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HomeMy WebLinkAboutExhibit 06.12.14FOURTH 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"). WHEREAS, City and Developer are the current` landlord and tenant, respectively, under that certain Lease Agreement dated as of January a`4, 1985, af amended by that certain First Amendment of Agreement of Lease dated as. of October 17, 1985, ak further amended by that certain Second Amendment to Bayside Parking`` Gar age Lease Agreement dated as of September 13, 1988, as further amended by that certain Third A endment to Bayside Parking Garage Lease Agreement dated as of April 15, 1993 and as further emended by that eertain Release and Settlement Agreement dated as of December 30, 2008 ;(collectively and together with any attachments, exhibits or riders thereto; the "Lease") for certain premises located at Bayside Marketplace in Miami, Florida, as more particularly described m tl}e Lease (the "Leased Property"). A memorandum of the Lease was recorded in Book T2690 at Page 159, and supplemented in Book 13849, at Page 1004, both of the Public Records of Miami Bade C&lin"ty, Florida; and WHEREAS, concurrently with this Amendment, City and Developer are amending certain provisions of the Retail Area Ground Lease pursuant to the terms of that certain Fourth Amendment to Amended and Restated Lease Agreement (Retail Parcel) of even date herewith (the "Retail Parcel AmendMere); WH ,JZEAS, City and Developer desire to modify certain provisions of the Lease on the terms and conditions set forth herein, 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) andany 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 1 d 7 Amendment, shall pertain to such use or occupancy of any part of the Garage Parcel or the Improvements located thereon. 2. Original Term. The Original Term, as currently defined in Section 2.1(b) of the Lease, commenced on December 1, 1985 andis scheduled to terminate on November 30, 2030. The Original Term is hereby amended and extended such that the Original Term 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: overwritten memoranda for the Lease or amendments to any existing memoranda for the Lease: in such 'fgrin 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 Lease Referendum (as hereinafter defined) by the City's electorate, Section 2.1(c) of the Lease is hereby amended and restated in its entirety as follows: (c) Renewal Terms. Developer is''hereby granted . four (4) options to renew this Lease (each. a "renewal Option") frorn'tinie to time upon the same terms and coriditiens, except: as otherwise expressly provided in this Lease, for up to four (4) additional consecutive terms:(each called a "Renewal Term"), with the first three (3) additional Renewal Terms being for fifteen (15) years each and the final Renewal Terria being for eight, (8) years, commencing at the expiration oftriginal Terris or the previous Renewal Term, as the case may be. So long vents of Developer's Default shall not''have occurred and be continuing at the°tine Developer exercises a Renewal Option, Developer may exercise each Renewal Option by giving the City express written notice thereof on or before the latterx of;.(i) the date ;that is two (2) years before the date on which such Renewal 1 ern 'is to commence or (ii) thirty (30) days following written notice from City advising Developer that Developer has failed to furnish notice of its exercise of the applicahle' Renewal Term by the date set forth in the preceding clause (i), which no ice shall state in bold capitalized large font letters that such notice constitutes the final notice to Developer of its right to exercise the applicable Renewal Option. Within sixty (60) days after commencement of a Renewal Term, the City Manager and Developer, upon request of either party shall execute one or more written memoranda in such form as will enable them to be recorded among the Public Records of Miami -Dade County setting forth the beginning and termination dates of the Renewal Term, determined in accordance with this Lease. The total of all Renewal Terms, if all Renewal Options are validly exercised, is fifty three (53) years. 2 (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). Minimum Base Rental may be increased after the first Rental Year 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 Effective Date, the only scheduled rental payments;., the following: eleted m its , entirety. From and after the ental") due`to,City under the Lease shall be (a) Amount of Rental. Developer covenants that it shall pay to ,City as Rental for the Leased Property Minimum Base Rental and Percentage Rent (a defined below Developer shall pay the monthly Rental to the City ()Miami, Department o ounce at the addressoted below: City of Miami Department of Finance Attention: Treasury Managemeu. venue, 6th�. mi, Florida 33130-1 (b) Minimum Base Effective Date; and hereafter e Original4:oTerm in equal monthly 111.qa. annum inimum Base Rent inimum Base Rental shall be payable by Developer on the ay of each calendar month for the balance of the ents.Minimum Base Rental shall initially be $675,000 per al"), as rt, may be increased by the CPI Escalation, as provided in Section 4(c) below. Minimum Base Rental for any partial calendar month during the Lease Term shall be prorated based upon the: number of days in the partial calendar month within the Lease Term against the tqta.k number of days in the applicable calendar month. All references in the Lease to "Annual Basic Rental" shall hereinafter refer solely to Minimum Base Rental, as set forth herein. City acknowledges and iagTeesharthe CPI Escalation, as provided for in Section 