofthe holder of a Recognized Mortgage.
Article 37- Miscellaneous
Section 37. 1

Governing Law.

This Lease shall be governed by, and construed in accordance with, the laws of the State of
Florida, both substantive and remedial, without regard to principles ofconflict oflaws. The exclusive

venue for any litigation arising out ofthis Lease shall be Miami-Dade County, Florida, ifin state court,
and the U.S. District Court, Southern District of Florida, if in federal court.
Section 37.2

References and Interpretation of Lease.

a)

Captions. The captions of this Lease are for the purpose of convenience of

reference only, and in no way define, limit or describe the scope or intent ofthis Lease or in any way
affect this Lease. All captions, when referring to Articles or Sections, refer to Articles or Sections in
this Lease, unless specified otherwise.

b)

Table

of

Contents.

The Table of Contents is for the purpose of convenience

of reference only, and is not to be deemed or construed in any way as part ofthis Lease.
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Reference to Owner and Tenant. The use herein ofthe neuter pronoun in any

c)

reference to Owner or Tenant shall be deemed to include any individual Owner or Tenant, and the use
herein ofthe words" successors and assigns" or" successors or assigns" ofOwner or Tenant shall be

deemed to include the heirs, legal representatives and assigns of any individual Owner or Tenant.
d)

City's Governmental Capacity. Nothing in this Lease 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.
hereinf,"

Reference to"

e)

hereunder", etc. All references in this Lease to the

terms " herein", " thereunder" and words of similar import shall refer to this Lease, as distinguished

from the paragraph, Section or Article within which such term is located.
f)
the terms"

Reference to" Approval"

approval"."

or"

Consent", etc. All references in this Lease to

consent" and words ofsimilar import shall mean" reasonable written approval"

or" reasonable written consent" except where specifically provided otherwise.

Singular

Plural, Gender, Etc.

Words importing singular number shall

importing" persons" shall include
fiinlns, associations, corporations, and other entities, including governments and governmental bodies,
g)

include the plural

number

in

and

each case and vice versa, and words

as well as natural persons, unless the context shall otherwise indicate. Words ofthe masculine gender
shall be deemed and construed to include correlative words ofthe feminine and neuter genders, and vice

versa, as the context may require.

Section 37.3

Entire Agreement.

This Lease, together with the attachments hereto, contains aU of the promises, agreements,

conditions, inducements and understandings between Owner and Tenant concerning the Premises 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 hereto 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 Lease, the terms ofthis Lease shall supersede the terms of the
RFP and Tenant' s response thereto.
Section 37. 4

Counterparts.
i
i

This Lease may be executed in counterparts, each ofwhich shall be deemed as original but all
of which together shall represent one instrument.
i

Section 37.5

No
waived or

Waiver, Modification, Etc.

covenant, agreement,

terminated

except

term

by a written instrument

Wchigan- Lincoln Pla= V- h

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changed, modified, altered,

of change, modification, alteration, waiver or

or condition of this

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Lease

shall

be

AEC.
I

termination executed by Owner and Tenant. No waiver ofany Default or default shall affect or alter
this Lease, but each and every covenant, agreement, term and condition ofthis Lease shall continue in
full force and effect with respect to any other then existing or subsequent Default or default thereof.
Section 37.6

Effect of Other Transactions.

No Master Sublease, Mortgage

or

other

agreement

of

any kind,

whether

executed

simultaneously with this Lease or otherwise, and whether or not consented to by Owner, shall be

deemed to modify this Lease in any respect, and in the event ofan inconsistency or conflict between
this Lease and any such instrument, this Lease shall control, except where specifically stated otherwise
herein.
Section 37. 7

Severability.

If any provision of this Lease or the application thereofto any Person or circumstances is, to
any extent, finally determined by a court ofcompetent jurisdiction to be invalid and unenforceable, the
remainder of this Lease, and the application ofsuch provision to Persons or circumstances other than

those as to which it is held invalid and unenforceable, shall not be affected thereby and each term and
provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.
Section 37. 5

Merger.

Unless Owner, Tenant and all Mortgagees execute and record an agreement to the contrary,
there shall be no merger ofthis Lease or the leasehold estate created hereby with the fee estate in the
Premises or anypart thereof by reason ofthe same Person acquiring or holding, directly or indirectly,
this Lease and the leasehold estate created hereby or any interest in this Lease or in such leasehold
estate as well as the fee estate in the Premises.
Section 37. 9

Remedies Cumulative.

Each right and remedy ofeither party provided for in this Lease shall be cumulative and shall

be in addition to every other right or remedy provided for in this Lease, or now or hereafter existing
at law or in equity or by statute or otherwise( except as otherwise expressly Heated bythe terms ofthis
and the exercise or beginning of the exercise by a party of any one or more of the rights or
remedies provided for in this Lease, 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 Lease, shall not preclude the
simultaneous or later exercise by such party of any or all other rights or remedies provided for in this
Lease 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 Lease.
Lease),

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Section 37.10 Performance at Each Party' s Sole Cost and Expense.

l

Unless otherwise expressly provided in this Lease, 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.

Section 37.11 Recognized Mortgagee Charges and Fees.

Tenant 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 ofthis Lease.
Section 37.12 Successors and Assigns.

The agreements, terms, covenants and conditions herein shall be binding upon, and inure to the
benefit of, Owner and Tenant and, except as otherwise provided herein, their respective permitted

successors and permitted assigns and shall be construed as covenants running with the Land.

Section 37.13 Recording of Lease.

Tenant shall cause this Lease and any amendments hereto to be recorded in the Public Records
of Miami-Dade County, Florida promptly after the execution and delivery of this Lease or any such
amendments and shall pay and discharge all costs, fees and taxes in connection therewith.
Section 37.14 Notice of Defaults.

Notwithstanding anything to the contrary set forth in this Lease, under no circumstances shall

any party to this Lease lose any right or benefit granted under this Lease or suffer any harm as a result
ofthe occurrence ofany Default or default ofsuch party as to which Default or default such party has
not received notice thereof from the other party.

Section 37.15 No Liability of Officials and Employees of Owner or Tenant.

It is expressly understood that this Lease and obligations issuedhereunder are solely corporate
obligations, and, except as otherwise provided in Article 19, that no personal liability will attach to,

or is or shall be incurred by, the incorporators, stockholders, officers, members, partners, holders of
other ownership interests, directors, elected or appointed officials( including, without limitation, the
Mayor and Commissioners of the City and the members of any other governing body of Owner) or
employees, as such, of Owner or Tenant, or of any successor corporation or other successor entity, or

any ofthem, under or by reason ofthe obligations, covenants or agreements contained in this Lease or
implied therefrom; and, except as otherwise provided in Article 19, that any and all such personal

liability, either at common law or in equity or by constitution or stdtute, of,and any and all such rights
and claims against, every such incorporator, stockholder, officer, member, partner, holder of other
ownership interest, director,elected or appointed official( including,without limitation,the Mayor and
Commissioners ofthe City and the members of any other governing body of Owner) or employee, as
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IRE' 1 877OP9 569

such, or under or by reason of the obligations, covenants or agreements contained in this Lease or
implied therefrom are expressly waived and released as a condition of,and as a consideration for, the
execution of this Lease.

Section 37.16 Conflict of Interest.

Tenant represents and warrants that, to the best of its actual knowledge, no member, official

or employee ofthe City has any direct or indirect financial interest in this Lease, nor has participated
in any decision relating to this Lease that is prohibited by law. Tenant represents and warrants that, to
the best of its knowledge, no officer, agent, employee or representative of the City has received any
payment or other consideration forthe making ofthis Lease, directly or indirectly, from Tenant. Tenant
represents and warrants that it has not been paid or given, and will not pay or give, any third person

any money or other consideration for obtaining this Lease, other than normal costs of conducting
business

and costs of professional services such as architects, engineers, and attorneys.

Tenant

acknowledges that Owner is relying uponthe foregoing representations and warranties in entering into
this Lease and would not enter into this Lease absent the same.

Section 37.17 No Partnership or Joint Venture.

The parties hereby acknowledge that it is not their intention under this Lease 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 Lease or
the other documents executed by the parties with respect to the Project, whether based on the
calculation of Rental or otherwise, 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 37.17 shall survive Expiration of the' T'erm.

Section 37.18 Time periods.

Any time periods in this Lease 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 as being
computed based on business days). In addition, any time period which shall end on a day other than
a

Business

Day

shall

be deemed to

extend

to the

next

Business

Day.

Section.37.19 Time is of the Essence.

Time is ofthe essence with respect to all matters in, and requirements of,this Lease as to both
Owner and Tenant, including, but not limited to, the times within which Tenant must commence and
complete construction of the

Project.

I
i

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Section 37.20 Radon Notice.

Chapter 88- 285, Laws of Florida, requires the following notice to be provided with respect to

the contract for sale and purchase of any building, or a rental agreement for any building:
RADON GAS:

Radon is a naturally occurring radioactive gas that, when it has accumulated

in a building in sufficient quantities, may present health risks to persons who are exposed to it over
time. Levels ofradon that exceed federal and state guidelines have been found in buildings in Florida

Additional information regarding radon and radon testing may be obtained from your county public
health unit."

Section 37.21 No Third Party Beneficiaries.

Nothing in this Lease shall confer upon any Person, other than the parties hereto and their
respective successors and permitted assigns, any rights or remedies under or by reason of this Lease;
provided, however, that a Recognized Mortgagee or its Designee shall be an intended third party

beneficiary hereunder to the extent such Recognized Mortgagee or such Designee is granted rights
hereunder.
EXECUTION

IN WMQSS WHEREOF, Owner and Tenant, intending to be legally bound, have executed
this Lease as of the day and year first above written.
CITY OF MIAMI BE CH, FLOREDA,
oration of the State of Florida
a municip

WITNESSES:

By:
Print Name:

Neisen . Kasdin, Mayor

a-

f ,

ATTEST:

Le

vifit ``'' ; ;' ,`

vb

By:

Robert Pat6i, City

SEAL]

APPROVED AS TO
FORM& LANGUAGE

FOR MCU710N
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tOU \"
STATE OF FLORIDA
ss:

COUNTY OF MIAMI-DADS

foregoing instrument was acknowledged before me this

day o
1999, by Neisen O. Kasdin, as Mayor, and Robert Parcher, as City Clerk, of the+COF MIAMI
The

BEACH, FLORIDA, a municipal corporation of the State of Florida, on behalf of such municipal
corporation.

They

are

person! own

My commission expires:

to

FFI'. fALNOTAR

LILLUN BEAUCI"

INGrARY PUBLIC

sr Kfa of FLORIDA

CUMIv1M10N NO CC7':18971
292002
ci -.
DM IS;(

IVIY(

tN

uenws=as---

me or- p

G '

otary Public, State of Florida

Print Name:

UNfi}

LINCOLN PLAZA PARTNERS LLC,

a Florida limited liability company

By: SRC Lincoln Plaza LLC, a Florida
to ' ability company, as Managing Member

/e:

By:
Prin

o ,

anaging Member

STATE OF FLORIDA
ss:

COUNTY OF MIAMI-DADE

The foregoing instrument was acknowledged before me

by Scott Robins, as Managing Member of SRC Lincoln P za LC
E
company, the Managing Member of LINCOLN PLAZA PAR
rs nall
company, on behalf of such limited liability company. He is

1999,

y of

lorida limited liability

a Flo ' a limited liability
o

me or produced a

valid Florida driver's license as identification.

i

My commission expires:

otary Public, State o Florida

Print Name:

i
Stuart K. Hoffman
1= MY COMNCSSION# 00499242 EXPIRE&
Oat* r 6, 1999
90NDM M M PAfN IN6UBAdICa, IK
I

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List of Exhibits

Exhibit" A"

Legal Description of the Land

Exhibit 2. 1

Title Matters

Exhibit 8. 2

Article 2 of the Development Agreement

Exhibit 10.4

Ownership Interest in Tenant

Exhibit 14. 1(

a)

Parking Garage Maintenance Manual

Exhibit 14. 1( b)

Parking Facility and Common Grounds Maintenance Schedule

Exhibit 14. 1(

Owner' s Operating Standards

c)

Exhibit 36. 1( a)

Terms of Tenant' s Right of First Offer Transaction

Exhibit 36. 2( a)

Terms of Owner' s Right of First Offer Transaction

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T" 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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574
EX-MIT 2.1
t

MLE MATTERS

As to Parcels 1 and 2

Taxes for the year 1999 and subsequent years.

r
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EMBI T' 8. 2
1

ARTICLE 2 OF DEVELOPMENT AGREEMENT

ARTICLE 2.
CONSTRUCTION
Section 2. 1

Consistency!with City' s Comprehensive Plan and ZoninRe

ations.

City has adopted and implemented the Comprehensive Plan, The City hereby finds and
declares that the provisions ofthis Development Agreement dealing with the Land are consistent with
The

the City' s adopted Comprehensive Plan and Land Development Regulations, subject to all applicable
Requirements, Permits and Approvals.
Section 2. 2

Planning Board A

al.

Developer has heretofore submitted an applicationto the Planning Board for its
review of the Project, and the Planning Board has reviewed the Project.
a)

b)

If at any time in the future it shall be necessary in connection with the

construction, reconstruction or renovation ofthe 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

pesign of the Project.

a)
The Developer shall be solely responsible forthe design ofthe Project, and such
design shall be( 1) 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 ofthe 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 ofthe Project design to the DRB and HPB or Joint Board, ifapplicable, Developer

shall submit to Owner( acting in its proprietary capacity as owner of the Land) all ofthe 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 door 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 ofthe 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
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Developer' s response to the RFP. IfOwner 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 Owner' s objections, which revised
modification shall

be submitted and reviewed as provided in Section 3. 1( b). Failure ofthe 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 ofOwner' s approval ofthe Preliminary

Plans and Specifications, submit an application for approval ofthe Project designto the City' s Design
Review Board

and

to the fistoric 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 Facft
es 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 ofthe 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 permits 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(

twenty-four ( 24)

the " Concurrency Requirements").

Developer shall, within

the Commencement Date,

apply to the appropriate Governmental

Authorities for letters or other evidence that the Project is pursuing all applicable Concurrency
Requirements, and shall diligently and in good faith pursue such letters or other evidence that the
weeks of

F\ AMSKBRIC.M 81Miahigan-Lincoln P1aza\ Uno01nP18= Gmd1se8- 17a(Fx) wpd

August 30, 1999( 2 49PM)

Project meets all applicable Concurrency Requirements, or shall attempt to negotiate agreements
acceptable to Tenant to mitigate the impacts of developing the Project.
Plans and Specifications.

Section 2.5

Upon receipt of the DRB' s approval of the Project, and the HPB' s or Joint
a)
Board' s approval ifapplicable, Developer shall prepare Plans and Specifications for construction ofthe

Project, consistent with the Preliminary Plans and Specifications, as approved by the DRB, and the
or Joint Board' s, if applicable, for review by Owner. The Plans and Specifications shall be
submitted to the Owner within thirtytwo( 32) weeks from the date on which the DRB and the HPB

BPB

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 DRB approves

the Proj ect shall constitute aDefault 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, ifapplicable. 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 ofthe 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
in Section 3. 1( b).

Developer shall pursue approval by the City of the Plans and Specifications
diligently and in good faith.
b)

Section 2.6

Conditions Precedent to Developer' s,Commencement

of Construction o the Project.

Developer shall obtain a Building Permit for the entire Project by not more than

a)

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 ofthe Project unless and until( i)Developer shall have obtained and delivered to Owner' s
Consultant copies ofall Permits and Approvals required to Commence Construction 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.

Owner( solely in its capacity as the owner of the Project Site and not in its

b)

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
governmental

capacity)

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

F WI[NSKERIC M BlMichigan-Lincoln Plen9\LincolaPlanarndlse8- 17e(Ex) wpd

August 30, 1999( Z 49PM)

governmental

functions.

Developer shall

Inc.

187708 518

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

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

employees),

2.6( a) and 2. 10( x).

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 ofOwner 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 ifprogress 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

bond ( the " Payment

Perfomance Bond"),

in a form reasonably acceptable to

Owner, issued by a surety listed in the most recent United States Department of Treasury listing of

performance

approved

sureties,

and

guaranteeing the performance of the General Contractor under that certain

guaranteed maximum price contract forthe Construction ofthe 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

Qommencement and Completion of Construction of the Proj,.ect.

Developer shall at its expense( a) Commence Construction on or before sixty( 60) days after
and Approvals
necessary for the Commencement of Construction are issued ( the
Construction Commencement Date") and( b) thereafter continue to prosecute Construction ofthe

all

Permits

Project with diligence and continuity to completion. If,after Developer has Commenced Construction,
Developer fails to diligentlyprosecute Construction ofthe Project( subject to Unavoidable Delays), and
such failure continues ( subject to Unavoidable Delays) for thirty ( 30) consecutive days after

Developer' s receipt ofnotice ofsuch 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.

j
i

F 1MIIQSKERIC M B1Michigatt-Lincoln PlazalLincoinPlaraQrnd l9e8- 17a( Ex) wpd

August 30, 1999( 2:49PM)

Notwithstanding anything to the contrary contained herein, ifDeveloper fails to Substantially Complete
Construction of the Project by the Default Date, then the same shall constitute a Default sander this
Agreement and under the Ground] Lease.
Section 2. 8

Completion of Construction of the.Project.

a)

Substantial Completion ofthe Project shall be accomplished in a diligentmanner,

and in any event by the Completion Deadline, and final completion ofthe Construction ofthe 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 ofthe Architect( certified to Owner on the standard A.IAA

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 complywith all applicable Requirements;
ii)

if Requirements require the same, a copy or copies of the temporary

certificates ofoccupancy 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
ofDeveloper 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)

Improveanent( s)(

complete

set

of " as

built" plans and a survey showing the

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, subject to copyright and similar rights of the Architect
to prohibit use ofdesigns 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
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

records

Plans and Specifications, with all addendathereto and change orders in respect thereof,

F WINSKEPW M B1Mlehigan- Lincoln Plaza\ Mnco3nPJazaGmdW- 17aMx) WO

Augnat 30, 1999( 2:49PM)

i
i

C: 187, 01 550
marked to show all changes, additions, deletions and selections made during the course
of the Construction of the Project; and

a Contractor' s Final Affidavit in form and substance reasonably

by the General Contractor ( i) evidencing that all
contractors, subcontractors, suppliers and materialmen retained by or on behalf of
v)

satisfactory to Owner executed

Developer in connection with the Construction ofthe 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 ofthe

Improvements by the Completion Deadline, Developer shall forfeit the Security Deposit held pursuant
to Section 3.6 ofthe Lease to Owner as liquidated damages, and not as apenalty, 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 Regulations.

