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HomeMy WebLinkAboutExhibit - AgreementINTERLOCAL AGENCY AGREEMENT This Interlocal Agreement (AGREEMENT), made and entered into this day of , 2015, by and between the CITY OF MIAMI, FLORIDA, a municipal corporation of the STATE OF FLORIDA, hereinafter referred to as the "CITY" and DEPARTMENT OF OFF-STREET PARKING of the CITY OF MIAMI, doing business as MIAMI PARKING AUTHORITY (MPA), an independent agency and instrumentality of the CITY OF MIAMI, a municipal corporation under the State of Florida, (hereinafter referred to as "MPA"). RECITAL A. The City is the owner of the property located at 3385 and 3349 Pan American Drive 3351 and 3377 Charthouse Drive, Miami, Florida (the " Property"). B. The City entered into a lease agreement with Grove Bay Investment Group, LLC (the "Lessee"), dated October 24, 2013 (the "Lease"), for the lease, redevelopment and use of the Property as dry storage marina with ancillary marina and other related service, which contemplated that the City and MPA. would construct Parking Facilities (as defined below) on a portion of the Property located at the intersection of South Bayshore Drive and Pan American Drive, as more particularly defined in Exhibit "A" (the "Parking Property"), C. The improvements to be constructed on the Parking Property include a multi -level parking facility for approximately 333 parking spaces (the "Parking Garage") and approximately 40,000 square feet of retail uses (the "Parking Facilities Retail Area"), all as more specifically described in the Lease, and referred to herein, as the "Parking Facilities." A copy of the Lease is attached hereto as Exhibit `B", D. The MPA. was created, pursuant to Section 23 of the Charter of the City of Miami, Florida ("Charter"), to manage off-street parking facilities throughout the City of Miami and, as such, is the agency of the City with the exclusive right and authority to build and operate the Parking Garage. Although the Lease provides for MPA to be responsible for the construction and operation of the Parking Facilities, MPA is not a party to the Lease. E. Consistent with the terms of the Lease, the City, MPA and Lessee will enter into a Parking Agreement, in substantially the form attached hereto as Exhibit "C", to provide for the construction and operation of the Parking Facilities (the "Parking Agreement"). F. After due investigation and discussions, the City, the Lessee and MPA acknowledge and agree that it is not feasible to comply with all of the terms of the Lease as they relate to the construction of the Parking Facilities, including, specifically, the number of parking spaces in the Parking Garage and the manner in which the Parking Trust Fund Contribution, as the term is defined in the Lease, will be funded by the Lessee and The parties thereto have agreed to incorporate these changes in the Parking Agreement. 1 G. The City and MPA wish to enter into this Agreement to set forth the terms and conditions for the construction and operation of the Parking Facilities, consistent with the terms of the Lease, as modified in the Parking Agreement. This Agreement and the modification of certain provisions of the Lease related to the Parking Facilities, as more specifically set forth in Section 3.1 hereof. H. The City acknowledges by signing this Agreement that certain terms in the Lease have been modified by the Lessee, the City and the MPA and such modifications are reflected in the Parking Agreement. I. Whereas the respective Home Rule and Charter Powers of the City and MPA, as well as the Florida Interlocal Cooperation Act of 1969, Section 163.01, et. seq., Florida Statutes, authorizes the City and MPA to enter into this Agreement. NOW, THEREFORE, in consideration of the mutual promises of the parties' contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the MPA agree as follows: 1< TERM: The twin of this Agreement is fifty (50) years, commencing on the date hereof, to run concurrently with the term of the Lease and shall terminate upon the expiration or termination of the Lease. If any Renewal Term under the Lease and Parking Agreement, then this Agreement will be deemed extended on the same terms and conditions as provided herein (without the need of any further action by the City, MPA or Grove Bay). 2. ASSIGNMENT OF CITY'S RIGHTS AND OBLIGATIONSUNDER THE LEASE: The City delivers possession of the Parking Property and hereby assigns to MPA all of the City's rights, interests andobligations under the Lease with respect to the Parking Property, including specifically, but without limitation, the obligation to construct the Parking Facilities and operate the Parking Garage, and the right to (i) receive and apply the Parking Trust Fund Contribution described in Section 4.10 of the Lease, toward the construction of the Parking Facilities, (ii) establish and collect fees for the use of the Parking Garage, and (iii) enforce all actions and remedies that the City may have against the Lessee with respect to parking and parking related matters, all as more specifically described in the Lease and the Parking Agreement. For avoidance of doubt, the rights granted hereunder to the MPA in this Agreement shall not include the right to manage (including, but not limited to, the right to enforce any remedies against Lessee upon default of the Lease) or receive rents from the Parking Facilities Retail Area. MPA accepts the foregoing assignment subject to the terms and conditions set forth herein. 3. CONSTRUCTION OF PARKING FACILITIES AND SURFACE LOT: Without limiting the generality of the foregoing, and subject to the City's compliance with its obligations hereunder, MPA agrees: 3.1. To construct the Parking Facilities and a Surface Lot within the Parking Property, at MPA's sole cost and expense but subject to MPA's receipt of the Parking Trust 2 Fund Contribution described in Section 8 hereof, in accordance with the terms of the Lease and, as amended in the Parking Agreement, and this Agreement. The Parties acknowledge that the construction of the Surface Lot is not provided in the Lease but is necessary in order to maximize the number of parking spaces that are permitted to be built on the Parking Property, 333 of which will be built in the Parking Garage and 80 as surface parking. The term "Parking Facilities" shall include the Surface Lot. 3 ..2 To use its best efforts to commence construction of the Parking Facilities within 12 months of Grove Bay taking possession of the Property. 3..3 To provide and maintain, or cause to be provided and maintained, and deliver to the City the insurance coverage required under the Lease during construction of the Parking Facilities, and deliver to the City evidence thereof. 3..4 To cause the contractor(s) responsible for the performance of the improvements to obtain and deliver to the City payment and performance bonds in form, substance and scope in compliance with Section 255.05, Florida. Statutes. and all applicable construction contract terms, codes and ordinances and to cause contractor(s) compliance with the Florida Building Code, The Dade County Public Works Manual, as applicable and other applicable laws and regulations. All contractors shall be certified, licensed, bonded, and insured in accordance with the general requirements of the City and MPA and as required by law. 4. MAINTENANCE OF PARKING FACILITY: Following completion of the Parking Facilities, MPA shall maintain the Parking Facilities (inclusive of the Parking Facilities Retail Area) in accordance with the terms of the Lease and the Parking Agreement, provided, however, that the City shall reimburse MPA for any and all costs and expenses associated with repairing and maintaining such portions of the Parking Facilities Retail Area as described in Section 5.1 of the Parking Agreement, including any expenses that may be appropriately characterized as capital expenses related thereto, as follows: 4.1. MPA shall submit a monthly invoice to the City for any and all maintenance costs and expenses associated with the maintenance for the Parking Facilities Retail Area. 4.2. The City shall remit payment to MPA in accordance with Chapter 218, Florida Statutes. 5. TITLE TO THE IMPROVEMENTS. At all times during the term of this Agreement, title to all Improvements located upon the Parking Facility, shall vest in the City, free and clear of liens and encumbrances as in accordance with the Lease and Parking Agreement. 6. CITY'S OBLIGATIONS: Without limiting the generality of the assignment, the City agrees as follows: 3 6.1. To deliver possession of the Parking Property to the MPA upon full execution of this Agreement. 6.2. To assist MPA in obtaining all permits, certificates and authorizations needed for the renovation, construction, management and operation of the Parking Facilities. Any permits or other formal government approvals, when requested by the MPA, will not be unreasonably withheld by the City. 6.3. To grant such temporary non-exclusive easements in, over, upon, through and under the Property, as may be needed and requested by the MPA in connection with the Parking Property, The City Manager shall have the right to determine the location of all easements, and said easements shall be specifically authorized by a duly adopted resolution of the Miami City Commission where required by the City Charter or Code. 6.4. To deliver to MPA, the sum of $1,242,500.00 which represents the initial payment of the Parking Trust Fund Contribution (the "Initial Parking Trust Fund Contribution) received by the City from the Lessee. The Initial Parking Trust Fund Contribution shall be released by the City within fifteen days from the presentment of building permits by MPA. Receipt of the Initial Parking Trust Fund Contribution is a condition precedent to MPA's commencement of construction of the Parking Facilities. The payment of this sum shall be subject to interest at the simple rate of twelve percent (12%) per annum if not timely paid within forty five (45) days of its clue date. 6.5 To do, or caused to be done, all other acts as may be required or desirable to facilitate MPA's compliance with its obligations hereunder. 6.6 To reimburse MPA. the cost of maintaining the Parking Facilities as provided in Section 4 above. 7. OPERATION OF PARKING FACILITIES AND PARKING FEES: MPA shall operate the Parking Facilities (excluding the Parking Facility Retail Area which shall be the responsibility of the Tenant and/or City) in accordance with the Willis of the Parking Agreement and shall collect Fees from the Parking Facilities as follows: 7.1. Parking Fees.MPA shall collect and retain all fees that it is allowed to charge for the use of the Parking Garage and the Surface Lot under the Lease and the Parking Agreement. MPA, at its sole discretion, may adjust the Parking Fees at any time, and for as many times, during the Term of this Agreement, unless otherwise provided in the Parking Agreement. 4 7.2 Revenue Control Devices. The MPA shall utilize all appropriate Revenue Control Devices to ensure the collection of all Parking Fees. [The acceptable forms of payment shall be cash, check, or credit/debit/charge card.] 7.3. Surcharge. 'The MPA shall collect, or cause to be collected, and retain for its own account surcharges applied to the use of the Parking Facilities pursuant to applicable law, 8. PARKING FUND TRUST CONTRIBUTION. The Parking Fund Trust Contribution shall belong to MPA. and shall be paid by Lessee to MPA as provided in the Parking Agreement. 9. INSURANCE/DAMAGE/RESTORATION: The City and MPA shall maintain such insurance coverage as required by the Lease. Notwithstanding anything in the Lease to the contrary, or to the Parking Agreement. 10. Revenue Generation, Incentives. The City acknowledges that the MPA possesses certain revenue -generating experience in the operation of parking facilities, which experience may benefit the City. Subject to limitations in the Parking Agreement, the City agrees to explore revenue - generating incentive programs to serve as compensation to the MPA for its efforts that result in an increase in revenues generated by the Parking Garage Facilities. Such revenue -generating programs shall be subject to Internal Revenue Code Requirements and may include without limitation Automated Teller Systems ("ATMS"), mobile application enhancements, telecommunications devices, service kiosks, among others. 11. DEFAULT. If either party fails to comply with any material term or condition of this Agreement, or fails to perform any of its obligations hereunder, then that party shall be in breach of this Agreement and, if the breach is not cured by the defaulting party within thirty (30) days of its receipt of written notice given in the manner prescribed below. Upon the occurrence of a default which is not cured during the cure period, the non -defaulting party shall have all remedies available to it by law. Notwithstanding anything to the contrary contained herein, any declaration of default or election of remedies by a Party shall refer only to this Agreement and the matters so affected and shall not affect or otherwise impair the other premises covered by the Lease or the Parking Agreement. 12. INDEMNIFICATION: 12.1 To the extent authorized by Florida law, MPA. hereby agrees to indemnify, defend, save and hold harmless the City to the extent of all the limitations included in Section 768.28, Florida Statutes, from all claims, demands, liabilities and suits of any nature whatsoever arising out of, because of or due to the negligence of MPA, its agents or employees. It is specifically understood and agreed that this indemnification clause does not cover or indemnify the City for its negligence or breach of contract. 5 12.2 To the extent authorized by Florida law, the City hereby agrees to indemnify, defend, save and hold harmless MPA to the extent of all the limitations included in Section 768.28, Florida Statutes, from all claims, demands, liabilities and suits of any nature whatsoever arising out of, because of or due to the negligence of the City, its agents or employees. It is specifically understood and agreed that this indemnification clause does not cover or indemnify MPA for its negligence or breachof contract. In the event of breach or non-perfoiiiiance by the persons selected by MPA to perform work, MPA shall, upon written request by the City, assign to the City any and all of its rights under the affected contract for purposes of the City's prosecution of claims, actions or causes of action resulting from such breach or non-performance unless MPA pursues such claims, actions or causes of action through arbitration, administrative proceeding or lawsuit. MPA agrees to cooperate fully with the City in the prosecution of any such claim or action. Any damage recovered by the City which is attributable to expenditure by MPA shall be returned to MPA by the City, within sixty (60) business days of receipt. 13. JOINT PREPARATION: The parties acknowledge that they have sought and received whatever competent advice and counsel as was necessary for them to form a full and complete understanding of allrights and obligations herein and that the preparation of this Agreement has been their joint effort. The language agreed to expresses their mutual intent and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties from the other. 14. SEVERANCE: In the event a portion of this Agreement is found to be invalid by a court of competent jurisdiction, the remaining provisions shall continue to be effective unless the City or MPA elect to terminate this Agreement. An election to terminate this Agreement based upon this provision shall be made within seven (7) business days after the finding by the court becomes final. 16. THIRD PARTY BENEFICIARIES: There are no express or implied third party beneficiaries to this Agreement. 17. TERMINATION: Either party may terminate this Agreement by giving three hundred and sixty days (360) written notice in the manner prescribed below prior to the effective date of termination due to a change in laws, codes, the City or MPA policies or programs, or for convenience. In the event of termination, the non -terminating party shall assume the Parking Agreement and all of the rights and obligations of the teiniinating Party therein. 18. NOTICES: Any and all notices required to be given under this agreement shall be sent by first class snail, addressed as follows: To MPA: Attention: Chief Executive Office Miami Parking Authority 6 To the City: 40 N.W. 3rd Street, Suite 1103 Miami, FL 33128 City of Miami Dept. of Real Estate & Asset Management 444 SW 2nd Avenue, Suite 325 Miami, Florida 33130 City Manager City of Miami 444 SW 2nd Avenue, loth Floor Miami, Florida 33130 City Attorney Office of City Attorney 444 SW 2nd Avenue, 9th Floor Miami, Florida 33130 19. AMENDMENTS: No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Contract and executed by the City Manager, Director or designee. 20. ENTIRE AGREEMENT: This instrument and its Attachments constitute the sole and only agreement of the parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 21. DISPUTE RESOLUTION, VENUE, AND ATTORNEY'S FEES: The Parties agree that prior to instituting any civil action arising out of this Agreement, they will utilize the procedures set forth in the Florida Governmental Conflict Resolution Act, Chapter 164, Florida Statutes. Any and all disputes between the Parties shall be subject to strict adherence and compliance with any and all requirements of Chapter 164, Governmental Disputes, Florida Statutes. Venue for any civil actions shall be in Miami -Dade County, Florida. The parties shall bear their own attorney's fees. 22. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: Parties understand that agreements between private entities and local goverrunents are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. Parties agree to comply with this Agreement and all Attachments thereto and observe all applicable federal, state and local laws, codes and ordinances as they may be amended from time to time. 7 23. PRECEDENCE OF DOCUMENTS: In the event of discrepancy with respect to MPA's rights and obligations regarding the Parking Facilities, the terms of the Parking Agreement shall control over the terms of this Agreement and this Agreement shall control over the terms of the Lease. 