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HomeMy WebLinkAboutExhibitFOURTH AMENDMENT TO BAYSIDE PARKING GARAGE LEASE AGREEMENT (GARAGE PARCEL) This Fourth Amendment to Bayside Parking Garage Lease Agreement (Garage Parcel)(this "Amendment")is made and entered into this day of , 2014 ("Effective Date"), by and between the CITY OF MIAMI, a municipal corporation of the State of Florida ("City") and BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company, successor by merger to Bayside Center Limited Partnership ("Developer"). WITNESSETH: WHEREAS, City and Developer are the current landlord and tenant, respectively, under that certain Lease Agreement dated as of January 14, 1985, as. amended by that certain First Amendment of Agreement of Lease dated as of October 17, 19„ 85, as further amended by that certain Second Amendment to Bayside ParkingGarage Lease Agreement dated as of September 13, 1988, as further amended by that certain Third Amendment to Bayside Parking Garage Lease Agreement dated as of April 15, 1993 and as further amended by thatpcertain Release and Settlement Agreement dated as of December 30, 1' 108 cJ1lectively an ogether with any krev attachments, exhibits or riders theretothe "Lease a' ertain premises c .ted at Bayside Marketplace in Miami, Florida, as more particularl escribed in the Lease (the "Leased Property"). A memorandum of the Lease w s recorded in Book 12690, at Page 159, and supplemented in Book 13849, at Page 1004, both of. -the Pubr Records of Miami -Dade County, Florida; and WHEREAS, concurrently with this Amendment, City and Developer are amending certain provisions of the Retail rea G and Lease pursuant to the terms of that certain Fourth Amendment to Amended a d Rest c Lease Agreement (Retail Parcel) of even date herewith (the "Retail Parcel Amendment .WHEREAS, City and Developer desiret€: modify certain provisions of the Lease on the terms and co ditions set fortlherein,-subject to approval from the Miami City Commission and approval of a referendum. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Developer hereby agree that the foregoing recitals are true and correct, and further agree as follows: 1. Definitions. All capitalized terms used in this Amendment shall have the definitions ascribed to such terms in the Lease, unless defined or amended in this Amendment. The term "Lease" shall refer to the Lease (as defined in the first recital above), as modified by this Amendment. The term "Lease Term" shall refer to the Original Term (as modified in this Amendment) and any applicable Renewal Terms. The terms "Subtenant" and "Sublease" shall have the same meanings as ascribed to such terms in the Retail Area Ground Lease, except that such terms, for purposes of the Lease and this Amendment, shall pertain to such use or occupancy of any part of the Garage Parcel or the hnprovements located thereon. 1 2. Original Term. The Original Term, as currently defined in Section 2.1(b) of the Lease, commenced on December. 1, 1985 and is scheduled to terminate on November 30, 2030. The Original Term is hereby amended and extended such that the Original Tenn now expires on November 30, 2060. All references in the Lease to the Original Term shall refer to the Original Term as extended by this Amendment. Within thirty (30) days after the Effective Date, the City Manager and Developer, upon request of City or Developer, shall execute one or more written memoranda for the Lease or amendments to any existing memoranda for the Lease in such form as will enable them to be recorded in the Public Records of Miami -Dade County, Florida setting forth the beginning and termination dates of the modified Original Term. 3. Renewal Terms. (a) Subject to approval of the Ground Lase Referendum (as hereinafter defined) by the City's electorate, Section 2.1(c) of the Lease. is hereby amended arndestated in its entirety as follows (c) Renewal Terms. Developer is herebygra ted four (4) options to renew this Lease (each, a n al Option") from time to time upon the same terms and conditions, except + ise express .,provided in this Lease, for up to four (4) additional conse tiv ;ens (each called a "Renewal Term"), with the first three (3) additiona Renewal Terms being for fifteen (15) years each and the final Renewal Term being for ei t . 8 years,=commencing at the expiration of the Original Term or thelpre rc p a Term, as the case may be. So long as Events of Developer' ailt shall nohave occurred and be continuing at the time Developer exerci Renewal Option, Developer may exercise each Renewal O do :y ;giving t ;City express written notice thereof on of be date that is two (2) years before the date on e latter�� � the such wal Term s to commence or (ii) thirty (30) days following en notice from City adsrng Developer that Developer has failed to furnish no is : ® f its exercise of'the applicable Renewal Term by the date set forth in the precedir®clause (i), which notice shall state in bold capitalized large font letters that suc€tce constitutes :the final notice to Developer of its right to exercise the applicable Renewal Option. Within sixty (60) days after commencement of Manager and Developer, upon request of either party written memoranda in such form as will enable them a Renewal Tenn, the Ci shall execute one or: to be recorded amo1 the Public Records of Miami -Dade County setting forth the beginning and termination dates of the Renewal Turn, determined in accordance with this Lease. The total of all Renewal Tenns, if all Renewal Options are validly exercised, is fifty three (53) years. (b) Notwithstanding anything in the Lease or in this Amendment to the contrary, Minimum Base Rental (as defined below) for the first Rental Year of each Renewal Term shall be reset at Fair Market Rent, as defined and determined in accordance with the terms and conditions provided in Exhibit "A" attached hereto, and shall not be subject to adjustment by the CPI Escalation (as defined below).Minimuin Base Rental may be increased after the first Rental Year 2 of any Renewal Term by the CPI Escalation, as provided in Section 4(c) below. In no event shall the Minimum Base Rental for the second, third or fourth Renewal Terms increase by more than fifteen percent (15%) over the Minimum Base Rental then applicable. 4. Rental. Section 2.5 of the Lease is hereby deleted in its entirety. From and after the Effective Date, the only scheduled rental payments ("Rental") due to City under the Lease shall be the following: (a) Amount of Rental. Developer covenants that t shall pay to City as Rental for the Leased Property Minimum Base Rental and Percentage Re as defined below). Developer shall paythe monthlyRental to the Cityof Miami, De artment - inance at the address noted below: P �>. City of Miami Department of Finance Attention: Treasury Maria , ment/Receipts 444 SW 2" dAvenue, 6th F Miami, Florida 33130-1910 (b) Minimum Base Rental ` ,,, mum Base Re`tal shall be payable by Developer on the Effective Date, and thereafter on thefir t st) day of ea calendar month for the balance of the Original Term in equal monthly installments Mlmmum Ba Rental shall initially be $675,000 per annum ("Minimum Bn ental"), as it may be i ceased by the API Escalation, as provided in Section 4(c) below. Rage Rental for any �, a ia�l calendar month during the Lease Term shall be prorated ba', k pon the number of days n``the partial calendar month within the Lease Tenn against the total number of dad in the applicable calendar month. All references in the Lease to "Anal Basic Rental" shall . Le i fter refer solely to Minimum Base Rental, as set forth herein. nuCity acknowledges arc he CPI Escalation, as provided for in Section 4(c) below, and the Fair Market Ren c justments at the commencement of each Renewal Term, as set forth in Section 3(b) above,- shall b e only adjustments to Minimum Base Rental. Commencing on the date that the First Parking Garage Expansion (as defined below) is open to the general public for business (the "First Parking Garage Expansion Opening Date"), Developer shall pay City additional Minimum Base Rental in the amount of $241,920 per annum (the "Additional Minimum Base Rental") in equal monthly installments in the manner provided for in this Section 4(b) above. If the First,Parkmg Garage Expansion Opening Date is on a day other than the first day of a calendar month, t ie. the additional Minimum Base Rental for the partial calendar month in which the First Parking arage Expansion Opening Date occurs shall be prorated as provided above. From and after the First Parking Garage Expansion Opening Date, the term "Minimum Base Rental" as used in this Amendment, shall be deemed to include the Additional Minimum Base Rental. However, in no event shall Minimum Base Rental be subject to increase as a result of any Future Parking Garage Expansion (as defined below). (c) Consumer Price Index (CPI) Escalation. (i) Developer agrees that Minimum Base Rental shall be increased every Rental Year