4(c) below, and the Fair Market Rent adjustments at the commencement of each Renewal Term, as set forth in Section 3(b) above, shall be'the 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 Parking Garage Expansion Opening Date is on a day other than the first day of a calendar month, then the additional Minimum Base Rental for the partial calendar month in which the First Parking Garage 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 3 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 Term (each, a "CPI Escalation Year") following the Effective Date by an 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 monthl:index published by the Bureau of Labor Statistics of the United States Department of Labor; a tie Consumer Price Index for All Items, Miami -Ft. Lauderdale, Florida, Base Year 1982 8A'10 ;;, The CPI adjustment to Minimum Base Rental shall be hereinafter referred to as the " P.l 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 adjustmentset 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's be the Rental Year commencing January 1, 2016. (ii) The CPI Escalation ;of Minimum Base Rental for the CPI Escalation Year shall be equal to Minimum. Base Rental in effect for the Rental Year immediately preceding the CPI Escalation Year multiplied by the "CPI Percentage's (as; defined below) not to exceed the Maximum CPI Percentage. The CPI Percentage shall' equal the fraction (i) 'whose numerator equals the monthly Index published immediately prior to the CP> Escalation Year (or the nearest reported previous month), and (d), whose denominator is the same monthly Index published immediately prior to the Rental Year that preceded the CPI Escalation Year (or the nearest reported previous t� month). If the Index is discontinued with no successor Index, City shall select a commercially reasonable comparable index (iii) City shall, compute the CPI Escalations and send a notice, with calculations, to Developer setting forth the adjusted Minimum Base Rental within sixty (60) days of the commencemeid of ; each CPI Escalation Year or as soon as such Index is available. In the event Minimum Base Rental increases, Developer shall pay to City within thirty (30) days of receiving such notice, the additional Minimum Base Rental owed for the months that have elapsed in the current Rental Year. (d) Percentage Rent. Percentage Rent shall be due and payable to City pursuant to the terms and conditions set forth on Exhibit "B" 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 of 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. 4 (f) 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 prime 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 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 ntbeen timely paid. It is agreed that the foregoing administrative charge is not a penalty but is: r gulatory 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 paymentwit en (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 zs not timely cured by Developer, the Default Rate shall be adjusted for the balance of such Rental dear 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 3.14 of the Lease is hereby amended and restated in its entirety as follows: Section 3.14 Alterations arid, Renovations After the completion of construction of the Developer Improvements, Developer from time to time may make such alterations or renovations thereof as it shall deem desirable; provided, however, that no renovation or `alteration which materially affects the exterior appearance of the Impro`veznents or' 'the Overall character and appearance of the public circulation areas shall he. made until such time as the City Manager shall have approved, in writing, definitive construction plans and specifications therefor, in compliance with all "applicable codes, rules and regulations, which approval shall not be unreasonably.`withheld or. delayed. Developer must secure and pay for any and all permits and approvals required to perform any of the contemplated alterations or renovations. (b) Renovation Work. Developer, at its sole cost and expense, shall complete the construction and installation of certain Capital Improvements to the Retail Parcel and the Garage Parcel that are consistent with the Capital Improvements depicted or described on Exhibit "C" attached hereto and made a part hereof (the "Renovation Work"). The Renovation Work is hereby approved by City and shall not require any further approvals or consents from City, except for any required building and land development permits and approvals which must be applied for by Developer. Developer covenants that by the earlier to occur of (i) five (5) years from the Effective Date or (ii) the grand opening of the Tower (as defined in the Retail Parcel Amendment), Developer shall expend no less than Twenty -Two Million Dollars ($22,000,000) (the "Minimum Level of Investment") 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 5 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 Florida licensed surety company rated A: V or better per A.M. Best'}Key Rating Guide and shall be subject to approval as to form by City's Risk Manager and`ty 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 max mum 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 elude the allowable square footage for the Tower, as set forth inthe Tower warrant (as defined in the Retail Amendment), which shall be in addition to the maximum allowable Leaseable Area for the Retail Parcel and Garage Parcel. Developer agrees to expand the Parking Garage as part of the Renovation Work to add 448 additional 'parkug spaces (the "Fst.Parking Garage Expansion"). In addition, Developer shall •have the