City Commission held a duly noticed public hearing on July 7, 1999, after which it
determined, pursuant to Section 142-425 ofthe City Code, that the zoning district classification ofthe
The

Land under the Lease is CD-3, as defined in the Land Development Regulations.
Section 2. 10

R-gguke-d Development 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

Pwposed Permitted Development.

The proposed permitted development on the Land shall not exceed a Floor Area Ratio ( as

defined in the City' s Land Use Regulations) of 2.75, and the height of the development on the Land
shall not exceed eighty( 80) feet.
Section 2. 12

be

Developer' s Right of Termixlat on.

Notwithstanding anything to the contrary contained herein, Developer shall have the right to
from its liability and obligations[ except the obligation to pay Rental and/ or Impositions

released

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

the Preliminary Plans and Specifications required by the DRB, Joint Board, or any other( governmental
RWINSKEPW M Michigan-Lincoln P18=\

Linoo1nP1awGmdr1se6- 17eP) wpd

August 30, 1999( 2 49PM)

i

Authority( including the City), render the Project economically unfeasible in the reasonable business
i

judgment ofDeveloper,( b)

the Project cannot meet concurrency requirements under Section 163. 3180,
or the costs ofconcurrencymitigation are, in the reasonable businessjudgment
ofDeveloper, economically unfeasible, or( c) Developer, after good faith efforts, has been unable to
Florida Statutes( 1997),

obtain a full building permit for the Project pursuant to the Plans and Specifications submitted by
Developer. In the event oftermination ofthis Development Agreementand 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 farther liability to the
other.

F-WMSKERVC M.B Mlahipn-Lincoln Pla=\ UacobPlazaGmdlse8- 17a( Ex) wpd

August 30, 1999( 2:49PNI)

orr

REC

EXHIBIT 10.4
OWNERSHIP INTEREST IN T NANT

Percentage Membership

Member

Interest Owned
SRC LM*cola Plaza LLC,

Florida limited

49

liability company

owned by Scott Robins( 100%)

RDP Lincoln Plaza LLC,

Florida limited

49

liability company

owned by R. Donahue Peebles( 100%)

Michael A

ilberg

100

TOTAL

F V4WSKERIC M B1MIchl 1
August 30. 1999( 2:49PM)

Lincoln Plaza\Linc hMozaOrndlsa8- 17aP) wpd

RMG GARAGE __

' C NAN' '

MAMIAL

A.Publication of the
National

Parkin'Associati-

arking Consultants Council

OTC
j

t''

PARKIIV
A A
MAIIVT IVAIV
MAIVUA
August 1995
A

NP"

CC Maintenance Manual Committee

James E. Staif,Chairman

Larry D. Church

Mark

Thomas J. D'Arcy
Abraham Gutman
Forrest N. Hibbard

Froward R. May

Hoff= n

Stephen J. Shannon
Ronald J. Van Der Mead

Q 1996! National Parkin g Association

1112 16th Street, NV Suite 300
Washington, DC 20036
r.

a..

Telephone 800/647-PARK or 2021296- 4336

Fax 202/ 331. 8523

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Donoghue

IUchard S. Beebe

Larry

Larry Donoghue & Associates

Forrest Hibbard

Mt. Prospect, IL

Park Badge, LL

Carl Walker, Inc.

Atlanta, GA

Richard N. Best

Robert S. Engle

Mark Hoffman

Richard N BestAssodates, L=

Oakland, CA

THP Limited

Group

Cincinnati, OH

Levittown, PA

Thomas Feagaius, Jr.

Parking Pros

Charles V. Boldon
International

Parking Design

Humble, TX

Norman G. Jacobson, Jr:

N.G. Jacobson& Associates Inc.
Seattle, WA

Sherman Oaks, CA

John.F 4iw=
George NI. Burton

Desman Associates

Dan Jeremitsl3y

GAL Burton Consulting.

Bondi, N.S. W.Australia

New York, NY

Square Industries

Jersey Cary, NJ
Neale D. George

J. Richard Choate

Walker Parking
C

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Inc.

Newport Beach, CA

Read Jones Christoffersen, Ltd. Robert P. Jurasin, F.E.

' Wilbur Smith Dissociates
Vancouver, British Columbia
New haven, CT

Norman Le Goldanan
Desman Associates, IucJPDI

Jean,X Keneipp

Anthony P. Cbrest

Farmington, CT

BartonAschman.Associates

Walker Paring
Consultants/Engineers, Inc.

Abraham Gutman

alamarzoo,

MI

Chicago, IL
Lev Zetli3a Associates
New York, NY

Larry

Kenneth Kowall

Consulting Engineers Group

mt. Prospect, LL

Church

Walker Parking

Dewey Hemba

Consultants/Engineers, Inc.

Graef,Anhalt, Schloemer&
Associates, Inc.

Robert A. Leisk, P.E.

Milwaukee, W7

Radnor,PA

Thomas J. D'Arcy
Consulting Engineers Group

Scott B. Herman

San Antonio, TX

FIMA/ Pacaf.c

L Paul Lew
Lev Zetlin Associates
New York, NY

Elgin, IL

Redondo Beach; CA

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Parking

Consultant

eers,
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Richard C. Rich

Howard D. Li'nders

Walker

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and

Associates, Inc.

Southfield, W

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William Surna

Graefj Anhalt, Schloemer&

Associates, Inc.

Milwaukee, WI

Kalamazoo, MT

Gerald Salzman
Flax B. I

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Rex B. Link& Associates

Barton-Aschmar Associates

Chicago, m

Keith C. Thornton

Thornton Engineering P.C.

Hackensack, NJ

Los Angeles CA

Richard Sawka
Chri

Luz, P.E.

HNTB. Corporation

Allright Planning Inc.

Houston.. TX

Ronald Van Der Weid

Sear Brown Group

Rochester,NY

Milwaukee, WI

Michael P. Schaefer
Howard R.

May

Desinan Associates

Springsted Incorporated

Will Van Dyke

St Paul, DIN

Barton-Aschman Associates
Chicago, FL

Chicago, IL

gold J. Schulke
David,Vogel

Donald Monahan

Mmr ey-Horn and

Walker

Associates, Ina

Alinght Planuasng, Into

Houston, TS

Houston, IX

Stephen J. Shannon
Carl Walker, Inc.

FL Carl Walker

Turnerw lre, NJ

Halamazoa, W

Bryan Redlin

Maxi* Smith
Walker Parking

Robert Weaat

GRAELIC

CansultantslEngineers, Inc.

Cleveland, OH

Indianapolis, IN

Richard A. Rich

James E. Staif
Carl Walker, Inc.
Dallas, TX

parking

Consultants/Engineers, Inc.

Englewood, CO

Dip

Nandwania

International

Parking Design

Carl Walker, Ina.

Oakland, CA.

Muforry CT
Norman R. Webster

Read Janes ChzieWfleisen, Ltd

Rich

and

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Southfield,* ff

Calgary, Alberta

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RU
dkz-

Alk

Introduction . . . . . . . . . . .. . . . . . . .

e . . . .

a +

e . . . .

Maintenance Progr'a=
1.

Cleaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .. . . . . . . . . . . . . .5. .

2.

Doors

S.

Electrical Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 9

4.

Elevators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
...

5.

Heating, Ventilation

6.

Landscaping..

7.

Painting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . .. . . . . ... . . .IS. . . . .

S.

Parldng Control Equipment

9.

Plumbing
bing Sys1 ems

10.

Roofing

and

Hardware . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . .. 8. .

and

and

Air

Conditioning( HVA.C) . . . . . . . . . . . . . . . . . . . . . . .

16

e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

e.....

Waterproofing. . .

Security- Systems . .

13

Signs( Graphics)

14.

Structural Sys

15.

Snow

e . . . . . . .

e.

eoe.

12.

21

e . . . . . . . . . . . . . . . . .. . .. ...

SafetyChecks . . . . .. . . . . . . . . +

and

14

oeo

e .

e . ..

e . . . . . . . . . . . . . . . . . . . . . . . ..

as ,

ems . . . . . . . + .

oeeo

e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .

s .

ee

o .

e . . . . . .

27

e .

e .

003

37

39

41
42

Ide Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...62

..

Recommended Maintenance Program

and

Checklist . . . . . . . . . . . . . . . . . . . . . . .. . . . .65

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . .

71

I
i

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r

1877015881
This manual is intended to provide the owner and/or operator with guidelines for maintaining
a parking garage in a serviceable condition that mimes safety hazards and maintains the
structural integrity of the facility. This manual includes practices and procedures considered

essential to the prevention of the deterioration of the concrete and steel structure and equip.
anent failures. These items are discussed along with other aspects of maintenance that involve
cleaning or repairs.

Various geographic areas result in widely varying exposure conditions for parking garages such

as exposure to de-icing salts in northern climates or salt air in coastal regions. Thus, this man,
ual can only point out the problem areas and present broad guideline recommendations. Use of
these guidelines must be tailored for each structure and its specific climate. It is recommended
that the owner/operator engage an engineer experienced in parking structure design and main

tenance to assist in developing a specific maintenance program for each parking garage.

The service environment of a parking garage is more severe than most other buildings and is
more nearly like that of highway bridges. In some areas of the country, extensive use of deicing
salt iu winter often causes contamination of the concrete with chlorides, which can result in

corrosion of reinforcing steel, structural steel, and damage to the concrete. In all geographic
areas, exposure to temperature changes and moisture poses a more severe service environment

for parking garages than for other buildings.

This manual is intended to apply to parking garages of all types. This includes free-standing
parking

garages,

underground

parking

garages,

and parking garages that are constructed

integrally with other facilities such as apartments and office.buildings.

Many diferent terms are used to describe structured parking facilities. The reasons for the
different terms include

building

code

definitions, local

include parking deck, parking ramp, parking

parking deck, parking facility,
parking garage" to apply to all

and open

custom, and others.

structure, garage,

parking

structure.

parking

Common terms

garage, miuld-level

This manual will use the term

In many instances, the guidelines presented herein may also be applicable to surface parking lots.
situations.

While the maintenance requirements of many parking garage elements are similar to their

counterparts in other building types, the frequency of required attention may be different due
to more severe exposure conditions. Because very little has been written about the specific
aintenance required for the structural system of parking garages, this subject is discussed in
greater detail than other aspects of maintenance.

The terms' housekeeping,""

preventive maintenance,"

and" repairs" are used with the following

meaning in the manual:

Housekeeping"' is the general cleaning and maintaining of the facility. These are routine tasks
that have to be done in order for the parking garage to function safely such as sweeping,

emptying trash receptacles, mopping elevator floors, replacing lights, cleaning windows, and
periodic repainting
I

1 UR 00

preventive 1VSaintenance" are those tasks to prevent the need for major repairs at some futur,
time such as sealing cracks, resealing floors, and washdowns.

Repairs" are those items done to restore or replace certain portions of the parking garage struc

tural elements on an ongoing basis to forestall the need for major repairs to the facility
An example would be the patching and sealing of a concrete spall (pothole) in the floor of thf

parking garage. This repair procedure may be required on an ongoing basis to prevent the aeec
for major repairs such as concrete slab overlays or even full-depth concrete slab replacement.

The amount of maintenance required for an individual parking garage will depend on the orig
final design details, materials, and workmanship involved in original construction, as well as the
environmental exposure conditions. The details and materials for some parking garages ma3
have been selected specifically with minimum maintenance and long-term performance in mind
while in others, less importance may have been placed on these items.
In the Appendix(" Recommended Maintenance Program'),

frequency

and

a checklist provides a recommender

frequency for many maintenance items. The text indicates the amount

m; n*

of effort typically associated with each item. Where appropriate, each chapter is divided into
three

categories:

housekeeping, preventive maintenance, and repairs. Many of the items on the

checklist are simply condition inspections and performance testing. If abnormalities are fouac

during the inspection, appropriate corrective action should be implemented. Some of the items
are related to the appearance presented to the public, some are related to safety, while others

pertain to preventive maintenance that will help avoid costly fixture repairs. Preventive maintenance is usually more cost effective than repetitive repairs and certainly less disruptive to
operations.

Many parking garages are leased to a contract parking operator for day-to-day operation.
Although " maintenance"

is often designated as the responsibility of the operator, the level of

maintenance desired or the need of regular preventive maintenance is often neglected in such

agreements. It is essential that lease agreements clearly define the party responsible for maintenance and also the responsibility for identifying and informing that party of observed maintenance or repair needs.

What

are some Qf

the consequences

of

deferred

maintenance?

Failures associated with some

operational features such as lighting, parking equipment, or security-monitoring devices are

relatively easy to correct and may only cause inconvenience or short-term loss of revenue.
Deferred structural maintenance can lead to deficiencies that, in extreme cases, may result in
partial collapse

of

the structure.

Premature deterioration

of concrete

floors is costly--

both for

the repairs and for the revenue loss while repairs are underway. In multi-purpose structures

where parking is integrated with other building uses, deterioration of parking floors could affect
the integrity and use of the entire structure.
A comprehensive maintenance program requires that an adequate budget be established to support

the

maintenance

program.

This

should

be

an annual

budget, be,

g with the first Year

of operation. Major items, such as the re-application of protective concrete sealers and sealing
ofjoints in the concrete, occur at intervals of several years and must be anticipated in the mam

NEB: s

590

tenance budget. Annual maintenance reserve funding should be included in the operating bud-

get when the facility opens to account for re-application at the end of useful life. This will help
elimixate the unexpected major costs when replacement and/or major repairs are necessary.

In sumffiary, a comprehensive maintenance program of housekeeping, preventive maintenance,

and repairs is requited and must be tailored to each individual parking garage. The specific

program for a given structure will depend on many factors including original design details,

quality of materials, constrncdon quality, and exposure conditions. It may prove beneficial to
employ

an

engineer

experienced

in parking fa'' ' ty design,

operation,

and restoration to

develop a cost-effective m aintenance program. To function at required performance levels, all

elements of a parking garage need periodic maintenance.

NOTES
n

AW

lit

1'ncluded in this section are discussions of-

Sweeping floors
Washing floors
rash pick-up
Windows

Other cleaning:
Walls
Elevators
Public areas
Rest rooms

Parking control equipment

0 Housekeeping

Cleaning relates to the appearance of the.parking garage and the

resulting image that is portrayed to the public. Some items can

cause problems if neglected. For example, trash may clog drains

and result in ponding or flooding, and trash left on stairs or landings. may become hazards for pedestrians.
part, the suggested frequencies of cleaning are based on the
concept that people have less tendency to litter in a clean, neat

In

environment

than

in

an

environment

that is

already messy.

A clean, well-kept parking garage promotes a good reputation and

invites

people

to

return

and

use

the facility

again-

Often the

increased revenue more than offsets the cost of keeping the fatality
clean.

One of the most frequently overlooked aspects of parking garage

maintenance is proper floor cleaning. It is recommended that all

including curbs, be swept weekly, but no less

often than monthly. Sweeping can be done either with hand brooms

parking floor

or

areas,

mechanized

sweepers

designed for use in parking garages.

Between sweepings it is desirable to pick up any litter daffy.

Expansion joints should be cleaned of debris periodically.

Grease and oil dripping from vehicles can build up within parking

spaces and at entrance and exit lanes. These grease buildups and
oil,deposits represent a potential safety hazard to pedestrians, and,
v

A,.._...._...._._.._._._......._..

TM,p

mZ

11r

NOTES

ore,
there="

should

be

removed with appropriate

degreasers such as

an industrial detergent- A m in i- num frequency of twice a year is

for

recommended

lop

water prooung, the

harm

not

conraned

the

for

clnann

such

g. r or

garages

with

membrane

de? rease+ should be tes` ed to assure that it will

membrane.

tile- brane manufact-srers should be

recommendamo=

rega- d ing cleaning materials and

procedures.

G..-.

.+

ti

rte.

.r_,

r0i'et: 1. v---1 ter;..- .-^'

i.

i : mss-

titer

Dint

and

Worker cleaning trench drain

trash

Some floor areas should 'nave daily cleaning by sweeping or mopping. These include lobbies

booth'

s,

offices,

elevators,

or wait':na areas,

elevator

toilet

rooms,

cashier

lobbies, and entrance and exit

lanes. Sca=rs shLould be cleaned wi.a the same frequencti-as the park-

ing areas and more frequently if they are heavily used. Heavily used
stairs should

be

checked

daily for-: ash and swept at least weekly.

Windows in cashier booths, lobbies,

an

d elevator cabs should be

washed daily. Other windows such- as those in o=nce areas, lobbies,

stairways, elevator cabs,

or elevator shafts, should be washed at a

frev_uenev of once a month to once a quarter depending on them

contrition and accessibility.

Other areas that need to be cleaned on a regular basis include walls

in rest rooms, walls in elevator cabs, and walls in other areas used
by the public. Trash cans should be emptied regularly, preferably
daily. Stair handrails should also be cleaned, preferably each time
r

the stairs are sweat.

UVr......

ICI r

Parking

control equipment should

equipment

be

cleaned

weekly. The

control

NOTES

housing should be waxed periodically to protect against

corrosion.

In

many

provided

situations,

the

use of a

large trash

receptacle ( duinpster)

by a refuse hauling service may prove desirable.

9 Preventive Maintenance

In addition to sweeping, a semi-annual washdown of the parking

high-pressure, high-volume
recommended for
1- 1/ 2 inch diameter) is

floors

with

water
all

hose (

climates.

minimum

In areas

where salt is used to melt snow and ice, it is especially important

to

wash

the floors in early spring. This

recommendation

is also

important in coastal salt water areas. Sweeping should precede the

washdown.
More frequent washing of high-traffic areas such as

lanes and' main driving aisles is desirable and in cold

climates may be performed during winter whenever moderate temoccur. In cold climates, if moderate temperatures do not
entrance

peratures

occur,

then squeegees or brooms should be used to remove salt

laden

slush or water.

Before

and after

washing floors,

all drains

should be checked to see that they are functioning properly. Sand

washed off

the floors

can

clog drains.

Temporary burlap or straw

filters may be used to prevent sand from getting into drains, but
those temporary filters must be removed immediately after wa.Shin;.
Nigh-pressure water may be used for removing grease spots on

the floor slab when care is taken to avoid damage to joint sealant
materials and membrane waterproofing.

Particular care should be given to frequent and regular cleaning of

the tracks and grooves in elevator sills. These tracks are in both the
elevator cab door sill and each landing door sill. Dirt in these tracks
can cause the elevator doors to malfunction.