8 IN WITNESS WHEREOF, the City and MPA have caused this Agreement to be executed as of the date and year first above written: CITY OF MIAMI DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI By: By: CITY OF MIAMI Arthur Noriega By: Daniel J. Alfonso, City Manager Chief Executive Officer/Exec. Director ATTEST: Todd Hannon, City Clerk Approved as to Legal Form and Correctness: Victoria Mendez, City Attorney/General Counsel Approved as to Insurance Requirements: Ann -Marie Sharpe, Risk Manager 9 EXHIBIT "A" LEGAL DESCRIPTION A PORTION or TRACT 'A" OF DINNER KEY, ACCORDING ro Th PLAT THEREOF, AS RECORDED IN PLAT BOOK 34, PAGE 2 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA ANO MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE INTERSECTION OF THE CITY MONUMENT LINES OF SW 27TH AVENUE SIITH SOUTH BAY SHORE DRIVE AS SHOWN ON SAID PLAT OF DINNER KEY: THEME NORTH 38 DEGREES 10 MINUTES 31 SECONDS EAST; ALONG THE MONUMENT LINE OF SAID BAYSHORE DRIVE, FOR A DISTANCE OF 632.12 FEET; THENCE SOUTH 44 DEGREES 34 MINUTES 37 SECONCkS EAST, ALONG THE NORTHWESTERLY EXTENSION OF THE HISTORIC RIGHT-OF-4,4Y LINE AS SHOWN ON THAT BOUNDARY SURVEY 'DINNER KEY CONVENTION CENTERS ADJACENT PARKING LOT' PREPARED E9Y GOLD COAST ENGINEERING CONSULTANTS INC DATED SEPTEMBER 30, 199 9,F0R A DISTANCE OF 77.82 FEET TO THE POINT OF BEGINNING OF THE FOLLOWING DESCRIBED PARCEL OF LAND; THENCE NORTH 38 DEGREE'S 10 MINUTES 31 SECONDS EAST, ALONG A LINE PARALLEL W117-1 AND 77.00 FEE7SOUTHEASTERLY OF, AS MEASURED AT RIGHT ANGLES TO, THE MONUMENT LINE OF SAID SAYSTIORE DRIVE FOR A DISTANCE' OF 60,83 FEET TO A POINT ON A CURVE,' S/VD BEARS NORTH 38 DEGREES ,75 MINUTES 40 SECONDS WEST, FROM THE RADIUS POINT OF THE NEXT DESCRIBED CIRCULAR CURVE CONCAVE TO THE SOUTHEAST AND HAVING A RADIUS OF 4500 FEET; THENCE ALONG SAID CURVE TO THE RICHT FOR AN ARC DISTANCE OF 725 FEET THROUGH A CENTRAL ANGLE OF 9 DEGREES 13 MINUTES 50 SECONDS ro A POINT OF REVERSE CURVATURE 1VIT7/ A CIRCULAR CURVE CONCAVE ro THE NORTHWEST AND HAVING A RAMIS OF 70,00 FEET; THENCE ALONG SAID CURVE TO THE LEFT FOR AN ARC DISTANCE. OF 2738 FEET THROUGH A CENTRAL ANGLE OF 22 DEGREES 24 MINUTES 39 SECONDS TO A POINT OF TANGENCY; THENCE NORTH 38 DEGREES 10 MINUTES 31 „SECONDS EAST; ALONG A LINE PARALLEL WITH AND 84.50 FEET SOUTHEASTERLY OF, AS MEASURED Ar moHr ANGLES TO, rHE MONUMENT LINE OF SAID BAYSHORE DRIVE, FOR A DISTANCE OF 74.3.3 Fru TO A POINT OF CURVATURE WITH A CIRCULAR CURVE CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 70.00 FEET; THENCE ALONG SAID CURVE TO THE LEFT FOR AN ARC DISTANCE OF 21,86 FEET THROUGH A CENTRAL ANGLE OF 17 DEGREES 53 MINUTES 48 SECONDS TO A POINT OF REVERSE CURVATURE WITH A CIRCULAR CURVE CIONCAVE ro rHE Sg.TINEAST AND 8AVING A RADIUS OF 85,00 FEET; THENCE ALONG .SAID CURVE TO THE RIGHT FOR AN ARC DISTANCE OF 26.55 FEET THROUGH A CENTRAL ANGLE OF 17 DEGREES 53 MINUTES 48 SECONDS TO A POINT or TANGENCY (77-1E LAST MENTIONED FIVE COURSES BEING ALONG THE EXISTING BACK OF WALK OF SAID BAYSHORE DRIVE); THENCE NORTH 38 DEGREES 1 0 MINUTES 31 SECONDS gAsr, ALONG A UNE PARALLEL wrH AND 77.00 rEtr SOUTHEASTERLY OF, AS MEASURED AT RICHT ANGLES TO THE moNukeivr LINE OF SAO BAYSHORE DRIVE, FOR A DISTANCE OF 39.60 rar ro A POINT ON A CURVE; SAID POINT BEARS NORTH 21 DEGREES 53 MINUTES 46 SECONDS ;,VEST, FROM THE RADIUS POINT OF THE NEXT DESCRIBED CIRCULAR CURVE CONCAVE TO 77IE SOUTHEAST AND HAVING A RADIUS OF 15.00 FEET; THENCE ALONG SAID CURVE TO rHE RIGHT FOR AN ARC DISTANCE OF 13.38 651.7 THROUGH A CENTRAL ANGLE OF 51 0668555 05 MINUTES 53 SECONDS TO A POINT OF COMPOUND CURVATURE WITH A CIRCULAR CURVE CONCAVE ro THE SOUTHWEST AND HAVING A RADIUS OF 25.00 FEET; THENCE ALONG SAID CURVE TO THE RIGHT FOR AN ARC DISTANCE OF 11,38 FEET THROUGH A CENTRAL ANGLE OF 26 DEGREES 05 MINUTES 12 SECONDS TO A POINT OF TANGENCY; THENCE SOUTH 34 DEGREES 44 MINUTES 51 SECONDS EAST FOR ,A DISTANCE OF 8,61 FEE7,• THENCE SOUTH 31 DEGREES 11 'MINUTES 72 SEC'ONDS EAST FOR A DISTANCE OF 207.40 FEET TO A POINT OF CURVATURE 10711 A CIRCULAR CURVE CONCAVE TO I HE NORTHEAST AND HAVING A RADIUS OF 80.00 FEET; 17-IENCE ALONG SAID CURVE TO THE LEFT FOR AN ARC DISTANCE OF al 95 FEET THROUGH A CENTRAL ANGLE OF 32 DEGREES 24 MINUTES 01 SECONDS TO A pow OF TANGENCY; THENCE SOUTH 63 DEGREES 35 MINUTES 13 SECONDS EAST FOR A DISTANCE OF 0,42 FEET TO A POINT OF CURVATURE WITH A CIRCULAR CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 72.00 FEET,. T HENCE ALONG SAID CURVE TO THE LEFT FOR AN ARC DISTANCE OF 1966.FEET THROUGH A CENTRAL ANGLE OF 15 DEGREES 38 MINUTES 34 SECONDS TO A POINT OF TANGENCY; THENCE SOUTH 79 DEGREES 13 MINUTES 47 SECONDS asr FOR A DISTANCE OF 6.47 rtEr; THENCE SOUTH 76 DEGREES 35 MINUTES 44 SECONDS EAST FOR A DISTANCE OF 4.30 FEET; THENCE SOUTH 74 DECREES 59 MINUTES 22 SECONDS WEST, ALONG THE NORTHWESTERLY LINE OF PARCEL 5, AS SHOWN ON THAT TOPOGRAPHIC SURVEY PREPARED SY MANUEL G. VERA & ASSOCIATES DATED MARCH 5, 2012 FOR A DISTANCE OF 266.99 FEET; THENCE NORTH 44 DEGREES 34 MINUTES 37 SECONDS WEST, ALONG THE Hisromc RIGHT-OF-WAY LINE AS SHOWN ON rHAr BOUA1DARY SURVEY 'DINNER KEY CONVENTION CENTERS ADJACENT PARKING LOT" PREPARED BY GOLD COAST ENGINEERING CONSULTANTS INC DATED SEPTEMBER 30 1999, FOR A DISTANCE OF 394,43 FLO TO THE POINT OF BEGINNING (SAID COURSE BEING ALONG ALINE PARALLEL WITH AND 50,00 FEL7 NORTHEASTERLY OF, AS MEASURED AT RIGHT ANGLES ro, A LINE ESTABLISHED BETWEEN THE MONUMENT LINE OF BAYSHORE DRIVE AND rHAr CERTAIN us,c, & OS, MONUMENT LOCATED AT THE ROOF OF THE CITY OF MIAMI HALL BUILDING AS SHOWN ON THAT SPECIT7C PURPOSE SURVEY "DINNER KEY MARI114 AREA' PREPARED BY FERNANDO ($ATELL DATED MARCH J, 2000). SAID PARCEL OF LAND CONTAINING 79,320 SQUARE FEET OR 1.52 ACRES MORE OR LESS, LYING AND DEING ECITON 22; TOWNSHIP 54 SOUTH, R4NGE 4 1 EAST CITY OF MIAMI, MIAMI -DADE 10 EXHIBIT "B" Lease (attached) 11 LEASE BETWEEN THE CITY OF MIAMI AND GROVE BAY INVESTMENT GROUP, LLC FOR THE USE OF A CERTAIN PORTION OF THE CITY -OWNED PROPERTY LOCATED AT 3385 Pan American Drive, Miami, Florida 3349 Pan American Drive, 1Vliarni, Florida S4 3351 & 3377 Charthouse Drive„Miami, Florida LEASE AGREEMENT This LEASE AGREEMENT ("Lease") is made as of the day of , 2013, by and between the 'CITY OF MIAMI, FLORIDA ("Lessor"), a municipal. corporation of the State of Florida having its offices at 3500 Pan American Drive, ,Miami, Florida, 33133 and GROVE BAY INVESTMENT GROUP, LLC, a Florida limited liability company, having its offices at 2950 SW 27 Avenue, Miami, Florida, 33133 ("Lessee"). The Lessor and. Lessee, together the "Parties," agree as follows: ARTICLE I DEFINITIONS Section 1,1 Definitions, Any word contained in the text of this Lease shall be road es the singular or the plural and as the masculine, feminine or neuter gender as inay be applicable in the particular context, More specifically, however, for the purposes of this Lease, the following words shall have the meanings. attributed to them in this Section: 11,1 "Additional Rent" means all additional sums, charges, or amounts of whatever nature to be paid by Lessee, not defined. as Minimum Base Rent or Percentage Rent, in accordance with the provisions of this Lease, whether or .not such sums„charges or amounts are referred to as additional rent, 1.1.2 "Applicable Law: means all laws .of the United States, Florida Statutes, City of Miami and Miami -Dade 'County ordinances, ()odes, rules, regulations, resolutions,. orders, judgments, decrees and injunctions from courts having jurisdiction over the Property, rules, and requirements of State and beat boards and :agencies with jurisdiction over the Property, now existing or hereafter enacted, adopted, foreseen and unforeseen, ordinary and extraordinary, which may be applicable, to the Property or any part of it. 1.1.3 "Assignment" 010a118 the complete transfer of the :rights and obligations of the Lessee under the Lease to e third party, whereupon the third party Assignee. beeomes the Lessee under the Lease and takes over all of the Property and the rent and other obligations associated with the Lease, thereby assuming the prior tenant's rights and obligations, 1,1 ,e1 "Assignee" means the third -party entity taking over the rights andobligations of the Lessee or assignor or owner of the Leasehold Estate, 1.1 ,6 !"Business Days" means Monday through Friday exeluding legal holidays. 1.1,7 "Casual Restaurant" means the restaurant operating at the looation indicated for the casual restaurant in the Proposal characterized by .a casual attosphere and generally at a price point lower than that of the Formal Restaurant, 1,1,8 "City" means the City of Miami, a:municipal Corporation of the State of Florida. 1.1,9 "City Manager" means the administrative 'head of the. City's government who is authorized to execute this Lease and other documents included notices beret:alder. 1,1,10 'Date of Taking" 1110111.8 the earlier of (i) the date on which actual. possession of all or less than all of the Property, as the ease may be, is aequired by any lawful power or authority pursuant to the provisions of Applicable Law; or (ii) the date on which title to all or less than all of the Property, as the oase maybe, has vested in any lawful power er authority pursuant to the provisions of Applicable Law, 1.1.11 "DEP" means the State of Florida Department of Envirotunental Protection, 1,1,12 "Effective Date" means the date this Lease is fully executed and legally binding upon the Parties, only after final approval by the City and a public referendum. 1.1,13 "Equity Contributise means the equity in the Project provided by Lessee personally or through one or more Persons, which are wholly owned by the Lessee and over which Lessee retains voting c,ontrol, shall equal not legs than $17,900,000, inclusive of the Lessees :eontribution to the, Parking Faoilities, The foregoing. sum shall include all demonstrable hard costs and soft costs, including, but not limited to, arehiteetural, consulting, and legal fees, reasonably related to the Project expended or reimbursed by the foregoing parties prior to or after the date hereof. The Lessee has deposited funds in escrow in the amount of $ 7,000,000(the "Good Faith Escrowed Funds"), which funds shall be available to Lessee in order to ensure that Leasehold Improvements required. by the terms of this Lease are paid and for other hard costs and. soft costs reasonably related to the Projeet. The., Good Faith Escrowed Funds shall be 'deemed to constitute a. portion of the Equity Contribution, 2 1.1,14 "Fair Market Rent' means the rent that a similar property with the entitlements currently applicable to the Property, without consideration of the Leasehold Improvements constructed by the Lessee, 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 stimuins. Implicit in this. definition are the following -assumptions: (i). Both parties are typically motivated; (ii) Both parties are well informed or well-advised end acting in What they consider their own best interest; (iii) A reasonable time is allowed for exposure in the open market, (iv) Payment is. made in terns of cash in. U,S, dollars in terms of financial arrangements comparable thereto; and (v) The rent represents the normal. consideration for property leased, under the current market conditions (as of any date as of which Fair Market Rent is determined) unaffected by special or creative financing or concessions granted by anyone associated with the Lease, 1.1,15 "Formal Restaurant' means the restaurant operating at the location(s) indicated for :the formal restaurant in the Proposal characterized by a price point generally higher than that of the Casual or a semi casual Restaurant, • 1,1.16 "Force Maleure" means any period of delay which arises from or through acts of God; strikes, lookouts; , riot, or civil commotion; act of watt. fire or other casualty; legal requirements; delays caused by the other party; and causes beyond the reasonable control of a party, '.1,1,1'7"Gross Revenues" shall have -the meaning described in Section 4.I.3. of the Lease, 1,1,18 "Imposition:s" means all governmental assessments, .including assessments imposed by the City and the State of. Florida, franehi.se fees, .tire fees, excises, license. and permit fees, submerged land fees; levies, charges, and taxies, including ad valorem real estate taxes. on the Property and the Leasehold E,sta;te>, general and special., ordinary and extraordinary properly levied against the Property and the Leasehold Improvements and/or the .Lessee's Leasehold Estate which constitute a lien on the Property or the Leasehold Improvements, due as a result of the Lessee's use of the leasehold and/or due to the Lessee's operation of a commercial business on the Property, 1..1.19 "Leasehold Estate" means all of Lessee's.right, title and interest as Lessee in, to end under this Lease, the Property and the Leasehold Improvements, 1,1,20 "Leasehold Improvements" means a description of remodeling/renovation work to he done to the physical plant as described in Exhibit "A" entitled "Schedule of Leasehold Immprovements" and all Furnishings, fixtures, or equipment to be installed in accordance with Section 6,1, and ail other items and improvements installed or constructed thereafter, from time to time ,during the Lease Term that are hereafter located upon the Property, 1,I,21 "Leasehold. Mort -size" -means a mortgage or other instrument which constitutes an encumbrance or lien upon the Leasehold. Estate or any part thereof; or any related personal property, and Lessee's interest in the Leasehold Improvements (including Lessee's interest as sublessor in any present or future Subleases and any other interest of the Lessee in the Leasehold Improvements), as security for any loan, including any construction loan; provided, however, that no Leasehold Mortgage shall encumber Lessor's fee simple interest in th:e Property. 1.'1.22 "Leasehold .Mortgagee" means any holder of a Leasehold Mortgag or any note or notes secured thereby. 1,1,23 "Lease Term .means the ,period of time fixed in Section 3,1 and shall be deemed to include each Renewal Term fixed in Section3.2 if Lessee exercises the appl.ioable Renewal Option for Lessees right to :renew the Lease, • t,1.,24 "Lease Year" means twelve (1.2) consecutive months commencing on the Effective bate, The first Lease Year shall begin on the Effective Date, Each sueeeeding. Lease Year shall commence upon the anniversary date of the Effective Date, 1,1,25 "Lessen" has the meaning ascribed to it in the opening paragraph of this Lease as well as Lessee's successors and. assigns, 1,1.26 "Licensee" means Grove Key Marina, Inc„ the current operator of the marine and casual restaurant located. on the Property, 3 1,1,27 "MPA" means the Department of Off -Street Parking of the City of Miami, d/b/a Mianii Parking Authority. In relation to .the parking obligations in this Lease, the term Lessor and MPA shall be used interchangeably, 1,1,28 "Minimum Base Rent" means the annual Minimum Base Rent clue and payable by the Lessee on a monthly basis for the use of the subject Property in the amount set forth in Seotion.4,1,1. 1.1.29 "Marine Retail Store" means an establishment in which 50% or more of the floor area is stocked with supplies and equipment designed primarily or exclusively for use in commercial fishing or recreational boating, Examples of such supplies and equipment include navigational instruments, marine. hardware and paints, nautical publications, nautical clothing (e,g., foul -weather gear), fishing supplies and. marine engines. 1,1,30 "Net Condemnation Award" means the actual amount of the award paid in connection with or arising from the taking ofor less than all of the Property, as the ease may he, less all reasonable out-of-pocket expenses incurred by Lessor or Lessee. in -connection with obtaining such award, including, without limitation, all reasonable attorneys' fees and disbursements incurred in oonneetion therewith, 1.1.31 "Net Insurance Proceeds" means the actual amount of insurance. proceeds paid following an insured casualty to the Leasehold' Improvements less all costs and expenses including reasonable attorneys' fees incurred by the Lessee with respect to the collection thereof, 1.1,32 "Net Sale Proceeds'.' shall mean the net proceeds to Lessee, or owner transferring such interest, (pursuant to Article XI herein), remaining after payment of (i) any other debt relating to the Property as prorated proportionately to the interest being transferred; and (ii) all reasonable costs and expenses of the sale or Transfer, including oonunissions, fees, and closing oosts, 1.1,33 "Parking Facilities Conditions" mean the satisfaction of following conditions precedent: (a) the completion of constr-uotion of the Parking Facilities, including, without limitation, the Guaranteed Parking Spaces, as evidenoecl by a permanent Certificate 'of Ocoupancy or Certificate of Completion, as applicable, (b) the completion of construction of the Parking .Facilities Retail Area, materially in accordance with the "Cray shell Standards" described on Exhibit 93" attached hereto, and the issuance of a permanent Certificate of Occupancy therefor, and (e) Lessor, Lessee and the MPA shall have entered into an agreement pursuant to which (I) the MPA shall make available to Lessee, for use by Lessee and Sub- lessees, and their respective employees,. patrons and custoniors, suppliers and contractors ("Qualified Parkers"), of approximately 497 parking spaces (as may be adjusted based upon final gross leasable retail square footage of Parking Facilities Retail Area constructed by the MPA), on a nonexolu.sive basis (the "Guaranteed Parking Spaces"), open during the one hour before through the two hours after the established operating hours of the 1,'ermitted Uses on three hundred sixty-five day per year basis, throughout the Lease Term, at hourly and daily parking rates which shall not exceed the parking rates in effect from time to time for comparable parking facilities in Coconut Grove; provided that for the first Lease Year, there shall be no charge for the first hour of parking for each Qualified Parker, and that for the second Lease Year thereafter, the charge for the first hour of parking for each Qualified Parker shall be one 'half of the charge for eaeh successive hour, (2) the MPA shall make available to employees of Lessee or of .any Sub -lessee (as identified to Lessor (or the MPA) from time to time) a set parking rate at a discount to Qualified Parkers, (3) the MPA sets forth a validation program. for Lessee's patrons consistent with the commitments ,set forth in the RFP, (4.) MPA agrees to maintain and repair the Parking Faolllties, (5) the MPA agrees hallowing any casualty to immediately commence and diligently pursue any required restoration to the Parking Facilities, including the Parking Facilities Retail Area, and (6) the City agrees, upon any casualty to the Parking. Facilities, and until completion of the restoration of the Parking Facilities; to use its hest efforts to make available to Lessee a number of parking :spaces equal to the Guaranteed Parking Spaces within close proximity to the Property on, the same basis and terms applicable to the Guaranteed Parking ..-",paces. 1.1,34 "Parking Facilities" means the structure the Miami. Parking Authority (the "MPA") will construct to provide parking to Service the Property, which will include the Guaranteed Parking Spaces and the Parking Facilities Retail Area, MPA shall construct the Parking Facilities Retail Area as part of the Property. 1,1,35 "Parking Facilities Retail Area" means the ground floor retail are to be constructed as part of the Parking Facilities.. 1.1,37 "Possession Rat" means t,1.3, below,. 1.1,36"I7orccnta 7e Rent"means those amounts described in Section 4 the first day following the latter to occur of the following: (i) approval of this Lease by referendum as contemplated in the REP, (11) execution of this Lease by all parties, and (iii) the Licensee vacates th.e Property and the Lessor delivers to Lessee possession of the entirety of 4 the Property. 1.1;38 "Project" means the planning, designing, renovating or redeveloping, leasing, managing and operating of a mixed -use waterfront facility as contemplated by the Proposal, 1,1.39 "Property" means the land, buildings, improvements and authorized submerged lands located at 3385 Pan American Drive, 3349 Pan American Drive, 3351 & 3377 Chart House Drive, Miami, Florida, as more particularly described in Composite Exhibit "C1" attaohec► herewith and incorporated herein: by reference. Specifically, Property shall include all of the retail spaces located within the Parking Facilities, but not the parking spaces or land upon which the Parking Faeilities will be eonstructecl. Upon issuanee of a Certificate of Occupancy for the Parking Facilities, the final description of the Property, including the Parking Facilities Retail Area, shall be annexed to this Lease as Exhibit "C2," 1.1.40 "Proposal" means the document received by the Lessor dated May 10, 2013 is response to the RFP, a copy of which is available at the City Clerk's Office and incorporated herein by this reference. 