right to .. further expand the :Parking Garage, in its sole and absolute discretion, to provide up to an additional 296 park•zng spaces at the Parking Garage (the "Future Parking Garage Expansion" 6. Transfers. (a)Section as follow' Trans er means: ease are hereby amended and restated in their entirety (i) any partial or total sale, assignment, giving or conveyance (other an in connection with any financing or refinancing contemplated by the Lease) of Developer's leasehold estate in the Lease or any contract =or agreement to do any of the same; (ii) any transfer of membership interests in Developer resulting in the direct or indirect beneficial ownership of General Growth Properties, Inc. being less than fifty percent (50%) of Developer (a "Change of Control"); () any merger or consolidation of Developer with any other person that is not an affiliate of Developer, or the sale of all or substantially all of the assets of Developer to any person that is not an affiliate of Developer. For purposes hereof, "affiliate" 6 shall mean any person or entity controlling, controlled by or under common control with Developer (with the term "control" and correlative terms 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: any person, firm, corporation or otherentty which owns, directly or indirectly, legally or beneficialayariorehan fifty percent (50%) of the membership or other equity interests iu;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 an:`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 "limitedhability company" shall be added to Section 5.3(e) following the word "Joint ;,venture"; (u) the reference to "subparagraphs (a) through (j)" .in the firstaragraph;of Section53 shall be deleted and replaced with "subparagraphs (a) through (m)"; and (iv).,the following permitted Transfers shall be added to the end of Section 5.3: ransfer resulting from the pledge of any direct or indirect ownership interests m Developer,as security for a loan made by an Institutional Investor to Developer or any direct or indirect beneficial owner of Developer. Any Transfer of direct or`indirect ownership interests in Developer that does not result in a Change of;Control. (d) Section 5 4(b) of the Lease is hereby deleted in its entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date. (e) Section 5.7 of the Lease, including all modifications to "Section 5.8" by prior amendments, are hereby deleted in their entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date. (f) In the event of a Transfer Fee Transaction (as hereinafter defined), Developer or transferee shall pay 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 (5`h) anniversary and the tenth (10`h) anniversary of the Effective Date, the Transfer Fee shall be 1.5% of the Gross Sale Amount; between the tenth (10'h) anniversary of the Effective Date and the twentieth 7 (20th) anniversary of 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 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,.,. (a) pertaining to ;_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 byYDeveloper 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 ofDeveloper's leasehold interest 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: Leasehold 11lortgagee. (b) If Developer engages in any new :financing or. refinancing with respect to the Retail Parcel or the Garage Parcel (or both), then City shall have the one-time right to participate in such financing or refinancing in an amount equal to three percent (3%) of the first $125,000,000 of Loan Proceeds, (as hereina ier de ined),'for a maximum total participation interest of $3,750,000 (the "Participation ;I terest") By way of clarification, if, for example, Developer engages in a financing or refinancing which '`results in Loan: Proceeds 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 Loan Proceeds threshold of $125,000,000 will be achieved based upon the sum of the Loan Proceeds for both the Retail Parcel and the Garage Parcel financings. However,:if Developer's, first financing transaction results in Loan Proceeds that are less than $125,000,000, 'then the difference between $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 shall be equal to $15,000,000). In the event of a Loan Proceeds Differential, City shall be entitled to participate in the subsequent refinancing by Developer in an amount equal to three percent (3%) of the Loan Proceeds Differential. The Participation Interest (or the applicable portion thereof if the Participation Interest is not otherwise paid from one financing transaction) shall be paid to City upon the consummation of the applicable financing or refinancing transaction(s). City acknowledges and agrees that in no event shall City be entitled to participate in any subsequent financing or refinancing once the Participation Interest has been paid in full and that the provisions of this Section 7(b) shall be deemed null and void and of no further force and effect upon such payment in full. If requested by Developer, City agrees to certify in writing for the benefit of Developer, any prospective Lender or any prospective purchaser of all or 8 any portion of Developer's interest 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 theRetail Parcel or Garage Parcel, as applicable, if previously conveyed in a Sale -Leaseback Transaction' (c) City further acknowledges and agrees that,ui ' 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 imitation, a pledge of director indirect ownership interests in Developer so long as the such financing is;provided by an Institutional Investor. (d) The definition of "Institution Investor"` Section 6.1(b) of the Lease is hereby deleted in its entirety