A cleaning program should be established for the facility that

directs personnel to perform required cleaning tasks regularly

Y&
s

NOTES

13QGRS':-:";
ANW*HARUWA'1
R. -'-

Included in this section are discussions of

Pedestrian access doors

Vehicle access doors/ rolling gates

is Housekeeping

Many types of pedestrian and vehicle access doors are used in parking garages. Their use is related primarily to safety, security, and
Doors are also used for temperature

building code requirements.

control

of

heated

or

air

conditioned

spaces,

and other occupied

Vehicle access doors include sliding and roll-down security

areas.

grilles and overhead solid doors. It is recommended that all doors

be checked daily to see that they operate properly. The check of

access doors and hardware should include latch sets, panic hardware, door closers, door sweeps, hinges, locks, mechanized opening

and closing equipment, and tracks for sliding, rolling, or overhead

doors.

When a malfunction is noted, it should be corrected as soon as possible to maintain the safety and security of the parking garage.
Pedestrian doors that are propped open may reduce safety and/or

security functions of the parking garage. Propping open such doors

may violate fire or building codes. Similarly, this breach of security
could

lead to

nce action if it is determ ined that this action

a negligence

contributes to an assault or robbery.

C Preventive Maintenance
Doors

and

hardware

require

lubrication at regular intervals.

Lubrication should be scheduled in accordance with the manufacturer's recommendations but at least semiannuallY. Painting also
should

be

Section 7.

a part of

the

preventive maintenance program

refer to

595,
NOTES

FX: EC7TRI[: AL-5Y5T'FM%

5

3
1

Included in this section are discussions of

General lighting
Exit lights

Emergency lighting
Distribution panels and conduit

Emergency power
Contactor switches

n Housekeeping

Operating

parking

garage

properly

requires

sufficient

lighting

and electrical power to ensure that users can move easily and

securely within the facility. The most common problem with light-

ing is dirty lenses, as well as burned-out lamps and ballasts.

Lamps should be replaced regularly, either when needed as shown

replacement based on anticby regular inspections, or by scheduled

ipated lamp life. Lamps and ballasts should be stocked for prompt

replacement.

Operating controls for lighting such as time clocks

and photocells should be checked monthly and maintained as

required.

re4airs

Time clocks that are not astronomically corrected may

resetting periodically to

for daylight savin=

gs

compensate

and astronomical changes of time if they are not coupled with photo
electric cell operation.

Pedestrian "

exit"

lights

be visually

should

checked

frequently.

Battery-pack-powered emergency light units are generally

located
time. Most
close

to " exit" lights

battery-operated

and

may be

checked at

the

same

lighting packs have a visible status indicator light

that will indicate if the unit has power and is operative. All battery
packs have test buttons that should be activated at regular intervals

to verify working

condition.

Battery packs should be main

tained according to manufacturer's recommendations.

Internally illuminated

signs

are

covered

in Section 13 -

Signs

of this manual. However, provisions for general lighting

system inspections in this section also apply to sign lamps.
Graphics)

Electrical

metallic conduit (

EMT) exposed to water leaks or the

elements should be protected from potential corrosion problems.

Proper

repair

or

replacement

procedures

should

be instituted

NOTES

any

Whenever

conduit

Afr
E.

plastic)

or

exposed

wiring from improper installation

adverse

conditions.

is damaged oz
and

support,

or .

Cover plates should be in place on junco,

boxes and outlets. Electrical outlets should be working.

Rusted

Rusted Light E= 4. u,-e

conduit

w Preventive Maintenance

Periodic inspection of the entire electrical system is a good practice.

Electrical equipment and conduits should be inspected for corrosion
and

deterioration

where

exposed

to

moisture.

If electrical equip-

ment exposed within the garage area proper is not designed to

withstand the rigors of weathering character*:stics of open garage

environments, this equipment should be provided with acorrosionresistant

treatment

painting of all
mented as

the

a=

to

prevent

further deterioration. Periodic

osed,electncal conduit and boxes should be imple-

deemed necessary. Electrical

unprotected environs of

the

garage,

panels,

if e..xposed within

should be provided with a

corrosion- protective coating.

Regular inspection

and

maintenance

is

required

for battery-

powered emergency lighting. Some battery systems require replenishment of the water/electrolyte. Electrical service for parking and
Section 3- Parting Control
revenue control equipment is covered in
Equipment.

Rg lar inspection or lighting fixture interiors and plastic refractors is important.

Many

plastic refractors ( light

diffusers) tend to

vellow after five years, resulting in diminished light output. These

discolored diffusers should be replaced and the insides of the
fraures should be cleaned.

lt3

57

rT ?
o- 187-7,

Under a pied Preventive

maiatenancae

program, a

group

rel=

p*

NOTES

program should be instituted when the lamp burn time reaches

70 pert ofits rated life to assure the reliability ofadequateFixture

lighting

at all

In high-security
times, particularly

applications.

cleaning programs could be instituted at the same time.

Time clock control of exterior lighting systems should be checked
periodically
applications.

to insure proper function of time-switch-controlled

photocell

controls

should

also

be

calibrated

and

adjusted.

11

8T7A) t 598
NOTES
t

C:
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i
f.' 7sKT_""' 14^` a,
r..
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w.' ` '!

a Housekeeping
P g
In those instances

where

the

operator

is

responsible

for elevator

maintenance, all lamps, including ceiling and indicator lights, both

inside and outside the cab, should be checked daily and replaced as
required.

Emergency lighting, which is required by most codes,

should be checked daily.

The elevator cabs should be maintained in a clean, neat manner.

I - Cleaning. Cleaning
A discussion on cleaning is given in Section
of windows within the elevator shaft requires safety precautions,

and may require involvement of qualified elevator maintenance

personnel.

The overall performance of the elevator system should be reviewed

during peak usage times. Long waiting times may discourage parkers
from returning to the facility. A sudden change in the response
times could indicate an equipment problem.

M Preventive Maintenance

Preventive maintenance is essential for proper operation of elevators and their associated hardware. Additionally, the American

National Standard Safety Code for Elevators requires periodic safety

checks and maintenance services for all elevators, shafts, and hardware. Local building codes may have more stringent requirements
The level and frequency of the inspection program will vary with
the type of equipment, its intended use, and the appropriate state
and local code provisions.

Water accumulation is the most frequent cause of elevator egmlment problems. Leakage into the elevator shaft or equipment room

should be corrected as soon as it is discovered. Elevator pit sump

pumps, if installed, should be checked periodically to ensure proper
operation. Pumps and elevator pits should be cleaned as required.

The equipment rooms should also be monitored to ensure the

heating and ventilation systems are operating properly. Allowing

the equipment to become too hot or too cold may result in improper
use
operation,

or

equipment

computer chips.

12

damage

if

system

components

I l877.i9N 599
It is

omen more practical

for

elevator equipment

to be

placed under

NOTES

a service contract with a reputable elevator service company than

relying on having properly trained in-house staff.
8 Repairs
Repairs to

elevator equipment should

be

performed

by an elevator

service company. Repairs to other elevator-related items such as

heating and ventilation and sump pumps can be handled in-house

if properly trained
Also

refer

staff

is

available)

to Sections 5- HVAC,

and

or contracted out as needed.

9-

Plumbing Systems.

As building codes and other regulations have become more comthe alder systems may need upgrades in the control panels
door operation. Some enhancements may also improve safety

plex,

and

and performance of the elevator system.

13

E.' d

NOTES
TE

ta^..:.:-

i.1 d.-.-

ri

Mt

r:,t:.
ri'..

5: :HEATING

JbW

'

1 =

w:

Nn

VENTILATIOtr 22
_-

AIR..'
CONDITIONINW( HVA,CI
I'

Housekeeping
In underground or enclosed garages, ventilation equipment must

be checked daily for proper operation. The presence of ventilation

air

may be

checked

manually or

by

Carbon

automatic equipment.

monoxide sensors must be checked for proper operation as well.

Dangerous levels of carbon monoxide can build up quickly if systems fail to operate.

Noisy operation of HVAC equipment may be the result ofdirty air

filters, inadequate lubrication, and/ or bad bearings, and should be
reported immediately. Any water leaking into equipment rooms
should also be reported and the cause corrected immediately, as
corrosion,

freeze-ups, and electrical short-circuit grounding can

render equipment inoperable.

Self-contained parking

control

booths many times have

self-

contained heating and cooling units. Filters on these units should

be cleaned and replaced periodically.

10 Preventive Maintenance

Dirty filters increase fan operating costs. Filters should be replaced

Like

or cleaned on a regular

basis

as required

by

local

conditions.

filters, dirty heating and cooling coils increase operating costs and
reduce heat transfer. These coils should be checked at least annu-

ally for the build-up of foreign. matter. If filter failurechecked

is observed,
and
cons,

dampers,

cleaned as

and

necessary.

fans

downstream

should

be

Motors, motor drives, and fan wheels should

be checked monthly and lubricated according to manufacturer's

instructions.

Dampers and their actuators should be checked quar-

terly, at least for proper operation. This equipment May seize up,
resulting in improper ventilation and excessive energy use.

Service manuals provided by the manufacturers should be checked

for appropriate maintenance action. All required servicing should
manufacturer. Belt drives should
performed as specified by the

be

be

checked

for

proper

belt tension to

prevent

belt

slippage.

Replacement belts and pulleys for fans should be kept in stock.

14

n `

ora

belts or

or damage

other

parts

1877

60J

should be

replaced

to

ra zu-

NOTES

znize the chance of a'breakdown.

5

it is recommended that the control systems be calibrated annually,

either

by

trained

maintenance 'personnel

or by a

control system

All control system components should be checked for

proper operation in accordance with she manufacturer's specificscontractor.

bons, including temperature and/ or

switches, actuators, etc.

containment sensors, relays,.

Rep airs

should be Performed Promptly

Repairs to faulty:I3VAC equipment
equip

to ensure that adequate air quality is maintained, and to prevent

further damage

fromr improper

equipment rooms should

the equipment.

operation.

also be: corrected

Water leaks :into the

au?
aediately

to protect.

j_'

ref`_

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fir:-"`'

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Biel

i`mfr.
schedules

developing
out

lip

to

landscape

for this

work.
or

service,

187709 633,

These tasks

performed

can

be

contracted

in-house

by

NOTES

staff.

Adequate on-site storage for supplies and equipment must be provided if the work is to be performed by in-house stag.

E Preventive Maintenance
maintenance

7= ely
nance

schedule

is a must to preserve landscaping. A mainte-

should

be developed

and adhered

to.

Consulting

with a local landscaping specialist will aid in determining when

basic tasks,

be

such as cultivation,

performed.

fertilizing,

reseeding,

etc., should

A professional should also be consulted for insect and

disease control.

The type
amount

of

should

should

be

used should
required.

maintenance

of

watering

landscaping

used

in

dry

be

used

in

northern

areas;

be

selected

Plants

to

e the

minim??

requiring minimum

plants that can tolerate cold

states, etc.

Care should be taken to

place plants in locations where they will not be damaged by salt

spray during the winter months. Use of salt-resistanttimbers,
plants offers
an

alternative.

Alternative

landscaping,

such

as

rock

should also be considered for areas susceptible to

damage from salt spray, or in desert areas, as these require minigardens,

mal

etc.,

maintenance.

Maintenance of automatic sprinkler systems

also should be part of any maintenance plan.

If possible,
structural
chemical

landscaping materials should not be placed on supported

members

attack

to

due to excessive loading requirements or

concrete

members.

An experienced engineer

should review landscape loading that is to be placed an supported

structural members.

R Repairs
Damaged

or

dying plants

should

be

replaced each

spring.

Leaving

dead plants in place severely detracts from the appearance of the

facility.

17

b04
NOTE S-

P.
A NTIIVG

Included in this section are discussions of.-

Inspection ofpainted surfaces ,

Metals

Stall striping
Concrete Imasonry
Painted signs, symbols, and supergraphics

Touch up
Repainting

Painting serves several purposes:

Protection of metals against corrosion and resulting loss of

structural capacity

Enhancement of appearance

Safety
Information

Housekeeping

Painted elements that are operations or safety related should be

inspected monthly to verify they are fulfilling their intended pur-

pose. This group of.painted elements includes parking stall strip-

ing, curb delineations, and garage surface painted signs. When the
or becoming warn away, then cleaning or
repainting should be done promptly.

paint

is faded,

soiled,

Parking space striping is a basic element of all parking garages-

Parking space stripes should be repainted whenever the paint

fades or deteriorates. With the increasing number of small cars on

many parking facilities are being restriped to reflect

smaller vehicle sizes. The mix of vehicle sizes in the facility should

the

road,

be carefully

considered whenever

restriping

is

considered.

It is rec-

oTn vended that when changing the striping, the old stripes be
removed completely by shot blasting or water blasting rather tban
two
being

painted over.

Painting

results '
over old stripes usually

sets of stripes being visible, thereby confusing the user. A check

should also be made with state and local traffic departments for
preferred

18

g color and basic stall dimensions. White or yellow

striping
p

A 8T79D
are

typically

Gravity-fed

used.

for

paint

striping tends to last

stall

NOTES

longer than sprayed paint. The type of striping paint must be compatible with the parking surface. For example, a water-based paint
will not adhere to a concrete surface that has been treated with a
water repellent such as a silane or siloxane sealer.
painting

frequently

more

repainted

is usually safety

curbs

of

painting

is recommended.

Painted

signs

maintained

than

related.

other

and symbols on walls,

Curbs should be
Semi-annual

elements.

beams and floor should be

in conjunction with Muminated and non-illuminated

in Section 13 - Signs ( Graphics).

signs

IE preventive Maintenance

All painted metal surfaces should be inspected to determine their

condition, and small rust spots that are observed should be cleaned
and touched up. Complete repainting should be done whenever
required

by the elements, type of paint, and/or exposure conditions.

Paint as a protective coating depends on its adherence to the underTherefore, before painting any surface, it is extremely
lying
surface.

important to properly clean and

prepare

that

surface.

Preparation

for painting may include removal of rust, removal of previous coats

of paint, application of caulking or sealant, waterproofing concrete

or masonry, or other preparation appropriate to the surface and

conditions.

exposure

if deterioration is observed on structural

evaluation
metal, an engineering

is

recommended.

Paints should

be carefully selected to be appropriate for each particular application.

Handrails

and

guardrails

serve

safety-related functions.

They

should be inspected and painted at intervals as required to ensure

t

retention

Regular

of

their

painting

capacity.
of exposed metals

such as

doors, door frames,

and pipe guards helps to prevent corrosion and provides an

attractive appearance. Metal pan stairs must be inspected and
pipes,

painted on a regular basis.

The painting or staining of interior or exterior concrete and masonry

is

usually

done for appearance. Some moasonry paints also serve as

waterproofing.
repainted.

At

regular

intervals, these

elements

should be

Anti-graffiti paints are effective for that purpose and

should be considered Where graffiti is a problem.

19

NOTES

Some

metals

such as anodized

aluminum and

stainless steel

do not

require painting. Galvanized.steel surfaces do not initiallY require

painting: however,

because the

galvanizing

is sacrificial,

under

dome exposure conditions, cleaning and paindng MAY be required

to maintain-the corrosion protection as the surfaces age.

2Q

W- 4 WIN 01011001MUM

0 607 .
NOTES
RK1IVWXONTR01 EQUIP MEN?

r,:,,,
G

r:. n--

er:-_'.

cis;,

""

AP

included in this section are discussions of.

Operation checks
Preventive maintenance

emergency service

Inventory ofparts

gj Housekeeping

Ali parking control equipment should be checked at least once each

dap to ensure proper functionTicket

and tostocks
mining?e
the down time
in ticket dispensers

during

peak

activity

periods.

must be replenished as appropriate for each dispenser.

Cleaning of the exterior of the parking control equipment is discussed

in Section 1 -

Cleaning.

a preventive Maintenance

A preventive maintenance program should be implemented to lain

imize breakdowns.

ing

A service a=
crreemeat with an authorized park

equipment supplier

include

is

recommended.

This agreement should

service,
regular preventive maintenance

as well as emer-

gency repair service. Quick response to calls for emergency service,

as well as local availability of appropriate replacement parts,
should

be

considered when

selecting a

service

firm- Consideration

also should be given to special training for in-house staff to take

care of preventive maintenance and most emergency situations.

Copies of operating and service manuals for all equipment in the

facility should be kept on hand for easy reference. It is desirable to

establish a log of maintenance and service work completed on each
piece of equipment.

It is also prudent to maintain an inventory of

critical replacement parts so that equipment can be repaired quickly.

21

7011 6,D8
A maintenance program should be based on the following kev

NOTES

items:
1)

Safety first

2)

Good, low-surge electrical power using CRTs, UPS systems,

fi,

protection, etc., as appropriate

lightning
3)

Installation per manufacturer' s specifications

4)

Operation, supervision, and maintenance trng

F

Documentation

5)

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PARK! NiS '.CONTRl3L:EUU[ PMEVT.

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GENERUMAINTENANCE:SCHEI] tJLE FaR 4:.

n?:+",.

S.

Sfi

...''<

Y;"."!..

S: '";:..;;.;.Y._.}.. .;

ti.=+.

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3-

W.

As

general

1 B770M 609

the

guideline,

chart ( opposite

page)

outlines

basic

NOTES

maintenance activities that are to be performed. Below is a short

outline

on those

items.

In all cases, however, it is always best to

follow the manufacturer's recommendations as to procedure, materials, intervals, test

equipment,

check- points,

tools,

consumable

items, replacement parts, etc.

a Repairs

Repair of parking control equipment is best performed by in-house

staff or an outside organization specifically trained for that equipment.
Autogates

a.

V'ee- belt tension

s
be checked every 30 days, 14
s

daY

after a new installation.

b.

Vee-belts should be changed every six to nine months

depending on usage.

c.

A coat of automotive-type wax will reduce corrosion and

prolong cabinet or post life.

d.

Cam-operated switches should be mechanically and electrically

checked.

e.

f.

Gear reducers should be topped off with Mobil SHC 629 or an

equivalent synthetic gear lubricant to the sight glass level
Heaters and thermostats should be checked for proper
operation.

g.

All nuts, bolts, flanges, screws, connecting rods, mounting

bolts,

other miscellaneous

hardware,

etc.,

should be mechani-

cally sound and tight.

h.

All sockets, cables, and connectors should be unplugged and

replugged several times per scheduled maintenance cycle to
clean corrosion and oxidation from contacts and to ensure
electrical and mechanical integrity.

i,

inspect for vehicular damage.

23

off.

NOTES

18,77-IN

27chet Dispenser

a.

Dirt is the enemy! Using compressed air and a long-handled

artist paintbrush, keep the entire mechanism free of ticket
dust or other contaminants.

b.

Degrease and re-lubricate sparingly the ticket cutter

assembly, type section bearing points, and the ribbon reverse

mechanism with light machine oil. Degrease and re-lubricate

sparingly the index cam with white grease. Do not lubricate

the clutch assembly.
c.

Adjust cutter so the dispensed ticket has a short tab on the

back of the ticket. Don't cut on the perforation.

d.

Adjust type section clock as nec-essary for accurate time

stamping.

e.