1.1.41 "Rent" means Minimum Base Rent or Percentage Rent, -as such amounts are described and fixed in Section 4.1.1 and 4.1,3, and adjusted pursuant to the terms of Section 4.1.2 herein. 1,1.42 "REP" means the document entitled "Request for Proposals ("RF.P") No. 12-13-001 Lease of City -owned Waterfront Property for Marina/Restaurant/Garage Retail "Uses" located at 3385 Pan American Drive and 51 Chart House Drive, Miami Florida, issued by the City of Miami on January 11, 2013, and the addenda thereto, a copy of which is available at the City Clerk's O.ffioe and incorporated herein by this reference, 1,1,43 "Sublease" means any lease (excluding this Lease), sublease, license,, concession, permit agreement, or other agreement by which Lessee or any person or other entity claiming under Lessee, demises, lease's, subleases, licenses or sublieenses to or permits the use or oeoupanoy by another person or entity of any part of the Property and Leasehold Improvements. 1.1,44 "Subleasehold Estate Transfer" means any direct or indirect, voluntaiy or involuntary, sale, transfer, or assignment of any right, title or interest in and to any Sublease or any Subleasehold Estate, 1.1.45 "Sub -lessee" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Property or the Leasehold Improvements under a Sublease. 1.1.4E 'Submerged Lands" means any Submerged Lands adjacent to the Property which have been authorized for marina or marine -related uses by the Lessor and/or the Lessee by the State of Florida Board of Trustees for Internal Improvement Trust Fund or by its administrative am1, the DEP, 1,:1.47 "Submerged Land Fees" means all fees, waivers, rentals and taxes as determined by DEP and any and all governtnent agencies for the use of the Submerged Lands area. 1.1,48 "Third Party Caterer' means any person or entity, providing food, supplies, entertainment, or other related service: at any event or gathering held at the Property and, if a person, such person does not have direct familial relationship with any of the equity holders of the Lessor or, if an entity, such entity is not owned, directly or" indirectly, by any of the equity holders of the Lessor, The phrase "direct familial relationship means a spouse, ohild,,sibling, parent, grandparent, grandchild, or"first cousin, 1.1,49 "Transferee" means the receiving entity of a transfer" in accordance with .Article X.I herein, 1.1.50 "Transfer of Control." means any interest assignment which results in a change in voting and operational control of Lessee. 1.:1,51 "Transferor" means the owner who is transferring in accordance with Article XI herein, ARTICLE II LEASE OF PROPERTY Section 2.1 Lease of Property. I'he Lessor does hereby lease, let and demise to the Lessee, and the Lessee hereby leases from the Lessor the Property, subject to the terms and conditions in this Lease, to have and to hold the Property, with ail of the rights, privileges.and appurtenances, thereunto belonging or pertaining, for the terra herein specified, unless this Lease shall be sooner terminated in a manner hereinafter provided., Section 2.2 Purpose of Use and Occupancy, The Lessee will use and occupy the Property as a full -service, dry storage marina, with ancillary minor boat repair functions, other ancillary" marine-related'sen/ices, Net sales, other related food services, one or more casual restaurants, one or more formal restaurants, retail uses and such other uses as contemplated in the Proposal (the "Permitted Uses") and for no other purpose or use of any kind, 5 The marina shall provide for dry storage racks .or comparable storage equipment, accommodating the storage of a minimum of 400 boats, Vessels stored at the marina shall be 28 feet or lesser in length, The retail uses shall be located in the Parking Facilities Retail Area on the ground floor of the Parking Facilities. In addition, retail uses shall be permitted. in such areas designated for retail uses in the Proposal (the "Other Permitted Retail Areas"), Lessee agrees that the Parking_ Facilities Retail Area and the Other Permitted Retail Areas shall not allow tenants operating adult novelty shops, gun shops and pawn shops, The parking garage portion of Parking Facility will be managed, operated: and the parking spaces leased out. by the MPA. The Lessee agrees to use its hest efforts to obtain permits necessary to construct the pier set forth in the Proposal. In addition to the foregoing, the Lessee agrees to .use hest efforts to construct two additional boat launches at the location desartihed in the Proposal, The :Lessor acknowledges that its consent may be required.. to construct such additional boat -launches and, to the extent such approval is necessary, Lessor hereby agrees not to unreasonably condition, delay and withhold approval thereof. For avoidance of doubt, the cost of such additional boat launches and any improvements necessary to the baywaik associated: thereto shall count towards the Equity Contribution as set forth in the Proposal. Lessee agrees that should the additional boat launcheslocated. at Grove Harbour (as described, in the Proposal) not be available for use, that the Lessee shall construct the on -site boat launch as depicted in the Proposal. The (i)'terraced open-air space located over the Formal Restaurant. (as described in the Proposal) and (ii) the pier set forth in the Proposal, each subjectto obtaining applicable approvals and upon completion thereof, shall be available for public use, subject to such reasonable access and use restrictions as established from. time -to -time by Lessee. Section 2.3 Use of $ubmerged Lands,, The use of any submerged land owned by the State of Florida, adjacent to the Property, shall be subject to approval by the DEP and may contain restrictions sot forth by DEP for the use of said submerged lands, as more particularly described in Exhibit "D" attached hereto to be incorporated and made a part hereof, Section2.4 Suitability .ofPropery., Lessee acknowledges that neither the .Lessor nor any of Lessor's officers, representatives, or employees has made any representation: or warranty with respect to the Property or with respect to the ,suitability or fitness of the Property for the conduct of Lessee's marina and/or :restaurant operations or for any other purpose, except as set forth in this Lease or in the RFP, The execution of this Lease by Lessee shall establish that .the Lessee accepts the condition of the Property "AS IS" Section 2,5 Limited Representations 'by Lessor. • Lessor makes the following representations, covenants and. warranties, which shall survive the exeeution of this Lease and Lessee's taking of possession of the Property: (a) That Lessor has taken all requisite actions to make this Lease binding upon the Lessor, and the Lessor is indefeasibly seized of marketable, fee simple title to the Property, and is the sole owner of and has good right, title and authority to convey and transfer all property, rights and benefits which are the subject matter of this Lease, (b) That, as of the Effective Date and throughout the Lease Team, no party except Lessee and parties in possession by through or under Lessee shall be in or have any right to possession of the Property, except certain dry slip users. pursuant to the lease agreements described on Exhibit " E," which will be disclosed to the Lessee and included in this Lease as Exhibit "E,," upon receipt from Licensee. (o) That there is on the Effective Date and shall be throughout the Lease Term, legal and physical ingress and egress to the Property from a paved puhlio street for vehicular traffic and perpetual legal find physical ingress and egress for pedestrian traffic. ((l) The Property may be used and operated only for the Permitted Uses.; and as of the Effective Date and throughout the Lease Term, there shall be no Applicable Laws, private restrictions or other conditions which restrict or prevent the Property from being used and operated for the. Permitted. Uses, (e) All of the representations and warranties of Lessor contained. in this Lease shall continue to be true as of the Effective Date •and throughout the Lease Term, and said representations and warranties shall be deemed to be restated and affirmed by Lessor as of the Effective. Date without the necessity of .Lessor's execution of any document with regard thereto, and the Lessor's liability (except with respect to the environmental condition of the Property which 6 is expressly addressed. in Article XII of this Lease) therefore, shall survive the signing of this Lease, Should any of the representations and. warranties prove to be incorrect, it shall he Lessor's obligation to ewe those warranties and representations,. which are set forth herein forthwith at Lessor's expense, Section 2.6 Lease Execution, This Lease remains subject to final approval by the City Commission and approval by public referendum as provided pursuant to Section 3(f)(iii) of the Charter of the -City of Miami,. Prior to consideration by the City Commission, Lessee shall deliver two (2) fully executed copies of this Lease to the City Manager, Which copies shall be held in escrow by the City Manager until approval of the Lease by pi>blie referendum and,. thereupon, the Lease shall beoorne binding and effective as to both the Lessee and Lessor. If the Lease has not been approved by the City Commission and public referendum by December 31, 2013, then Lessee shall have the right at any time. thereafter, to terminate this Lease by written notice thereof to Lessor. Section 2,7 Prohibition on Casino Gambling. Lessee agrees that, if casino gambling shall in the future become legal in the City of Miami, the Property hereby demised shall not be used for casino gambling, or games of chance or reward, unless: (i) Lessee obtains the prior consent of the Lessor, which consent may be withheld at the sole discretion of the City Commission; and (ii) if the Lessor consents, the Parties shall in good faith negotiate en appropriate modification or amendment to this Lease, permitting such use and providing for the payment by the Lessee to the Lessor, as Addi'tiooal Rent, of an amount to be negotiated by the Parties. ARTICLE III TERM Section 3.1 Term of Lease. The initial. ter. n of this Lease is for a period of fifty (50) years ("Tern"); commencing on the Effective Date, Section 3.2 Option to fenew. The Lessee has two options. (each, a "Renewal (Iticn") of extending this Lease for two (2) fifteen -year (15) periods ("Renewal Terrn(s)"), Lessee may not exercise either Renewal Option to extend if the Lessee then has uncured defaults on the tears and conditions of this Lease, To exercise the applicable Renewal Option, the Lessee must not be in default under the terms and conditions of this Lease beyond any applicable cure period following applicable notice, and Lessee must give Lessor written notice by the latter of (x) the date which is three hundred and sixty 'live (365) days before the expiration date of the current Lease Term or (y) the date thirty (30) days following written notice from Lessor advising Lessee that .Lessee has failed to furnish notice of its exercise the applicable Renewal Option by the date three hundred sixty-five (365) day before the expiration of the current Lease Terra, which notice shall state in bold capitalized large font letters that such notice constitutes final notice to Lessee of its right to exercise the applicable Renewal Option. Bach Renewal Term will be onthe same terms and conditions as the Lease, except that the Rent will be adjusted as set forth in Article IV below. Section 3,3 ,Parking Facilities. Prior to the issuance of a Certificate of Occupancy for the Parking Facilities, Lessor shall make its best effort, or shall: cause the MPA to make its best efforts, to make available to Lessee such parking spaces as necessary to operate and open to the public the Permitted Uses prior to the completion of the Parking Facilities, on the Sar:ne basis as the Guaranteed Parking Spaces, in the existing parking garages and parking lots owned or controlled by Lessor identified on Exhibit "F" attached hereto (the "Existing Parking. Facilities"). However, Lessor's or MPA's failure to make such parking spaces available shall not be deemed a- default of this Lease. if Lessor and MPA have undertaken best efforts to make available to Lessee such parking spaces and, under Stroh circumstances, the parties hereby' agree to work cooperatively to find solutions that would permit. Lessee to meet the parking requirements pursuant to Miami 21, ARTICLE RENT, FEES AND PAYMENTS Section 4,1 Amount of Rent. The Lessee covenants that it shall pay to the Lessor as bent for the Property the greater of the Initial .Minimum Base Rent (as defined in Section. 4.1.1) or the Peroetntage Rent 'from Ole Possession Date 7 of the Lease until six (6) months following receipt oi' a Cert.ifioate el' Oceu.paney for t:he Parking Facilities, including the Parking Facilities Retail Area ("Operation Date"). From and after the Operation Date forward continuously for the duration of the Lease Term, the Lessee agrees to pay an amount equal to the greater of the Minimum Base Rent (as defined in Section 4,1.1) or Percentage Rent to the Lessor. The Parties. shall memorialize the Operation Date through the execution of an appropriate document establishing the exact date, 4.1.1 Minimum Base Rent, From and after the Possession Date, the Lessee shall pay to the Lessor Minimum Base Rent payable in advance on the first day of each month in equal monthly installments. The Minimum Base Rent shall initially be $1,4 million per annum (the "Initial Minimum Base Rent"), and shall increase to $1,8 million per annum upon the Operation Date; provided however, that upon satisfaotion Of the Parking .Facilities Conditions, the Minimum Base Rent shall increase to $1.9 million per annum for the twenty four (24) month period after satisfaction of the Parking Facility Conditions and $2.0 million per annum thereafter, Notwithstanding the foregoing, if the Parking .Facilities Conditions are satisfied, but only after June 1, 2016, then the amount of the Minimum. Base Rent shall remain at ,$1,9 million and will not increase to 42.0' million as set forth .above and, if the Parking Facilities Conditions are satisfied, but only after January 1, 2017, then the amount the Minimum Lase Rent shall remain at $1.8 million for the duration of :the Lease (each subject to adjustment as set forth in following sentence). Following each of Lease Yearsl0,. 20, 30, 40, 50 .and 60., the Minimum Base Rent shall be adjusted to equal the then applicable Fair Market Rent, as determined pursuant .to Section 4,3 2. 'Notwithstanding the foregoing, the parties acknowledge that the calculation of Minimum Base Rent set forth above is based on the assumption That the Parking Facilities Retail Area will contain 40,000 square feet of gross leasable retail space and, as such, the Lessee will pay $400,000 of Minimum Base Rent or ,$10 per square foot per annum of gross leasable retail space, As such, the amount of Minimum Base .Rent set forth above shall be adjusted such that the Mitham i Base Rent shall equal ;r1.0 per square foot per annum of gross leasable retail space actually constructed by the MPA, The Parties aoknowledge that the Parking Facilities Retail Area may contain as much as 60,000 square feet of gross leasable retail space. 4,1.2 Consumer Price Index (CPI) Escalation, Lessee agrees that, except for the Lease Years as of. which Minimum .Base Rent shall be adjusted as provided in 4,1,1 above, the Minimum Base Rent shall be increased every five years: (each, a "CPI Escalation Year") from the Lease Effective Date by an amount equal to the :percentage increase during the prior 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 Rent shall be hereinafter .referred to as the "CPI Escalation, The amount of the CPI Escalation to Minimum Base Rent shall be capped et five percent. (5%) each time the CPI Escalation is made '(the 'Maximum GPI Percentage"). The first CPI Escalation shall be at Lease Year 5, The CPI adjustment set forth herein shall not result in a reduction of the Minimum Base Rent. The GPI Escalation of the Minimum Base Rent shall be equal to the Minimum Base Rent in effect for the immediately preceding Lease Year multiplied by the "CPI Percentage" (as defined below) not to exceed the Max.inaurn GPI Percentage. The GPI Percentage shall equal the fraction (i) whose numerator equals the monthly Index published immediately prior to the new Lease Year (or the nearest reported previous month), and (ii) whose denominator is the same monthly Index published immediately prior to the immediately preceding Lease. Year (or the nearest reported previous month). If the Index is discontinued with no -successor Index, Lessor shall select a commercially reasonable comparable index. Lessor shall compute the GPI Escalations and send a notice, with calculations, to Lessee setting forth the adjusted Minimum Base Rent within sixty (60) days of the commencement deficit CPI Escalation Year or as soon as such. Index is 'available. In the event the Minimum Base R.ent increases, Lessee shall pay. - to Lessor within thirty (30) days of receiving such notice, the Additional Rent owed for the months that have elapsed in the current Lease Year. 4,1,3 Percentage Rent. Commencing on the Possession Date and continuing throughout the Lease Tern., the Percentage Rent shall he due and payable to the Lessor, The Percentage Rent shall 'be an amount equal to the sum of (x) the cumulative total of the following percentages of Gross Revenue described in items (i) through (v), below, and (y) the other amounts described in item (vi) due hereunder i) 5% percent of the Gross Revenues from the Formal Dining Restaurants; i) 10,3% percent of the Gross Revenues from the Casual Restaurants; iii) 15% percent of the Gross Revenues from marina operations (non -Biel);. iv) 15% percent of marina gross fiuel profits (gross fuel profits defined es gross 'fuel sale price per gallon minu:s.00st of delivered fuel per gallon); v) 5% percent of the Gross Revenue from any Marino Retail Store (excluding any Marine Retail Store within the Parking Facilities Retail Area, which shall pay rent pursuant to (vi) below) and any ancillary sales from any other source within the Property, excluding those sources identified in subparts (i), (ii), (iii), (iv) or (vi); and vi) $10 per square foot per annum for all occupied or vacant retail spaces within the Parking Facilities Retail Area and within the Other Permitted Retail Areas and (other than those uses clesoribedin items (i) through (v), above within such area, such that the Percentage Rent payable for such retail tunes shall be without duplication between categories) (the "4.1.3 Rent"), Commencing with each of the Lease Years following Lease Years 1.0, 20, 30, 40, 50 and 60- (each, an "Adjustment Lease Year"), the 4,1,3 Rent shall be adjusted as follows: (1) as of the commencement of the .first Adjustment Lease Year, the 4.1,3 Rent shall be increased to $11,50 per square foot per annum; and (2) as of the oommeneenent of each subsequent Adjustment. Lease Year, the 4,1,3, Rent shall' be adjusted to equal the product of (x) the 4,1,3 Rent in effect immediately preceding such Adjustment Lease Year, tunes (y) 50% of the percentage increase in Minimum Base. Rent, as determined pursuant to Section 4.32, :that will take effect as of