and replaced with the fo}lowing: "Institutional Investor" shall mean: (i) (u) () any real estate, nt investme,trust„bank, savings and loan association, savings bank, trust company, :insurance company, investment bank, commercial credit corporation, pension trust, pension plan, pension visory firm, retirement trust, retirement plan, ir retement advisory firm, welfare trust, welfare are.,fund or are' advisory firm, mutual fund, govertnnent entity or plan, investment company, money management firm or "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act of 1933, as amended,`or.an institutional "accredited investor" within the meaning of=Regulation D under the Securities Act of 1933, as amended; any investment fund, limited liability company, limited partnership or general partnership where an entity that is otherwise an "Institutional Investor" under clause (i) of this definition acts as the general partner, managing member or fund manager and at least fifty percent (50%) of the equity interests in such investment vehicle are owned, directly or indirectly, by one or more entities that are otherwise Institutional Investors under clause (i); any entity (A) with a long-term unsecured debt rating from any of Standard & Poor's, Moody's, or Fitch (or the successor organization of any of them) of at least investment grade or (B) 9 who owns or operates at least three (3) shopping centers of similar size and quality to Bayside Marketplace, Miami, Florida; (iv) 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 stater the United States of America, authorized under such laws: to exercise corporate trust powers and to accept the trust conferred, .subject to supervision or examination by federal or state authority, (y)`-an institution insured by the Federal Deposit Insurai*Corporation or (z) an institution whose long-term senior unsecured debt is rated atleast investment grade by any of Standard &,,Poor's, Moody's, ota Fitch (or the successor organization of any ofthem); (v) any entity or institution substantially similar to any of the foregoing entities described iir cla ses (i), (ii), (i 10, or (iv) immediately above; or (vi) any entity controlled byriy of above entities esctibed in clauses (i), (e) The definition of "Lender" in Section6.1(b) of the Lease shall be separated from the definition of "Leasehold Mortgagee" and amended to mean any Leasehold Mortgagee or other Institutional Irstorthat provides financ vefinancing to;,Developer or its members. 8. Payment to City. Developer ,and City acknowledge that this Amendment is conditioned upon approval from the City's electorate either at ann.ugust 26, 2014 or November 4, 2014 referendum (the "Ground Lease Referendum"): Subject tc the terms of this Section 8, Developer agrees to deposit into escrow with Developer's attorney the sum of Ten Million Dollars ($10,000,000) ("Developer's Payment") by wire transfer,of inimediately available federal funds, not less than thirty (30) days prior to the date of the Ground Lease Referendum, pursuant to the terms of an escrow agreement to be mutually agreed between Developer and City (through the City Manager and City Attorney) and otherwise consistent with the terms of this Section 8 (the "Escrow Agreement"). The Escrow Agreement shall provide that if the Ground Lease Referendum is approved, Developer's attorney shall be authorized to release Developer's Payment to City upon the later to occur of (a) Developer's receipt 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 filed. Provided the Ground Lease Referendum is approved by the City'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 10 attorney shall have no obligation 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 Ame c ent 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 _i: the preceding sentence, then Developer's Payment shall be returned to Developex 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,' 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 $ 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 harmless City, its a; officials, servants, employees and agents, from and against any and all claims, actions, da ages, liability and expenses in connection with the loss of life, personal injury or damage to or destruction of 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, servants, customers, invitees, Subtenants, licensees or concessionaires, except to the extent any of the foregoing elaun,,actions, damages, liability or expenses arise in whole or in part out of the negligence or willful misconduct of City, its officials, employees, agents, servants, employees, contractors, licensees or concessionaires; provided that with respect to any alleged negligence or willful misconduct by City, if pursuant to litigation, arbitration or other judicial or administrative process, City is found not responsible for such loss, then Developer shall pay City's reasonable attorneys' fees and costs. Developer shall also pay all costs, expenses and reasonable attorneys' fees that may be incurred or paid by City in enforcing the covenants and agreements of this Section 8.2. 