during the Lease Tenn (each, a "CPI Escalation Year") following the Effective Date by an 3 amount equal to the percentage increase during the year immediately prior to the CPI Escalation Year in the consumer price index ("Index"), which is the monthly index published by the Bureau of Labor Statistics of the United States Department of Labor as the Consumer Price Index for All Items, Miami -Ft. Lauderdale, Florida, Base Year 1982-84=100. The CPI adjustment to Minimum Base Rental shall be hereinafter referred to as the "CPI Escalation." The amount of the CPI Escalation to Minimum Base Rental shall be capped at three percent (3%) each time the CPI Escalation is made (the "Maximum CPI Percentage"). The CPI adjustment set forth herein shall not result in a reduction of Minimum Base Rental. Notwithstanding anything to the contrary set forth herein, the first CPI Escalation Year with respect to Minimum Base Rental shall be the Rental Year commencing January 1, 2016. (ii) The CPI Escalation of Minimum Base shall be equal to Minimum Base Rental in effect for the CPI Escalation Year multiplied by the "CPI Percentage" (as Maximum CPI Percentage. The CPI Percentage shy equal the fracti! the monthly Index published immediately pnoar to t e CPI EscalationYe previous month), and (ii) whose denominator the same monthly Inde prior to the Rental Year that preceded the CPI e ration Y (or the near month). If the Index is discontinued with no suce ®r Icfex}City shall se reasonable comparable index. (iii) City shall compute�thc CPI Escalations a Developer setting forth the adjusted Minimum Base Renta ental for the CPI Escalation Year al:,Year immediately preceding the dined below) not to exceed the i) whose numerator equals r, (or the nearest reported published immediately reported previous a commercially commencement of each Minimum Base Ren such notice, the addif"i current Rental Year. elation Year- or as s eveloper shall panto City ithin thirty (30) days of receiving Base Rental owed for the months that have elapsed in the end a notice, with calculations, to 'thin sixty (60) days of the ex is available. In the event (d) Percentage Rent i'ercen at shall -be due and payable to City pursuant to the terms and conditions set :forth t h Exhibit attached hereto. As used herein, the term Percentage, Rent means those amounts described in Exhibit "B" attached hereto. (e) Independent Operating Entity and Bank Account. Developer will establish (if not currently established) an operating entity that is unique and distinct to the operations of Developer at the Leased Property, as well as one or more bank accounts through which deposits of Gross Receipts (as defined in Exhibit "B" attached hereto) generated from such operations will be made. These particular deposits cif Gross Receipts will not be commingled with those from any other operations of Developer or' any other affiliated organizations. City acknowledges and agrees that Bayside Marketplace, LLC is an independent operating entity for purposes of this provision. (fj Late Charge. Notwithstanding anything to the contrary set forth in the Lease, any installment of Minimum Base Rental, Percentage Rent, or any rent component or expenses due to City pursuant to the Lease, as amended hereby, which is not paid within ten (10) days following written notice of Developer's failure to pay when due, shall accrue interest at an annual rate equal to two percent (2%) over the prune rate charged by Citibank, N.A. from time -to -time, but in no event in excess of the maximum interest rate permitted by law (the "Default Rate"), from the date 4 such payment was due until the date such payment is paid to the City and an administrative overhead charge of 0.5% of the installment of Rental that has not been timely paid. It is agreed that the foregoing administrative charge is not a penalty but is a regulatory fee. From and after the Effective Date, all references in the Lease to the "Default Rate" shall mean the Default Rate as defined herein. If Developer fails to cure a late payment within ten (10) days following written notice of such failure from City, as provided herein, more than once in any Rental Year, then commencing with the second late payment that is not timely cured by Developer, the Default Rate shall be adjusted for the balance of such Rental Year to be twelve percent (12%) per annum, but in no event in excess of the maximum interest rate permitted by law. 5. Alterations and Renovations. (a) Alterations and Renovations. Section 14`of the Lease is hereby amended and restated in its entirety as follows: Section 3.14 Alterations and, enovations. After t iompletion of construction of the Developer Improvements, Developer from ti •;time may make such alterations or renovations thereof as it shall deem irable; provided, however, that no re ®,; ation or alteration which materially a s the exterior appearance of th ,rovements or the overall character and appearance of the public circu ation areas shall be made until such time as the City Manager shall have approved, in vie ' g; definite e construction plans and specifications therefor in comph ce wi alls_applicablle codes, rules and regulations, which approval shall be unreasonably withheld or delayed. Developer m41secure and pay for a n and all permit?,,and approvals required to perform any bof the contemplated alterations or renovations. (b) Renovation Wor construction and in Parcel that are consist attached *hereto and made approved by C ty and shall n City Manages - royal of th Exhibit "C" and an applied for by Deve Seven Million Dollars Thirty Five Million Dollar; er, at tiO sole cost and expense, shall complete the on of certain Capital Impr® -ments to the Retail Parcel and the Garage 'th the Capital Improvements depicted or described on Exhibit "C" hereof(the "Renovation Work"). The Renovation Work is hereby iequireany further approvals or consents from City, except for the pplans and s ecifications for the Renovation Work as set forth in equired building and land development permits and approvals which must be yDeveloper covenants that Developer shall expend no less than Twenty- . 7,00 0,00) (the "Minimum Level of Investment") but not more than ,000,000) in connection with the Renovation Work, which shall include, without limitation, all third party soft and hard costs and expenses incurred by Developer to complete all Renovation Work. Upon completion of the Renovation Work, Developer shall furnish to City copies of invoices and receipts in connection therewith as shall be required to reasonably demonstrate Developer's achievement of the Minimum Level of Investment. _(c) Bonding. Developer agrees to post (or cause its contractor(s) to post) payment and performance bond(s) in favor of City, in substantially the form prescribed by § 255.05, Fla. Stat. for the full amount (i.e., 100%) of the cost of all alterations, reconstruction, additions, and other renovations performed by Developer at the Garage Parcel. The bond shall be issued by a 5 Florida licensed surety company rated A: V or better per A.M. Best's Key Rating Guide and shall be subject to approval as to form by City's Risk Manager and City Attorney. Both City and Miami Dade County shall be listed as obligees. (d) Retail Parcel Maximum Allowable Square Footage for Retail Parcel and Garage Parcel. Developer may only build up to the maximum allowable Leaseable Area of 267,000 square feet of enclosed retail space, including restaurants at the Retail Parcel and Garage Parcel, collectively. The foregoing maximum allowable Leasable Area does not include the allowable square footage for the Tower, as set forth in the Tower Warrant (as defined in the Retail Amendment), which shall be inaddition to the maximum allowable Leaseable Area for the Retail Parcel and Garage Parcel. Developer agrees to expand ie Parking Garage as part of the Renovation Work to add 448 additional parking spaces (the' ixst Parking Garage Expansion"). In addition, Developer shall have the right to further ®a t arking Garage, in its sole and absolute discretion, to provide up to an additional arking aces at the Parking Garage (the "Future Parking Garage Expansion". 