the commeneernent dwelt applicable Adjustment Lease Year; The percentages used to determine the Percentage Rent described in iterns (i) through (v), above shall not be subject to adjustment, The parties recognize that the characterization of a portion of the Property, e.g. as Marine Retail Store, or Non -Marine .Retail,. may change from time -to -time, For example, a portion of the Property characterized for purposes of Percentage Rent as non -Marine Retail may subsequently he occupied for a Martine Retail use or a portion- of the Property used initially for a marine operations-ase may, upon completion of the Leaseh.okl Improvements, be used for Marine Retail. For avoidance of doubt, the characterization of the use for purposes of -determining Percentage Rent shall he adjusted as of the date the Lessee or its Sub -Lessee obtains a new certificate of use (or its equivalent) for such new use. If there is any underpayment of Percentage Rent, Lessee shalt pay the Lessor the amount of the deficiency within thirty (30) days of the Lessor's reeeipt of the Percentage Rent payment, If the Percentage Rent is not paid after thirty (30) day;, Lessee shall he charged a late payment fee in accordance with Section 16.4 until the amount of underpayment is paid in hill.. 4.:1,4 Gross Revenues, Gross Revenues shall include the entire amount of all revenues and percentages of revenues actually collected and receivedby the Lessee and. its Sub -lessees or .'its Assignees (excluding such revenues derived ftonu the Parking Facilities Retail Area or any non -Marine Retail within the Other Permitted. Retail Areas) and derived from the following sales sources, including without limitation: (i) all revenue from the commercial 'business and services Lessee and its Sub- lessees and/or Assignees eonduet on or from the Property (except as otherwise provided under this Lease); (ii) all revenue from sale of food, beverage, wine, 'beet, merchandise or services from the Property, excluding revenue derived from the rental for any event or revenue earned by Third Party Caterer otherwise paying rental to Lessee in connection with any event, which rental will be. included in Gross Revenues pursuant to subpart (viii,), below; (iii) all revenue derived from advertising and sponsorships conducted on the Property, including but not limited. to, movie, television commercials, etc,; (iv) all amounts received from any catering food operations in any way condu.eted at or from the Property, excluding revenue coined by any' Third Party Caterer otherwise paying rental to Lessee in connection with suoh special event, which rental. will be included in 'Gross Revenues pursuant to subpart(viii), below; 9 (v) all amounts received by Lessee from valet concession sales or parking valet services and calculated pursuant to Section 11,1(c) of this Lease; (vi) delivery charges; (vii) sales made or performed by means of mechanical or other vending sales and services devices or machines on the Property, including without limitation, pay telephones, vending machines, and entertainment devices both for cash and on credit, rendered in or upon the Property, excluding revenue derived from the rental •of any portion of the Property for any event or revenue earned by Third Party Caterer, otherwise paying rental to Lessee in connection with any event, which rental will he included in Gross Revenues pursuant to subpart (viii), below, (viii) all revenue received by .Lessee i.n connection with events at any faoi.lity within. the Property, or any portion thereof for any period of time, including without limitation, banquets,. parties, receptions held on or initiated from the Property, which Percentage Rent will be calculated pursuant to Section 4.1.3(v); (ix) interest or telephone food/beverage orders received or tilled at the Property, or procured from the Property by house -to -house or other canvassing, all deposits not refunded. to purchasers, and orders taken, although said orders may be filled elsewhere, including proceeds of all video games; (x) all grants, subsidies, rebates, credits or similar benefits received from any federal, state, regional or local body, agency, authority, department or organization which revenues are actually received by Lessee aid pursuant to the terms thereof constitute unrestrieted Rinds that ntay be used for general operating expenses;. provided, however, sales tax and federal income tax credits for which. Lessee may qualify shall be excluded from the foregoing; (xi) all donations and contributions received, the revenues of which are actually received by Lessee and pursuant to the terms thereof constitute unrestricted funds that may be used for general operating. expenses; and (xii) all other receipts whatsoever .derived from. other eottuneroial operations eonducted in or from the Property by the Lessee -and its Sub -lessees (if any), Gross Revenues shall not include the following: (i) ' any sums collected and paid out by Lessee for any sales, use or excise tax imposed by any federal, state or governmental authority directly on sales and. collected from customers and accounted. for by Lessee and/or Sub -lessees, provided that the amount is added to the selling price therein and paid by the Lessee to such governmental authority; (ti) the. exchange of merchandise between the stores of Lessee, a party controlled by Lessee, or Sub -lessees, if any, Where such exchange of goods or merchandise is made solely for the convenient operation ot.the business of Lessee and not fbr the purpose of consummating a sale which has theretofore been made in or from the Property and/or for the purpose of depriving Lessor of the benefit of a sale which otherwise would be :made in or from the Property; (hi) the amount of returns to shippers or manufacturers; (iv) proceeds from the sale of trade fixtures, operating equipment or similar assets after use thereof in the conduct of Lessee's and Sub -lessees' business on the Property; (v). alt sums and credits received in settlement of claims for loss or -damage to merchandise; (vi) funds collected with regard to the Property which are not actually related to the day-to-day business of the Property such as, but not limited to the finanoing of the Lessee's interest in the Property; (vii) collection of insurance proceeds; (viii) collection. of eminent domain proceeds; (ix) monies eolleeted for events, to the extent any portion of such monies collected are paid or delivered to the sponsor, so long as sponsor is not affiliated with Lessee; 10 (x) all gratuities paid to employees; (xi) amounts received by Lessee as reimbursements of expenses and cost sharing (for example, reimbursement of taxes, maintenance; insurance or utility bills); (xii) any grants, subsidies, rebates, credits or similar benefits 'received by Lessee or Sub -lessee from any federal, state, regional or local body, agency, authority, department or organization; (xiii) interest earned on Lessee's deposit accounts, earnings or profits on Lessee's investments; (xiv) interest income from loans or credit facilities granted by Lessee and sirriilar passive or investment income of Lessee related to Lessee's liquid assets, investments or loans/credit facilities grnted .by Lessee; (xv) rents .or percentage .rents and commissions paid to Lessee by any Sub -lessees where the .Lessor is collecting rent based on a percentage of Sub -lessee's Gross Revenues (xvi) Amounts received by a valet parking concessionaire when Lessee is remitting the respeetiive percentage due to Lessor as provided pursuant to .Section 11..1(c), (xvii) Any restricted donations or contributions whose revenues are earmarked for capital expenditures, its approved by the Lessor, to the Property, (xviii) Interest and :Lance charges charged by Lessee, If a sale is by _credit card., no deduction shall be allowed for any commission associated with sueh sale, A "sale" shall br deemed to have been consummated for the purpose of this Lease, and the entire amount of sales price collected by Lessee and Sub -lessees shall be lnoluded in Gross Revenues, at suoh time, that (i) the transaction is initially reflected in the books or records of Lessee or Suh-lessee(s); or (ii) Lessee or Sub-lessee(s) receives al:l or any portion of the sales price; or (tit) the applicable goods or .Services are delivered to the oustomer and payment is made to Lessee or Sub-lessee(s), whichever first occurs, irrespective of whether payment is made in installments, the sale is for cash or for Siredit, or otherwise, or all or any portion of the sale price has actually been paid at the time of inclusion in Gross Revenues or at any other time. No deduction shall be al.lowed for direct or in.direet disoou.nts, rebates, or other reductions on sales, unless generally offered to employees or the public on a uniform basis, within the applicable restaurant or retail establishment. Gross Revenues, whether for cask .eredit, credit cards or otherwise, shall he recognized at such time as 'provided in the foregoing paragraph. Payments received in advance are deferred and .are recognized as revenue in the period the service is rendered or sale takes place. Grants shall be recorded as income during the period designated, by the grants or when the Lessee has incurred expenditures in compliance with the restrictions o'fthe grantor, Gross Revenues shall be reduced by the amount of any refund made upon any sale in or from the Property, provided said amounts had been previously included in "Gross Revenues," not to exceed the sum so previously included, where the l erohandise sold is thereafter returned by the purchaser and accepted by the Lessee or Sub -lessees, and if such refund is in the form of a credit to customer, -such credit shall. be included in Gross Revenues when used, Lessee shall be entitled to. deduct fi'orn any amount originally included in Gross Revenues any portion thereof which is determined -by Lessee to be unoolleotible after ninety '(90) days following the date ,such amount was originally duo and payable to Lessee, 4,1.5 Sales. Tax. The Lessee shall be liable for the prevailing State of Florida Use Tax imposed on the amount of rent paid to .Lessor under this Lease, in the absence of an exemption or other reduction by the State of Florida. This Sales anti Use Tax shill he payable to the Lessor when rent .is clue, and in turn, Lessor will remit the same, less any authorized handling deductions, if any, to the State, Said tax is applicable to the Minimum Base Rent payments, unless otherwise determined. by the State of Florida. 4,1,6 Manner of Payment. Every 15th day of the calendar month, Lessee shall pay the Lessor the monthly Initial Minimum Base Rent or Minimum Base Rent and the difference between such amount and Percentage Rent, as applicable,. and shall deliver such payment along with the corresponding Gross Revenue Report for the preceding calendar month to the City .of Miami, Department of Fina.nee at the address 'noted below: City of Miami Department of Finance ' 11 Attention: Treasury Management/Receipts 444 SW 2nd Avenue, 6th Floor Miami, Florida 3`3130 Lessee shall use a Gross Revenue Report, a sample of which is attached herewith and incorporated herein as Exhibit A4G" to itemize any and all reportable Gross Revenues as described in Section 4,1,4• herein, For avoidance of doubt, the Percentage. Rent due by Lessee to Lessor will be calculated. on a Lease Year basis and, as such, the parties will reconcile the final amount of Rent due 'by Lessee for any applicable Lease Year by no later than ninety (90) days after the end of each Lease Year, and the Lessee shall pay to Lessor any underpayment in Rent (after determining that the amount. of Percentage Rent due in such Lease Year exceeds the amount paid in Rent by the Lessee in such Lease Year:) within thirty (30) days thereof or, if applicable, the Lessor shall pay to Lessee (either, at Lessor's option, by rent credit or in cash) any overpayment in Rent.(after determining that the amount of Rent paid by Lessee is such Lease Year exceeds the greater of the Minimum Base Rent or the Percentage Rent due in such Lease Year). Section 4,2 Security Deposit. Simultaneously with the execution of this Lease on the Effective Date, Lessee shall initially deposit with the Lessor, the sum of nine hundred thousand dollars ($900,000), which- shall be equal to 50% of the annual Minimum Base Rent ("Seourity Deposit") in the form ofoash, which may be. applied from the Good. Faith Escrowed Funds, or in the t'orrn of a letter of credit, The Security Deposit shall be adjusted in the manner described: in Section 4,3,1 herein, The ,Seeurity Deposit shall be maintained by Lessor in an interest bearing money market account;. all interest accrued from time to time thereon shall be paid to Lessee on aft annual basis throughout the Lease Term, by no later then fifteen days following the end of each calendar year. For so long as the Security Deposit has not been repaid by .Lessor, it shalt constitute an account payable by Lessor to Lessee within thirty (30) days following termination. of this Lease to the extent, if any, that the Security Deposit has not been applied by Lessor as hereunder provided, If Lessee shall default with respeot to any covenant duty, or obligation of Lessee under this Lease, then the Security Deposit or any part thereof may be applied by Lessor after the satisfaction of any relevant Cure Period (but Lessor shall not bt obligated to do so) to the damages sustained by Lessor by reason of any such default or to indebtedness owing by reason of any failure of Lessee to make any required .monetary payment 'under this Lease, No such application shall be construed as an agreement to limit the amount of Lessor's claim or as a waiver of any damage or release of any indebtedness, and any claims of Lessor under this tease not recovered in full from the Security Deposit shall remain in hill force and effect. At any time. or times when Lessor has made any such application dell or any part of the Security Deposit, Lessor shall have the right (but not the obligation) at any time thereafter to request in writing that Lessee pay to Lessor a sum or sums equal to the amounts so applied. by Lessor so that Lessor will always be in possession of a sum equal to 50% of the annual Minimum Base Rent, Lessee shall make each such requested remittance within fifteen (15) days following such request from Lessor and each such remittance received by .Lessor shall thereupon 'constitute a part of the Security Deposit srtbject to the terms and provisions thereof Failure to make any such requested remittance within such ten (10) day period May be treated by Lessor as a failure by Lessee to make timely payment of rent and as a Lessee Default. In the event of any conveyance or other transfer of the Property by the Lessor, Lessor's ,remittance of the Security Deposit or any remaining portion thereof to the purchaser of the Property shall release and relieve Lessor of any further obligation or liability to Lessee with respeot to the Security Deposit, Se.etion 4,3 Adjustments to Rent. The Security Deposit shall be adjusted from time-to-tiirne, at such time as the Minimum .Base Rent shall be adjusted. , ns otherwise provided herein, such that the Security Deposit shall at all times be equal to fifty percent (50%) of then applicable yearly Minimum Base Rent. In the instance where the Lessor deducts any amount of the Security Deposit, the Security Deposit shall he replenished by the Lessee to the extent necessary to restore the Security Deposit to the adjusted amount of't:he,Security Deposit, within fifteen (15) days of the drawdowir i. f the Security Deposit 4,3.2 Appraisal Rent Adjustment, 4.3,2,1 Determination of Fair Market Rent, Tho Minimum Base Rent shall be evaluated. in accordance with the procedures set forth in this Section 4.3,2 (each,' a "Schedulad Appraisal") to determine the current Fair Market Rent for Minimum Rase Rent and the 'required adjustments to these values, 12 4.3,2,2 Appraisers, No later then. three hundred and sixty -Eve (365) days prior to the end of each of Lease Years 10, 20, 30, 40, 50 and 60, Lessor shall deliver to Lessee a determination of the Fair Market. Rent, in accordance with the criteria set forth herein applicable to the determination of Fair Market Refit. The determination of Fair Market Rent provided by Lessor 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 (10) years experience in appraising properties comparable to. the Property (a "Qualified Appraiser"), Lessor shall pay for the appraisal, Lessor shall select its Qualified Appraiser from the City's general appraisers' services list. In no event shall an appraisal result in a reduction in .the minimum rent due to the City. The Qualified Appraiser Shall be' hired the year prior to the Lease Year (ie. Lease Years 9, 19, 29, 39, 49 and 59) that the newly appraised Minimum Base Rent shall commence to take effect (each, an "Adjustment Lease Year"). In the event that Tenant shall dispute the determination of Fair Market Rent made by Lessor's Qualified Appraiser, then, Lessee shall., within thirty (30) days following its receipt of the determination made by Lessor's Qualified Appraiser, select its own real estate appraiser, who shall also be a Qualified Appraiser (though Lessee's Qualified Appraiser shall not be. required to be on the City's general appraisers' service list), Lessee shall pay the costs of Lessee's Qualified Appraiser. The Lessor's Qualified Appraiser and the Lessee's Qualified Appraiser shall then have a period of thirty (30) days following the selection of Lessee's Qualified Appraiser within which to attempt, hi good faith, to reach agreement on the Fair Market Rent for the Property, If Lessor's Qualified Appraiser and Lessee's Qualified Appraiser are linable to agree upon the Fair Market Rent within such thirty (30) day period, then the Fair Market Rent shalt be determined in accordance with the methodology set forth below:. Within ("ifteei'r (15) days following the expiration of such thirty (30) day period, Lessor's Qualified Appraiser and Lessee's Qualified Appraiser shall endeavor to mutually agree upon an independent commercial real estate appraiser who shall be a Qualified Appraiser, If the Lessee elect;, the pool of Qualified Appraisers shall exclude any appraiser ort the City's general appraisers service list. If the Lessor's Qualified Appraiser and Lessee's Qualified Appraiser are unable to agree on ;such third Qualified Appraiser, Lessor and Lessee shall apply to• the American Arbitration Association for designation of an appropriate third Qualified Appraiser, The Qualified .Appraiser se ,selected or designated by the American Arbitration Association is hereinaftx referred to as the "Third Appraiser." Within ten (10) days following the selection of the Third Appraiser, Lessor'sQualified Appraiser and Lessee'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 Lessor's Qualified Appraiser or the 'determination submitted. by Lessee's Qualified Appraiser, The Third Appraiser shall not select any amount as the Fair Market Rent, other than the amount submitted 'by either the Lessor's Qualified. Appraiser or the amount submitted by the Lessee's Qualified Appraiser. The Third Appraiser shall notify both Lessor and. Lessee, 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 Lessor and Lessee and the Fair Market Rent, as selected by the Third Appraiser, shall be the. Minimum 'Base Rent, which shall take effect commencing as of the beginning of the applicable Adjustment Lease Year. 4.3,2,3 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..1.13, Each Qualified. Appraiser, in its discretion, may dispense with formal hearings, it being agreed that his task will be solely that of appraisal. 