11 10. Insurance. Article IX of the Lease is hereby modified to amend the preamble of Section 9.1, replace Sections 9.1(a) through (d) in their entirety and add Section 9.12, as provided below. Section 9.1 Insurance Requirements. Beginning on the Effective Date and during Lease Term, 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 . p ysical loss or damage, including coverage for windstorm, hail, earthquake' flood, and proving for coverage for debris removal, sprinkler leakag , Uoiler 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 .a replacement cost;valuation basis. If the policy or policies of insurance' , contain a co-insurance "requirement, the policy or policies shall contain or stipulate.agreed valued endorsement. During any construction period, property insurance may be provided on a-fqmpleted 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 , Improvements as` required by.,,this Agreement, Developer must vertheless rebuild and restore such, Improvements pursuant to the terms hereof and mustpay the entire cost `of wine notwithstanding the fact that such insurance proceeds are inadequate. (b) Time ElementBusiness Interruption or Business Income. Developer shall insure ;against loss of business income, including rental value, leasehold 'inidterests, aextra expense coverage, arising out of the direct physical damage resulting in suspension of business operations. Period of restoration mustbe`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 Restoration, and Utility Services Interruption Time Element coverage, if commercially available. City, as lessor under this Lease, shall be covered to the extent earned, in an amount equal to the total of Annual Basic Rental payable during said periodof business interruption. (c) Automobile Liability Insurance. Automobile liability insurance covering all owned autos, including non -owned and hired auto exposures used in connection with any work arising out of this Agreement. Such insurance shall afford protection to at least a combined single limit for bodily injury and 12 property damage liability of One Million Dollars ($1,000,000) per occurrence or accident. The excess layer of coverage or umbrella liability should be excess follow form over this coverage. City must appear listed as an additional insured on the 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 thearean. Such insurance shall have limits of at least Fifteen Million Dollars 00,000) 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 connectionwith the structure of limits bn this coverage. The policy or certificate must afford coverage for contingent and contractual exposures, personal and advertising injury, premises. and operations Habib t•y,'products and completed operations, liquor liability with fu11 liability limits as required herein. The certificate or policy must further afford for damages to.;rented premises, and must reflect`Ccoverage ity of Miami asan 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 m the event of any doss arising from the premises and operations covered bythis 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 m Section 9 I`of the Lease once every ten (10) years during the "balance of the Lease Term and may require that Tenant adjust Tenant's insurance coverage to the extent the City Manager deems any of the coverage required in : the Lease, to be inadequate, in the City Manager's reasonable discretion, based upon then -current market requirements for comparable in the Miami metropolitan area. Section'. 12 Subtenant Requirements. For Subleases entered into fromand after. tie Effective Date, Developer shall contractually require all of its Subtenants to indemnify City, its officials, servants, employees and agents and provide certificates of liability insurance naming "City of Miami" as an additional insured with minimum limits as set forth on Exhibit "D" attached hereto with respect to Subtenants at the Leased Property. 11. Subleases and Subtenants. As part of the First Parking Garage Expansion included in the Renovation Work, Developer intends to construct a retail liner which will be occupied by multiple Subtenants under Subleases. 13 The rights and obligations of Developer with respect to Subleases and Subtenants, as set forth in the Retail Area Ground Lease (as amended from time to time, collectively, the "Retail Lease"), other than with respect to Rental or any component thereof under the Retail Lease, shall be deemed incorporated by reference herein. By way of clarification, Minimum Base Rental pursuant to the Retail 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. 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 oftke.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 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 (a) The definition of "Auditor" as set forth in Section 1.2 of the Lease is hereby amended and ;trestated as follows "Auditor" means Deloitte LLP or such other nationally recognized and reputable Firm of certified public aecotirtants authorized to do business in the State of Florida as may be used;: from tme ito time by Developer for purposes of certifying the annual reports of its financial condition. required;: by law. (b) All references m 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 shallbe deemed:ifapplicable and of no further force and effect from and after the Effective Date. (c) All references in the Lease to "Debt Service Payments", including, without limitation, the definition thereof in Section 1.2, are hereby deleted in their entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date. (d) All references in the Lease to "Developer Equity Investment", including, without limitation, the definition thereof in Section 1.2, are hereby deleted in their entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date. 14 (e) All references in the Lease to "Net Income Available for Distribution", including, without limitation, the definition thereof in Section 1.2, are hereby deleted in their entirety and shall be deemed inapplicable and of no further force and effect from an after the Effective Date. (f) All references in the Lease to "Operating Losses", including, without limitation, the definition thereof in Section 1.2, are hereby deleted in their entirety and shall be deemed inapplicable and of no further force and effect from and after the Effective Date. (g) All references in the Lease to the capitalized terns"Refinancing" and "Refinancing Proceeds", including, without limitation, the respective definitions thereof in Section 1.2, are deleted in their entirety and shall be deemed inapplicable an no n o 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' 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 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: of Miam 4SW2ndAvenue, Miami, FL 33130 1`9 Attention: City Mana with a copy t City of Miami 444 SW 2nd Avenue,3rd Floor Miami, FL 33130-1910 Attention: Public Facilities Director 15. Miscellaneous. 