All nuts, bolts, Ranges, screws, mounting bolts, and other

miscellaneous hardware should be mechanically sound and
tight.

f.

All sockets, cables, and connectors should be unplugged and

replugged several times per scheduled maintenance cycle to
clean corrosion and oxidation
electrical

from contacts and to insure

and mechanical integrity.

g.

Inspect for vehicular damage.

h.

Heaters and thermostats should be checked, particularlY in

colder climates.

Fee Computer& Accessories

a.

Exterior of all equipment should be kept clean.

b.

Ensure

all external

displays, lights,

etc.,

are clear, bright, and

functional.
c.

d.

Test all buttons on keypads for proper functionDirt is the enemy in the printer mechanism. Using compressed
air and a long-handled artist paintbrush, keep the entire
printer mechanism

e.

Lubricate

free

of

ticket

printer mechanism

W_

T
or other cont*+

drive cam and gears using

MM #23 or equivalent grease.

24

dust

ts.

contacts where appropriate.

f,

Clean

g.

Ensure coffee, soft drinks, other foodstuffs, paper clips,

all vend

relay

etc.,
eraser residue, staples,

NOTES

are kept away from and out of

the equipment.

h.

Check cash drawer(s) interlock switch for proper operation.

i.

Verify CVT, UPS system., lightning protection equipment, etc.,

are working properly.

j.

All

nuts,

bolts, flanges, screws, mounting bolts, and other

miscellaneous

hardware,

etc.,

should be mechanically sound

and tight.

k.

All sockets, cables, and connectors should be unplugged and

replugged several times per scheduled maintenance to clean
corrosion and oxidation from contacts and to ensure electrical
and mechanical integrity.

Coin & Token

a.

Clean all foreign material from rejector mechanism using

soap and water.

b.

Ensure mechanism works freely without binding.

c.

Verify that only proper coinage vends mechanisms.

d.

Verify all enclosures and stands are securely mounted and

have not sustained damage.

Card Access

a.

Clean all read heads using compressed air, brushes, or factory

supplied or recommended cleaning materials.

b.

Ensure security cards can be inserted and removed smoothly

from the read head.

c.

Verify all enclosures and stands are securely mounted and

have not sustained vehicular damage.

25

I 1,87TYE 61
NOTES

Controllers
a.

: dean

the exterior surfaces of all gate and dispenser

controllers.

b.

Using compressed air, clean the interior of all,controllers.

c.

Polish, the

contacts of

all

circuit

breakers.after power

is.removed.

d.

Polish the' contacts of all accessible relay_contacts.

e.

Test. for proper.o P eration-

Detectors &

Lop
f

a.

'`

Verify that aU loop detectors are properly sealed using agoodquality butyl-based caulk.

b.

Test loops electrically, preferably using.a megohm tester made

for this purpose.

2s

c.

Verify correct mode for specific lane operation.

d.

Ensure,sensitivity settings are proper.

OR.

1877018 1613
NOTES

STEM

pi:LIMBIN

egintow

wP

included in this section are discussions of.

Water supply

Sanitary facilities
Washdown

Irrigation

Water heater

Sanitary plumbing
Storrnwater drainage

Trench, roof and floor drains

Sediment basins
Grease traps

Sump pumps
Fire protection
Sprinklers
Standpipes

Fire pumps
Hose cabinets

Fire extinguisher

Housekeeping

Hose cabinets and hoses, while required by some local authorities,

vandalism. Consequently, they should be
are often targets for
checked often

for damage

and replaced

if necessary. Many

naunici

palities require that the local fire department furnish their own
hoses

at

times

of maintaining

of

fire. This

requirement

may

the necessity

hose cabinets, thus preventing theft and vandalism as

the standpipe outlets will only be provided with a cap and chain.

Portable fire extinguishers and their cabinets are also targets for
vandalism, and should be checked frequently to see that they are in
place, charged, and operable. Where theft or vandalism of fire extinguishers is a problem, a glass front cabinet with a lock and/or warm,
where permitted

ing

access

in the

by local code, can provide security while maintainevent of

kept in the parking garage

fire. An
office.

extra

See

also

fire
Section U-

isher should be

Safety Checks.

27

REC,

NOTES

The fire

87TOR

protection

system should

be inspected, maintained and

checked periodically in accordance With local fire code requirements.

Sanitary and storm Lines need to be maintained in working order.

0 Preventive Maintenance
The

water

supply piping

basins, mop

sinks)

for sanitary facilities ( e. g., toilets,

wash-

is generally protected against freezing and

usually requires only a periodic check for leaks and working order.

The piping for washdown and irrigation, if exposed to freezing temperatures in the winter, must be drained each fail, in addition to
periodic checks.

If there is a water heater, it should be checked and flushed annually.

A check of sanitary plumbing can be done at the same time the
water

supply is

checked-

Regular inspection of heater components

such as relief valves, gas pilots, etc.,

is recommended.

The most extensive plumbing in a parking garage is the storm-water

collection and drainage piping system. Neglect of the system can
have

expensive consequences.

Floor drain inlets and basins must

be kept clear of rubbish and sediment to prevent ciogamg and pondhave backwater valves that
Drains at the lowest floor may have
operation.
for
When
washing down the floors,
checked
should be

temporary filters of burlap may be put over the drain inlets to keep
them clear. Periodically, especially before and after washdowns,
sediment

proper

basins and traps must be checked to ensure continued .

operation.

Sump

pumps,

sand

buckets in drains, pump

motors, and control switches should all be checked for proper operation. Inspection of drainage systems for leaks during rainstorms

and washdown operations is recommended.

garages are usually dry

systems. Equipment for the sprinklers include an air compressor,

Fire

dry

protection sprinklers used

pipe valve,

alarm

in p arkinQ
I,

devices, tamper

switches,

and test drains.

Inspection and servicing should be performed only by qualified

personnel. Dry systems should be drained and left dry after each

use. If the system is wet, or always charged, similar checks must be

made. Sprinkler heads must be checked for operation and freedom

from corrosion.

28

Fire

standpipes- in parking garages are

interconnected , and
connection. at

periodically

sianaese

are _supplied

street level.

hr.

inlets

lubrication

usually dry They may be.

through

sianaese

NOTE S

pumper

The connections should be checked

and

damaged threads. Check valves at

should be monitored

for proper operation. Dry systems

should be left dry and unclogged after each use. Wet systems andfire pumps must be checked and maintained by qualified people.
sleeves and pipehangers must be kept
7--. Painting.

For

all systems, the pipes,

free

of rust.-See- Section

These

absolute

necessity.
tackflow prevention devices are an
require extensive usel of hoses, and the possibility of contamination

of potable water supply exists. Periodic inspection and/or maintenance of these devices is essential.

W Repairs

AlI plumbing and fire protection :repairs. should be performed by

qualified plumbers and fire systems installers in.accordance with
local codes aad ordinances.

If a sump pump is removed for maintenance, even if for gjust a few

hours,"
could

a working replacement should be installed. Just a few hours

become several days, and rainwater runoff could flood.an area

with no working pump.

F

f1

r
g
E

gfi

Eo1

f.i
i[#

29
yy

fx

R
5j
j<
xw.
ee

9J.9.RCS"^....
GS.'3: C# y. pA

res2'

.'.: ....

K2+,

eor '

S''' .:.., `..

iaa'AF.....^.
kc'`,

u'...

k Rsif

16-717flK b I b
NOTES

J:

aw+

DN.

tir. wr.+.ca+iwT.

if

PROOFING` AND: 11Y ?' I=RPROOPR

70 =

The comments and information in this section are intended to apply

to the many different types of waterproofing applications that may

occur in a parking garage. The cornmon waterproofing applications
include:

Joint sealant at construction joints, control joints, and cracks

in floors and walls

Expansion joints in floors and walls

Concrete sealers on floors

Membrane waterproofing system on floors

Membrane waterproofing system on basement walls

Coating on basement wails and block walls

Roofing
Sealant at doors and windows
Rubber window gaskets

Nearly all of these waterproofing systems have finite life spans.

The elastomeric materials used for joint sealant and some expani
sion joints
commonly have a life expectancy of eight to 10 years.
Those materials in areas exposed to direct sunlight will often have

a shorter life than in areas not exposed to direct sunlight.

i3

E Background Information on Waterproofing Systems

A.

Deck Sealers

A sealer is a liquid applied to protect and preserve concrete by filling the concrete pores or by sealing the concrete surface against

penetration by water-borne deicing salts and other deteriorationcausing

contaminants.

A quality

material,

properly applied and

renewed periodically, will provide supplemental protection against

freeze- thaw damage,

corrosion.,

and wear. It is important to note

that sealers do not bridge moving cracks.

30

I BU{Is b. T, "
Sealers

are not cure-ails,

however,

and

the

concrete

to which it is

NOTES

applied must be sound for the sealer to be effective. Sealers do wear

under use and some are subject to ultraviolet light deterioration.

They must be reapplied at intervals ranging from one to 10 years,

depending on the product, rate of application, and conditions of exposure and use. Life-cycle costs should be evaluated in m along a choice
of sealers.
r+

J 4.

Worker spraying deck sealer

With many sealers on the market, and more coming, seek professional advice as to which is best suited for a particular use and expo

sure. Some help in evaluating sealers may be obtained from a review

of

American

Society for Testing

and

Materials ( ASTM

C672-76,

Standard Test Method for Scaling Resistance of Concrete Surfaces

Exposed to De-Icing Chemicals"

and

the 1981 National Cooperative

Concrete Sealers for

Highway Research program Report 244 "
Protection of Bridge Structures." To date, no ASTM test exists that
satisfactorily

measures

Report 244 does describe

penetrating

sealers performance.

a test program.

Another

NCBRP

publication

by the

Ontario Minis-tzy ofTransportation and Communications( Report No.

M1-79, April 1983) provides additional guidance for sealer selection.
Once a sealer is selected, it should be applied by a manufaeturer-

approved applicator in accordance with the manufacturer's instructions. Some coatings may produce a slippery glaze on the concrete
surface, reducing traction, and increasing the possibility of cars
skidding.
stairs,

The sa=ne caution applies to application of sealers on

landings,

and lobby floors. A small test application of the

sealer at proposed coverage rates should be applied and tested for

both

wet and

dry

skid resistance

before full-scale application.

31

NOTES

i(

B. Crack and Joint Sealants

Sealants

Ap

protect

ar

used to seal control and cons-tuc:.ion joints in floors to

against moisture

Caulking is normaLy used on

The materials may be self Ievei-

intrusion.

walls and architectural elements.

in.g or aon-sag, depending on whether they are intended for use on

horizontal or vertical surfaces. Sealant-S are intended to remain rel-

atively sor"ti and fie.-Mlibie t; rroughout their service lives and must be
designed for
through

exterior

use.

to the

adhesion

They

seal

properly prepared joints

surrounding concrete.

Sealants for rela-

tively narrow joints are applied to joints in horizontal surfaces by

pouring

by

or with a

caulking

ments of

caulking

gun.

cun, and are applied to vertical surfaces

Sealants should meet or exceed the require.-

Federal Specuication TT S- 00227OE, for Sealants, Class

A, Type 1 and 2, self-leveling and non-saa.

v '.

f/+

fir..

IN

Routing

PINIA

Completed sealant joint

crack

Expansion( isolation) joint waterproof glands and sealants function ,

similar

to those for

control

and

coast. uction

joints. Expansion

joints are more vulnerable to wear because they experience greater

lateral/transverse movement and are directly exposed to whee-I

Prefabricated joint seals installed by experienced factoryapproved contractors tend to give better performance than poured

traffic.

expansion joint sealants.

Installed expansion joint

22

I 86a.
C'.

NOTES

73-ccfj icBetuzng Membrdnes

tective membrane systems are generally installed to eliminate

leaks through a floor slab and reduce moisture ingress beyond the
Pro

capabilities of concrete sealers.

Since sealers cannot. bridge moving cracks and are sometimes not
effective

in. slowing reinforcement corrosion to acceptable levels,

depending on the amount of moisture and salt

contaminafaon),

it may

be necessary to apply a membrane to eliminate moisture penetration.

j: i.

APT

{;

r,'

wYi...

Applying traffic-bearing membrane

Several types of membranes are available:

Thin TrafficBearing Membracnes

roi

hese. systems typically consist of a this elastomene base layer

neoprene

including

or urethane)

covered by a thin Wearing course. usually

grit (epoxy, modified

epoxy,

or urethane)

with the total

system thickness in the order of 40 to 80 mils. ASTM Standard

C957

outlines criteria

for evaluating

performance.

and

properties

of

thin elastoraeric membranes.

C.2

Asphaltic or Rubberized Wear:Course Systems

These
Th

systems
syste

typ icaaly consist of a hot- or cold-applied rubberized

asphalt membrane overlaid

pavements..

by either mastic or asphaltic concrete

Thicknesses of 5/ 8 inch for mastic

mastic wear courses and

about 1- 1f2 inches for.asphaltic concrete overlays are:usual:

It should be recognized that asphaltic concrete-wearing courses are

porous:to some degree and,may allow build-up of salts and moisture

at the level of the membrane. For this reason, they are not recornelevated concrete slabs.: Dra:ins should have weepholes
at the level of the membrane to rsimize build-up of moisture on
mended on

w..,,.,.,,::

xx:.
x:

m:

-;;:;:.,

e,:.

W;:

aaz> cz; az-: k:r. oe::->.:::

u.:. as

Yitt%,';'. w`AS"':;:
t%.' ec' m" f""=^

a'

i..

>

sz". x'.

h"`

Tit
NOTES

the top of the membrane. If the membrane is damaged, contamination of the

structure could occur at

an accelerated rate.

On roof

decks, black asphalt surfaces increase the heating and associated

thermal

movement

of

the

structure.

This may present problems

with expansion joints or structural elements. Asphalt should be

well compacted with sufficient stability to avoid displacement in
drive aisles, ramps, or under vehicle wheels in stalls.

Asphaltic or rubberized membrane should be continuously bonded

to the substrate to prevent water from penetrating under the membrane through breaks or pinholes. Flashing should be installed to
protect asphalt membranes applied to exposed vertical surfaces.

0 Housekeeping
Housekeeping requires observation of visible waterproofing elements,
It is reclooking for signs of failure such as leaks, stains, cracks, etc.

ommended that all areas of the parking garage be inspected for

water leakage monthly,and in no case less than semi-annually. Take

advantage of rain storms to locate leaks from the underside of parking
decks, roofs, and joints, then try to assess where any problems origi-

nate on the surface above. Inspection for leaks through parking decks

can also be performed during garage washing, hosing down of the

parking decks, or when snow accumulation melts. Check all visible

waterproofing elements for deterioration semi-annually, or at least
annually. Remember to look at the stairwell roofs, sealant in exterior
wall surfaces, and any other waterproofing that is not normally seen.

12 Preventive Maintenance
Inspection

The first step in maintaining a waterproofing system, whether for a

new or old garage, is a regularly scheduled visual inspection of the
entire facility.Items to be noted include visible wear of surface sealers

or membranes, cracking, bubbling, debonding, discoloration, softening, tearing

or

displacement

of

membranes,

sealants,

and wear

course overlays. If possille, the visual inspection should be done during

and after a washdown of the decks in order to detect any leakage

through the structure indicating membrane or sealant failure, and to

ensure any damage does not go unnoticed under a layer of sand or
accumulated debris.

34

iFi`L4

&

TAX b2l.
NOTES

E Spat Repair

Thin TrafficBearing Membrane

Reapplication of wearing course layers in high-traffic areas such as

ramps

and

drive

is typically

aisles

required at

three- to five-year

intervals.

particular care must be taken to ensure the membrane is not damby

aged

blades.

snowplow

Asphalt Membrane and Wear Coarse System

Maintenance of these systems consists of periodic replacement of
asphalt softened

imately

by vehicle oil drippings and an application, approx-

every two

of seal coat emulsions to wear course

years,

surfaces to offset oxidation and embrittlement of the asphalt.

SealantslRepairs '

being soft and flexible, are susceptible to tire abrasion

used snowplows. Sealants that have
tearing by improperly

Sealants,
and

famed

will allow

leakage

and,

thus,

possible deterioration of the

concrete substrate and reinforcing steel.

The mannfacturer and/or installer of the sealant should be consulted

for proper materials and methods of repair. Also review sealant
some products come with warranties as long as fve

warranties;

years.

Depending

on

the type

and

exposure

most

conditions,

sealants have a useful life of seven to 10 years and somewhat less

on

roofs

due to

ultraviolet

exposure.

When

old

sealants

are

removed, examine the underlying concrete for deterioration, make

necessary repairs, and apply a compatible primer to the concrete
before

installing

the

new

sealants.

As

a rule

of

thumb,

When

30 percent of the sealant joints in the structure need repair or have

been repaired, it is time to start planning for replacement of the
sealant in all joints.

Traffic Deck Membranes/Repairs

Repairs to

membranes,

particularly the proprietary thin traffic-

bearing systems, involve specialized surface preparation and mateFinding damage to traffic-bearing
rial
application

systems

and

procedures.

performing

repairs

is relatively

straightforward.

However, failures in asphalt membrane and wear course systems

are detected indirectly through leaks on the underside of the strvc:

ture.

Finding and repairing such leaks may require tearing up the

35

ILI: I VrMt E22

NOTES

wearing surface above the leak so that the membrane can be

patched.

Repair of rutting or displacement of asphalt wear courses in highA0

traffic volume areas may involve removal of both the wear course
and membrane in affected areas as the membrane will likely be
damaged during topping removal.

Consult the membrane installer and/ or manufacturer for proper

repair materials and methods. The membrane may have a warranty
that should be checked for applicability

Foundation Wall Waterproofing Repairs

Damage to foundation waterproofing usually shows up after the

waterproofing has been made inaccessible by backfilling around the

garage

walls.

Sometimes leaks in basement or rera; n* ng walls

below ground level may be sealed from the inside, using any of the
number of available techniques including quick-setting grouts,

pressure-injected epoxies or other materials. Ifthat fails, bentonite,

a clay that swells when wetted, may be injected into the outside
ground adjacent to the leak. Bentonite installers with specialized

equipment operate under a number of trade .names and can be

found in

most

metropolitan

Phone books. Be sure to check the

installer's references.

If all other repairs fail, it may be necessary to eliminate the source

of groundwater or alternatively, the earth next to the foundation

wall may have to be excavated and the waterproofing repaired
directly. Other

repair methods

are possible,

but are beyond the

scope of this manual. Consultation with a qualified geotechnical or

structural engineer should be considered.
F

36

RU,

tD
NOTES

A F E-1'

i i::

CHFCK

Included in this section are discussions ofCarbon monoxide monitors

Guardrails and handrails

Pedestrian exit signs

Emergency lights
Fire safety equipment

Tripping h=

ards

Air handling systems

a Housekeeping

When an operator is responsible for maintaining the foregoing,

safety checks of the above items should be made daily or at least

weekly.