6. Transfers. (a) Section 5.1(a) and (b) .of the Lease are hereby amended and restated in their entirety as follows: "Transfer" means: (i) or total :sale, asS �e gittmg or conveyance er thane=" n connection it1 any , dancing or refinancing contemplated by the Leae) of Developer's leasehold estate in the "ease oryany contract or agreement to do any of the same; any trans e f r the direct o Properties, Inc. (a "Change of Co p interests in Developer resulting in irect beneficial ownership of General Growth g less than fifty percent (50%) of Developer 1)). (iu) any merged 'r consolidation of Developer with any other person at is not n affiliate of Developer, or the sale of all or stUfastantia y all of the assets of Developer to any person that is not a: iliate of Developer. For purposes hereof, "affiliate" shall mean any person or entity controlling, controlled by or under common control with Developer (with the term "control" and correlative terns meaning the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of the business and affairs of Developer by reason of the ownership of voting interests, by contract or otherwise). "Owner" means: 6 any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, more than fifty percent (50%) of the membership or other equity interests in Developer, but shall not include any equity holder of an Owner whose shares are publicly traded. (b) In Section 5.2(c) of the Lease, the reference to "stock of the General Partner of Developer" shall be deleted and replaced with "the membership interests of Developer" and the reference to "stock" shall be deleted and replaced with "membership interests". (c) In Section 5.3 of the Lease, (i) all references to "limited partner" or "partner" shall be deleted and replaced with "member" and (ii) the word "limited liability company" shall be added to Section 5.3(e) following the word "joint venture'; (iii) the reference to "subparagraphs (a) through (j)" in the first paragraph of Section 5.3 shall be deleted and replaced with "subparagraphs (a) through (m)"; and (iv) the following penal Transfers shall bead ed to the end of Section 5.3: (1) Any Transfer resulting from theyledg- any direct or n irect ownership interests in. Developer as ecurity for a ® made by an Institutional Investor to Developer or any direc oar eet beneficener of Developer. (m) Any Transfer of director indire not result in a= hange of Control. (d) Section:; inapplicable and of no (e) amendment are he further force and effect fry wnersh1Rterests in Developer that does ease is hereby deleted in its entirety and shall be deemed d effect from and after the Effective Date. a " l udmg all modifications to "Section 5.8" by prior their e e aird shall be deemed inapplicable and of no e Effecti 1 ate. (f) the event of a TransferFee Transaction (as hereinafter defined), Developer or transferee shal a to City a fee (the "Transfer Fee"), in connection with such Transfer Fee Transaction as follows. during the initial five (5) years following the Effective Date, the Transfer Fee shall be 2% of the Gross Sale Amount (as hereinafter defined); between the fifth (5t) anniversary and the tenth (i 0 ) anniversary of the Effective Date, the Transfer Fee shall be 1.5% of the Gross Sale Amount; between the tenth (10th) anniversary of the Effective Date and the twentieth (20th) anniversary oft the Effective Date, the Transfer Fee shall be 1 % of the Gross Sale Amount; and after the twentieth (20th) anniversary of the Effective Date, the Transfer Fee shall be 0.75% of the Gross Sale Amount of such transaction. Developer shall pay to City the Transfer Fee at the time the Transfer Fee Transaction closes and the Gross Sale Amount has been received by Developer. A "Transfer Fee Transaction" shall mean any Transfer other than a permitted Transfer pursuant to Section 5.3 of the Lease, as amended herein. "Gross Sale Amount" shall mean the gross sale proceeds actually received by Developer upon the consummation of any Transfer Fee Transaction. Developer shall furnish to City a copy of a financial statement, a closing statement, a 7 Transfer document, or other similar document in connection therewith as shall reasonably demonstrate the Gross Sale Amount. 7. Financing. (a) The second sentence of Section 6.1(a) pertaining to a cap on any financing or refinancing equal to the amount of the Development Costs is hereby deleted in its entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date. Developer agrees that the amount of any financing or refinancing procured by Developer from and after the Effective Date to be secured by a Leasehold Mortgage shall in no event exceed eighty percent (80%) of the fair market value of Developer's leasehold=nterest in the Leased Property and fee interest in the Improvements to be encumbered by -the lien of a Leasehold Mortgage, as determined by an appraisal conducted by Developer's easeheld Mortgagee. (b) If Developer engages in any new financing or``fefinancing with respect to the Retail Parcel or the Garage Parcel (or both), th, . new shall have the ore -time right to participate in such financing or refinancing in an amount e al to three percent (3 %) o. he first $125,000,000 of of Loan Proceeds (as hereinafter defined), for a maximum total participatio =- crest of $3,750,000 (the "Participation Interest"). By w of clarification, it for; example, De ` . er engages in a s financing or refinancing which r an Loan Proceed . of $100,000,000 with respect to Developer's interest in the Retail Parcel and Loan Proceeds of $25,000,000 with respect to Developer's interest in the Garage Parcel, the than Proceed threshold of $125,000,000 will be achieved based upon the sum of the Loan-Paoce or botht he Retail Parcel and the Garage Parcel financings.Howeve Developer's t fina atransaction results in Loan Proceeds that are less than $125,000 000, then the different e u een $125,000,000 and the amount of the Loan Proceeds from the first financing shall be considered the "Loan Proceeds Differential" (e.g., if Developer's first financing transaction results in Loan Proceeds equal to $110,000,000, then the Loan Proceeds: Differential Differential, City shag be entit amount equal to three p al to $15,000,000). In the event of a Loan Proceeds art cipate in the subsequent refinancing by Developer in an nt (3z%)tf the Loan Proceeds Differential. The Participation Interest (or the applicable portion ereof i e Participation Interest is not otherwise paid from one financing traction) shall paid to City upon the consummation of the applicable financing or refinancing trara, tion(s). Cit acknowledges and agrees that in no event shall City be entitled to participate in any bsequent financing or refinancing once the Participation Interest has been paid in full and that the pr visions of this Section 7(b) shall be deemed null and void and of no further force and effect upon `s c pa ent in full. If requested by Developer, City agrees to certify in writing for the benefit o per, any prospective Lender or any prospective purchaser of all or any portion of Developer's ''•terest in the Retail Parcel and Garage Parcel, that the Participation Interest has been paid in full. For purposes of this Section 7(b), "Loan Proceeds" shall mean the net proceeds available to Developer from any financing or refinancing after deduction of (i) all third party costs and expenses incurred by Developer in connection with the financing or refinancing transaction, including, without limitation, all fees, costs and expenses imposed by Developer's Lender and any rating agencies, as well as title and survey costs, escrow fees, appraisal costs, consultant costs and attorneys' fees and costs and (ii) all amounts required to repay then -existing debt being refinanced or to repurchase Developer's estate in the Retail Parcel or Garage Parcel, as applicable, if previously conveyed in a Sale -Leaseback Transaction. 8 (c) City further acknowledges and agrees that in addition to the rights set forth in Section 6.1(a) of the Lease, as amended hereby, Developer shall have the right to procure financing with respect to the Leased Property, the Improvements or Developer's leasehold interest that is secured by collateral other than a Leasehold Mortgage encumbering Developer's leasehold interest in the Leased Property, including, without limitation, a pledge of direct or indirect ownership interests in Developer so long as the such financing is provided by an Institutional Investor. (d) The definition of "Institution Investor" in Section 6.1(b) of the Lease is hereby deleted in its entirety and replaced with the following: "Institutional Investor" shall mean: (i) any real estate investment trust, bank, savings and loan association, savings bank, trust company, i *ranee compan *raneey, investment bank, commercial credit corpora. ension trust, pension plan, pension fund or pension advisory y retirement trust, retirement plan, retirement fund or retireme advisory fiiiii, welfare trust, welfare plan, welfare fund or welfare, advifirm, mutual fund, government entity or plan, nt company, money management firm o " qualified i t , tional buyer" within the meaning of Rule 44A "under the Securities Act of 1933, as amended, or an institution*, ".accredited investor" within the mear�g c� Regulation D under the SecuritiesAct of 1933, as amen_+ (ii) any env estment fiend, hmie lability company, limited partnership nership where an entity that is otherwise an r" under "clause (i) of this definition acts as the ma aging- menincr or fiend manager and at least %) of -the equity interests in such investment directly or indirectly, by one or more entities titutional Investors under clause (i); (iv) vehic that are otherwise�In5 ny entity andard org who'' size an with a long-term unsecured debt rating from any of Poor's, Moody's, or Fitch (or the successor of