15 If to Developer at: Bayside Marketplace, LLC c/o General Growth Properties, Inc. 110 North Wacker Drive Chicago, IL 60606 Attention: Chief Legal Officer with a copy to: Bayside Marketplace, LLC c/o General Growth Properties, Inc. 1245 Worcester Street Suite 1218 Natick, MA 01760 Attention: John Charters (a) Each of 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 the Lease and that as of the date of execution each party has fulfilled all of its duties and obligations under the Lease to date. (b) This Amendment shall be construed and governed in accordance with the laws of the State of Florida. Venue in any actions or proceedings between the parties shall be in Miami - Dade County, Florida. In order to expedite such actions or proceedings the parties knowingly and voluntarily waive their right to a jury trial in any such actions,.oroceedings. Developer and City each agree to pay their own attorneys' fees inconnection wit"any such actions or proceedings. (c) This Amendment 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, an (u) tlns 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 ui the Leaser Except as modified hereby, all of the provisions of the Lease, which are not in conflict with the "� terms of this Amendment, shall remain in full force and 'effect, an as modified hereby, the Lease is hereby ratified and confirmed in all respects. (f) This Amen,be binding upon the parties hereto and their respective successors and permitted assi (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 form as Developer and; city shall mutuailyagreee Developer shall be responsible for all recording costs with respect to such memorandum (h) The terms "busi ess day" or "business days", as used herein, shall mean, individually or collectively,: as the''case may be, each calendar day of the week other than Saturday, Sunday and any nationally recognized legal holidays. [Remainder of Page Left Blank Intentionally] 16 IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective Date, ATTEST: By: CITY OF MIAMI, a municipal corporation of the State of Florida By: Todd Hannon Daniel ., 'Alfonso City Clerk Citv Manager APPROVED AS TO LEGAL FORM AND CORRECTNESS: By: Veronica Mendez City Attorney STATE OF COUNTYOF MIAMI-DADE TO INSURANCE Aririe Sharpe ding.* Management Sign Name: Print Name: Notary Public My Commission Expires Serial No. (none if blank): [NOTARIAL SEAL] 1 7 WITNESSES: BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company By: Print Name: Print Name Title: Title: Print Name: Title: STATE OF ILLINOIS COUNTY OF COOK ) SS.: The foregoing instrurnent was acknowledged _before me this day of 2014, by as of Bayside Marketplace, LLC, in the capacity aforesaid, such,person is Sign Name: Print Name: Notary Public My Commission Expires Serial No. (none if blank): [NOTARIAL SEAL] 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 for Minimum Base Rental and the required adjustments to these values for the applicable Renewal `Term. 1. Appraisers. No later than three hundred.,ad sixty-five '(365) days prior to the end of the Original Term, Renewal Term, City shall deliver to Developer a determination of the Fair Market Rent, in accordance with the criteria 'set forth herein applicable to,the determination of Fair Market Rent. The determination of Fair Market>Rent provided by City shall be conducted by an independent commercial real estate appraiser who is a member of the American Institute of Real Estate Appraisers and who has not less than ten ` (1'0) years' experience inappraising properties comparable to the Leased`•Property (a "Qualified -Appraiser"). City shall pay for the appraisal. City shall select its Qualified Appraiser from the City's,general appraisers' services list. mu In no event shall an appraisal result in a reduction in the Minim Base Rental due to the City. The Qualified Appraiser shall be hired the year prior to theRental Year that the newly appraised Minimum Base Rental shall commence to take;effect (each,''aii Adjustment Rental Year"). In the event that Developer' shall dispute the determinationi of Fair Market Rent made by City's Qualified Appraiser, then, Developer shall, within thirty (30) days following its receipt of the determination made by City's Qualified Appraiser, select its own:. ;real estate appraiser, who shall also be a Qualified `Appraiser (though Developer's Qualified Appraiser shall not be required to be on the City's general appraisers' service' list). Developer'shall pay the costs of Developer's Qualified Appraiser The City's Qualified, Appraiser, and the Developer's Qualified Appraiser shall then have 'th a period of thirty (30) days following e; selection of Developer's Qualified Appraiser within which to attempt, in good faith, to reach agreement on the Fair Market Rent for the Property. If City's Qualified Appraiser and Developer's Qualified Appraiser are unable to agree upon the Fair Market Rent within such th•irty (30) day period, then the Fair Market Rent shall be determined in accordance with the methodology' set forth below: Within fifteen (15) days 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 Far,Market Rent. The selection of the Third Appraiser shall be final and binding on both City andDeveloper 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 ear. 2. Method. Each. Qualified Appraiser shall determine the Fair Market Rent based on the parameters set forth in the definition thereof.. set forth in Section 1' ;above. Each Qualified Appraiser, in its discretion, may dispense with formalhearings,;tbeing agree at his task will be solely that of appraisal. 