4,3.2.4 ]affect of Appraisal, The Fair Market Rent determined in accordance with the procedures set forth in this Section 4,3,2 shall be binding and ce,nclusive on the Lessor and the. Lessee, except that in no event shall the Fait Market Rent be adjusted below the then'applioable Minimum Base Rent for such Lease Year, 4.3.2,5 Appraisal Fee, The Lessee shall be responsible for one hundred percent (100%) of the costs associated with the hiring of the Lessee's Qualified) Appraiser; and Lessor shall be responsible for one hundred. percent (100%) of the costs associated with the hiring ot'the 'Lessors Qualified Appraiser, In the event the Lessee 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; 13 provided, however, if Lessee elects to exclude from the pool of Qualified Appraisers any appraiser on the City's general appraisers service list, then Lessee shallpay the full cost of the Third. Appraiser. 4,3.2,E Delayed Appraisal. If prior to the commencement of the Adjustment Lease Year, the adjusted Minimum Base Rent has not been determined by independent appraisal in accordance with the procedures set forth in this Section 4.3,2, the Lessee shall continue to pay all their applicable Rent(s), es may have been previously adjusted pursuant to the terms of this Lease, Following the determination of the Rent by independent appraisal, in accordance with the procedures set forth it this Section 4,3.2, the Rent will be adjusted as providedretroactively to the oommen:eement, as applicable, of the next following .Adjustment Lease Year, and, if necessary, the Lessee shall pay to the Lessor with the next installment of Rent due, the amount, if any, by which the Rent, as adjusted; exceeds the Rent that has been paid: by the Lessee for the retroactive period, Section. 4,4 Submerged Land Fees, In addition to the rent described in Sections 4.1,1 to 4.1.2 herein, commencing upon the later of the Effective Date of this Lease or the effective date of an agreement with the DEP for use of the Submerged Lands, Lessee shall be obligated to pay all Submerged. Land Fees as determined by the DEP for the use of the Submerged Lands and pay .for all expenses incurred in obtaining the State's approval and waiver. The annual Submerged. Lands Fee shall be paid to the City at the same location as the Minimum- Base Rent and the City shall remit payment to DEP, Lessee shall remitthe annual Submerged Lands Fees to the City within five (5) thirty (30) Business Days of Lessee being billed by the City for the same. Lessee shall further be obligated to submit to the Lessor for remittance to DEP any and all documents required by DEP which may inolude, but is not "limited to, disclosure of any income from wet slips for the Submerged Lands, Except as otherwise provided, the annual Submerged Lands Fee shall be as provided in Florida Department of Environmental Protection., Administrative Rule 1.8-21,011(1)(b), as may be amended, and subject to yearly consumer price index (CPI) increases by DEP, Section 4•5 Lessee's Reeords, To the extent Gross Revenues generated by Lessee or any Sub -lessee (an '!Applicable Sub- lessee") are applicable to the determination of any Percentage Rent .hereunder (the "Applicable Gross Revenues"), Lessee shall prepare and keep or shall use cornnaereially reasonable -efforts to cause Applicable Sublessees to prepare and keep, fall, complete and proper books and source documents in accordance with generally accepted accounting principles, of the Applicable Groan Revenues, whether for cash, credit or otherwise, of each separate department at any time operatedin the Property; The books and source documents to be kept by Lessee (and Applicable Sub -lessees) shall include, without limitation, true copies. of all federal, state and local tax returns' and reports; records of inventories and receipts of merchandise, daily receipts from all sales and other pertinent original sales records and records of any other transactions conducted in or from the Property by Lessee. Pertinent original sales records may inolude any of the following,: (i) sales reports of back office systems fed from point of sale terminals, (ii)cash.register tapes, including tapes from temporary registers, if any, (iti) serially pre -numbered sales slips, (iv) the original record, of all mail, internet and telephone orders at and to the Property, if any,, (v) settlement report sheets of transactions with any person conducting business in the Premise, if any, (vi) original records indicating that merchandise returned by customers was purchased. at the Property by such customers, ()ii) memorandum receipts or other records of merchandise taken out on. approval, (viii) detailed originalrecords of any exclusions or deductions from Cross Revenues, (ix) sales tax records, and (x) snob other sales records, if any, which would normally be examined by an independent accountant pursuant to .accepted auditing standards in perforating an audit of Lessee's sales. Lessor and Lessee acknowledge and agree that, during the Lease Tenn, and in connection with certain Sub -leases, not all of the foregoing sales records may be .maintained; however, Lessee hereby agrees to maintain (or to use commercially 'reasonable efforts to cause any Applicable Sub -lessee to maintain) all such sales records as shall, in accordance with commercially reasonable standards, be required in connection with the determination of Applicable Cross Revenues, where applicable to the determination of any Percentage Rent hereunder. Subject 'to'the preceding paragraphs Lessee shall record. (or use commercially reasonable efforts to cause any Applicable Sub -lessee to record), at the time of each sale or other transaction, in the presence of the customer, all receipts from, such saleor other transaction, whether for °ash,, credit or otherwise, in a cash register or cash registers having a cumulative total which shall be sealed in a manner approved by 14 Lessor and: which shall possess such other features as shall be reasonably required by Lessor, Lessee shall be required to install (and to use commercially reasonable efforts to cause Applicable Sub -lessees to install) point of sale terminals, pollalile, point of sales- cash register systems or such other point of sale equipment of a make and model mutually agreed to by the Parties. Section 4,6 Reports by Lessee, Within ninety (90) days after the end of each Lease Year, Lessee shall also furnish to Lessor a certified financial report (i.e, a gross revenue audit) by an independent certified public accountant (the Annual Report"), showing in all reasonable detail of the amount of such Applicable Gross Revenues made by Lessee and Applicable Sublessees from the Property during the preceding Lease Year, Lessee shall in all events furnish to Lessor within fifteen (15) days after the end of each month of the Lease Term a written statement of Applicable Gross Revenues covering the preceding. month, the statement to be in such form and style and contain such details and breakdown as Lessor may reasonably require. Lessor acknowledges and agrees that, With respect to Applicable Gross Revenues generated by any Applicable Sub -lessee, Lessee shall rely an the reporting made by each snob Applicable Sub -lessee with .respect to its Applicable Gross Revenues and shall have no liability whatsoever for reporting errors made by any such Applicable Sublessee; provided, however, Lessee -shall use commercially reasonable efforts to include in each sublease with any Applicable Sublessee -reporting requirements with respect to Applicable Gross Revenues consistent with the reporting requirements applicable to the operations of Lessee.heretinder. Section 4,7 Right to Examine Looks, Notwithstanding the acceptance by Lessor of payments of Minimum Base Rent and Percentage Rent, 'Lessor shall have the right to all Rents and other charges actually due hereunder, and the right to examine, make -extracts from and copy, at the Property or Lessee's main accounting office, Lessee's books, source documents, accounts, records and sales and income tax reports filed with applicable government agencies by Lessee in order to verify the amount of Appiicab.le Gross Revenues in and from the Property, For a period of five (5) years after the expiration of each Lease Year, Lessee shall snake (or use commercially reasonable efforts to cause any Applioable Sub -lessee to make) all such documents and records available at the Property or Lessee's main accounting office upon ten (10) days' prior written notice from 1.,essor. The .Lessee will establish one or more bank aeeounts to deposit all Gross Revenues recognized :from the operations on the Property, which ba.nk account deposits will not be ebmingled: with the revenue from any other operations ofthe Lessee or any other affiliated companies, Section 4,8 Audit. (a) At its option, Lessor may at any time, upon ten (10). days ' prior written notice to Lessee, arrange for an auditor selected by Lessor to conduct a complete audit (including a physical inventory) of the applicable records and operations of Lessee and each Applicable Sub -lessee included in Applicable Gross Revenues from the Property during the period eovered by any statement issued by Lessee, Lessee shall make available (or use -commercially reasonable efforts to cause any Applicable Sub -lessee to make available) to the Lessor s auditor at the Property or Lessee's main accounting office on the day set forth in Lessor's notice, requiring such audit, all of the applicable books, souree documents, accounts and records referred to in Section 4,6 hereof and any other materials whsall. such auditor reasonably deems necessary- or desirable for the pu.r•pose of making such audit. Lessee shall promptly pay to Lessor the amount of any - deficiency in Percentage Rent payments disclosed by any such audit, If well audit shall disclose that Lessee's statement of Applicable Gross Revenues is u.nderstatedto the extent of five percent (5%) or more, then, unless Lessee ;Shall dispute the results of such audit, Lessor may bill to Lessee the cost of such -audit, which shall be paid by Lessee within thirty (30) days after Lessees. receipt of Lessor's invoice. If such audit shall disclose. that Lessee's statement of ApplicableGrossRevenues is understated:to the extent of ten percent (I0%) or more, then, unless Lessee shall dispute the results ofsuoh audit, Lessor, in addition to the foregoing remedy and other remedies available to Lessor, shall have 'the option, upon Lessee's failure to pay such .additional sums within thirty (30) days after written notice to the Lessee, to declare Lessee to be in defaultt hereunder, in which event, Lessor shall be entitled to all of the remedies set forth in Article XVI below. In addition to the foregoing, and in addition to all other remedies available to Lessor, in the event .Lessee's auditor and Lessor's auditor shall schedule- a date for an audit of Lessee's records- in accordance With this Section 4,8, and Lessee shall fail to be available or shall otherwise fail to comply with the requirements for such audit, Lessee shall pay all oosts and expenses associated with the canceled audit. (b) In addition to all other remedies available to Lessor,. in the- event that any such audit shall disclose that Lessee's records and other documents as referred to in Section 4,4, 4,5 and 4,6 hereof and such other materials provided by Lessee to Lesr+or's auditor are inadequate, in the opinion of an independent 15 auditor serving as Lessor's auditor, to disclose accurately .Lessee's Gross Revenues, then Lessee shall have thirty (3`0) days to cure any deficiencies raised by Lessor's auditor and shall then notify Lessor so that Lessor's auditor can continue its audit, Lessor's exercise of the foregoing remedy shall in no way limit or otherwise affect Lessor's ability to exercise otherremedies available to it, nor shall Lessee's obligations pursuant to the terms, .covenants and conditions of this Lease (including, without limitation, Lessee's obligation with respect to reporting Gross Revenues 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 Lessee shall fail to provide to Lessor any required reporting or records with respect to Applicable Gross Revenues as a consequence of any Applicable Sub -lessee's failure to timely furnish to Lessee any required reporting or records with respect to the Applicable Gross Revenues generated by such Applicable Sub -lessee, then, provided' that Lessee 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, Lessee shall have no liability to Lessor in connection therewith, but shall promptly commence to take all commercially reasonable efforts to terminate such sublease, and, in connection there with,, to recover all Applicable Percentage Rent due in connection with the Applicable Gross Revenues generated by such Applicable Sub -lessee and to 'account to Lessor for same, Section 4,9 Lien for Rent, The Whole amount of the Rent, Additional Rent, and each and. every installment, and the amount of all taxes, assessments, water rates, insurance premiums and other charges and Impositions paid by the Lessee under the provkions of this Lease, and all costs, attorneys fees and other expenses which may be incurred by the .Lessor in enforcing the provisions of this Lease, or on account of any delinquency of the Lessee in carrying out any of the provisions of this Lease, shall be and they are deemed to constitute a valid lien upon the Leasehold Improvements, and upon. the Lessee's Leasehold Estate, Lessor hereby agrees that in the event Lessee shall obtain financing in connection with the Project which inay entail granting to any Leasehold Mortgagee or other lender providing such financing a Leasehold Mortgage or other encumbrance upon all or any portion of the Leasehold Itproven`rents, the Lessee's Leasehold Estate, or any personal property belonging to Lessee, Lessor shall subordinate its lien over and upon the Leasehold Improvements, Lessee's .Leasehold Estate and any stroll personal property belonging to Lessee, pursuant to snob commercially reasonable .tons of a subordination agreement es such Leasehold Ivlortgagee or other lender shall .request, Section 4,10 Parking Trust Fund. Contribution, The Lessee shall be required. to contribute $10,000 per parking space required to meet the Lessee's parking requirement pursuant to, the RFP, Based on the development contemplated by the Proposal, the Lessee's total contribution to the Parking Garage. Facilities shad be $4,970,000 for a total .of 497 parking spaces, which amount may 'be adjusted as set. forth 'below ("Parking Trust Fund Contribution"), Lessee hereby elects the option of financing a portion of the Parking Trust Fund Contribution; therefore, as of the Effective Date of the Lease, the Lessee shall transfer $1,242,500 of the Good Faith Escrowed Funds to the Lessor with the remainder of the amount of the Parking Trust Fund Contribution (in the amount of $3,7-27,500 plus any additional bond issuance cost) to be financed by the MPA fully amortized over a twenty (20) year term at six percent (6%) interest and the corresponding payments to such financed amount constituting Additional Rent, The Lessee shall pay each installment of debt service for the balance of the Parking Trust Fund Contribution by cashier's :check or money order and delivered to the Finance Director, 444 SW 2"r Avenue, 7th Floor, Miami, Florida 33130, If the MPA has not obtained building permits for, and commenced construotion of, the Parking Facilities by January 1, 2015, then the Lessor shall return the Parking Faust Fund Co rtributionto the Lessee. The Parties acknowledge that the .final calculationof the Parking Trust Fund Contribution may fluctuate based on the actual gross leasable retail square footage constructed by the MBA as Parking Facilities Retail Area; therefore, the actual amount of the contribution willbe adjusted (based on the formula vet forth in the RFP) upon completion of the Parking Facilities Retail Area with the MPA financing the maximum percentage of such contribution as permitted in the RFP, Section 5,1 ARTICLE V PAYMENT OF TAXES, ASSESSMENTS ANI) OTHER IMPOSITIONS Payment of Taxes .and Ttrzpositiorls 16 Lessee shall pay before any 'fine, penalty, interest or posts are added for nonpayment., any and all Impositions levied against the Property or against personal property af.any kind, owned. by or placed in, upon or about the Property by Lessee, Section 5,2 Installment Payments. of Ad Valorem Taxes and Impositions Lessee agrees that to the extent the Property or 'any interest thereon is subject to ad valorem taxation, Lessee, at its option, may enroll in the Miami -Dade County Ad. Valorem Tax Payment Plan. If by' law, any taxes, assessments or other Impositions are payable or may, in the case of taxes, at the option of the taxpayer, be paid in installments (whether or not interest shall accrue on the unpaid balance of Che'ImpositiOn), the Lessee may pay the same .