any of them) of at least investment grade or (B) operates at least three (3) shopping centers of similar quality to Bayside Marketplace, Miami, Florida; any Qualified Trustee (as defined below) in connection with (A) a securitization of, (B) the creation of collateralized debt obligations ("CDO") secured by, or (C) a financing through an "owner trust". "Qualified Trustee" means (x) any corporation, national bank, national banking association or a trust company, organized and doing business under the laws of any state or the United States of America, authorized under such laws to exercise corporate trust powers and to accept the trust conferred, subject to supervision or 9 Developer and City acknowledge that this Amen the City's electorate either at an August 26 2014 or Nov Lease Referendum"). Subject to the teriis of this Section escrow with Developer's attorney the sum of TeiMillion rx Payment") by wire transfer of immediately available feral fun prior to the date of the=Grou�se Refere r *'� i y 'CO een Deve,; peer and th the ter' examination by federal or state authority, (y) an institution insured by the Federal Deposit Insurance Corporation or (z) an institution whose long-term senior unsecured debt is rated at least investment grade by any of Standard & Poor's, Moody's, or Fitch (or the successor organization of any of them); (v) any entity or institution substantially similar to any of the foregoing entities described in clauses (i), (ii), (iii) or (iv) immediately above; or (vi) any entity controlled by any of the entities described in clauses (i), (ii), (iii), (iv) or (v) above. (e) The definition of "Lender" in Section 6 1l(b) of the,Lease shall be separated from the definition of "Leasehold Mortgagee" and amended: to mean anyLeasehold Mortgagee or other Institutional Investor that provides financing to, tloper or its member 8. Payment to City. be mutually agreed betw and otherwise consisten Agreement sh 111 provide that f the shall be a hzed to releases Developer's Developeys4receipt of an'original :counterpart of this Amendment duly signed by City and (b)the expiration of the 30-day period to appeal the Ground Lease Referendum (the "Appeal Period") so long as no appeal has been fled.__ Provided the Ground Lease Referendum is approved by the C.ity's electorate, Developer and City agree to sign this Amendment and exchange original signed counterparts of` same within ten (10) days following formal certification of the Ground Lease Referendum. If an appeal is filed=prior to the expiration of the Appeal Period, then Developer's attorney shall have `no-_obligatio to release Developer's Payment to City, and shall hold Developer's Payment in escrow, until such time as a court of competent jurisdiction renders a final, binding and unappealable ruling that this Amendment is valid, binding and enforceable. Developer shall have the right, in its sole discretion, to cause Developer's attorney to invest Developer's Payment and any interest earned on such investment shall be solely for the benefit of Developer. If, following City's receipt of Developer's Payment, any legal challenge results in all or any portion of this Amendment being declared null and void by a court of competent jurisdiction, then unless Developer notifies City that it desires to terminate this Amendment within thirty (30) days following such ruling (in which case, Developer shall also have the right to terminate the Retail Parcel Amendment), the unchallenged, valid portions of this Amendment shall remain in full force and effect without any further action by the parties hereto. If Developer timely elects to terminate this Amendment and the Retail Parcel Amendment, as provided in the is conditioned upon approval from er 4, 2014 referendum (the "Ground Developer agrees to deposit into bars ($10,000,000)("Developer's not less than thirty (30) days e terms of an escrow agreement to the City Manager and City Attorney) s of this Section 8 (the "Escrow Agreement"). The Escrow Ad Lease Referendum is approved, Developer's attorney Payment to City upon the later to occur of (a) 10 preceding sentence, then Developer's Payment shall be returned to Developer within thirty (30) days following City's receipt of Developer's termination notice and the Lease shall remain in full force and effect as if this Amendment never existed. If the Ground Lease Referendum is not approved by the City's electorate, then Developer's attorney shall be authorized to immediately release Developer's Payment, together with any interest earned thereon, to Developer. City acknowledges and agrees that Developer's Payment is one single payment that applies to both this Amendment and the Retail Parcel Amendment. 9. Indemnity. Section 8.2 of the Lease is hereby deleted in its entirety and replaced with the following: Section 8.2 Indemnity and Hold Harmless. Developer shall indemnify, defend (at Developer's sole cost and expense and save hannless City, its officials, servants, employees and agents,-from\ndagainst any and all claims, actions, damages, liabilik=ty and expenses i :connection with the loss of life, personal injury or damage to or destructionof property arising from or out of any occurrence in, upon or at the Leased --Property, or the occupancy or use by Developer of the Leased Property, or -any part thereof, occasioned by }the negligence or willful misconduct of Developer, its agents, contractors, employees, sservants, customers, invitees, Subtenants, licensees or eon e ionaires, except to the extent any of the foregoing claims, action iability or c penses arise in whole or in part out of the neglige , e or wi =t : misconduct of City, its officials, employees, agents, se rvan employe contractors, licensees or concessionaires, provided tha with respect tt€I any alleged negligence or willfulnisconduct `by City, if pursuant to litigation, arbitration or other judicial or administrative process, City is found not responsible for such ' s hen Developer shall pay City 'seasonable attorneys' fees and costs. shall also pay all costs, ex •. ses and reasonable attorneys' fees that may beincurred or paid by City in enforcing the covenants and agreements his Section 8.2. 10. Insurance. Article IX o Leas ` e fie e -is hereby modified to amend the preamble of Section 9.1, replace Sections 9 1(a) throe gh (d) in their entirety and add Section 9.12, as provided below. Section 9 1Insu rance Requirements. Beginning on the Effective Date and during Lease yl run, Developer, at its sole cost and expense shall maintain or cause to be maintained the following insurance coverage: (a) Commercial Property Insurance. Insurance on the Improvements and leasehold interests against all risks of direct physical loss or damage, including coverage for windstorm, hail, earthquake, flood, and proving for coverage for debris removal, sprinkler leakage, boiler and machinery, and coverage for glass breakage, as a result of damage by an insured peril. Coverage shall be written on all risk form, or special causes of loss including theft. The insurance shall be written on a replacement cost valuation basis. If the policy or policies of insurance contain a co-insurance requirement, the 11 policy or policies shall contain or stipulate agreed valued endorsement. During any construction period, property insurance may be provided on a Completed Value Builder's Risk form. City and Developer shall be listed as named insureds on such Builder's Risk Policy. The term "Improvements", as used in this Article IX, shall be deemed to include all personal property furnished, or installed on the Leased Property and owned by Developer, and the insurance herein provided shall cover the same. In the event that insurance proceeds are inadequate to rebuild and restore the damaged Improvements to substantially their previous condition before an insurable loss occurred, and the cause of the deficiency in ;insurance proceeds is the failure of the Developer to adequately insure the l £-ovements as required by this Agreement, Developer must nevertheless: ebuild and restore such Improvements pursuant to the terms hereof and t pay the entire cost of same notwithstanding the fact that such insurance prose® are inadequate. (b) Time Element/Business Interruption or C u`giness Income. Developer shall insure against loss` of business income, icluding rental value, leasehold interests, and extra expense coverage, arising oue the direct physical damage resulting in suspension of business operations Period of restoration must be endorsed. to reduce the waiting period to 24 hours, with a one (1) year extended period' of :indemnity, including Ordinance or Law Increased. Period of Restoron,`� and Utility Services Interruption Time Element cover commercially available City, a s sor under this Lease, shall be co ®, e he extent 'earned ;mint'° ual to the total of Annual Bps dental payable dunngsaid period of mess interruption. (c) Automobile ;liability Insurance. Automobile liability insurance covering all owned