3. Effect of Appraisal. The Fair lYlarketl ent determine in accordance with the procedures set forth in this Exhibit shall be binding :and conclusive on City and Developer, except that in no event shall (a) the Fair Market Rent be adjusted below the then applicable Minimum Base Rental for such Rental Year or "(b) the :Minimum Base Recital for' the second, third or fourth Renewal Terms increase by more than fifteen percent (15%) over theMinimum Base Rental then applicable at the time of such appraisal. "" 4. Appraisal Fee. Developer shall?be responsible for one hundred percent (100%) of the costs associated with' the hiring: of the Developer's Qualified Appraiser and City shall be responsible for one hundred percent (100%) of the costs associated with the hiring of the City's Qualified Appraiser. In the event the Developer disputes the first appraisal, the costs associated with the hiring of the Third Appraiser shall be paid by the party whose Qualified Appraiser's determination of Fair Market Rent is not selected by the Third Appraiser; provided, however, if Developer elects to ;exclude from the pool of Qualified Appraisers any appraiser on the City's general appraisers service list, then Developer shall pay fifty percent (50%) of the cost of the Third Appraiser. 5. Delayed Appraisal. If prior to the commencement of the Adjustment Rental Year, the adjusted Minimum Base Rental 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 may have been previously adjusted pursuant to the terms 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 assumptiosa. (a) Both parties are typically motivate (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) Payment is made in terms of cash in U.S. Dollars in terms of financial arrangements comparable thereto; an (e) The rent represents the normal consideration for property leased, under current market conditions (as of any date as of which Fair Market Rent is determuxed) unaffected:: by special or creative financing or concessions anted by'anyone associated with the Lease. 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..,Didided herein. Percentage Rent shall be equal to the following: Fifteen percent (15%) of Gross Receipts (as defined13elow) over the initial annual breakpoint of $4,507,000, whie:::annual breakpoint shalt -adjust each Rental Year commencing with the first CPI 6c4lation Year for the adjustment of Minimum Base Rental. Each such annual adjustment 9pgie breakpoinf4411 be equal to the natural breakpoint adjusted 'aiiiipaiNiiiimum Base Rental for the subject Rental Year divided by fifieen percent %)). The breakpoint for any partial Rental Year during the Leasrm shall be reduced to an amount equal to the product of (i) the then -applicable breakpoint tithes (ii) a fraction, the numerator of which is 01.,a,twgiker of daySiin such Rentalyear aril of which is 365. Each 4.0.01 Year shall be considered :-4itindependent accounting period for the purpose of comptiting, Percentage Rent due, if 'any. The amount of Gross Receipts of any Rental Year shall not be carried over into any other Rental Year. "GrOSS,:Reeeipts" shall:Mean all Operating Income actually collected and received by Developer at the LeaSedpropetti'(excluding.*A3'erating Income received by Developer from Subtenants of the retail linerto bd'e§nstructed by Developer at the Leased Property); provided, however that Gross Receipts shall nof-indude the following: (i) any sums collected and paid out by Developer for any sales, use or excise tax imposed by any federal, state or governmental authority directly9n sales and collected from customers and accounted for by Develotiek4Ifor Subtenants; (ii) proceeds from the sale of trade fixtures, operating equipment or similar assets after use thereof in the conduct of Developer's business on the Leased Property; (iii)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; (iv) collection of insurance proceeds; (v) collection of eminent domain proceeds; (vi) 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; (vii) 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, regiona1..or local body, agency, authority, department or organization; (x) interest earned on Developer's deposit acco nts, earnings or profits on Developer's investments; (xi) interest income from loans or credit. facilities granted by Developer and similar passive or investment mcome of Developer related to Developer's liquid assets, inve tments or loans/creditfacilities granted by Developer; (xii) rents or percentage rents and con t issions =_ Subtenants where City is collecting rent based on a percentage of subtenant's Gross Rece pts; (xiii) Amounts received by avalet parking concessionaire 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 approvedby City, to the Leased Property, ' (xv) Interest and finance charges charged by Developer; and (xv) Amounts fedOipd by` SkyRise (as defined in the Retail Parcel Amendment), or :any permitted successor or assign, in connection with any employee parkirig,or valet parking operation for the Tower (which amounts shall be included in the calculation