(and any accrued interest on the unpaid balance of the Imposition), in installments before any fine, penalty, interest or cost is - added for the nonpayment of any installment and interest, Any Imposition relating_ to a fiscal period ofthe taxing authority, a part of'which. period is included before the Effeetive Date and part of which is included after the Effective Date shall be adjusted as between the Lessor and the Lessee as of the Effective Date of the Lease Term„so that the Lessee shall pay that portion of the Imposition attributable to that part of the fiscal period included in the Lease Term, and the Lessor shall pay the remainder, if applicable,- Any Imposition relating to a fiscal period of the taxing atilhority-, a part ofwhieh period is included within the Lease Tertn:and a part. ofwhich is included in a period of time after Lease Terris shall be adjusted as between the Lessor and the Lessee as of the termination of the Lease Term, so that the Lessee shall pay that proportion of the Imposition attributable to that part of the fiscal period included in the term of this Lease, and the Lessor shall pay the remainder, if applicable. Section 5,3 Proof of Payment, The Lessee shall furnish to Lessor; within thirty (30) days after the date whenever any Imposition is payable by -or in behalf ofthe Lessee, official receipts of the appropriate taxing authority, photocopies or other proof satisfaoto.ry to the Lessor, evidencing the payment, Section 5.4 Lessee's Right to Contest Impositions. Anything herein to the contrary notwithstanding,: Lessee shall have and retain the right to appeal or contest by legal proceedings, or in such other manner as it may deers, suitable, any Imposition, or any valuation in connection therewith, and to defer payment of any such contested item, without the consent of Lessor, even if the same ultimately results in the payment of any interest, costs or penalties, In the event . that. Lessee contests any Imposition, Lessee shall immediately notify the' City Manager or his/her authorized designee of its intention to appeal said Imposition. If at any time during the last three (3) years of the initial Lease Term or Renewal Term, Lessee shall contest an Imposition, Lessee may defer payment of a contested item -upon the condition that., before instituting any such proceedings, LesseeShallfurnish and keep in effect a surety bond, cash deposit or other security satisfaetory to the City Manager or his/her designee in an amount sufficient to pay one hundred percent (100%) of the contested I'mposition or assessment, with all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it, The legal proceedings herein referred to shall include appropriate proceedings to review tax assessments and appeals from an order issued therein and appeals from any judgments, decrees or orders. Any suoh contest shall delay the time periods set forth in Section 5,2 above. Lessee agrees to pay such Impositions in a.ltunp suns payment or on an installment basis. Failure of the Lessee to pay such Impositions or assessments or any installment payment thereof shall consti.ttite a default under this Lease, ' Ira emmeotion with any appeal or contest: of Impositions instituted by Lessee, upon written request by Lessee to Lessor, Lessor shall cooperate with Lessee in connection with any such appeal or contest, including, but not limited to, executing such documents or affidavits when and as may be reasonably required inconnection therewith; provided, however, Lessee shall pay the reasonable :costs incurred by Lessor therefor. ARTICLE VI LEASEHOLD IMPROVEMENTS Section 6.1 Lessee's Obligation to Provide aiid Fund Leasehold Improvements, . Within one hundred eighty days (180) days of the Effective Date, Lessee, at its own cost and expense, shall submit to Lessor its plans for the commencement and completion of the construction, and the acquisition trrrd installation of the Leaseehold Irnprovetnents, The plans shall include. a layout -ot' the Property (excluding the Parking Facilities Retail: Area), a lighting plan, a depiction of all fixtures to be 17 added to Property, interior and exterior finishes and material samples, typical display technique, interior and exterior signage plan, landscaping plans, store front and any work or equipment to be done or installed by Lessee affecting any structural, mechanical or electrical part of the Property ("Plans"), Within ten (10) Business Days of receipt of the Plans, the Lessor shall give Lessee written notice of either, Lessor's approval or Lessor's disapproval setting forth the reasons therefor, The Lessor may only disapprove of the Plans upon a finding by the City Manager that the Pions .contain material variations from the plans and specifications set forth in the Proposal, In the event that Lessor disapproves the Plans, the Lessee shall within fifteen (15) Business Days ofr•eceipt:of the notice modify the. Plans in accordance with the reasons set forth in Lessor's disapproval notice. The modified Plans shall be resubmitted to Lessor for Lessor's final review and approval, in aeoordance with the standards of review set forth above; Lessor Shall have a period of ten (10) Business Days following receipt of such revised Plans within which to review same and furnish to Lessee written notice of Lessor's approval or disapproval, If Lessor shall fail to furnish to Lessee written notice of Lessor's approval or disapproval of the Plans or revised Plans submitted to Lessor, within the time frame set forth above, then the time fames set forth herein to- complete construction of the Leasehold .Improvements shall be extended by the number of such additional days taken by Lessor to provide written notice of Lessor's approval 'or disapproval of the Plans or the revised Plans submitted to Lessor, as the case may be, Notwithstanding the above, the Lessee shall cause the new dry rack storage slips to be installed as soon as reasonably possible following the removal .by Licensee of the dry rack storage slips currently on the Property, and in any event, within one hundred and eighty days (180) following the Possession Date, Lessee, at its sole oost and expense shall complete construction, acquisition and installation of the iu'ritial Leasehold Improvements as more fully described. in Exhibit "A" attached hereto and made a part hereof, and acquire* and install the .furnishings, fixtures and equipment required for operation of the Property within three hundred and sixty five (365) days from the receipt of all required permits for construction of the approved Plans (except fb.r the Dry Rack Storage Slips which shall be installed within one hundred and eighty (180)- days following the Possession Date, as provided above), Lessee hereby covenants that Lessee shall expend no less than Seventeen Million Nine Hundred Seventy Thousand Dollars ($ 17,970,000,00) ("Minimum Level of Investment") in eon.nec,,ion with the Project, which shall incline, without liulrtat ori; (i) all soft and hard costs and expenses incurred by Lessee to complete all capital Leasehold Improvements, including, without limitation, building, faelllties, rooks. and equipment, (ii) all environmental remediation costs, paid by I„essee or -on its behalf, (iii) the $1,000,000 Security Deposit and (iv) the Parking Trust Fund Contribution, Upon completion of the construction., acquisition and installation of the Leasehold Improvements, and acquisition and installation of the furnishings, fixtures and equipment, Lessee shall furnish to Lessor copies of receipts, releases and bill of sales in connection therewith as shall be required to reasonably demonstrate Lessee's achievement. of the Minimum Level of investment, Section 6,2 Payment and Performance Bond, Prior to the commencement of any construction, the Lessee shall, at Lessee's, sole cost and expense, cause Lessee's general contractor to furnish the Lessor with a Payment and Performance Bond. The Payment and Performance Bond shall be issued by a bonding company which shall be approved by Lessor, in an amount equal to one hundred. percent (100%) of the hard -costs to construct the Leasehold improvements-, naming the Lessor as the owner/obligee, and the Lessee or Lessee's general contractor, as the principal guaranteeing the payment and performance of Lessee's obligations with respect to any and all oonstr0.ction work pertaining to the Leasehold Irnprovemeitts, fine of construction or other liens, The conditions of the Payment and Perfornsanoe Bond shall be to insure that the Lessee or Lessee's general contractor will; (i) promptly make payment to all claimants, as defined in Section 255,05, Florida Statutes (2012), as amended, supplying the Lessee with labor, materials, or supplies, used directly or indirectly by the Lessee in the prosecution of the work related to the Leasehold Improvements under this Lease; and (ii) to pay the Lessor ali losses, damages, expenses, costs,. and. attorneys fees, including appellate proceedings, that the Lessor sustains because of the Lessee under this Lease pursuant to claims made under Section 255,05, Florida Statutes (2012), as amended; and (iii) perform the .guarantee of all obligations 'of the Lessees under this Lease with respect to the construction, and the acquisition and installation of the Leasehold Improvements. 1s The Payment and Performance Bond may be terminated at such time as the construction, and the acquisition and installation of the Leasehold Improvements •are completed as evidenced by issuance of a certificate of oceupancy and reasonably satisfactory evidence thereof is provided by the Lessee to the City Manager, including certification by the Lessee's architect that all requirements of the Payment and Performance Bond have been satisfactorily concluded, The form of the Payment and -Performance Bond, a sample of which is attached herewith by reference as Exhibit "II," shall be approved by the City Manager, which approval shall not be unreasonably withheld. The Lessor agrees that in the event the Lessee cannot obtain the above Payment and Performance Bond, the Payment and Performance Bond may be :provided by the general contractor (s) (in an amount acceptable to the Lessor with respect to the work to he performed by the general contractor(s), in lieu of the Lessee providing the same -as Principal of the Project. Said Payment and Performance Bond(s) shall comply with all the requirements listed under in subsections (i) through (ili) above, . Section 6.3, Contractor's lnsurauce, The Lessee shall require every contractor performing any work pertaining to the Leasehold Improvements to furnish certificates of insurance including Builder's Risk Insurance,. if applicable, satisfying the Lessor's customary and commercially reasonable requirements therefor, protecting the Lessor and• its respective commissioners, officers, agents, and employees, against any claim for personal injuries, death and property damage that may be asserted :because of the construction, or the acquisition or installation of the Leasehold. Improvements, • Section 6.4 Additional Consideration, (a) The Lessor hereby, in consideration for the promises and covenants contained in this Lease to be kept andpe;formed 'by the Lessee, shall simultaneously with the execution of this Lease on the Effective Date, grant and convey unto the Lessee all. existing Improvements (including improvements, furnishings, fixtures and equipment) listed in Exhibit "I",: in its "as is" and "where is" condition, (b) The Lessee hereby, in consideration of the granting of this Lease shall upon .termination or expiration of this Lease: (i) grant and oonvey unto the Lessor, free and clear of all liens, tithe to all Leasehold .Improveinents of a permanent character (including, for avoidance of doubt, all dry .}aok.a, hut excluding all trade fixtures, furnishings, equipment and movable personal - property such as, without limitation refrigerators, stoves, freezers, hood systems, .grills, .and dishwashers); and (ii) In addition to the Leasehold Improvements to be conveyed to Lessor as referenced above, Lessee shall further grant to the Lessor the right to purchase from the Lessee, all of Lessee's trade fixtures, furnishings, equipment and personal property added to or installed at the Property by 'the Lessee during the Lease Term, including all • furnishings and equipment at then fair market value thereof, as determined by an appraisal, provided. that the Lessor by notice in writing to the Lessee of at least fatty five (45) days prior to the expiration, or earlier termination of the. Lease Term, notifies the Lessee of its election. Section 6,5 Lessor's Property to Remain Free of Liens, The Lessee shall make, or cause to he made, prompt payment of all money due and legally owing to all persons doing any work, including suboontractors, or providing supplies and equipment in connection with the construction, reconstruction or operation of the Property, The Lessee shall have no power or right to and shall not in any way encumber the Lessor's fee simple interest in the Property. If any lien shall - at any. time be filed against the Property, th.e Lessee shall promptly take and diligently pursue a cause of action to have the -same discharged or to contest in good faith the amount or validity thereof and if unsuccessful in such co.itest, to have the same discharged. Upon the Lessee's failure to do so, within thirty (30) days following Lessee's receipt of notice thereof from Lessor, the Lessor, in addition to any other right or remedy that it may have, may take such action as may bereasona:bly necessary to protect its interest, and the Lessee shall be responsible for any and all reasonable costs incurred. by the Lessor in connection with such action, including all reasonable legal fees, costs and expenses. Section 6.6 Lessor Approval. All Plans furnished under this 'Lease are expressly subject to Lessor's written approval, which the City Manager is hereby authorized to act on behalf of for purposes o'f such approval, and which approval he or she may not unreasonably withheld or delay and which approval shall be subject to the criteria for approval set forth in Section 6,1, above. 19 No approval by the City Manager of any Plans furnished under this Lease pursuant to this Section shall relieve Lessee of any obligation it may have at law to file such Plans with any department of the City or any other governmental authority having jurisdiction over the issues; or to obtain any building or other permit or approval required by law, Lessee acknowledges that any approval given by the City Manager pursuant to this Section shall not constitute an opinion or agreement by the City that the Plans are structurally sufficient or in compliance with any laws, codes or other applicable regulations. ARTICLE VII CONDUCT OF BUSINESS BY LESSEE Section 7,1 Use of Property. The Lessee shall occupy the. Property and commence operations on the Possession Date, subject to the operational limitations. that will result from the- contemplated comauetion of the Leasehold Improvements, After the referendum with respect to this Lease concerning, the Property is approved, then, within fifteen (15) days following 'the date es of which the Licensee vacates that portion of the Property occupied by Licensee or abandons its operations, Lessee may take possession of and -occupy such portion of the Property. Following the Possession Date, Lessee shall occupy the Property as soon as reasonably possible, and covenants to continuously conduct its 'permitted business therein throughout the Lease Term, subject to the operational limitations that will result from the contemplated construction of the Leasehold Improvements, periodic: tenant vacancies, periodic repair and refurbishment to the- Leasehold Improvements, periods of time required for insurance adjustments and reconstruction following casualty or -partial taking, and Force Majeure, Lessee Shall use the Property solely for the Permitted Uses, Lessee shall not use, permit or suffer the use of the Property for any other business or .purpoee. Leases agrees to conduct its business upon the Property in accordance with the highest ethical and operating standards -of the marina and restaurant industry of which Lessee forms a part. Section 7,2 Operation of Lessee's Business, At all times during the Lease Term, Lessee shall 'manage the marina and restaurant operations at the Property with due diligence and effieiency, in Lessee's -sole and -absolute discretion, and in a .manner prudent and in accord with the current business techniques within the locale for Lessee's business so EtS to maximize the amount of Applicable Gross Revenues, subject to Force Majeure, Lessee shall early (and shall use commereially reasonable efforts to cause each Applicable Sub -lessee to carry) at all times in the Property a stock of merchandise of well quantity-, character and quality as shall he in accord with good and. reputable business practices within the Coconut Grove business :district which is the locale for Lessee's bus Mess, Section 7.3 Signs. In addition tothe signage set forth in the Proposal, which is hereby deemedapproved subject to obtaining any applicable permits, Lessee shall institute and enforce a 'uniform :signage regime throughout the Property, which will apply to all directional sidewalk and street sign -age, and all exterior storefront and eanopy signage for the Parking Faeilities Retail Area and the Permitted Retail Area (the "Property pireetional and Retail Signage Regime"), which Lessee may revise from time to time, The Property Directional and Retail Signage Regime and periodic revisions to same shall he subject te Lessor's written approval and consent (which the City Manager is authorized to give), which may not be unreasonably withheld, delayed or conditioned, .A.11other signage on the Property (including, without limitation, restaurant signage and marina signage) shall be ,subjeet only to the requirements of applicable signage codes. Lessee shall :erect an exterior monument or pylon sign for the Property, of type, composition and design in conformance with the Miami 21 Zoning Coda. Lessen further agrees that it shall maintain (or shall use eommereially reasonable efforts to cause any Sub -lessee to maintain) any exterior sign, awning, canopy, decoration, lettering, advertising matter :or -other thing in good condition and repair at alt times, and., to the extent applieable, in nominee with Retail the Property Directional and Retail Signage Regime., ARTICLE VIII MAINTENANCE, REPAIR AND ALTERATION OF PROPERTY Section 8.1 Lessee's Maintenanee Obligethltm, Lessee, at its sole cost and expense, agrees to provide the necessary management and labor, to continuously maintain the Property, including all operating equipment, utility services, and coimeetions on 20 the Property. Lessee, at its sole cost and expense, agrees to provide, janitorial and custodian services, trash and garbage removal services, and any and all other relatedservices necessary to have the Property, and. the Leasehold Improvements remain in good, safe, sanitary condition and repair throughout the Lease Term. Lessee shall be responsible for periodic repainting of all exterior surfaces of the Leasehold Improvements on the Property, maintaining all landscaping on the Property, and maintaining its equipment, fixtures, furnishings, and other persona.l property in good conditionand repair, All maintenance shall be at the Lessee's sole cost and expense and will be subject to general inspection by the Lessor to insure a continuing quality of maintenance and appearance and physical condition of the Property commensurate with maintenance, health, and safety standards established by Applicable Law, Section 8,2 Lessee's Repair Obligation. Lessee, at Lessee's sole cost and expense, at all times during the Lease Term, shall make all interior, exterior, struotmal repairs, .ineluding repairs to the roof, wires, pipes, conduits and other equipment or faeilities for supplying heat, light, :power, hot and cold water services., all drainage and waste pines or facilities leading from the Property, and to rill heating, ventilating and air-conditioning equipment and any other repair or replacement to the Property and to the Leasehold Improvements, Section 8,3 Preventative Maintenance and Services. Lessee shall, at its sole cost and expense, provide the following preventive maintenance and services: a.. Daily cleaning and janitorial services for the exterioroomnron areas of the Property; b. Grounds services including lawn, shrub and tree maintenance and removal of any rubbish or obstructions from the Property; Exterior window cleaning to be performed. as needed but no less than once every one hundred and twenty days; d. Vermin control as necessary., but no less than onee every thirty (30) days; e. Period:io maintenance.and cleaning of kitchen and exhaust equipment, and grease traps or grease inceptors, if applicable, but no less than one. every ninety (90) days; and Painting of exterior of building including caulking of all windows and door frames no less than once every four (4) years. In addition to the above, our the tenthand twentieth Lease Year of the Lffeot.ive Date, and once every five years thereafter, the Lessee, at its sole cost and expense, shalt have a qualified engineer perform a physical inspection of the Property .including, but not limited to all structural components, plumbing, life safety, electrical, heating and air conditioning systems and mechanical equipment as well as any and all structural trade fixtures on the Property, as part of a preventive maintenance program. The Lessee shall subunit the engineer's report along with a proposed plan for the funding and implementation of the recommendations.contained in the engineer's report to the Lessor by the end of the Lease Year in which such report is due for the Lessor's review, If the Lessee refuses, neglects or fails to provide the services required herein or•does not provide adequate services within thirty (30) days after written" demand from the Lessor, the Lessor may take corrective measures or cause the Property to he. elenned or repaired without waiving its right based upon any default of the Lessee and without releasing