autos, including non -owned and hired auto exposures used in, connection with a work arising out of this Agreement. Such insurance shall afford protection a least a combined single limit for bodily injury and property damage liability z ne Million Dollars ($1,000,000) per occurrence or accident. The excess la Hof coverage or umbrella liability should be excessollow form�oer thiscoverage. City must appear listed as an P additional insured on `h°e primary and excess layer of coverage. (d) Commercial General Liability Insurance. Commercial General Liability, affording coverage against any all claims for bodily injury, including death, and property damage occurring on or about the Leased Property, the Improvements, or any elevator, escalator or hoist thereon. Such insurance shall have limits of at least Fifteen Million Dollars ($15,000,000) per occurrence, Thirty Million Dollars ($30,000,000) policy aggregate. Primary and excess layers, such as an umbrella excess follow form policy may be used in connection with the structure of limits on this coverage. The policy or certificate must afford coverage for contingent and contractual exposures, personal and advertising injury, premises and operations liability, products and completed operations, liquor liability with full liability limits as required 12 herein. The certificate or policy must further afford coverage for damages to rented premises, and must reflect City of Miami as an additional insured on both the primary limits and excess umbrella liability policies. It is City's intent that any liability insurance provided pursuant to this Section shall be deemed primary insurance coverage in the event of any loss arising from the premises and operations covered by this Agreement. Therefore, the certificates or policies of insurance must be properly endorsed to reflect primary and non-contributory language. The City Manager reserves the right to review the adequacy of the insurance coverage provided in Section 9.1 of the Lease once every ten (10) years during the balance of the Lease Term and:rxay.=require that Tenant adjust Tenant's insurance coverage to the extent t City Manager deems any of the coverage required in the Lease to be, ' � a ' quate, in the City Manager's reasonable discretion, based upon current market requirements for comparable commercial properties t : Miami metropolitan area. Section 9.12 Subtenant Re+;uirem into from and after the Effective Date, D all of its Subtenants to indemnify City, its o agents and provide certificats'o lzility insu as an additional insured wmit limits attached hereto with respect to 11. Subleases and Stihtenants. As part Developer in M Sublea set fort Lease"), o ®e' deemed i e pursuant to the ents. For Subleases entered r shall,contractua 'require s, servants, employees and e naming "City of Miami" a "m forth on Exhibit "D" roperty. han f the First Parking Garage anion included in the Renovation Work, struct a retail liner which wil be occupied by multiple Subtenants under e righ`' and -,obligations of Developer with respect to Subleases and Subtenants, as r the Retail Area Ground Lease (as amended from time to time, collectively, the "Retail an with respect to Rental or any component thereof under the Retail Lease, shall orated by reference herein. By way of clarification, Minimum Base Rental etail Lease includes the Leaseable Area of the retail liner and the Operating Income received by Developer from Subtenants of the retail liner, once open to the general public for business, shall be -included in Gross Receipts for purposes of calculating Percentage Rent for the Retail Parcel, not the Garage Parcel, In the event of a conflict between this Amendment and the Tower Sublease this Amendment will govern. 12. Arbitration. Notwithstanding anything to the contrary set forth in the Lease, including Section 10.5 thereof, City and Developer hereby agree that any dispute, disagreement or controversy arising under the Lease, or with respect to the interpretation or enforcement of the Lease may be settled by arbitration if and to the extent City and Developer are not able to resolve any such dispute, disagreement or controversy within thirty (30) days following notice from one party to the other party of the nature of any such dispute, disagreement or controversy. If, after such thirty (30) day 13 period, City and Developer are unable to resolve such dispute, disagreement or controversy, either party may request to arbitrate the matter by providing written notice to the other party setting forth the nature of the request to arbitrate. The terms and conditions of Section 10.5 of the Lease shall then govern the arbitration procedure. 13. Modifications or Amendments to Certain Definitions. (a) The definition of "Auditor" as set forth in Section 1.2 of the Lease is hereby amended and restated as follows: "Auditor" means Deloitte LLP or such other nationally recognized and reputable firm of certified public accountants authorized to do business in the State of Florida as may be used from time to time by Developer. fn r purposes of certifying the annual reports of its financial condition required by law. (b) All references in the Lease to the terms "Annual Additional Rental" and "Annual Percentage Rental", including without limitation the definitions in Section 1.2, are hereby deleted in their entirety and shall be deemed inappliclland of no further force and effect from and after the Effective Date. (c) All references in the ease to "Debt Service Payments", ` e uding, without limitation, the definition thereof in ction 1 2, are hereby,;%deleted in their entirety and shall be deemed inapplicable and of no further force and effect from a d after the Effective Date. (d) All references in the Lease; limitation, the definitionf in Sectio deemed inapplicable sand of no further force a (e) All references in the without limitations ,the definitio shall be deecmc inapplicable an•° All refererr -her definition Sect inapplicable andofeof nino further Se er Equitynvestment", including, without aret, y; deleted in their entirety and shall be ect from and after the Effective Date. ease to "Net Income Available for Distribution", including, in Section'?- .2, are hereby deleted in their entirety and er force ;. a effect from an after the Effective Date. the &i se to "Operating Losses", including, without limitation, the .2, are hereby deleted in their entirety and shall be deemed ce and effect from and after the Effective Date. (g) All references in the" Lease to the capitalized terms "Refinancing" and "Refinancing Proceeds", including, out 4amtation, the respective definitions thereof in Section 1.2, are deleted in their entirety : fa be deemed inapplicable and of no further force and effect from and after the Effective Date. 14. Notices. Wherever any notice is required or permitted under the Lease, such notice shall be in writing. Any notice or document required or permitted to be delivered under the Lease shall be deemed to be delivered when it is actually received by the designated addressee or, if earlier and regardless of whether actually received or not, when it is either (i) deposited in the United States mail, postage prepaid, certified mail, return receipt requested, or (ii) delivered to the custody of a reputable messenger service or overnight courier service, addressed to the applicable party to 14 whom it is being delivered at the respective address for such party as is set out below, or at such other address as such applicable party may have theretofore specified to the delivering party by written notice: If to City at: City of Miami 444 SW 2nd Avenue, 10th Floor Miami, FL 33130-1910 Attention: City Manager with a copy to: City of Miami 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130-1910 Attention: Public Facilities Director 15. Miscellaneous. If to Developer at: Bayside Marketplace, LLC c/o General Growth Properties, Inc. 110 North Wacker Drive Chicago, IL 60606 Attention Chief Legal Officer aot all6opy to: Bayside Marketplace, LLC c/o General Growth Properties, Inc. 1245 Worcester Street Suite,1218 01760 ion: John Charte (a) Each City and- Developer'"hereby acknowledges and agrees that neither is presently aware of any continuing defaults by reason of any act or omission on the part of the other party under,theease and that as df the1ate ;of execution each party has fulfilled all of its duties and obligations under.the Lease tp ate (b) This Amendment sh e construedand governed in accordance with the laws of the State of Florida. Venue in any act or proceedings between the parties shall be in Miami - Dade County, Florida. In order t expedit- uch actions or proceedings the parties knowingly and voluntarily waive their right to 9,90 in any such actions or proceedings. Developer and City ey each agree to pay their own attorns'fees in connection with any such actions or proceedings. (c) This Amen el�nt t may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. (d) Each party hereby represents and