There are some elements in a parking garage that merit

special safety checks.

Carbon mono3dde monitors, noise alarm systems, and commumca

Lion systems are often used in enclosed or underground parking

These monitors and the ventilation systems should be

checked daily for proper performance. The instruction and operation manuals for this equipment should be consulted and followed.
garages.

Metal handrails and guardrails at the edges of parking floors are

subject to damage from impact and corrosion. It is recommended
that these handrails and guardrails be checked monthly to verify

that they are rigid, are not damaged, and can serve their intended
purpose.

Tess susceptible to damage, but equally deserving of peri-

odic safety checks, are concrete guard wails, stair handrails, railing
bases, and stair nosings.

F
3

Most building codes require illuminated exit signs to be placed

by
ingress
each

stairway on

all

floors

and at other points of pedestrian

or egress. Many tinges these signs are white with red letters. These
illuminated signs should be checked daily to see that the light bulbs
are working, and the sign faces are intact.
should be
Special emergency lights and the total lighting system
Section 3 - Electrical
checked regularly for proper operation. See

Systems.

37

V4

ace.

NOTES

regularly. This includes

pre extingguishers, standpipes, hose cabinets, fire s-arnkler systems,

Fire safety

and

fire

ec= on

equipment should

pumps,

9-

as well as

be

checked

pre safety informational signing. See

Plumbing Systems.

k_J]

Z.,

yQ.

Above: Clean. lobby

ght: Damaged fire hose cabinet

Preventive Maintenance
Due to deterioration,

concrete floors, sidewaL

or other walkway

suriacss can develop holes or pockets that can cause tripping hazards. These holes or pockets should be tilled immediately, even if on
a

Structux-al Systems, for causes of

temporary basis. See Section is-

deterioration and cautions about temporary pa"t..b.ina materials.

Z Repairs

Oniv experienced and Qual' Red personnel should install and repair
ca: bon mono.-dde and air handling equipment.

38

mFT.

j..

raz
2
1877(

NOTES

tECC1RITY 5Y5TEM5:
AV

Included in this section are discussions of

Audio monitoring
Call for

assistance

buttons

Closed circuit television

Elevator cab communication
Alarms -

Cashier booths

Doors
Elevators

m Housekeeping

It is suggested that in those instances when the operator has the

responsibility to maintain the security system that the system be

daily as part of a Walk-through inspection, but no less often

than weekly, to determine if the system appears to be functioning
checked

properly

Security systems that may be used in parld g garages include the

following:
Audio monitoring

devices may be located in stairs, elevator

cabs, and/or parking areas. Both the monitoring devices and

i

the sequencerAistening stations should be checked.

Two-way aucho systems that may be incorporated with audio

monitoring system and/or activated by" call for assistance buttons"

placed at elevator cabs, stairways, and/or other locations.

Telephones in elevator cabs, cashier booths, or other locations.

Alarms in elevator cabs, cashier booths, and offices.

Alarms or other Warning devices on stairway doors to indicate

that they have been opened and/or are not closed properly.

Closed-circuit television in special areas or throughout the

parking garage.

39

NOTES

Preventive Maintenance

Preventiv..
e.mainten ance

and repair

m e qiiip resent`is
of security.system

best left to those ,specially trained ..for 'the specific equipment

Elaborate systems may also merit a service.contract:to help assure
quick response.of qualified repair personnel wIaen neaded.

i
3

2
S

W..._.._...._.....................................-.....,....

......................,,.....

ww....,

...................,...

w.. w........
w.....

M..,..............,,....

msc

rm &2 '
mac: 6-NOTES
i

Included in this section are discussions of

muminated signs Cinternal and external)
Non-illuminated sums
Graphics

on walls,

beams, floors,

etc- (not painted)

The signs inside and outside any parldng garage play important
roles

directing

illuminated

and

informing
or

graphics

the

other

users.

graphics

These signs may include

mounted or painted on

walls, posts, floors, beams, columns, or suspended from ceilings.

For

painted signs or

superg rapbics,

see

Section 7 -

Painting.

Lr-

Easy-to-read signage
E Housekeeping
3
i

It is recommended that all mounted signs be checked weekly to verify

that

they

illuminated

are

in

place and visible

signs such as " full"

for

proper

functioning. Most

signs, fee indicators, and exit signs

should be checked daily.

Replacement or cleaning should be done as required to maintain all

signs and graphics in a clean and legible condition, at least quarterly.

Preventive Maintenance

Quarterly, the
rioration and

sign or

facing

dirt. See

also

material should

Section 1-

be

examined

for dete-

Cleaning.

Graphics applied on floors should be carefully inspected twice

legibility to the motorist. Dirt, oil, etc.,
should be removed and the graphics i-eplaced as needed.

annually to determine their

41

V
f

I B77 t

t
5

G;32;

NOTES

iTRUC? URA;L 5Y.5TE11I S= -

14=

a r- r

inn.

Included in this section are discussions of.

Floors
Expansion joints

Control joints
Construction joints
Stair and elevator towers

Beams, columns and walls

Structural steel elements

The structural system is the main element of any parking garage and

usually represents the largest portion Cup to two-thirds or more) of

the construction investment. Protection of that investment requires

an adequately budgeted programs of regular inspection and preventive maintenance. Deferred maintenance can lead to costly repairs.

Certain precautions dining construction can also improve performance of the structure. Adequate drainage, proper concrete quality

control, crack control, and proper sealant deta'Bing

i. are key items.
The garage structure support system may be one of many common

types of steel and/or concrete framing- Common to all systems is

steel,

whether concrete reinforcement or structural steel shapes.

Unless
may
car

protected, steel will corrode ( rust).

the

we

garage

has broken through

Corrosion of the steel

structure. There have been cases where a

a floor, or where par; of a garage has col-

lapsed because of excessive corrosion.

f

In planning new structures or repairing structures, one ofthe keys to

proper long-term performance of a parking structure is proper
concrete cover over the reinforcing steel. This is Particularly imFr-

tart for reinforcing steel located near the driving surface. Whether
the reinforcing steel is mild steel reinforcing bars or post-tensioned
tendons, it

is

recommended

that a

mom

clear concrete cover of

1- 1/4 inches be used in any area of the country, with the cover
increased to 2 inches for field-placed concrete where deicer salts or
airborne salts are present.

Equally important for new construction or repair is the quality of

the

concrete.

mended

and

minimum

5, 000

water-cement ratio.

42

psis

concrete strength

preferred.

d
of _,

000 psi is recom-

of primary importance is the

A ratio of no more than 0. 40 is recommended.

WIN IN

il

This

should

rr

I SUM

high-quality, low-porosity

provide

concrete

with

NOTES

increased ability to resist the penetration of chloride ions.

In the typical garage, the floor surface is subject to the most severe
conditions of load, wear, and exposure. The floor (containing steel
reinforcement,

electrical

construction

joints, expansion joints, joint sealants,

conduit, electrical

junction boxes,

and possible heating

cable or piping) may also have sprinklers, drain piping, and signs
suspended

deicing

from it. The

salts,

above

elements,

plus the application of

combine to make the floor susceptible to premature

deterioration if not properly drained, sealed, and maintained.

Types of deterioration which tend to occur in a concrete floor are

spelling, cracIdng, leaching, Scaling, and joint deterioration. Spallang,

leaching, and scaling may be controlled, or at least reduced by good

concrete quality control during construction and by the periodic
application of a high.-quality concrete sealer or membrane system.

Joint leaking also contributes to concrete deterioration and is the

cause of many durability problems experienced by parking struc-

tures today. The deterioration is especially prevalent in areas that

use deicer salts, and in areas adjacent to or near salt water.
Spans
are

potholes

or

usually

in reinforced concrete surfaces caused by corrosion

dish-shaped cavities. They can be up to several inches

deep and cover one to several square feet of surface area. Spalls can

occur individually or in groups covering several hundred square feet.

3

Horizontal fractures
the

exposed

called"

delaminati=

surface

concrete

when

the

7 often develop parallel to

reinforcement

is closely

spaced. Fractures originate where corrosion has damaged embedded

reinforcement or other embedded metal, especially ferrous electrical
conduit.

Freeze-thaw cycles, vehicular traffic, and additional corro-

sion influence the rate of fracture migration and spall development.

SpalIs can also develop from concentrated loads at edges or corners
of members or from a sharp blow from external sources.

W Contamiaaation
Concrete is
excess
s

water

not

leaving behind
Concrete

During construction,
aired for hydration eventually evaporates,

naturally

porous

material.

eg

an roterconnected network of p ores and capillaries.

capillaries

have diameters ranging from 10 to 1,000

Angstroms in diameter.The chloride ions are less than 2 Angstroms

43

61
NOTES

in diameter. Penetration of chloride ions into concrete and subse-

quent accumulation occurs readily on surfaces exposed to deicing

salts, wetting and drying, and freeze-thaw cycles.

E
lip

Locations in coastal areas are also exposed to salts. Essentially, all

concrete

is

susceptible

to

chloride

ion

contamination

by virtue of its

natural porosity.

during construction by reducing

the amount of mixwater, and by additives. By removing excess mixConcrete porosity

water,

fully

can

permeability is

be

reduced

reduced.

Silica fume has been used success-

to lower the permeability

of

the

concrete.

Other

are generally called pore blockers and pore liners.

Reinforcement embedded in concrete is usually protected by a thin
oxide film remaining after manufacturing and the passive effect of
highly

alkaline concrete.

Salts, either calcium or sodium. chloride,

can penetrate sound high-quality concrete and accumulate in sufficient quantities to cause corrosion of embedded reinforcement.
Research indicates that the
can

begin)

corrosion

threshold ( when corrosion

is when chloride ion accumulation exceeds 1. 1 to 1.6

pounds per cubic yard (300-400 ppm).

Metallic corrosion is an electro-chemical process that induces progressive

deterioration. Corrosion

by-products,

rust,"

develop at the

steel surface causing high stress in the surrounding concrete. Rust

expands to a volume of two to three times that of the parent metal.
The

by-product

accumulation creates

cent concrete, which results

concrete ( see

Figure 1).

in

cracks

internal

pressure on

Initial cracking due to corrosion can occur

CHLORIDE ION
MIGRATION INTO DECK

REINFORCED
CONCRETE DECK

COCK

D=

E=

DEPTH OF CLEAR COVER OVER REBARS

DIFFERENTIAL POTENTIAL( GALVANIC) IN REBARS

Figure I -R.ebar corrosion spelling mechanism

44

adja-

developing in the surrounding

s0

the

b3l.

REC.

when

the

loss

section

of

the

parent metal

is

as

low

as

percent.

NOTES

Cracks may appear vertically over the reinforcement nearest the

surface.

exposed
AO

These cracks allow direct access of moisture and

additional chloride to the reinforcement. This causes accelerated cordelamination.

subsequent
rosion and

The problem may be further

accelerated when cracks form from a total horizontal delamination.

Once initiated, corrosion stops only when the supply of oxygen and
moisture is cut off completely, when an opposing electrical current
is

applied

to the

reinforcement

network( cathodic protection),

or if

the electrolyte( Water) is removed, or ifthe parent metal is entirely

consumed

by

rusting.

The corrosion process consists of microcell

macrocell corrosion.

and

current

the

Microcell corrosion occurs when electrical

discharges from reinforcement at the anode and returns to

same

reinforcement

between different

levels

different

areas

at a cathode.

of

floor

of* chloride

Macrocell corrosion occurs

slab

which has

reinforcement,

contamination,

different

moisture

content, or for some other cause creates differential electrical potentials.A battery effect occurs, which causes rapid corrosion and related
deterioration.

The corrosion process and its subsequent effect on a reinforced

The rate of corrosion is related to the chloride

member

is

content.

The rate of corrosion correlates directly with the occur-

rence

of

progressive.

additional

corrosion rate

availability

the

delarninations

is generally thought to be

is

accelerated

below

dormant

subsequent

controlled

spaiiing.

by

the

freezing;

the

by the
secondly, by

anode and cathode.

increased heat.
rate

of

Corrosion

corrosion

The

primarily

and,
of moisture, oxygen., and chlorides,

amount of surface area of

sion

and

Also, corrc

is basically

approximately

doubles for every 10 degrees Centrigrade above freezing. Corrosion

and subsequent

deterioration can be slowed by reducing the avail-

ability of moisture and oxygen.

The

effect

that

Four things

corrosion

has

on a structural member

is variable.

happen, all of which are detrimental to structural

integrity:

Surface spalling occurs, causing a maintenance and

serviceability problem.

The

reinforcement

loses cross- section and stress

redistribution throughout the rerna.n. ng network occurs.

The

reinforcement

loses its bond with the concrete.

45

Concrete cross-section loss, in addition to reinforcement

NOTES

cross- section loss and bond loss, impairs the load

of

capacity

floor

slabs and

beams ( see Figure 2).

AO

ROAD S.1LT

1.

Moisture with chloride ion penetrates concrete and

reaches steel

in

sufficient

quantity to

cause corrosion. Corrosion

proceeds at a raze controlled

by chloride

concentration

and availability of
moisture and oxygen.

40

MOISTURE AND
CHLORIDE ION

REINFORCED
CONCRETS
FLOOR SLAB

00

REINFORCEMENT

2 Rust builds up around stem causing high

stress or pressure.

and migrates

to

Cracking

occurs

surface under

influence of traffic action

and freeze thaw cycling.

l
A.

DELAMINATION

CR FRACTURE

do

RUST BUILD-UP CAUSING PRESSURE

OPEN SPALL

r-

3. Concrete breaks away leaving open spall

or pothole. Full circumference corrosio
proceeds until complete debonding

of reinforcing occurs; section

loss accelerated.
r1

SALT WATER

cotmuuoUs CORROSION

Figure 2 - Corrosion-induced spalling process

One aspect of the corrosion phenomena that makes repairs difficult

is that multiple delaminations may occur as the chlorides migrate
deeper into the floor slab. Where top surface spaIIing coincides With
fuIl-depth floor

slab cracks,

it is

common

to find ceiling

spalls

dire

below floor spalls. The bottom reinforcement corrodes similarly to the

top, thus causing a multiple effect of concrete and reinforcement
section
same

loss. Surface

time,

spalt

can reduce the concrete section. At the

reinforcement(
severe corrosion of tension-

top

reinforce-

ment at supports and bottom reinforcement at mad-span) can result

in over-stressing and possible reinforcement yielding or failure.

46

b3
Spa 1i,n

members.
can occur on all stnictural

frequently
spaRing.

experience

Floor

slab systems

NOTES

the most extensive and widespread effect of

Beams, columns, and Walls are also susceptible to corrosion-

induced spalling
or spray (

when subject

to

chloride contamination

from runoff

see Figure 3).

1. CHLORIDE
INTRUSION

EMBEDDED REINFORCEMENT

A) MILD STEEL

Q.

@) PRESTRESSED STEEL

SEWI OR

COLUMN FACE

L PRIMARY
fRAMRE

I SECONDARY
FRACTURE

PROCESS OESCRIMON
1. Chloride ion intrusian

contaminates concrete

lowers pH and induces corrosion of

embedded reinforcement

2 Corrosion by-products' rUSr develop at bar surface and require egansion room.
3. Rust expansion causes pressures which crack surrounding concrete.

Figure 3 . Span development in beam

and cola

N Influence Factors

Iu the absence of a permanent protective barrier between the slab

surface and the reinforcement( such as a membrane or epoxy coatthe depth of concrete cover over embeding on the
reinforcement),

ded reinforcement and the permeability of the concrete are the

most important aspects of design and construction that can delay
the

onset of

spalling. Floor

slabs with

less

than? eCommended cover

over the reinforcement, which are subject to intense deicing expo-

47

iREG. '+

NOTES

B-7-709 634

sure,

undergo rapid and severe corrosion-induced spalling. Floor

slabs

constructed with

lower

water-cement ratio

concretes,

addi-

tional concrete cover at top reinforcement and with protection from

intense deicing exposure will provide increased service life_
In preparing maintenance programs for parldng facilities, consideration should be given to the areas where concentrations of reinforcement occur near the surface. With flat slab design., this

involves areas ad}acent to the column. For one-way slab and beam
designs, the area above the beam typically has more top reinforcement than at mid-span. Maintenance efforts directed at protecting
these areas from intense exposure will pay off in reduced spalling
and extensions of repair-free service life.

In order to properly prepare restoration construction documents, it

is first necessary to evaluate the effect spalling has had on the
carrying capacity of individual members and then to evaluate the
cost effectiveness of repair procedures with regard to the total
A structural engineer experienced in par'xing

restoration

prorg

garage restoration should be retained to perform the required

investigation, analysis, and evaluations.

E Cracbdnd

Concrete cracking is
construction

caused

by

or service related.

tensile

stress.

This may be either

Cracking commonly attributed to

by improper concrete placement,

improper consolidation, improper curing of the concrete, premature ,
construction

may be

caused

removal of form supports, or by plastic or drying shrinkage of the

concrete.

Service-related cracldng is usually due to temperature

changes,

load,

settlement,

or

internal

stress.

Corrosion of rein-

forcement and aggregate chemical reaction are common causes of

internal. stress.

Not all cracking is detrimental to the concrete member. In many

cases,

cracks

are

anticipated

and

reinforcement

is provided to

transfer stress across the crack. Properly positioned reinforcement

arrests crack development by keeping cracks short and limiting

their

width.

Cracking can be detrimental when it occurs to an

extent and frequency,not expected. If this happens, steps are nece the effect cracldn g has on long-term durability.
essary to

48

18770C 05

mt.

NOTES

a Leaching

Leaching is caused by frequent water migration through the floor

slab or cracks. As Water migrates through the concrete, it takes

along a

part of

the cementing

constituents,

depositing them as a

white film, stain, or a stalactite on the ceiling below. This process

may weaken the concrete over a period ofyears. It is accelerated by

porous or perpetually moist concrete. Leaching frequently occurs at

cracks

beneath gutterlines in the concrete surfaces above.

Reinforcing steel corrosion

Leaking construction joint

M Scaling
Concrete scaling is

tar fraction ( cement

deterioration
paste)

mSec

a**+

that attacks the mor-

of the concrete mix. It is characterized

initially as a minor flaking and rlisi itegration ofthe concrete surface.

With passing time it progresses deeper into the concrete, eventually

exposing aggregate, which breaks away. This further contnibutes to

the process by exposing more paste to the elements. In extreme cases,

apparently sound concrete can be reduced to a gravel-like condition

in

a short period of

time(

see

Figure 4-

Concrete scaling is generally

caused

following page).

by

freeze- thaw

action.