the Lessee f3or:n any obligations hereunder. The Lessee shall pay the Lessor the full reasonable cost of such work within thirty (30) days of receipt of an invoice indicated the cost ol'such corrective measures or eleanup, Failure to pay such, invoice shall constitute a default of this Lease. Notwithstanding the above, the Lessee's failure to perform the corrective measures or cleanup to the Property as directed shall constitute a default of this Lease, subject to the applicable -Cure Periods, Nothing herein shall imply that maintenance, repair, and inspections should be performed by the Lessee only at the suggested intervals. The Lessee shall, at all times, be responsible for thecondition of the Property and shall perform -repairs required. in a timely manner so as to prevent injury to persons and waste to Property. . Section 8.4 Changes/Alterations; Except as consistent with the plansandspecifications set forth in the Proposal, which are hereby deemed approved subject to obtaining applicable permits, Lessee shall not remove any buildings constituting a portion of the Leasehold Improvements or construct any additional buildings in and to the Property or any part .thereof, Without the prior written consentof the Lessor,. which consent shall be at the sole discretion of the City Commission, Lessor's consent or approval shall not be required with respect to 21 any other alterations to the Leasehold Improvements so long as such alterations are generally consistent with the Proposal or necessary to comply with Applicable Law, and, without limiting the foregoing, Lessee shall not be required to -obtain the consent of Lessor in connection with the repair or periodic maintenance or refurbishment of any Leasehold Improvements or the reconstruction of any Leasehold Improvements following any casualty or taking, or in connection with the installation of any trade fixtures, furnishings or equipment, exterior signs. (so long as same conform to the, Property Directional and Retail Signage Regime), exterior machinery, floor covering, interior or exterior lighting, plumbing fixtures, shades, awnings, interior build -out, including, without limitation, tenant 'improvements to the Parking Facilities Retail Area or the Other Permitted Retail Area . No approval by the City Commission of any changes or alterations shall relieve Lessee of any obligation it may have at law to file the required documents with any department of the City or any other governmental authority having jurisdiction over the issues;. or to obtain any building. or other permit or approval required by law, Lessee acknowledges that any approval given by the City Commission pursuant to this Section shall not oonstitrue an opinion or agreement by the City that the .changes or alterations are in compliance with any laws, codes or other applicable regulations, S, Capital Infrastructure Account. Lessee agrees to contribute 1% of gross revenues to a Capital Infrastructure Escrow Account to fund on -going capital infrastructures .costs, In regards to sub- lessees, Gross Revenues will apply to rents received by Lessee, Lessee shall send notification of the escrow fund. balance to Lessor on an annual basis, The Parties shall enter into an escrow agreement to govern the use of these funds ARTICLE IX INSURANCE AND INDEMNITY Section 9.1 Insurance on the Property, (a) In .connection herewith, Lessee shall obtain and maintain or cause to be obtained and - maintained in full force and effect throughout the period of this Lease, with respect to its operations on the Property the typos and amounts of insurance coverage set forth in items I through VII of Exhibit "I" attached hereto and incorporated herein by reference; and with respect to all Leasehold. Improvements (expressly excluding the Parking Facilities Retail Area) the types and amounts of insurance coverage set forth in iteinn VIIII of Exhibit "J", If -required by state, county, or city laws from time to time for work conducted on or use of municipal properties, Lessee shall obtain and maintain or cause to be obtained and maintained throughout or during the term of this Lease, as applicable, such typos and amounts of payment, performance, maintenance', or restoration band(s) as shall be required to be reviewed and. approved by the City's Risk Management Department in coordination with Lessee's Risk Management or other appropriate Department, which approval .shall not be unreasonably withheld, delayed or conditioned. The Lessor reserves the right to reasonably amend the herein insurance requirements 'by the issuance -of a notice in writing to the Lessee, which amended insurance requirements shall be consistent with commercially reasonable requ.iremen.ts then applicable, to comparable leasehold interests and subject to the reasonable approval by Lessee,. which approval shall not be unreasonably withheld, (h) Lessor shall 'obtain and maintain (or shall cause the MPA to obtain and maintain) in full force and effect throughout the Lease Tenn, with respect to the .Par -icing Facilitiess (including, without limitation,. the Gray Shell Improvements), the types and amounts of insurance coverage sat forth in. items'I, 11, III, .IV, VI and VTII of Exhibit "J",.as the criteria therein may be revised from ti.nxe to time as provided in the immediately preceding subparagraph a. Lessor's insurance requirements may be met through a self- insurance program., Section 9,2 Delivery of .Insurance Policies, All public liability, workers compensation and employer's liability policies shall he retained by the Lessee, The policies of insurance required to be furnished pursuant to item VITI of Exhibit "J" shall be held by and be payable, and the proceeds thereof shall be distributed. in accordance with the terms of this Lease, Insurance company certificates evidencing the existence of all of these policies of insurance shall 'be delivered to the Lessor, All policies of insurance required to be provided and obtained. by Lessee shall provide' that: :they shall not be amended or canceled on less 'than thirty (30) days prior written notice to the Lessor. The Policies required to be maintained by Lessor and. Lessee pursuant to item VIII of Exhibit "J" shall contain waivers of subrogation rights endorsements, as required. below, The Lessor shall have no obligation to pay premiums or make contributions to the insuring company or any other person•or satisfy 22 any deductible with respect to any policy required to be maintained by Lessee. On or before the Effective Date and. not less than thirty (30) days prior to the expiration date of any policy required to be carried pursuant to this Section, the Lessee shall deliver to the Lessor insurance company certificates evidencing all policies of insurance and renewals required to'be furnished, and, upon written request by Lessor, Lessee shall furnish to Lessor copies of the applicable respective 'policies, Receipt of any documentation of insurance by the Lessor or by any of its representatives which indicates less coverage than required does not constitute a waiver of the Lessee's obligation to fulfill' the insurance requirements herein, Section 9,3 Ad'ustment of Loss, ' Any Net Insurance Proceeds recovered( on account of any damage or destruction by any casualty shall be made available for the payment of the cost of the reconstruction, replacement or repairs, All of the Net Insurance Proceeds plus the amount of imy deductible applicable to said damage or destruction (the 'Reconstruction. Escrow Fund') shall be deposited by the insurance company or by the Lessee (in the ease , of the deductible) with an escrow agent acceptable to the City Manager (subject to approval by City Attorney) and Lessee, pursuant to en escrow agreement which shall be reasonably 8atisfaotory to the City Manager and Lessee, with commercially. nust'onnary provisions for suoh escrows, including, without limitation, instructions to the escrow holder that the escrow holder shall disburse the funds to the Lessee, with notice thereof to the Lessor, as the work of the reconstruction, replacement or repairs progresses, upon certificates' of the Lessee's architect o'r,engineer supervising the work that the disbursements then requested, plus all.p'revious disbursements made from such Reconstruction Escrow Fund., do not exceed the cost of the work already completed and paid for, and that the balance in the Reconstruction .Escrow Fund is sufficient to pay for the reasonably estimated cost of completing the required work. If the amount of the Net Insurance Proceeds is less than the cost of the required work, then Lessee shall pay the excess Bostt and it the amount of the -Net Insurance Proceeds is greater than the cost of the .required work, then the excess shall he (:laid to and belong to the Lessee, Section 9,4 Insurer to Fie Approved -Premium Receipts, Ail policies of insurance of the character described in Exhibit "J" shall be written by companies of recognized .responsibility reasonably acceptable to the Lessor, On request by Lessor, Lessee shall provide photocopies of receipts showing the payment of premium for all insurance policies required to be maintained by this Lease, Section 9.5 Indemnification of Lessor„ Lessee shall indemnify, defend( and save Lessor harmless from and against any and all claims,, actions, damages, liability and expense in Connection with loss of life, personal injury and/or 'damage to or destruction of property arising from or out of any occurrence in, upon or at the Property, or the occupancy or useby Lessee of the Property, or any part thereof, or occasioned. wholly or in part by any set of'omission of Lessee, its agents, contractors, employees, servants, customers, invitees, Lessees, Sub -lessees or concessionaires. In case Lessor shall be made a party to any litigation connmeneed by or against Lessee covered by this indemnity provision, then Lessee shall protect and hold Lessor harmless and pay all costs and ettorney's fees incurred by Lessor in connection with such litigation, and any appeals thereof. Lessee . shall also pay all costs, expenses and reasonable attorneys' fees that may be incurred of paid by Lessor in enforcing the covenants and agreements in this Lease Section 9.6 Waiver of Subrogation, Lessor and Lessee each hereby waives any and all right of recovery Lessor or Lessee, as the ease may be may otherwise have against the other party hereto -and such other party's respective servants, agents, contractors, customers and employees, for loss or damage to the Property or the Parking Facilities, as the case may be, to the extent suck loss or damage is covered by the All -Risk policies maintained or required to be maintained, respectively by Lessor (or the MPA) or Lessee, as the ease may be, pursuant to the terns hereof, notwithstanding that such loss or damage may result from the negligence or fault of the other party hereto, or its servants, agents, contractors, customers or employees. Lessor and Lessee each hereby waives all rights to recover against the other party for any damages. arising from any cause covered. by any insurance required to be carded by Lessor or Lessee, , as the case may be, or any insurance actually carried by Lessor or Lessee, as a case •may be, Lessee ,shall cause and Lessor shall cause (or shall cause the MPA to cause) its respective insurer(s) to issue appropriate waivers of subrogation rights endorsements to all policies of All -Risk insurance policies carried in.coiniection with the Property in the Parking Facilities and all commercial general liability policies maintained by Lessee and Lessor (and where applicable, the MPA) shall 'include contractual liability -coverage with respect to the contractual obligations of Lessee and. Lessor (and, where applicable, the MPA) hereunder, 23 Section 9.7 Release of Lessor. Except as expressly provided below, the Lessee for and in consideration of the leasing and the demise of the Property to the Lessee hereby release, remise and discharge the Lessor, its officers and employees, of and from all claims, demands, actions, whether in law or in equity which may be filed or asserted by the Lessee or its Assignees for or on account of improvements made and furniture, fixtures and equipment installed in the Property, andfrom any and all costs and expenses, of Lessee or its Assignees in connection with this Lease, including, but not limited to the development of the Property and acquisition of the Leasehold Improvements, which may result from a third party challenging the validity or legality of this transaction under the City Charter or Code or the laws of the State of Florida, or arising out of the award of this Lease, or any subsequent Assignment of this Lease by the Lessee or its Assignees ("Claim"). It is the intent of the Parties that, except as expressly provided below, this provision shall control over any other provision in this Lease and that notwithstanding any limited representations provided by Lessor under Seotion 2,5 of this Lease, except as .expressly provided below, neither the Lessee, nor its Assignees shall Seek to .recover fi'on1 the Lessor conapensatian for, or reimbursement of any Coats, losses, foes or expenses incurred by the Lessee or its Assignees, including expenses incurred in connection with the acquisition of this Lease or the financing, and/or installation of the Leasehold Improvements, or otherwise, as a result of any adverse judgment which may he entered or relief granted in connection with the Claim, The terms of this provision shall expressly be made a part of any fixture assignment. or mortgage .of the Leasehold Interest, ARTICLE X SERVICES AND UTILITIES Section '10,1 Lessee to- Provide and Pay for Utilities, The Lessee shall pay, or cause to be paid, all proper charges for gas, electricity, light, heat, water and power, for telephone, protective and other communication services, and for all other public or private utility services, whioh shall he used, rendered or supplied upon or in connection with the Property and the Leasehold Improvements, or any part of it, at any time during the Lease Terns; and the Lessee shall comply with all contracts relating to any such services and will clo all other thin.gs-r•equired for the maintenance and continuance of all services as are necessary for the proper maintenanoe and operation of the Property and the Leasehold Improvements, The Lessee shall also at its sole expense procure any and all necessary permits, licenses or, other authorization required for the lawful and proper installation and maintenance upon the Property of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any suol: utilities, services or substitutes to the Property, Section 10,2 Lessor Not Liable for Failure of Utilities. The Lessor shall not be liable for any failure of water supply, sewer, gas or electric current, or for any injury or damage to any person or the Property caused by or resulting from water, 'gas or electricity which may leak or flow from the water or gas mains on to any part of the Property or the Leasehold Improvements, The Lessor shall not be required to make any alteration to any service or•utility system of the .Property on behalf of Lessee„ provided, however, following notice "in writing from Lessee to Lessor of the interruption of any electric, water or ;sower :service to the Parking Facilities Retail Area, Lessor shall immediately commence, and diligently pur'sue,all commercially reasonable measures required in order to restore suoh service, .Lessor shall not be Liable for temporary failure of services, and same than not be deemed to constitute actual or eo.tistruative eviction, nor entitle Lessee to any abatement or diminution in rent payable under this Lease, ARTICLE XI TRANSFERS, SUBLETTING AND LEASEHOLD FINANCING. Section 11,1 Lessee .shall have the authority to enter into Sub -leases or assignments for portions of the Property, without the oonsent of Lessor, so long as such Sub leases or assignments conform to the Permitted Uses. Any Sub -leases or assignments not conforming to such uses shall be void and of no force or :effect and shall not. confer any interest or estate in the purported Sub -lessee or assignee, and if Lessee shall fail to terminate, any such. Sublease or assignment not conforming to the Permitted Uses, within sixty (60) days following demand therefor from Lessor; such failure shall constitute a default under this Lease and the Lessor, at its election, may terminate this Lease. It is agreed that all applicable terms and -conditions of this Lease shall extend to and be 'binding on all Sub -lessees and shall be for a period of time equal to or less than the Lease Terns. Lessee shall be 24 liable for acts and omissions by any Stab -lessee to the extent any such acts or omissions constitute a breach of the terms of this Lease. Lessor reserves the right to directly terminate the rights, and interests of any Sub -lessee under. any Sub -lease for any cause for which Lessee's Leasehold Interest may be terminated, following the expiration of any applicable cure period, following applicable notice, To the .extent Lessor's consent is required with respect to any Sublease or assignment, Lessee shall reimburse to Lessor, as Additional Rent, all reasonable costs and expenses, including reasonable attorneys' fees, which Lesson incurs by reason of or in connection with its review and consideration of any such Sublease or assignment, and all negotiations and actions with respect thereto, such Additional -Rent to be due and payable -within thirty (30) clays of receipt of a statement of such costs and expenses from Lessor, (b} Procedure fbr, Sub -lease ar Assignment, Should Lessee desire to enter into a Sublease or assign its interest in this .Lease (in each case, to the extern: Lessor's consent thereto is •.required as provided above), Lessee shall, in each instance, give written notice of its intention to do so to the City Manager at least fifl'een (15) days, in the case of any such • Sublease, and thirty (30) in the case of any such assignment, prior to the effective date of any such proposed Sublease or assignment, speoil ing in such notice the nature of such. proposed Sublease or assignment and the proposed date thereof and specifically identifying .the proposed Sub -lessee or Assignee, Such notice shall be accompanied by a copy of the .proposed Sublease, license, concession or permit agreement, or proposed assignment. (o) Additional Consideration Payable to Lessor. Except as provided below with respect to a valet concession and with respect to Subleases within the Parking Facilities Retail Area and the Other Permitted Retail. Areas (other than a Marine Retail Store),. Lessee shall, in consideration therefore, include in Lessee's Gross Revenues the amount of Sub -lessee's. Gross Revenues which shall be listed separately on Lessee'smonthly and annual reports of Gross Revenues, sub'lessee's records shall be kept in aec zrdance with Section 4.4, Additionally, Lessor reserves. the right to examine such Sub lessee's books and audit "Sub -lessee's entire records in accordance with Sections 4,.6 and 4.7 of this Lease, Lessee ,Shall collect a fee from all valet concessionaires allowed on the Property ("Valet Fees"), Lessee shall includein its .calculation of Gross Revenue such Valet Fees as received by Lessee and Percentage Rent for such Valet Fees shall be calculated pursuant to Section 4,1.3(v) of this Lease, The aeoeptance by Lessor of the payment of Rent following any Sub -lease prohibited by this Article shall not be deemed to be a consent by Lessor to any such Sub lease nor shall the same be deemed to be a waiver of any right or remedy of Lessor hereunder, Section 11,2 Definitions, As used in this Article the terra: (a) "Transfer" means: (r) any total or partial sale, Assignment or gifting of Lessee's Leasehold Estate or any contract or agreement to do any of the same; any transfer of the membership interests of Lessee if: the transfer results in the beneficial ownership of Grove Bay Investment Group, LLC ("(3RIQ") being less than 51% of the Lessee; or (iii) any merger or consolidation of Lessee with any other person, or the sale or lease of all or substantially all of the assets of the Lessee or of any Owner, other than an Owner whose shares are publicly traded.. • (b) "Ower" means.: (i) any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, more than fifteen percent (1.5%) of the stock or equity of the Lessee, but shall not include any equityholder of an Owner whose shares are publicly traded. (c) "Owner whose shares are pAbliely traded" means an Owner: (i) who has filed an effective registration statement with the Securities & Exchange Commission (or its. successor) with respect to•the shares of any class of its voting stock or of all classes of any other form of ownership interest which includes voting rights; and (ii) whose voting stock and other form of ownership interest described in clause .