warrants to the other party that (i) it has the full right and authority to enter into this Amendment, and (ii) this Amendment is a binding and valid document enforceable in accordance with its terms. (e) This Amendment shall be deemed a part of, but shall take precedence over and supersede any provisions to the contrary contained in the Lease. Except as modified hereby, all of the provisions of the Lease, which are not in conflict with the terns of this Amendment, shall 15 remain in full force and effect, and, as modified hereby, the Lease is hereby ratified and confirmed in all respects. (f) This Amendment shall be binding upon the parties hereto and their respective successors and permitted assigns. (g) At the request of Developer, City agrees to enter into a memorandum of this Amendment to be placed of record in the Public Records of Miami -Dade County in such foiili as Developer and City shall mutually agree. Developer shall be responsible for all recording costs with respect to such memorandum. (h) The terms "business day" or "business days", as used herein, shall mean, individually or collectively, as the case may be, each calendar"dayof the week other than Saturday, Sunday and any nationally recognized legal holidays 4 [Remainder of Page Left Blank Intentional 16 2014;°' IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective Date. ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida By: By: Todd Hannon City Clerk APPROVED AS TO LEGAL FORM Daniel J. Alfonso City Manage APPROVED AS TO INSURANCE AND CORRECTNESS:,REQUIREMENTgik By: Victoria Mendez City Attorney STATE OF FLORIDA COUNTYOF MIAMI..DADI The foregoing instrument was ac wledged before me this day aniel J _ Alfonso, e' City Manager, and the City Clerk, of the City of Miami, a Floridamunicipal corporation, in the capacity aforesaid; each such.person is personally) My Commission Expires [NOTARIALSEAL] Sign Name: Print Name: Notary Public Serial No. (none if blank): 17 WITNESSES: Print Name: Title: Print Name: Title: STATE OF ILLINOIS ) SS.: COUNTY OF COOK The foregoing instrument was ac 2014, by capacity aforesaid; so h person is onallyo'me. My Commission Expires: [NOTARIAL'SE L] BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company By: Print Name: Title: Before me this day of of Ba;.de Marketplace, LLC, in the gn Name: 'Tint Name: Notary Public Serial No. (none if blank): 18 EXHIBIT "A" DETERMINATION OF FAIR MARKET RENT Minimum Base Rental for the first Rental Year of each Renewal Term shall be evaluated in accordance with the procedures set forth in this Exhibit (each, a "Scheduled Appraisal") to determine the current Fair Market Rent (as defined below) ® inimum Base Rental and the required adjustments to these values for the applicable Ren-- " germ. 1. Appraisers. No later than three hundred and - (365) days prior to the end of the Original Term, Renewal Term, City shall deliver lb Devela determination of the Fair Market Rent, in accordance with the criteria set forth herein appe to the determination of Fair Market Rent. The determination of Fair Market Rent provided ® ity shall be conducted by an independent commercial real estate appraiser who is a member of erican Institute of Real Estate Appraisers and who has not less than, ten 0 years' expo ce in appraising ro erties comparable to the Leased P o ert(a " Ap praiser"). p p p y Qualxfie .Appraiser ). Ci :_, hall pay for the appraisal. City shall select its Quaff praiser from the City's general appraisers' services list. In no event shall an appraisal re. ;eduction inthe Minimum Base Rental due to the City. The Qualified Appraiser shall b < red tie;year prior to the Rental Year that the newly appraised Minimum Base Rental shall commence to take efectceach, an "Adjustment Rental Year"). In the event that Develo er shall dispute the deter:nationatioiii4f Fair Market Rent made by City's Qualified Appraiser, then, eveloper `shall within 30) days following its receipt of the determination made by City's ,Qualified A aiser, select its own real estate appraiser, who shall also be a Qualifi . Appraiser (though r eloper's Qualified Appraiser shall not be required t 's ' l� e City ��general appraisers ice list). Developer shall pay the costs of Develo Q al fie :Appraiser. The City'' uali led Appraiser and the Developer's Qualified Appra e shall then have;�a period. of thirty " OF days following the selection of Developer's Qualified ,praiser within which to attempt, in good faith, to reach agreement on the Fair Market Rentor, the Property. Zf City s�Qualified Appraiser and Developer's Qualified Appraiser are unable to agree upon the Fair Market! Rent within such thirty (30) day period, then the Fair Market Rent shall be determined accordance with the methodology set forth below: Within fifteen („5) day following the expiration of such thirty (30) day period, City's Qualified Appraiser and Developer's Qualified Appraiser shall endeavor to mutually agree upon an independent commercial` -'real estate appraiser who shall be a Qualified Appraiser. If the Developer elects, the pool of Qualified Appraisers shall exclude any appraiser on the City's general appraiser's service list. If the City's Qualified Appraiser and Developer's Qualified Appraiser are unable to agree on such third Qualified Appraiser, City and Developer shall apply to the American Arbitration Association for designation of an appropriate third Qualified Appraiser. The Qualified Appraiser so selected or designated by the American Arbitration Association is hereinafter referred to as the "Third Appraiser." Within ten (10) days following the selection of the Third Appraiser, City's Qualified Appraiser and Developer's Qualified Appraiser shall each submit to the Third .Appraiser their respective final determinations of the Fair Market Rent. Within thirty (30) days thereafter, the Third Appraiser shall select, as the Fair Market Rent, either the determination submitted by City's Qualified Appraiser or the determination submitted by Developer's Qualified Appraiser. The Third Appraiser shall not select any amount as the Fair Market Rent, other than the amount submitted by either the City's Qualified Appraiser or the amount submitted by the Developer's Qualified Appraiser. The Third Appraiser shall notify both City and Developer, in writing, which of the two determinations the Third Appraiser has selected as the Fair Market Rent. The selection of the Third Appraiser shall be final and binding on both City and Developer and the Fair Market Rent, as selected by the Third Appraiser, shall be the Minimum Base Rental which shall take effect commencing as of the beginning of the applicable Adjustment Rental Year. 2. Method. Each Qualified Appraiser shall determine the Fair Market Rent based on the parameters set forth in the definition thereof set forthinection 1 above. Each Qualified Appraiser, in its discretion, may dispense with formal hearings, it being agreed that his task will be solely that of appraisal. 3. Effect of Appraisal. The Fair Market Rent determined in accordance with the procedures set forth in this Exhibit shall be binding and conclusive on Ct -t.and Developer, except that in no event shall (a) the Fair Market Rent+ . djusted belov the then applicable Min ; m Base Rental for such Rental Year or (b)the Min ®�<'� : ase Rental or the second, third or fourth Renewal Terms increase by more than fiftee •e (15%) over the Minimum Base Rental then Ot- applicable at the time of such appraisal. 4. Appraisal Fee n Developer shall be responsible for one hundred percent (100%) of the costs associated with the hiring of the Developer's Qua 1. d Appraiser and City shall be responsible for one hundred percent;(100%) oft e costs associated with the hiring of the City's Qualified Appraiser. In the event the Develope •sites the first appraisal, the costs associated with the ®` + he Third _App aiset‘all be p ®° by the party whose Qualified Appraiser's detern + of' ket Re is not selectedb he Third Appraiser; provided, however, if Devel+ ®-relects to ex + - from �epool of Qua died Appraisers any appraiser on the City's general appraisers service li then e eloper shall pay fifty percent (50%) of the cost of the Third Appra 5. Delayed Appraisal. If prior to the commencement of the Adjustment Rental Year, the adjusted Minimum eRental has not been determined by independent appraisal in accordance with the procedures set forth in this Exhibit, Developer shall continue to pay all then applicable Minimum Base Rental as iiay have been previously adjusted pursuant to the terns of this Amendment. Following the determination of the Fair Market Rent by independent appraisal, in accordance with the procedures set forth in this Exhibit, Minimum Base Rental will be adjusted as provided retroactively to the commencement of the subject Adjustment Rental Year, and, if necessary, the Developer shall pay to the City with the next installment of Minimum Base Rental due, the amount, if any, by which Minimum Base Rental, as adjusted, exceeds Minimum Base Rental that has been paid by the Developer for the retroactive period. 