of Tower Gross Receipts under the Retail;.Parcel'Aendment). id to Developer: by any 2. Gross Receipts Report Developer 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 described in 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 Developer 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 Term 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 t1 e a eeptance by City of payments of Minimum Base Rental and Percentage Rent, City shad 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 touerify the amount of Gross_Receipts received by Developer in and from the Leased Property. For a period of three (3) years •after,the expiration of each Rental Year, Developer shall ,make all documents aid records evidencing,`; Gross Receipts available at the Leased Property or Developer's main accounting office upon ten (10) business days' prior written notice from City. The Developer will establish one or more bank accounts to deposit all Gross Receipts recognized from the operations on the Leased Property, which bank account deposits will not be comingled with the Receipts from any other operations of the Developer or any other aerated companies' 6. Audit. (a) At its option,. City may at anytime, :upon ten (10) business days' prior written notice to Developer but o morethan once each Recital Year, arrange for an auditor selected by City froth either the City'sj Auditor General's Office or a nationally recognized firm of certified public accountants that is not paid on a contingency basis to conduct a complete audit (including a physical inventory) of the applicable records and operations of Developer evidencing Gross Receipts from the Leased Property during the period covered by any statement issued by Developer. Developer shall make available to the City's auditor at the Leased Property or Developer's main accounting office on the day set forth in City's notice, requiring such audit, all of the applicable books,_source: documents, accounts and records referred to in this Exhibit and any other materials which scf auditor reasonably deems necessary or desirable for the purpose of making such audit. Developer shall promptly pay to City the amount of any deficiency in Percentage Rent payments disclosed by any such audit. If such audit shall disclose that Developer's statement of Gross Receipts is understated to the extent of five percent (5%) or more, then, unless Developer shall dispute the results of such audit, City may bill to Developer the cost of such audit, which shall be paid by Developer within thirty (30) days after Developer's receipt of City's invoice. (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 terms, 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 of4any Subtenant's failure to timely furnish to Developer any required reporting or records,.:th 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 At a minimum, on the lower level of the Improvements on the Retail Parcel, Developer willinstall new awnings, repaint and re -clad column covers in porcelain veneer or similar material, and replace decorative light fixtures. On the upper level of.the Improvements on the Retail Parcel, Developer will install new flooring, repaint, re-cladcolmn covers to match the lower level, and provide new light sconces and fixtures in the cano'structure to improve illumination in the upper walkway. The railing system will be refurbished ufcluding replacement as needed. In addition, Developer will refurbish public bathrooms Which will:: include the replacement of tile, partitions and fixtures. Stair cases and stairs will be replaced or repaired. The food court will be refurbished, :which will include new flooring, furniture, light fixtures and wall treatments. The existing corrugated roof in,the vendor marketplace area will be replaced with an updated design and modem material Corroded vents and electrical receptacles will be replaced. The Parking Garage will be ;:expanded to include `additional spaces, and exterior architectural facade treatments will be added as well as a retail liner. Developer will modify the main entry area including new Bayside Marketplace ident fication'signage at the entry facade and the installation of furniture mcluding..benches with integrated planters. The foregoing Renovation Work will substantially conform to the renderings attached hereto. EXHIBIT "D" INSURANCE REQUIREMENTS FOR SUBTENANTS T. 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 liste as an additional insure Contingent Liability '& Contractual Liabi Prenuses Operations Liability Additional Insured Endorsement Primary:;and Non Contributory Liability II. Business Automobi Limits ofLiabi Bodily Iriluryand Property Damage Liability Combined Single Limit Auto/Owned Autos/Scheduled Including.Hvred, Borrowed or Non -Owned Autos 1,000,000 $2,000,000 000,000 $1,0b;0 Q00 $ 100,0 Any One -Accident B. 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 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 causesof loss(All Risk) including wind and hail with a valuation option of replacement cost, including eoverage i or business interruption, loss of income and extra expense coverage on an actual loss sustained basis, ox.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 continuing expenses acquir d through contractual obligations, and payroll resulting from a covered cause of loss 'Subtenant shall also maintain in place coverage for flood insurance, if applicabl V. Liquor Liabihi jts ae Policy Aggregate City of Miaml„li.sted as an additional insured serves $1,000,000 $1,000,000 The above policies shall 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. 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.