When

dry concrete is frozen, there is little damage. If saturated concrete

is frozen, excess water freezing in the concrete causes high stress

and weakens the mortar. Exposure to cyclic freeze-thaw action is

very destructive to concrete in a saturated state if the original concrete

is

not

amount and

high quality. Concrete with a proper

gdistnbution of entrained air is resistant to Scaling.
of sufficient

49

NW

WAT'r

NOTES

1.
Al

Concrete becomes saturated by water

penetrating through pores

and

capillaries.

Q0

2 Concrete is frozen in a saturated state

appear
causing high stress. Loose flakes
on the surface as the mortar breaks

As V4

Dc

away.
c

G_.

3. As flaking progresses, aggregate is

exposed and eventually breaks away,
thereby exposing

more paste

to freeze-

:-

thaw damage. In extreme cases

apparently sound concrete can be

reduced

to a

gravel- like state

in a

shag

period of time.

t
Figure 4- Concrete surface scaling

M Joint Deterioration

The two most common provisions made for crack control or relief of

restraint in concrete slabs are control joints and isolation joints.

Such joints have long been a source of maintenance problems.

Joints on supported floor slabs must be sealed against water leakage and 'intrusion of incompressible materials. Both situations are
damaging to the joint system.
Construction joints deteriorate for several reasons, usually associated with failure of the sealant or failure of the adjacent concrete.
Joint

sealants

bond,

strength, or

adjacent

50

not

have the

required

durability for a particular

to the joint is

will cause
concrete.

may

not

sufficiently

failure of the joint

sealant

degrees of flexiiilit9,
application.

If concrete

durable, then local scaling

by destroying its bond to the

RE.

Isolation joints

are also susceptible

to

premature

deterioration. The

NOTES

most common causes of early deterioration are improper joint

design or sealant material specifications, incorrect installation of
the

expansion

device,

and in-service damage from traffic or snow

plows.

Cracks in concrete are common. The existence of a crack does not

necessarily mean that the structure is in structural danger. Cracks

are generally serious when they occur in a pattern or frequency

that is not considered typical for a particular structural member.

Cracks are also a problem when they allow water leakage and subsequent contamination of the concrete and accelerated corrosion of
embedded

reinforcement.

Cracks also allow leaching and surface

staining, which can also cause vide deterioration of a structure,

and staining of panted vehicles from dripping water. The extent

and nature of cracking is influenced by design details, construction

quality. Cracking generally results from three basic

methods, and
actions:

restraint

of volumetric movement;

shrinkage of the con-

crete; or structural tension.

Methods of sealing a crack to prevent or limit moisture penetration

will depend on the cause of the crack and a prediction of what the
crack will do in the future. Some crack repairs require restoration
of

the

concrete

into its

state;

original monolithic

others can be

sealed and left free to move.

The restoration of cracked concrete to its original monolithic state

is typically accomplished with epoxy injection. For very shallow

fne cracks a low-viscosity epoxy may be poured into the joints until
it fills

and seals

the

crags.

Larger

and

deeper

cracks(> .

003 inches

inches) may require the use ofpressure epoxy injection. This

injection should proceed from the bottom of a crack and either be
0005

to.

considered

filled when it emerges from the top surface of an

unsealed crack or from an upper access port for a sealed crack.

Manufacturers' recommeudations should be followed regarding the
installation, application, temperature, and curing of such
epoxy applications.

Cracks that are to be left free to move and do not require structural
restoration

these

should

be

cracks should

sealed

to avoid water

penetration.

Typify,

be sealed from the top only. They may be sealed

by routing out the cracks and using an appropriate sealant. These

cracks are typically routed out using a grinder to achieve a uniform
width and depth to a sound surface prior to sealant application.

Typically a urethane sealant is then applied into the crack for its

length_Sealant size should be at least 1!2-inch deep and] 1'2inch wide.

51

m_.__..

r............

Y..

b3P

IREC..

NOTES

Some " joints"

are designed and built into the typical garage to

accommodate movement and shrinkage vt airs within the garage,

expansionAsola

joint;,

on

cons- racoon

joints,

joints,

control

and

precast member joints).

yam .
I.._

-+.}+.

i`+

F+

rV

no
r

rt. r'

ry.

CtlL

y.-..

t.-`.

'

r.+

,..

M.

13..
rS.."

tIL..

-.

..'.-.-

Ni
I'.....:

',

iii.

1YrnY.

y `.

y`YIV;..
r1J

Si;,

4.
Yew,

Failed joint

.:^

r..-

iY

--

aM -

w__

i7,'

Failed expansion joint

sealant

Isolation ( expansioa) joints

provide complete

separation

between

sections of a garage and accommodate movements assoc. ated with

temperature changes and long-term shrinkage and c'r'eep. They are

generally detailed

with

flexible

material

as

a seal.

Other joint

designs provide a steel traffic plate to bridge the joint opening, or

may simply employ a fle:aDle g' and to seal the joint while allowing

movement. Joints of all lands must be checked regularly for

damage and deterioration. Isolation joints work best when diiier-

for
3

two sides of the joint is minimi ed by '

structural supports crossing the joint.
ential

deflection between. th

Construction joints

are

located

predetermined

at

points.

These

joints typically have a tooled groove nlled with a flesiole sealant, or

may have cast-in-place water-stops to prevent leakage. Water-stops

are not good solutions

in freezin climates because water can accu-

mulate at the stop in the joint and cause damage.

Control joints accommodate cracking by creating a series of weakened planes at prsdetermined points

in floors

and walls.

in precast

parking structures such joints are recommended at tlae junction

between

all precast

deck

members.

Control joints are groove- tooled

or formed in plastic concrete or sawcut in the hardened concrete

and then filled with a fle:tiole sealant to prevent water penetration.

Sawcutting

to form

control

joints in

new

consj-rucuon is nor,recom-

mended because shrinkage in the concrete frequently develops a

5?

I1Lc.

cracltvng

pattern

iiiLLL.
I

before the sawcutting

can

take

place.

Thus the

NOTES

purpose of the sawcut is defeated.

structures, the joints between adja-

lop

For

precast,

as
p reto PPed P

cent members
sealant

to

become control joints and are sealed with a flexible

prevent

leakage.

Floor slabs at entrance and exit lanes receive the most exposure to
deicing salts; neat come gutter lines adjacent to walls and clubs.
Areas where cars turn comers or start/stop are subject to heavier
than

wear

other

floor

areas.

Such areas should be more closely

for deterioration and treated promptly.

monitored

Regardless of care taken during construction, garage floors often

have

collects
some areas where water

into

shallow ponds.

Deicing

salts will collect with the water, malting the floor in these pond

areas more susceptible to salt penetration. If ponds form over floor

joints,

possibilities
ii .

for deterioration

are

especially great.

Areas

where ponds tend to form should be checked after each rain or

snow,

and

the

ponds

eliminated

by

sweeping, squeegeeinb

or

adding a drain.

a Housekeeping

Routine housekeeping generally consists of frequent sweeping of

the

garage

should

be

chlorides.

periodic

and

with

washdowns

sufficient

Garden hoses

recommendations,

see

are

quantities

too

small

of

the decks. Washdowns

to

wash away

to do the job.

For cleaning

of

water

Section 1 - Cle nines.

Regular removal of sand and grit accumulations from drive aisles

will

help

to

minim

a the loss of slab surface through abrasion, as

well as help minimize damage to sealers, sealants, and expansion

joint systems.

It should, however, be noted that in certain cases, washdowns may

be detrimental to
already begun,

begun to form(

structure

if damage due to

has

corrosion

such as if extensive surface delaminatsons have

e. g.,

more than 1 percent of total surface area).

The advisability of washdowns for a particular structure should be

reviewed with a structural engineer who is knowledgeable in such
matters.

The removal ofloose concrete from delaminated or spalled

surfaces should also

be

The
reviewed with a qualified engineer.

engi-

neer may recommend removal of damaged overhead concrete to Pre53

vent it from falling

g on a vehi

NOTES

cle or pedestrian.

During

care

washdowns,

should be taken to remove

excess water from slab sur-

faces immediately after wash-

mg. In enclosed garages, the

parking

ventilation

system

should also be operating after

to

washdowns

eliminate

humidity buildup. Both measures will reduce the amount

of potential moisture penetra-

into the

tion

surfaces.

Spring washdown
Snow plowing

and

deck or sof'nt

ice

removal are

discussed in Section

105 -

Snow

and Ice Control.

M Preventive Maintenance
Inspection Program

The first step to any well-planned maintenance program, whether

for a new or old garage, is a reguZ~rly scheduled walkthrough survey
a visual inspection of the entire garage. An excellent reference
for such a survey is the " Guide for Malang a Condition Survey of ,
by the American Concrete Institute.
Concrete in Service,"
published

During the walk-through survey, observe the location and extent of

conditions

that

or

could cause,

have already

caused, concrete or

steel deterioration. Items to look for include surface deterioration

on top and bottom surfaces of the floor systems; evidence of water
leakage

and/ or

staining through or

st cuctural elements; cracks

on

the floors,

in floors, beams,

walls, or other

columns,

and walls;

and rusting of exposed steal. Leaking and staining are often early

indicators of future problems. A survey walk-through must be done

by

a conscientious observer.

If

evidence

of deterioration, scaling,

spalling, cracks, or leaks is observed, an engineer experienced with

parking

garage restoration should

be

consulted.

However, at least

every,two years the inspection should be made by a qualified

engihave been
neer

to

help ensure that no potentially serious

overlooked.

54

conditions

I_ "

M
I g-

NOTES

Drainage

Drainage is one of the most important factors affecting the dura

bility

of all parking

structures.

The length of time moisture is

allowed to collect on concrete surfaces will have a profound impact

on salt

contamination

levels in the decks. Elimination of ponding

additional

by

providing

is

recommended

as

drains and/or building up drainage slopes

first line

of

defense

against

corrosion.

Concrete surfaces protected with sealers and membranes also

require

good

drainage. These protection systems cannot protect

concrete under standing water unless special systems are used.

Water puddles should be eliminated where deicing salts are used.

Comments regarding maintenance of plumbing systems are presented in Section 9 - Plumbing Systems.

Corrosion Protection

Sealers and waterproof membranes are frequently used to reduce

penetration
moisture and salt

into parking

garages,

and thereby

delay or prevent the onset of corrosion activity in parking garages

exposed to salt.

Sealers may improve the abrasion resistance of the exposed concrete surfaces or retard the progression of surface flaking and scal-

ing where slabs may not have sufficient air entrainment to resist
freeze-thaw damage.

Membranes and sealants specifically reduce the rate of chloride

penetration

into

concrete.

However, such systems are not com-

pletely impervious to chloride ions, and they do have a finite life-

time before degradation occurs. There are concrete additives that

inhibit corrosion of steel inside the concrete. These additives polarize the steel anodically and/or cathodically, thus reducing the rate
of corrosion.

It is quite effective to combine membrane or sealant

waterproofing with internal corrosion inhibitors.

Another way of reducing chloride penetration into concrete is to

reduce the permeability of the concrete. Silica fume is a concrete
admixture designed to increase compressive and flexural strengths,

increase durability, reduce permeability, and improve hydraulic

abrasions-erosion resistance.

55

OT

64.2

BTT01r,

Off.

Cathodic protection is gaining, greater `use in limiting corrosion in

parlkina

concrete

reamorced

pr-:
vpal

The

structures.

behind

cathodic protection is the connection of reia orclg steel to a low

voltage direct-current power source to produce an electrical char-ge

that electrically impedes the corrosion process. Recent development

of conduc=

ve coatings, has produced a soffit-mounted cathodic pro-

tection system that may offer cost-effective protectiion for some

applications.

The

use of

this

system

in

n'

par

rages is relatevely

new and under coaimuin.g development; however, recent installations of cathodic protect-:.on in pan ng-garages have Gene: ally been
successful.

Advice of both an independent corrosion engineer and

engineer

structural

should

durability,

effecZveness,

be

operating

aluatin;
a-,%

when

solicited
costs,

system

and overall feasioili y of

cathodic protection.

Pr

r'

'

r;

'

cam.-..x'.-

..- .

ee-:.:!
r/

r_..,
e~..

''

rJ'.rrx-

rr

e'

yY:

7i-

rt^. r;:.

r!:.
.
i.:<

M:

Lnstalling cathodic protection

U,nbonded.Post-Tensioned Structures
construction,
unbonded post- tensioned

Current
Parma

garages use

encapsulated

tendon

for state-oLthe- art

systems containi

highly

high-streneth steel cables protected by a grease coating

and plastic sheathing. It is important that the plastic sheathing,
details exclude all water frora
anchorage, and other
stressed,

construction

contact with the grease or the cable, as the grease itself does not
typically

provide

Dermanent

corrosion

protection

from water.

rxtvnded contact with either water or salt water can mouse breakage

ao

OPT

of the

cables

that

often

cannot be readily detected from

a visual

exam-.

NOTES

nation of the structure.

Investigation
tion by
be

a structural engineer experienced is such matters

Warranted

is cases

Where

it is

possible

for

Water t. gain

access into the postrtensioning tendons, either during construction

or through the anchorage- areas or through discontinuities in

the
every

plastic

R ePa'

rhea.

of

P ast-tensioned

structures can

complex; therefore, a second.opunon( peer review) regardmg.procelures is often warranted.

used

in

Note that post-tensioned -systems are

buildings without the enca Psulated ,protection,

enclosed

used in parking garages.

E Repairs
Repairs
repairs

may
are

be

undone,

or major. Minor
do not affect the

be

a repair required

classified as cosmetic ( minor)

left
generally those that, if

integrity of the garage.

An ezaample

of a. minor cosmetic repair would

to refmish the corner of.a concrete column knocked off by a car

bumper. If there is no

major

damage, then the

repair

may be made

by cleaning and patching,with..new concrete or any of several commercially available patching materials.

Major repairs to ;concrete :include those for scaling, `spallin91 and

cracking.

good

reference

for evaluation and repair procedures. is the

American Concrete Institute .{ACD Compilation

Repair and Restoration.' It

subject of concrete repairs.

To 5, " Concrete

contains a broad range.of ait cles on the

All major repairs are developed through the evaluation of a protection system, Many-protection systems are related to corrosion or
moisture protection- -The: expected life of repairs can,vary from a
short one to three years to: much longer .depending on the repair
details and the protection system:

Eaal.0 tion

of Rep= r:Scope

The first step,in repairing concrete damage of any kind is to deter,

mine

the nature and extant of the.problem, The walk-tihro

survey

5?

SfiG.

NOTES

CUT,TUD -9,4

is a start, but it must be understood that a visual survey reviews

deterioration visible at the concrete surface. Most of the concrete

deterioration is related to problems 2 to 3 inches below the surface.

A review of the walk-through survey results may indicate need for

a more comprehensive survey that would include testing for subsurface fractures and delaminations and/or salt contamination.

Despite a most thorough investigation, some bidden deterioration

may be, revealed only after excavating into the concrete member.
An experienced engineer may recommend exploratory excavations to
review

internal

structural conditions

before the start of repair work.

Avoid Makeshift Repairs

Repairs to any damaged areas must be undertaken with care.

Improper
a

repairs

temporary

hide, but do

not cure,

the

asphalt patch over a spall.

problem.

An example is

Asphalt is porous and will

permit salt-laden water to collect unseen at the bottom of the spalL

which

will

often

accelerate

corrosion.

If steel reinforcement is

exposed at the bottom of the spall, the continuous contact with salt

water will expedite the corrosion of the steel and weakening of the
floor. The improper repair will hide the problem until the corroding
steel has caused a larger spall.

Surface Repairs

Repairs to scaled or severely pitted areas may range in complexity

from simple cleaning and sealing, to isolated patching, to installa-

tion of a concrete overlay or a protective membrane. Surface scal-

ing and pitting is usually caused by a deficiency in the concrete

properties.

the

depth

The deficiency can be evaluated by testing to determine

and

before starting

severity of the

problem..

Testing is recommended

a complex and expensive repair.

Clean.

has been

discussed in Section 1.

Spar1Z Repairs

spalls.

Concrete "

lives. The
details,

service

life is

normal"

have different expected seance

repairs"

patch

affected

protection systems, and

Patching with"

58

is generally an effective repair for isolated

concrete " patch repair'

by

the

the

repair materials,

cause of

the

original

repair

damage.

4,000 psi concrete can accelerate corrosion

surrounding

chloride-contaminated

concrete.

It is, therefore,

NOTES

irmportant that repairs consider the specific details and requirements.

A good patch must be durable and must bond well to the concrete
substrate.

usually fails. The

ered edge

edge should

be

r12IIum of 114- inch

The patch must also react to temperature changes in the

thick.
same

Patch edges should not be feathered because the feath-

way

does, and be compatible with it. Early failure of

concrete

many polymeric patching materials is directly due to the difference

in

coefficients

of expansion

between the patch material and the

underlying concrete. .
While many patching

materials

have been tried, the most widely

used and effective are generally Portland cement-based materials.

Other successfully used patching materials are various epoxy and
polymer concretes, although

their

greater cost.

these are used

less

extensively

due to

Polymer concretes are classed as thermosetting

and hydrating. Examples of thermosetting polymer concrete are

those containing epoxy and those containing methyl methacrylate.

Examples of hydrating polymer concretes are those containing

styrene-butadene("

latex")

additives

that

enhance

bond and reduce

permeability.

In

all cases,

tractor

installation of patching

experienced

should

be

performed

by a con

in similar work and capable of maintaining an

acceptable standard of patch quality and installation suitability.

American

Concrete Institute (ACI)

Standard Specifications for

epoxy systems (ACI Standards 503.1 through 503.4) are good references.

lard

The American
material

Society for Testing

specification "

Materials ( ASfi.NI) Stan-

ASTM C 881 Epoxy Resin Based

Bonding Systems for Concrete" may also be helpful, but in all cases
check expansion coefficients for compatibility with conventional
concrete. If none are given, do not assume either compatibility or
satisfactory performance.

Overlay Repairs

When the total area to be patched is a significant part of the floor

area,

an overlay may be more cost-effective than isolated patches.

An overlay can also be used to modify floor gradients to improve

drainage

and eliminate

ponding.

It

59

DrF.

NOTES

Overlays

1 8F

1DIB

b4b,

will add thickness

to the

original

floor

system.

Headroom

will then be less than was originally designed and the. structure
weight (

dead load)

be higher_ These considerations must be

will

examined by a qualified engineer to ensure that the overlay does

not cause more problems than it solves.

Several types of concrete overlay have been used extensively and

highly effective: low-slump, high-density

have been found to be

LMC),

and microsilica

concrete (

LSDC), latex-modified

concrete.

Conventional Portland cement concrete has also been

concrete (

used, but less extensively.