6. Fair Market Rent. For purposes of this Amendment, "Fair Market Rent" means the rent that a similar property with the entitlements currently applicable to the Leased Property, without consideration of the Improvements constructed by Developer or any Subtenant, would bring in a competitive and open market under all conditions requisite to an arm's length transaction, the parties each acting prudently, knowledgeably, and assuming the rent is not affected by undue stimulus. Implicit in this definition are the following assumptions: (a) Both parties are typically motivated; (b) Both parties are well informed or well advised and acting in what they consider their own best interest; (c) A reasonable time is allowed for exposure to the open market; (d) (e) Payment is made in terms of ,cash in U.S. Dollars in terms of financial arrangements comparable t hereto; and The rent represents th " normal consideration fo ;aroperty leased, under current market condition (as of any d ` e as of which f air Market Rent is determined) unaffected. by spe .l o reative financing or concessions granted by anfyoi associated w h` `" ease. EXHIBIT "B" PERCENTAGE RENT 1. Percentage Rent Calculations. (a) Commencing on the Effective Date and continuing throughout the Lease Term, Percentage Rent shall be due and payable to the City, in arrears, on the first (1st) day of the first (1st) full calendar month following the Effective Date and thereafter on the first (1st) day of each calendar month of the Lease Term for the prior month, as provided herein. Percentage Rent shall be equal to the following: Fifteen percent (15%) of Gross Receipt as defined below) over the initial annual breakpoint of $4,507,000, which aninal breakpoint . all adjust each Rental Year commencing with the first CPI Escalation Year for adjustment of Minimum Base Rental. Each such annual adjustment of the brea ant shall be equal to the natural breakpoint (i.e., the adjusted annual Minimum Base -Rental for the subject Rental Year divided by fifteen percent (15% The breakpoint for any partial Rental Year during the Lease Tenn shall bereduced to an a t equal to the product of (i) the then, ap t able breakpo !times (ii) a fraction, the numerator of such Rena ear and denominator of which is 365. Each Rental Year ,, ll be co >' ered are independent accounting period for the purpose otcomputin PercentageRent due, if any. The amount of Gross Receipts of anyRental Year shall no be carried over nto any other Rental Year. "Gross Receiptss all mean all Oper , g Income actually collected and received by Developer at the Leased -Pt perty:°(excluding anytOperating Income received by Developer from Subtenant ® h tail liner to be constructed by D Veloper at the Leased Property); provided, howev. ._ ros eipts shall not includ .. he following: which is the number o any sums collected and paid out by Developer for any sales, use or excise taxi;;: nosed by any federal, state or governmental authority ectly on sa and col ected from customers and accounted for by veloper and ubtenants; proceeds •m the sale of trade fixtures, operating equipment or similar asset.®-=er use thereof in the conduct of Developer's business on the Lea d Property; �s7 funds collected with regard to the Leased Property which are not actually related to the day-to-day business of the Leased Property such as, but not limited to the financing of the Developer's interest in the Leased Property; collection of insurance proceeds; collection of eminent domain proceeds; monies collected for events, to the extent such monies collected are paid or delivered to the sponsor, so long as sponsor is not affiliated with Developer; all gratuities paid to employees; (viii) amounts received by Developer as reimbursements of expenses and cost sharing (for example, reimbursement of taxes, maintenance, insurance or utility bills); (ix) any grants, subsidies, rebates, credits or similar benefits received by Developer from any federal, state, regional or local body, agency, authority, department or organization; (x) interest earned on Developer's deposit accounts, earnings or profits on Developer's investments; (xi) interest income from loans or credit facilities granted by Developer and similar passive or investment income of Developer related to Developer's liquid assets, investments or loans/credit facilities granted by Developer; (xii) rents or percentage rents and commis inns paid to Developer by any Subtenants where City is collectingit bases on a percentage of subtenant's Gross Receipts; (xiii) Amounts received by a. valet parking concessiona when Developer is remitting the respective percentage due to City as provided pursuant to Section 4(d) of this Amendment, (xiv) Any restricted donations or contributions :whose Gross Receipts are earmarked for capital expenditures, as approved by City, to the Leased Property; (xv) Interest and finance e h gcharged by Developer; and (xvi) Amounts received b kyRise .as defined in the Retail Parcel Amend e t , or any pe toed suce s r,or assign, in connection with any efn loyee parking or valet par g operation for the Tower (which amour s shall be ncluded i ecalculation Tower Gross Receipts uander'the Retail Parcel Amend entl 2. 4Gross eceipts Re ort.DDeveloper shall use a'Gross Receipts Report, a sample of which is attached$ herewith and incorporated herein as Schedule to itemize any and all reportable Gross Receipts as describe -this Exhibit. 3. Developer''s Records. Developer shall prepare and keep full, complete and proper books and source documents in accordance with generally accepted accounting principles, of Gross Receipts received by eveloper in connection with the operation of the Leased Property. The books and source documents to be kept by Developer shall include, without limitation, sales records of each Subtenant:. paying percentage rent to Developer and records of any other transactions conducted in or from the Leased Property by Developer. 4. Reports by Developer. Within ninety (90) days after the end of each Rental Year, Developer shall also furnish to City a certified financial report (i.e. a gross Receipts audit) by an Auditor (the "Annual Report"), showing in all reasonable detail of the amount of such Gross Receipts received by Developer from the Leased Property during the preceding Rental Year. Developer shall in all events furnish to City within fifteen (15) days after the end of each calendar month of the Lease Tenn a written statement of Gross Receipts covering the preceding month, the statement to be in such form and style and contain such details and breakdown as City may reasonably require. City acknowledges and agrees that, with respect to Gross Receipts generated by any Subtenant paying percentage rent to Developer, Developer shall rely on the reporting made by each such Subtenant with respect to its gross Receipts and shall have no liability whatsoever for reporting errors made by any such Subtenant. 5. Right to Examine Books. Notwithstanding the acceptance by City of payments of Minimum Base Rental and Percentage Rent, City shall have the right to all Rental and other charges actually due hereunder, and the right to examine, make extracts from and copy, at the Leased Property or Developer's main accounting office, Developer's books, source documents, accounts, records, bank statements and sales and income tax reports filed with applicable governmental agencies by Developer in order to verify the amount of Gross Receipts received by Developer in and from the Leased Property. For a period of.frve(5) years after the expiration of each Rental Year, Developer shall make all documents an$ ziecjords evidencing Gross Receipts available at the Leased Property or Developer's main aeotrng office upon ten (10) business days' prior written notice from City. The Developer vlestlish one or more bank accounts to deposit all Gross Receipts recognized from the o ®='mions on t \eased Property, which bank account deposits will not be comingled wit t eceipts from other operations of the Developer or any other affiliated companies. 