LSDC (

also called "

the Iowa Method")

overlay consists of a low

water-cement ratio, high cement content concrete that has reduced

permeability to water and deicing salts. Workability problems characteristic of

LSDC

be

can

solved

by

using

proper additives.

This

overlay should not be considered if its weight will be a problem.

LMC overlays use a special admixture in the plastic concrete that
reduces permeability to water and deicing salts, and is more effective
with less thickness than LSDC. The reduced quantities required for

an UIC overlay may be offset by its higher unit costs compared to

LSDC, so cost comparisons should be made for the specific project.
Conventional concrete overlays consist of a cement- rich mix with

usual slump and water reducing admixtures to reduce permeability

to water and deicing salts. This overlay may be a somewhat less

durable overlay than either LSDC or LMC but at somewhat less

cost.

Polymer concrete overlays have begin used only on a limited scale

and

have

to as

not

been fully

polymer or

surface

evaluated.

epoxy

deterioration

concrete,

problems,

Such systems, whether referred

can offer, however, solutions to

and should not be excluded from

consideration.

Recently,silica fume concrete overlays have been used successfully.

Silica fume concrete has low porosity and high strength. Proper
attention to placing and curing techniques is mandatory with silica

fume concrete.
3

Overlay cost comparisons should be made only for the specific use
intended.

General

cost

comparisons

tend to be misleading due to

the effects of specific quantities and construction constraints on inplace costs.

60
i

h..............:.................,.......,.,,..,...,..

r......,........-.....,......,........:....,....,..................................

1,87MM R
NOTES

Post Tensioning Repairs

Unbonded post-tensioned structures can sometimes be repaired by

old post- tension strand or wires,
removing the
and

threading in

new strand coated with

cleaning the ducts

high-quality

grease.

In

some cases, epoxy-coated strands have been used to provide addi-

tional protection agaimst future corrosion. Waterproofing is typically

included in the restoration scope to reduce future moisture ingress.
Alternatively, the post-tensioning tendons can be abandoned and

an alternate structural system provided, for example, by installing

new steel beams below a damaged slab or installing an extemal
post-tensioning system.

Many posttensioned systems can be repaired by replacing the

damaged portion of the system. Damaged post-tensioned anchors or
spliced sections of the tendon are often replaced.

Crack Repaim

Isolated leaks may be eliminated by proper crack repairs. If there

are many leaks in the floor, installation of a protective membrane
may be the best solution.

Ongoing Monitoring and Maintenance

Since repair procedures are often undertaken after deterioration

has begun, and since the original construction may not have incorporated certain design features to reduce corrosion, some continued
deterioration
repeated

at

must

be

regular

expected_

intervals,

An evaluation procedure should be

preferably annually, to detect any

at an early stage.
onzoing deterioration
engage

only

qualified

engineers

and

Should deterioration occur,

contractors

with

proven

records of expertise in parking garage maintenance and repair.

61

i.

rte........

i...^..,...,,..

in..;,

NOTES

n..,,,

r....,

rr-''<"
.
"`'+_;,:

f',_,...#
r;,.,

t'_

5t11t7W: AID
rti 5' ..

ZS'

COt\
iTRCIL::::'
I CE C
i':.':-'
=

i._

a:-,,,....:.

sr"

IStY: i%'

4:."

v"

r_ -

ter

V
i QZ^

Included in this section are discussions of

Snow plowing and removal

Snore melting
Ice control

0 Housekeeping

As a rule of thumb, snowplow vehicle axle weights should be kept

below 4,000 pounds to avoid over-stressing the parking garage's

structural system.. Good practice dictates checking with the garage

designer to ensure that the intended vehicle is not too heavy.

The snowplow blade must not be allowed to damage the concrete

floor, sealants, toppings, or expansion joints. A heavy rubber blade
edge may be fitted to the bottom of the plow's steel edge, with plow
shoes or casters adjusted to keep the steel plow edge at least one
half inch above the floor.
Snowfall

sufficient

hamper parking

to

operations

should be

removed. When snow is packed down by car tires, it becomes slippery

and can

become

hazard.

Snow may be plowed to predetermined

locations in the garage, particularly on the top floor and simply left

to melt, or it may be removed from the structure by a small frontend

loader,

such as a "

Bobcat,"

or by a heavy-duty snowthrower.

Provisions such as gates can be provided in the exterior spandrels

to make sure snow is dumped from the structure to a designated

area to facilitate removal Snow should not be piled so high as to

overstress the structure.

If the snow is dumped over the side of the garage, care must be
taken to avoid damaging the walls, panels, connections, sealants, or

other elements. Reasonable and prudent measures should be used

to avoid personal injury or property damage during snow removal
operations.

Snow dumped

over

the

side

may be left

on

the

ground

to

melt,

if

space allows. Care must be exercised not to pile snow on or against

another structure or to obstruct sight distances or emergency

access or cause

damage to

existing

landscaping. In congested areas,

or by local ordinance, removal of the snow away from the garage

may be required. Removal may have to occur during specific hours.

62

NOTES

AP

r
t

Snovvplovv with rubber blade attachment

If the snow is left in piles on garage floors, avoid overloading the

floor

Piles should be located where

aisles. Melted water may
do

beyond its design load.

slab

snow melt will not flow across

refreeze at night, leaving ice patches in the aisle. Frozen chunks of

snow or ice that may have fallen from vehicles should be disposed
of daily.Melted snow from the roof may run into a shall ow area and
freeze, causing slick areas. These areas should be treated with sand.
Ice buildup may be controlled by using heated sand or a mixture of
sand and salt. Do not apply deicing chemicals containing chloride

directly to concrete unless absolutely necessary. Small amounts of .

3

salt ( 3

to 6

percent

by

weight)

added to sand can be effective in

increasing traction and facilitating ice melt.

l the sand/salt mixture to concrete only as needed and flush
Apply
the deck with a high-power water wash as soon as weather permits.
i

Afire hose

or a

3L 1- 1/ 2 inch diameter hose is recommended;

garden hose volumes are insufficient. Drains should be protected

against runoff-related sand accumulation during ice control operations.

Temporary* burlap or straw filters may be used to prevent

drain and piping from clo g" zng.

Recent technology has seen the development of new products that

m; n. m.

the

effects of chloride

magnesium acetate (

damage from

road salts.

Calcium

CMA) is a promising alternative to salt. CMA

is a non-corrosive (non-chloride) deicer.

63

I 6770M -'b,5,f
NOTES

in Preventive Maintenance

Some parking garages contain gas- fired, electric-powered, or steam

These

snow melters.

each

fall,

waits should

and periodically

be

during

checked

the

for proper operation

To operate

winter months.

properly, some units may need to be turned on several hours before

the predicted snowfaiL Some units have a' snow sensor" that turns

on the unit when it begins to snow. If the sensor is not effective, a

manual switch should be installed.

Some parlting garages have a snow melting system embedded in

the floor of
ways.

or

Such

certain areas,
systems are

ethylene

glycol

such as outside stairs or heated drive-

generally

fluid. In

one of

either

two kinds: electrical cable

case,

the system should be

checked for operation before the first snowfall of the season.

Maintenance
Breaks in

cables (

the

the

follow

should

appropriate

system

electrical system) or pipes (

manual.

the fluid system

are difficult to trace. Consequently, the system installer should be

contacted if operational problems arise.
Another

snow

melting

system

consists

of

heat ( infrared) lamps

mounted above the surface. Maintenance of these lamps is similar

to

other

types

of

lamps

as noted

in Section 3 - Electrical Systems.

Lamp operation should be checked daily during the snow season.

Installation of infrared lamps must account for vehicle queuing at

entry/eat

points.

Vehicles standing in the same posimon below

Lamps for long periods of time can have their finishes damaged.
this
Qualified installers

should

be

consulted when

contemplating

type of equipment.

Whatever the

snow

melting

system,

an indicator light should be

installed in a highly visible central location to indicate when the

system

is in

operation.

Some operators have learned after they

have received their power bill, that their systems were still on in
the spring.

64

0 F F.

UC-

Tf

7,

M;MENDED- MA INS ELV

NCePRGGR 4 M:

"t\ tII

LHECKt I(

The recommended maintenance program that is outlined in this manual is intended to cover the
most

typical

stru cture.

aspects of maintenance,

including

those related to cleaning, safety, equipment, and

gram is divided into 15 descriptive sec tIOIIS, These

For convenience the maintenance p
program

sections are:

1.

Cleaning

2.

Doors and hardware

S.

Electrical Systems

4.

Elevators

5.

Heating, Ventilating, Air Conditioning( H VAC)

6.

Landscaping

Painting
g

8.

Parking Control Equipment

9.

Plumbing Systems

10.

Roofing and Waterproofing

il.

Safety Checks

12.

Security Systems

13.

Signs ( Graphics)

14.

Structural Systems

15.

Snow and Ice Control

It is recommended that for each parking garage, a facility-specific maintenance program be

developed. The specific maintenance program should include the following items:
A.

A schedule of cleaning, inspection, lubrication, and other recurring maintenance activities.

B.

A catalog of all equipment, including manufacturer's service manuals for the installed
equipment. Product warranties should be included.

C.

Records of preventive maintenance performed on any element, and logs of both service calls
and types of repairs made.

D.

Establishing responsibility for implementing and carrying out all portions of the program.

E.

A management control system to verify that the maintenance program is being carried out
and is effective.

The checklist that follows is a guide to many of the items in a parking garage that should be
checked and maintained at regular intervals. A suggested frequency of observation or attention is
indicated.

65

TOR b;5Z
pot

eIMA

El"-

Daily
Y-

CT R

Weekly

LV" ENA

Monthly

Quarterly

I aaanaUy i

Semi-

kamaIIy!

Other
see notes)

LNINU

Sweeping

localized

Sweeping -

all areas

including curbs)
Expansion joints

Empty trash cans

Toilets

floors, futures
gulls

Cashier booths

floors, fixtures
w alls

Elevators

Moors, doors, tracks

windows, glass backs

Stairs

moors, handrails
windows

i
i

Lobby, office
floors

windows

Wash down parking floors

see note below)

at

2.

Parking control equipment

DOORS AND HARDWARE

1

Doors close and latch properly

Mechanized doors

Panic hardware at security doors

Lubricate mechanized doors

Spring and Fall

NOTE. Waslz&

wns should

be

a minimum

of two per year,

although

it is

recommended

that

they

occur

rwty

This may very due to regional location, however.Northern regions should be washed down more frequently.

66

f.

b5

REC.

TURE
PARKING: STRUC-

MAi1'1lg- NANE

Daily

3.

ELECTRICAL
0

Weekly

Monthly

Semi- (

Quarterly

Other

Annually

Annually

see notes)

SYSTEM

Check light fixtures and

exposed conduit

Relamp
Special

units -

Distribution

4.

fissures

inspect

1}

panels

ELEVATORS
v

Check for normal operation

Check indicators and

a '

preventive

other lights

5.

maintenance service

FiMMNG, VFWMAMN

AND AIR CONDI'T'IONING

SVAC)

Check for proper operation

o

Check ventilation in enclosed

or underground garage
Preventive

6.

LANDSCAPING
a

maintenance service

Remove trash

Gardening-

mow, trim, weed

67

Qf

Ton v54

&;
fwwf

A-

ev;

'

lc1Y:" lNlrw.+.::-'

11Y. ir3r:Mwc3

iSa'..

yr_
r

J,.,n$ L:.-,..:a::..:'

C.
r^

R
A;RK3htC-5?'RU i]

7.

pAINTIlVG

Quarterly

Monthly

Weekly

Daily

t'V A1i11?' EN'AiV

Semi.

Other

Annually

lAmma2y

see notes)

Check for rust spots

Doors and door frames

Handrails and guardrails

pipe awards, exposed pipes

and conduits

Other metal

Check for appearance

Striping
SLns

Malls
Curbs

Zbuch-up paint

Repot

I
S.

PARHING CON'T'ROL
EQUIPIVMENT

Check for

proper operation

Preventive

9.

I
I

maintenance

pLtTMBINGIDRALXAGE

SYSTEMS

Check for proper operation

Sanitary facilities
Irrigation

Floor drains

Sump pump
Fire
Drain

protection system

water systems for

Check for-icy
Remove

68

winter ,

spots

snow and

ice

16701

IfL5

AW

Weekly

Daily

Monthly

Semi-

Quarterly

Annually

A==

Hy

Other
see notes)

ROOFING AND
WA17ERPROOFING

Check for leaks

Roofing

Joint sealant in floors

Expansion joints

Windows, doors and walls

Floor membrane areas
N

Check for wear and

deterioration*

SAFETY CHECKS
r.

Carbon monoxide monitor

Handrails and guardrails

Rmdt lights

Emergency lights
Tripping hazards

124 SE CUR=

SYS

Check for proper operation

Closed circuit TV
Audio surveillance

Panic buttons

Stair door locks and alarms

13. SIGNS ( GRAPHICS)

Check signs for.

In place
Clean
Legible

Illuminated

69

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RAC. When coating,

it is

or r.

protection

planned

j-() j !

one

Ulu

U01 .

T. CONCLUSIO,

must be absolutely clear about the ot-jectives and aware of

the strengths and

of the various products and

weaknesses

procedures available. purely cosmetic work may be of

in keeping the building welcoming to the user, but

Develop

long

term

for

stategy

maintenance of the car park and its

tue

don'

fool

into thinking it

yourself

underking deterioration.
Waterproofing without
ponding is

likely

not

to

falls

to

attention

be

to

prevent

Repairs

reliable.

the

slow

will

to

need

barriers.

Have a full set of readily accessible as

built drawings and maintenance records.

consider developing corrosion around a spall. Concrete is

not an easily repaired material and one cannot patch the

as

reinforcement

to

cover

simply

as

one

repaint

can

corroded steelwork.

Repairs

be

or should

non

as '

considered

Repairs

made ' structural'.

further cutting

require

be

of deterioration and to predict long term

trends.

to patch a hole with no contribution to

structural'

strength

either

should

Have a survey to establish current trends

out

always

to prepare the surface.

Have a structural review carried out to

This

identify the kev areas of structural

may

weakness and/ or structural sensitivity to

temporary support and the repair

may
deteriorate and lose its structural effectiveness. Specialist
require

deterioration for regular inspection.

Structural Engineering advice should be obtained to

ensure that

safety is

maintained

at all stages.

It is difficult to make repairs structurally effective

out

unless

thev are

repair

is fully linked

three

cut

dimensional

deep

to ensure that the

enough

to the substrate concrete

the

The dimensional

cage.

reinforcement

by

Iden tifv where and when protection,

strengthening or repair may become

appropriate
ro

PP

as P art of the loner term

maintenance programme.

incompatibilities between repairs and the substrate

be

relied

concrete

pth

interface

cannot

Protection and local repair can prolong

underlying
structurally,
is not bruised by the cutting out. Often full
out with high pressure water jetting and

so check the cost and benefit over the

adhesion at the

concrete are such that

on

the

when

even

cutting

Casting with Concrete is the only really effective method

of repair.

In

instances ` belt

some

additional

external

out and

effective than

detail,
If

which

braces'

and

cutting
can be left

to

recasting

business it helps

Before repairs are carried out ensure

that a Structural Engineer has checked

deteriorate

harmlessly
a
daunting

emphasize

the

and expensive

for better initial

the need

your strategy,

the original poor

repair seems

structural

residual life of the structure as part of

repair, using
be more cost

will

strengthening,

active life, but won' t achieve immortality,

structure ` as

as cut out

for

built', ` as deteriorated',

repair', ` as

and

repaired'

with repair delaminated'.

construction and earlv action to slow deterioration before

structural damage occurs.

Insist on a full recorded survey of

condition before problems are hidden_

6. LESSONS FOR NEW DESIGN

An improved design basis for

be

parks should

car

bridge design
simplifying down from

developed

by

standards,

rather than by uprating building design

Owners

should ensure that an explicit'

vlaintainability Audit' is

carried out on

Durabilin'

and

design,

the

the

construction and site supervision procedures before

signing the contract.
Concrete is

for

park

cost

an

essential

structure.

effectively

material

There is

creating

for

many parts

a substantial

more

of

potential

robust and

durable

repairs,

patch

coatings

or

waterproofing,
Ensure

practice.

a car

below

good

falls,

wash down regularly

and keep the drains clear and have

regular specialist inspections carried out.
At

some

point,

controlled decay until

reconstruction will become a better

strateg than endless repair.

concrete car parks by learning from the performance

of

existing

tailing,

structures.

the

use

of

This

higher

will

require

quality

better

concretes and

improvements in the construction practice and

supervision. This cannot be achieved for car parks by

relving

on

traditional

procedures

covered

in

current

When you build a new car park ensure

that

durability,

quality

control

maintainability and

during

construction have

proper priority.

building codes.
28

Journal

r,/

Parkin,,

558
EXHIBIT 14. 1( h)

PARKING FACILITY AND COMMON GROUNDS MAINTENANCE SCHEDULE

DAILY TASKS:
A.

General Cleaning

1.

Trash pick up: all ramps, stairwells, elevators, common areas and landscaped areas
Empty trash receptacles: in facility and on-site replace trash bag and secure same
Clean restrooms: sweep and mop floors, clean toilet basin and sink with disinfectant

2.

3.

cleanser, clean mirrors stock all paper goods, empty trash receptacles
4.

Stairs and Stairwells: stairs swept, handrails dusted, signage and lighting checked, doors to

5.

stairs dusted/ cleaned if needed

Clean all glass: office and/ or booth windows, elevators( as applicable)

6.

Office

area: work areas

dusted(

cleaned

if necessary), floors mopped, rugs vacuumed,

bathrooms cleaned and supplies in bathrooms checked and replenished as needed

8.

Sweep and hose off sidewalks, loading dock, trash room

Sweep and mop all lobby areas

B.

Lighting, Fire Extinguishers and Fire Protection System, Sianaae and Security

7.

S stems :

2.

Check all light fixtures: in facility and on- site( replace bulbs as needed)
Inventory all fire extinguishers: report any vandalism or missing fire extinguishers

1.

3.

Check all signage: both informational and illuminated

4.

Check security system: test all radio control boxes, call boxes and speaker horns

5.

Check placement of all cameras and reception of camera shots in security office( as
applicable)

6.

Check elevator cab communication devices and alarms( as applicable)

7.

Check elevator lights and replace bulbs as needed

C.

Parking Control Equipment and Attendant Booths:

1.

Check for proper operation of gate arms, ticket spitters, power pads and proximity readers

2.

Dust all booth equipment( power pad, verifier, cash drawer and other, as applicable)

3.

Sweep all booths and shake out floor mats

D.

Elevators:

1.

Mop floors, clean walls and panels with polish, clean or replace ceiling tiles
Dust doorframe and sweep door tracks clear of debris

2.

F WINSKEM M Michigan-Lincoln Plaza\ Unco1nP1azaGmd1se8- 17a( Ex) wpd

August 30, 1999( 2 49PM)

187708 6.59
WEEKLY TASKS:
A.

General Cleaning

1.

Wash trash receptacles: in facility and on-site

2.

Pressure wash stairwells and landings

3.

Mop and sanitize attendant booths and/or cashier office

4.

Removal of infestations: cobwebs, nests, etc. as applicable

B.

Lighting, Fire Extinguishers and Fire Protection System, Signage and Security
S stems :

lighting: in facility and on-site

1.

Assure

2.

5.

in facility and on-site

Assure replacement/repair of all emergency fire protection and security system components
Repair or replace any broken ballasts
Check that all illuminated directional signage is in working order

C.

Parking Control Equipment:

1.
2.

Repair any needs reported re: proper operation of gate arms, ticket spitters, power pads and
proximity readers, verifier, cash drawer and other, as applicable
Clean and dust all ticket spitters and check for moisture intrusion

D.

Elevators:

1.

Perform any necessary maintenance for optimum performance of each unit

2.

Check all panels for vandalism and repair as needed

3.
4.

Assure

replacement/ repair of

replacement

of all

all

fire

extinguishers:

3.

Dust bulbs, fixtures and diffusers

4.

Polish metal work throughout

E.

Doors and Hardware:

1.

Check all door components for proper closure, locking and latching

2.

3.

Re- calibrate door components as needed

Lubricate overhead door devices

F.

Painted surfaces and signage:

1.

Inspect the condition of all painted surfaces and facility signage( interior and exterior) and

3
i

remove any stickers, gum or other foreign objects

2.

Prepare work order for areas needing painting or signs that need replacement

F:IMINSKERIC M Michigan-Lincoln PlazalLincolnPlazaGmdlsc8- 17a(Ex) wpd

August 30, I999( 2 49PM)
t

71'Ci a

MONTHLY TASKS:
General Cleaning:_

1.
2.

Power sweep all ramps and common concrete slab areas

Inspect all joints and condition of sealants, prepare work order to address needed
deficiencies

3.

Hose down all ramps ( if using pressure, adhere to PSI recommended by builder)

4.

Pressure clean stairwells and landings and all sidewalks

5.

Seal and wax all file floors in facility and common areas

b.
8.

Clean or replace all air conditioning filters in facility and common areas
Check all drains and remove any foreign objects in facility and common areas
Check for any leaks in facility or common areas, offices or booths and repair as needed

9.

Check condition of stucco in facility and common areas and repair as needed

10.

Remove carbon build up from all exposed surfaces in facility and common areas

B.

Li_Ming, Fire Extinguishers and Fire Protection System, Sig,nape and Security

7.

S stems :

1.
2.

Replace all missing signage in facility and common areas

Inspect all fire extinguisher housings in facility and common areas, and repair or replace as
needed

3.

Test security system as per manufacturers specifications and report any variances or need
for repair

4.

Check fire protection, standpipes and smoke detectors in facility and common areas, repair
and replace components as needed to assure optimum performance

C.

Parking Control Equipment:

1.

Monthly maintenance of all gate arms, ticket spitters, power pads and proximity readers

2.

Repair or replace components as needed

D.

Painted surfaces and signage:

1.

2.

Prepare surfaces of handrails and apply a fresh coat of paint

Inspect all painted surfaces in facility and common area, and prepare

3.

Replace all missing signage and order back up inventory

up surfaces as needed

QUARTERLY TASKS:

A.

General Cleaning:

1.

Degrease all floors and ramps and clean all expansion joints

FAMTNSKEW M B1Michipn-Lincoln PlazalLincnlnPla72Gmd1se8- 17a( Ex).wpd

August 30, 1999( 2 49PM)

and paint,

or touch-

I' ll

2.

18770" 66.x.

Power scrub or power wash all ramps and concrete slab surfaces( use PSI recommended by
builder)

B.

Lighting, Fire Extinguishers and Fire Protection System, Signage and Security
S stems :

1.

Check

all

light fixtures

and exposed conduit.

Repair and replace as needed.

2.

Check distribution and switchgear

3.

Check that all timers and photocells are working properly. Repair or replace as needed.

C.

Landscape Maintenance:

1.
3.

Trim shrubs and prune all planted materials in facility and on-site
Test all irrigation systems in facility and common areas, and repair as needed
Replace flowering plants in facility and common areas seasonally as needed

4.

Inspect all landscape lighting and uplighting and repair or replace bulbs, photocells or other

2.

components as needed

D.

Checklist for leaks and water intrusion:

1.

Check for leaks at drain basins, inlet grates, leaders, downspouts, floor sleeves, stairwells,
elevator roofs, expansion joints, floor joints and cracks, and check basin for buildup

2.

Inspect the ceiling below for signs of active leaks

3.

Repair and address as required

E.

Checklist for structural inspections:

1.

Check for cracks and spalls at beams, columns,brick and or block work

2.

Check floors and ceilings for cracks, spalls, abrasion and stalling

3.

Check expansion joints for deterioration, failed or splitting rubber glands and failed nosing
materials

4.

Check for roofing material deterioration

5.

Check and repair all sealants and caulking

6.

Check any waterproofing membrane( if applicable)

7.

Repair and replace materials as required

ANNUAL TASKS:

1.
2.
3.

Test fire protection systems and complete annual inspection with City
Test all elevator system operations and complete annual inspection with City
Perform annual inspections by maintenance/supply contractors of:
a.

Revenue control equipment

b.

Air conditioning equipment

C.

All maintenance vehicles/equipment

FAMMSKER\C M Michigan-Lincoln Plaza\LincolnPlazaGmdlse$- 17a( Ex) wpd

August 30, 1999( 2:49PM)

NEC,

I 670M 6.6

BI-ANNUAL TASKS
1.

Check floor striping for signs of wear and fading and if warranted, restripej all painted
floor directional painting etc.)
Inspection of facility for structural integrity by
surfaces( stalls,

2.

a qualified

engineering firm. Firm shall

prepare a condition survey which shall at a minimum contain information on:

b.

Deterioration of concrete( spalling, corrosion etc.)

Longevity of concrete sealer

a.

C.

Water leakage

d.

Condition of precast connections

e.

Cracking of concrete
Rusting of steel
Condition of waterproofing membrane

f.
3

g.

S
3

F:IMINSKEM M BMichigan-Lincoln P1aza\Linco1nP1mGmd1se8- 17a( Ex) wpd

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0- 167-TOR bu.63
EXHIBIT 14. 1( c)

OWNER' S OPERATING STANDARDS

1.

GENERAL PERSONNEL REGULATIONS AND STANDARDS:

Parking Attendants, Cashiers, Supervisors and Management

a.

All personnel shall present a positive and professional appearance and demeanor when
conducting the business of the Garage.

b.

All personnel shall maintain good grooming standards.

C.

All personnel shall wear uniforms which display the name of the parking operator.
Uniforms shall be clean and pressed.

d.

All personnel shall wear name tags.

e.

All personnel shall be responsible for the neat and orderly upkeep of their workstation
or attendant booth.

All personnel shall be trained in the use of revenue control equipment and proper
maintenance of same.

g.
h.

All personnel shall be trained in customer service.

i.

All personnel shall be able to effectively converse, read and write in English.
All personnel shall be able to complete daily cash reports, inspection reports and related

J_

All personnel shall understand their role as an ambassador of, and partner to the City

management reports( as applicable to individual responsibility levels).

of

Miami Beach. The

personnel.

Operator,

k.

The

City

City shall provide"

in- service"

training opportunities for Garage

shall also provide collateral printed

materials

to the Garage

to assist the parking public and visitors.

All personnel of the Garage Operator shall be bonded and insured.

Contract Labor:

Housekeeping,/Janitorial Services, Security

Personnel, Landscape

Maintenance Personnel
3

a.

All contracted personnel shall present a positive and professional appearance and

b.

All contracted personnel shall maintain good grooming standards.

C.

All

demeanor when conducting their business in the Garage and on the common areas.
contracted personnel shall wear

p
uniforms which display
p y the name of their company.

Uniforms shall be clean and pressed.

d.

All contracted personnel shall wear name tags.

e.

All contracted personnel shall be trained in customer service.

f.

All contracted personnel shall be able to effectively converse in English.

g.

All contracted personnel shall understand their role as an ambassador of, and partner

h.

All contracted personnel shall fully understand their contractural responsibilities and

to the City of Miami Beach.

scope of work assigned, and shall effectively perform said duties.

F:1MINSKERIC M Michigan-Lincoln Plaza\LincolnPlazaGmdlses- 17a( Ex) wpd

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REC. 18, -t -OR %, 4

2.

a.

b.
C.

PARKING OPERATION STANDARDS:

The Garage shall be attended and secured 24-hours per day, seven days per week.
All personnel shall be professional and courteous in the performance of their duties.
The Garage shall be sufficiently staffed at all times. At a minimum one cashier/attendant;

one manager or supervisor; and one security guard, shall be present and working in the
Garage at all times.

d.

Housekeeping and janitorial services shall be performed a minimum of eight( S) hours

day. The Garage and common areas shall be kept free of litter at all times.
Security services shall be provided continuously, 24- hours per day. Security personnel
shall be licensed and insured. Security services shall provide for continuous " roaming"
per

e.

guard patrol throughout the Garage.

C

Landscape

maintenance

shall

be

performed

on

weekly basis.

All landscape

maintenance shall be in accordance to the specifications of the Landscape Architect on

the Project.
with "

Furthermore, all landscape maintenance shall be performed in accordance

Facility and Garage Maintenance Standards" contained herein and described as

Exhibit 14. 1( b).

g.

Garage Operator shall assure that maintenance contracts are continuously in effect for
elevators,

parking

control

revenue

systems

and

security

systems,

and that said

maintenance contracts, at a minimum, shall adhere to the provisions set forth in the
Facility

and

Garage Maintenance Standards"

contained herein and described as

Exhibit 14. 1( b).

h.

Garage Operator shall be responsible for assuring that all contractors( security,
houskeeping/janitorial and landscape maintenance) adhere to " Facility and Garage
Maintenance Standards" contained herein and described as Exhibit 14. 1( b).

3.

a.

REPORTING STANDARDS:

Garage Operator shall maintain daily records of the Garage operation (cash receipts,
logs, maintenance records, staffing levels, contractural service levels).

usage

b.

Garage Operator shall report the following to the City on a monthly basis:
1.

Daily cash receipts

2.

Daily usage log which includes:

a.
Number of hourly( transient) packers
b.
Number of flat rate parkers: both daily and special flat rate
parkers

C.

Number

d.

Number of valet parkers( if applicable)

of monthly parkers

5.

Daily log of contractural security staff hours

Daily log of contractural janitorial/housekeeping staff hours
Copies of monthly landscape maintenance invoices

6.

Copies
P

3.
4.

of

monthly

maintenance service

invoices, and/ or receipts for

elevator, security system, parking control equipment)

F WINSKEM M Michigan-Lincoln Plaza\ LincolnPI=
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Gmdise8- 17a( Ex) wpd

mac..

C.

3 '

X65

Garage Operator shall report all instances logged on facility security reports, or incidents
reported to the City of Miami Beach Police Department.

d.
e.

The City reserves the right to inspect all Garage operation records, and audit same.
The Garage Operator shall provide annually to the City, a certified audit of Garage
operations and revenues.

4.

COMPLIANCE

WITH OPERATIONAL AND MAINTENANCE STANDARDS:

INSPECTION OF PREMISES, CORRECTION OF DEFICIENCIES, AND DISPUTE

RESOLUTION

a.

Garage Operator
shall make Garage and common areas available to the City for
P
inspection

at

any time.

These areas include, but are not limited to: Garage ramp areas,

stairwells, elevators, security system, common areas, garage office and attendant booths.
b.

Garage Operator

shall

correct,

replace,

repair

or

attend

to,

any maintenance or

operational deficiency identified by the City of Miami Beach as a result ofany inspection
of

the Garage, its

common areas, and/ or

its

operation.

Notice of deficiency by City to

Garage Operator may be verbal, but shall be followed up in written form. Correction of
said deficiency shall be handled within seventy-two( 72) hours of notice.
C.

Garage Operator shall address all operational complaints by the public in a professional,

courteous and timely manner. Written complaints which are copied to the City shall be
responded to in writing, with copies to the City' s Parking Director.
d.

The City reserves the right to arbitrate any Garage operation complaint that has not

been resolved to the satisfaction of the customer or the City. The City' s Parking Director

shall act as the liaison in such matters.

FAVIINSKEW M Michigan-Lincoln Ptm\LincolnPlazaGrndlse8- 17a(Ex) wpd

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OF
R-EG.

I U70K

EXHIBIT 36.

TERMS OF TENANT' S RIGHT OF FIRST OFFER TRANSACTION

1.

Purchase Price.

The Purchase Price shall be as set forth by Owner in the Offer Notice and shall be payable

at the closing of the purchase by wire transfer of immediately available funds to an account
designated in writing by Owner. The Purchase Price may not include seller-financing unless
Owner is an Institutional Lender or an Affiliate of an Institutional Lender. The purchaser

shall not be permitted to make its obligation to close contingent on obtaining third-party
financing.
2.

Closing Date.

The closing of the purchase shall take place on a date designated by Owner, but in any event
not less than sixty (60) days nor more than ninety (90) days following the date such Owner
executes a purchase agreement with the purchaser.
3.

Deed: Title.

At the closing of the purchase, Owner shall convey to the purchaser( i) all of Owner' s right,
title and interest
right,

in

and to the

title and interest in

Premises

by

to this Lease

and

a special

by

warranty deed and ( ii) all of Owner' s

lease. The form of such

an assignment of

deed and assignment of lease shall be mutually acceptable to Owner and Tenant but shall not

in any event provide for any representations by Owner other than a representation that
Owner has not theretofore transferred or assigned the items being transferred or conveyed

thereby and the representations and warranties customarily contained in a special warranty

Owner' s Interest in the Premises and the Lease shall be conveyed to Tenant subject

deed.

to all liens, encumbrances and other matters then affecting the title thereto and any state of
facts
of

reveal ( but in all cases subject to Owner' s obligations under Section 2. 2

Owner shall also execute all other documents customarily used in real estate

survey may

the Lease).

transactions

in Miami-Dade

Governmental

County, Florida;

statement

any title
or

however, that if Owner is a

Authority, ( x) such documents shall not include those documents from which

Governmental Authorities are

respect to

provided,

exempt pursuant

affidavit required of

certification

regarding

to

applicable

Requirements

and (

y)

with

Owner, ( i) Owner shall not be required to make any

parties- in-possession

and (

ii) any

statement

or

certification regarding mechanics' or materialmen' s liens shall cover only work or materials
directly contracted for by Owner in writing.

F.W NSKERIC M Bwichigan-Lincoln Plaza\ LincolnPlazaGmdlseg- 17a( Ex) wpd

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87TOR EL
4.

Rent: Prorations.

At the closing of the purchase, all Rental and/or Impositions shall be prorated through the
date

5.

of

closing

and paid

to the party entitled thereto.

No other prorations shall be made.

Expenses.
Each party

shall

pay its

own attorneys'

fees.

All transfer taxes, title charges, recording fees,

survey charges and other expenses incurred in connection with the purchase shall be paid by
Tenant; provided, however, that Owner shall pay all documentary stamp taxes and surtax,
if any, payable in connection with the purchase.

F:IMINSKERIC M Michigan-Lincoln Plaza\LincolnPlazaGmdlse8- 17a( Ex) wpd

August 30, 1999( 2 49PM)

SEC.

I!

1187,1 '

EXHIBIT 36.2( a)

TERMS OF OWNER' S RIGHT OF FIRST OFFER TRANSACTION

1.

Purchase Price.

The Purchase Price shall be as set forth by Tenant in the Offer Notice and shall be payable at

the closing of the purchase by wire transfer of immediately available funds to an account
by Tenant. The Purchase Price may not include seller-financing unless
Tenant is an Institutional Lender or an Affiliate ofan Institutional Lender. The purchaser shall
designated in writing

not be permitted to make its obligation to close contingent on obtaining third-party financing.
2.

Closing Date.

The closing of the purchase shall take place on a date designated by Tenant, but in any event
not less than sixty( 60) days nor more than ninety( 90) days following the date such Tenant
executes a purchase agreement with the purchaser.
3.

Deed; Title.

At the closing of the purchase, Tenant shall convey to the purchaser( i) all of Tenant' s right,
title and interest in and to the Premises by a special warranty deed and( ii) all ofTenant' s right,
title and interest

in

and to this

Lease

by an assignment of lease. The form of such deed and

assignment oflease shall be mutually acceptable to Tenant and Owner but shall not in any event

provide for any representations by Tenant other than a representation that Tenant has not
theretofore transferred or assigned the items being transferred or conveyed thereby and the
representations and warranties

customarily

contained

in

a special

warranty deed. Tenant' s

Interest in the Premises and the Lease shall be conveyed to Owner subject to all liens,
encumbrances and other matters then affecting the title thereto and any state of facts a survey

may reveal ( but in all cases subject to Tenant' s obligations under Section 2.2 of the Lease).

Tenant shall also execute all other documents customarily used in real estate transactions in

Miami- Dade County, Florida; provided, however, that ifTenant is a Governmental Authority,
x) such documents shall not include those documents from which Governmental Authorities
are exempt pursuant
required of

to

Tenant, ( i)

Requirements

y) with respect to any title affidavit

Tenant shall not be required to make any statement or certification
applicable

and (

regarding parties-in-possession and( ii) any statement or certification regarding mechanics' or

materialmen's liens shall cover only work or materials directly contracted for by Tenant in
writing.

4.

Rent: Prorations.

At the closing ofthe purchase, all Rental and/or Impositions shall be prorated through the date
of closing and paid

to the party

entitled

thereto.

F:IMINSKERIC M B\ Michigan-Lincoln Plaza\ l.incolnPlazaGmdlse8- 17a( Ex) wpd

August 30, 1999( 2: 49PM)

No other prorations shall be made.

ppr

OFF

5.

Expenses.

Each party

shall

pay its

own attorneys'

fees.

All transfer taxes, title charges, recording fees,

survey charges and other expenses incurred in connection with the purchase shall be paid by
Owner; provided, however, that Tenant shall pay all documentary stamp taxes and surtax, if
any, payable in connection with the purchase.

RECORDERS

NOTE:

no legibility of writing, typing or printing unsatis-

factory in this document when received.

RECORDED IN OFFICt 1t RECORDS W0X

OF BADE COUNTY, FLORIDA.
RECORD VERIFIED

HARVEY RUVlN
CLERK WROWT COURT

F-1MiNSKER\C M MMichigan-Lincoln Piarall:.incoltiPlazaGmdlse& l?a( Ex) wpd

August 30, 1999( 2 49PM)