6. Audit. (a) At its option, City at any time, upon. ten (10) business days' prior written notice to Developer but no more thanionce each Rental Yea, arrange for an auditor selected by City from either the City's Auditor General's Office or a na ly recognized firm of certified public accountants that is not paid on a contingency a physical inventory) o Receipts from the Developer. Develop Developer's main accou of the ap icabl e loo any others ateri a s" of makingsuch audit. Percentage Developer's *sta more, then, un'"" If such audit shall disclose that tement of Gross,"Receipts '.s and s a �ef�a `® f Developer evidencing Gross period co 'ead byanystatement issued by he City's auditor at the Leased Property or Elie day set forth in City's notice, requiring such audit, all mends "accounts and records referred to in this Exhibit and por reasonably deems necessary or desirable for the purpose ,h eloper all prompt°�pay to City the amount of any deficiency in disclosebydsuchbe (b) In the event that any such audit shall disclose that Developer's records and other documents as referred to in this Exhibit and such other materials provided by Developer to City's auditor are inadequate, in the opinion of an independent auditor serving as City's auditor, to disclose accurately Developer's Gross Receipts, then Developer shall have thirty (30) days to cure any deficiencies raised by City's auditor and shall then notify City so that City's auditor can continue its audit. City's exercise of the foregoing remedy shall in no way limit or otherwise affect City's ability to exercise other remedies available to it, nor shall Developer's obligations pursuant to the tennis, covenants and conditions of this Lease (including, without limitation, Developer's obligation with respect to reporting Gross Receipts and payment of Percentage Rent) be in any manner reduced or diminished by the exercise of such remedy. Notwithstanding anything herein to the contrary, to the extent that Developer shall fail to provide to City any required reporting or records with respect to Gross Receipts as a consequence of any Subtenant's failure to timely furnish to Developer any required reporting or records with respect to the gross Receipts generated by such Subtenant, then, provided that Developer shall take all commercially reasonable measures pursuant to the terms of the applicable sublease to enforce the requirements of such sublease with respect to producing such reports or records, Developer shall have no liability to City in connection therewith. EXHIBIT "C" RENOVATION WORK Bayside Marketplace is a waterfront jewel for the City of Miami. Bayside Marketplace is a hybrid approach to an indoor shopping experience combined with an open air environment. Currently, Developer is committed to improving the facility which will undergo an extensive renovation. The renovation will provide a new modern appearance which is responsive to Bayside Marketplace's current needs and users. Notwithstanding anything to the contrary set r; forth in the Lease or this Amendment, the City Manager shall hive the right to approve detailed. plans and specifications for the renovation work (which may be submitted in phases), such approval not to be unreasonably withheld, conditioned ur dela ed so long as such plans and specifications are consistent in all material respects with the sof work described below, as well as the renderings attached hereto (the "Plan s")City ackno es that Developer and the City Manager may take into consideration budge (including the Min : m Level of Investment of $27,000,000.00 and an investment cap of $x 000,000.00) challen-g,logistics, operations and project phasing in connection with the renovation wo agrees that any soft costs and hard costs incurre�' improvements to storefront systems) v connection w ti from the date that this Amendment i for purposes of substantiating Develop's M 5(b) of this Amendment. If the Plans for the fir submitted for permit / t eighteen (18 mont Amendment, and c s ctionrwork has - commence months from the dat`� t epermits have been issued by City, then City may notify Developer of such failure and Developer shall l s ve the cure riis set forth in Section 7.1(b) of the Lease. Developer shalluse commerci.a +' b e effo o complete the renovation work within four (4) years,- romp th ate the pe miw are i s is ued g all work. The foregoing deadlines remain subje all times to unavoidableelays as s forth in Section 7.4 of the Lease. The Lease require that the public area in retail area be maintained in first class condition. The renovation work described herein is intended to bring the public areas in the Lease to first class condition. City further acknowledges and b `` Developer (including Subtenant the renovation work escribed herein ed by the Min City Commission shall be included UM Level of Investment pursuant to Section e of the,renovation work have not been owing ;the Effective Date of this uch first phase within six (6) The scope of the renovation work includes the following and shall be performed in substantial conformance�with;the Plans: Lower Level Shopping Promenade 1. Furnish and install all new Developer awnings throughout the interior promenade. Subtenant awnings will be replaced when Subleases are renewed or new Subtenants open. 2. Recladding of all columns in porcelain veneer or similar material to match upper level. 3. Refinish and paint all exposed existing beams, joists, girders, and exposed metal to match upper level. 4. Furnish and install all new decorative light sconces and fixtures. 5. All new permanent Subtenant build -outs will have storefront systems with anodized finish that is chrome, brushed aluminum or black. Upper Level Shopping Promenade 1. Furnish and install all new flooring throughout shopping corridors. 2. Recladding of all columns in porcelain veneer or similar material to match lower level. 3. Refinish and paint all exposed existing beams, joists, girders, and exposed metal to match lower level. 4. Furnish and install all new decorative light sconces an fixtures along the new awning structure to improve illumination in the upper walkway 5. All new permanent Subtenant build -outs will have forefront systems with anodized finish that is chrome, brushed aluminum or black. General Re ovations to Facili 1. All public staircases, stair finishes, stair surfaces, railing system ,aublie restrooms finish inclusive of tile, toilet partitions, fixtur > d acc common areas will be replaced 2. Food court will be remodeled -including new flo ringwall treatments, ceiling accessories including light fixtures, fans and any decorative ele s 3. Refurbishment of the plastic corrugatedroof in t e endor marketplace area. The refurbished roof will have an updated and modern design according to the Plans. 4. All mechanical and e1 - a al exposed vents and receptacles will be replaced 5. All limestone, 'il faces wilt he cleaned and ref irbished or replaced in accordance with the Plans. 6. The parking gara ; ill be renovated and, expanded to include additional spaces and exxten =made treatments; as .°: as a retail liner. Light fixtures that have not been replaced withintl e last three years wage for parking garage will be replaced and updated. The garage will p -sure cleaned and repainted. 7. A new gateway feature will h o structed at main entry axis near the existing flagpoles, which will serve as a'recogniza® eature that can be viewed from Biscayne Boulevard; and it is anticipated tha ;this feature may be a sculpture, fountain or the like, per the Plans. f 8. Developer wayfnding signage will be replaced throughout the facility. 9. Exterior Developer tfuiture including benches, integrated planters, and garbage receptacles will be replaced. 10. Renovation of perimeter landscaping per the Plans. EXHIBIT "D" INSURANCE REQUIREMENTS FOR SUBTENANTS I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Inj Damage to Rented Premises B. Endorsements Required City of Miami hsted as anadditional insure Contingent Liability'& Contractual Liabili Premises &Operations Liabi Additional Insured Endorsemen 4 't Prim and Non Contributory Liability II. Business, Automobile Limits of 40' Bodily Injury and Property Damage Liability Combined Single Limit .Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos B. require Any One Accident Endorsements Required City of Miami listed as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation 1,000,000 $2,000,000 Q00,000 $1,000 000 $ 1o0,Oi $1,000,000 Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit IV. Business Personal Property Subtenant shall maintain and afford coverage for business personal property, including leased hold improvements subject to special form causes o lass: (All Risk) including wind and hail with a valuation option of replacement cost, including coverage fOr business interruption, loss of income and extra expense coverage on an actual loss sustained basis, gr,alternate coverage form, covering the interruption or suspension of business operations, the necessary extra expense incurred, and any loss of income with; consideration to the continuation of all normal charges and continuing expenses, including continttin .ex enses ;quireel through contractual obligations, and payroll resulting from a covered cause of toss ` Subtenant slallalso maintain in place coverage for flood insurance, if applical V. Liquor Liabili (to the, extent Subtenant serves hduar) imits of Liabi Each Occurrence.•;. Policy Aggregate City of Miami;listed as *Additional insured The above policies'ba11 provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. $1,000,000 $1,000,000 Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. Subtenant shall make available, and provide the City upon request, with copies of all insurance policies, including any and all applicable endorsements.