(i) is listed for trading purposes on a securities exchange subject to the regulatory Jurisdiction of the.Securities & Exchange' Commission (or its successor) or is publicly traded over the counter, 25 Section 11.3 Transfers. The Lessee recognizes that the operational experience of the Lessee as set forth in the Proposal was given special consideration by the Lessor in the public selection process undertaken by the Lessor for the award of this Lease, Therefore, Lessee agrees that except as permitted pursuant to subparagraphs (a), (b) and (c) below, or as specifically approved pursuant Section 11,7 below, no Transfer may be made, suffered or created by the Lessee, or any Owner without the prior written consent of the City Manager which consent shall not be unreasonably withheld or delayed. The City Manager, in his sole discretion,. may, but shall not ba obligated to, present any request for Transfer to the City Commission for its final approval. The following Transfers shall he permitted hereunder: (a) Any Transfer directly resulting from the foreclosure of I:,essee's Leasehold Estate, provided that such purchaser or .grantee is an institutional investor or an agent, designee or nominee of an institutional investor which is wholly owned or controlled by an institutional investor, and that such - purchaser or grantee within six (6) months after staking possession of the Property, shall have entered into an agreement for the management and operation of the Property with an acceptable operator or is itself an acceptable operator; (b) any Transfer to an acceptable operator consented to by the City Manager, whose consent shall not be unreasoneb,ywithheld or delayed or conditioned; (c) the issuance of stock/equity or stook/equity options to Lessee's directors, officers, or employees, provided the stook/equity or stock/equity options issued constitute, in the aggregate, less than fifteen percent: (15%) of the issued and outstanding, stock/equity of Lessee; The Parties hereby acknowledge and agree that anything herein to the contrary notwithstanding, the "going pu:blie" by Lessee, •including, but not 1trnitedto, the filing of a registration statement with the Securities and Exchange Commission, the creation of one or more classes of stock and the offering of' shares of stook to the public for purchase, shall not oonstitute a Transfer hereunder and shall not require the consent of the Lessor. • Any consent to a Transfer shall not waive any of the Lessors rights to consent to a subsequent Transfer, Any Transfer made in violation of the terms hereof shall be null arid void and of no force and effect, Section 11.4 Notice of Transfer., • With respect to any Transfer which must be approved by the City Manager, the Lessee shall give or cause to be given to the Lessor written notice (including all information necessary for the Lessor to make an evaluation of the proposed acceptable operator according to the requirements of this Lease) of any Transfer of which Lessee, or its officers shall have knowledge, not less than sixty (60) days prior to any sut;h proposed Transfer, and the Lessor shall within thirty -(30) days of its receipt of suoh information, advise Lessee in writing if it shalt consent to same, If the Lessor shall not consent to a Transfer, the City Managershall state the reasons for such disapproval in his notice to Lessee, If the Lessor is not required to consent to a Transfer .pursuant to the terms hereof, the Lessee shall notify the Lessor in writing of same within thirty (30) days after the date of Transfer. In the event the City Manager elects to exercise his right under Section 11,3 to present any request for Transfer to the City Commission for its approval, the City Manager shall use due diligence to present the request for Transfer to the City Commission as soon as practicable and the titw for performance by Lessor shalt be reasonably extended to provide sufficient time for presentation to the City Commission. Section 11,5 Information as to Shareholders, etc, Lessee shall from time to time throughout the Lease Term, as the Lessor shall reasonably request, furnish the Lessor with a complete statement, snbsoribed and sworn to by the President or Vice -President and the Secretary or Assistant GS.ecretary, or manager, as the case may be, of the Lessee, setting forth the full names and addresses of hoiden, of membership interests in Lessee, and the extent of their holdings, and in the event any other parties have a beneficial interest in such stock;, their full names and addresses and the extent of such interest as determined or indicated by the records of Lessee, Notwithstanding the foregoing, the information required by this Section 11,5 shall not be required to be furnished with respect to the shareholders of any owner whose shares are publicly traded, Section 11,6 Effectuation of Permitted Transfers. No Transfer of the nature described in Subsection 11,3(b) above shall be effective unless and. until: (a) all Rents, taxes, assessments, Impositions, insurance, permitting and other charges required to be paid by the Lessee under this Lease shall be paid by the Lessee up to the date of Transfer, 26 and all. other covenants and agreements to be kept and performed by the Lessee shall be substantially complied with at the date of Transfer; and (b) the entity to which such Transfer is made, by instrumentt in writing reasonably satisfactory to the City Manager and in a form recordable among the land records, shall, for itself and its successors and assigns, and especially for the benefit. of the Lessor expressly assume all of the obligations of Lessee under this Lease, and agree to be subject to all conditions and restrictions to which: Lessee is subject; provided, however, that any Transferee shall not be required. to assume any personal liability under this Lease with respect to' any matter arising prior or subsequent to the period of such Transferee's actual ownership of the Leasehold Estate created by this Lease (it being understood, nevertheless, that the absence of any such liability for such matters shall not' impair, impede or prejudice any other right or remedy available to the Lessor for default by Lessee), Nothing herein shall be construed to relive or release the Lessee from liability for the performance of all of the obligations of Lessee under. this. Lease, unless the Lessor in writing expressly provides for such a release; provided, however, notwithstanding the foregoing, the Lessee immediately prior to such Transfer shall have no liability whatsoever with respect to any matter arising subsequent to the date of such Transfer. Section 11,7 Criteria for Consent for Transfer. The Lessor may condition its consent to a permitted Transfer upon satisfaction of all or any of the Poi lowing candid oils: (i) The net worth, determined in accordance with generally accepted accounting principles, of the Transferee immediately prior to the Transfer shall not be less than the net worth of said. Transferor on the Effective Date adjusted for inflation, (ii) Such Transfer shall not adversely affect the quality and type of business operation which the Lessee has conducted theretofore; (iii) Such Transferee, shall .possess qualifications for the operation of Lessee's business as reasonably required of an aoeeptable operator a comparable project, or shall engage an acceptable operator having such qualifications and shall have demonstrated recognized experience in successfully operating such a business, including, without limitation, experience in successfully operating a similar quality business; (iv) Such Transferee shall continue to operate the business conducted at the Property pursuant to all the provisions of this Lease; (v) Such Transferee shall assume in writing, in a form acceptable to Lessor, all of Lessee's obligations hereunder, and Lessee shall provide Lessor with a copy of all documents pertaining to such Transfer; and (vi) Lessee shall pay to the Lessor any due, but unpaid Rent. Section 11,8 Liability of Lessee. It' a Transferee does not meet all of the criteria set forth in Section 11,7, Lesser, at its sole option, by notice to Lessee prior to the consummation of such Transfer, may require Lessee transferring such interest to remain liable under this Lease for the performance of all terms, including, but not limited to, payment of Rent due under this Lease, Section 11,9 Payment Upon Transfer or Sale of Lessee Business or Stock, Lessee recognizes and agrees that, (i) the experrience of Lessee was given special consideration by Lessor in the selection process which resulted in the award of this Lease; (ii) the qualifications and identity of Lessee are of parti:ci ifa.r concern to the Community and lessor; and (iii) it is partially because of such qualifications and identity that Lessor is entering into this Lease, Accordingly, at all times prior to the date of Transfer: (A) the Lessee's Equity Contribution shall be maintained or have been satisfied prior to the date of Transfer; and '(1:3) .GBIG shall retain voting and operational control of Lessee, Any waiver of the tbregoi.ng requirement shall require the City Manager's prior written consent, which may be granted or withheld in his or her sole and absolute discretion Lessee or Transferee shall pay to Lessor a fee (the "Transfer Fee"), in connection with ainy Transfer as follows: during the initial five (5) years of the Term, the Transfer Fee for any sale or Transfer shall be 2% of the Gross Sale Amount; between Years 5 to 10 of the Term t'he Transfer Fee shall be 1, 5% of the Gross rt$ale Amount; between Years 10--'20 of the Term the Transfer Fee shall be 1.0% of the Gross Sale Amount; and after Year 20. of the Term, the Transfer Fee shall be 0.75% of the grass sale amount of such transaction, The Lessee shrill pay to the Lessor the Transfer Fee at the time the Transfer becomes effective, or in the case of the sale of the Lessee's stock at the time the shares of stock are.sold, Section 11,10 Acceptance of Rent from Transferee, 27 The acceptance by Lessor of the payment of Rent following any Transfer prohibited by this Article shall not be deemed to be a consent by Lessor to any such, nor shall the same be deemed to be a waiver of any right or remedy of Lessor hereunder, Section 1:1,11 Transfers of the City's Interest, At the Lessee's request, Lessor shall provide the Lessee copies of any and all agreements or contracts pertaining to the total or partial sale, Assignment, conveyance, mortgage, trust or power, or other transfer in any mode or forth of or with respect to the Lessor's reversionary or fee interest in the Property, or any part thereof, or any interest therein, or any contract or agreement to do any of the same, to any purchaser, Assignee, mortgagee, or trustee, Lessor hereby agrees to incorporate the terms and conditions set forth in this Lease or in any agreement ar contract with such purchaser, Assignee, mortgagee, or trustee, Section '11,12 Mortgages and Mortgagees, 11,12,1.Leasehold Mortgage. (a) Notwithstanding anything herein to the contrary regarding any Transfers, but subject to the provisions of this Section 11,12, and. further provided that Lessor has not notified Lessee in writing that a Lessee Default has occurred. that remains uncured, Lessee shall have the right during the Lease Tenn, to encumber the Leasehold Estate by Leasehold Mortgage, for the purpose of securing the financing for the construction of the Leasehold .improvements and/or for the long -tern financing or refinancing of any such Leasehold. Improvements, subject to review and approval by the City Manager of the mortgage documents, for the sole purpose of ensuring compliance thereof with the conditions for mortgaging as set forth in this Section 11.12, provides, that such Leasehold Mortgage shall not encumber Lessor's fee simple title to the Property, Lessee shall provide copies of all mortgage documents required for the City Manager's review, Notwithstanding anything to the contrary in this Section: or in this Lease, the Lessor and Lessee expressly agree, and (by acceptance of the .Leasehold .Mortgage) any Leasehold Mortgagee, that the Lessees right to place a Leasehold Mortgage against the Lessee's Leasehold Estate is subject to the following: 1, At the time the Leasehold Mortgages is made, Lessee has not been notified of any Lessee Default under this Lease that :remains twcured, 2. No Leasehold Mortgagee .or anyone claiming by, through or under the Leasehold Mortgagee, shall by virtue of slop Leasehold Mortgage, acquire any greater rights in the Property than the Lessee has under this Lease, 3, The Leasehold Mortgage shall be expressly .subject and subordinate to all conditions and covenants of this Lease and to the rights and obligations of Lessor, The Leasehold Mortgagee of any Leasehold Mortgage and the owner of any indebtedness secured by the Leasehold Mortgage, upon acquiring Lessee's Leasehold Estate shall take -the same subject to the covenants Of this Lease, 4, The Leasehold Mortgage shall expressly provide that the Leasehold. Mortgagee shall notify Lessor of default by Lessee under the Leasehold Mortgage prior to commencing 'foreclosure proceedings, 5, That any right or remedy available to any Leasehold Mortgagee as provided in this Section 11,12 shall be deemed to apply in all respects to any affiliated designee or nominee of such Leasehold Mortgagee, 6, That the Lessor and any mortgagee of Lessor shall exeoute anddeliver to any Leasehold. Mortgagee a nonsdisturbance agreement in form and substance reasonably satisfactory to such Leasehold Mortgagee and Lessor, 7, That except as expressly prohibited by the provisions of this 'Section 11.12, any Leasehold Mortgage may be upon such terms and conditions as the Lessee and Leasehold Mortgagee may agree. . In no event may the amount of such financing or refinancing exceed the greater of: (a) eighty percent (80%) of the far market value of the Leasehold Estate and all the Leasehold Improvements thereon, or (b) eighty percent (80%) of the Replacement Costs ("Replacement Costs" are 'defined as the total costs for replacing the Leasehold Improvements located on the Property). Lessee shall deliver to Lessor promptly after execution by Lessee a true and verified copy of any Leasehold Mortgage, and/or any amendment, Modification or extension thereof, together with the name and address of the owner and holder thereof, Lessee may not encumber the Leasehold Estate as security for any indebtedness of Lessee with respect' to any other roil or personal property now or hereinafter owned by Lessee. (h) During the continuance of any Leasehold Mortgage until such time as the lien of any Leasehold Mortgage has been satisfied: 28 (i) The Lessor shall not agree to any mutual termination nor accept any surrender of this Lease (except upon the expiration of the Tenn), nor shall the Lessor consent to any material amendment. or modification of this Lease, or waive any rights or consents it may be entitled to pursuant to the terms hereof,. without the prior written consent of Leasehold. Mortgagee, which consent shall not be unreasonably delayed or withheld. (ii). Notwithstanding any default by Lessee in the .performance or observance of any covenant, condition or agreernent of this Lease on the part of Lessee to be performed or observed, the Lessor shall have no right to terminate this Lease- even though a Lessee Default shall have occurred and be continuing, unless and until the City Manager shall have given Leasehold Mortgagee written notice .of such Lessee Default and Leasehold Mortgagee shall have failed to remedy such default or to,acquire the Leasehold Estate created hereby or to.commence foreclosure or other appropriate proceedings in the nature thereof, all as set forth in, and within the time specified by, this Section. I1.12, (iii) Subject to the provisions of subparagraph (iv) immediately below, Leasehold Mortgagee shall have the right, but not the obligation,, at any time prior to termination of this Lease, to pay all of the Rent due hereunder, to provide any insurance, to pay any taxes and make any other payments, to make any repairs and improvements, to continue to oonstmet and complete the :Leasehold Improvements, and do any other act or thing required of Lessoe hereunder, and to do any act or thing which may be necessary and proper to be done in the performance and observance; of the covenants, conditions and agreements hereof to prevent the termination. of this Lease. All payments so made -and all things so done and -performed by Leasehold Mortgagee shall be as effective to prevent a termination of this Lease as the same would have been ifmade, clone and performed by Lessee instead of by Leasehold Mortgagee. Any act or inaction by a Lea,iehold Mortgagee shalt beat the reasonable discretion of the Leasehold Mortgagee, (iv) Should any Lessee Default under this .Lease 'occur, Leasehold Mortgagee shall have sixty (60) days, or such additional time as is reasonably .necessary to diligently me the Lessee Default, after receipt of notice from the City Manager setting forth the nature of such. Lessee Default, to remedy same and, if the .Lessee Default. is such that possession of the Property may he reasonably necessary to .remedy the Lessee Default, Leasehold Mortgagee shall, within such sixty (60) day period,-eonrnlenoe and diligently prosecute a foreclosure action or suoh other proceeding as may be necessary to enable Leasehold Mortgagee to obtain, such possession; provided that (aa) Leasehold Mortgagee shall have .fully cured any default in the payment of any monetary obligations of Lessee under this Lease within su.eh, sixty (60) day period and shall oont:inu.e to pay currently such monetary obligations as and -when the same are due, (bb) Leasehold Mortgagee shall within six (6) mouths of the date that it takes possession of the Subjjeot Property employ an "Acceptable Operator" for the continued operation of • the Project, which shall mean such operator of the facility as designated by the Leasehold Mortgagee and approved by the City Manager, whioh approval shall not be unreasonably withheld or delayed so long as such operator has the relevant experience and operating history comparable to th,e Lessee, and: (cc) Leasehold Mortgagee shall have acquired the Leasehold Estate created hereby or commenced. foreclosure or other appropriate proceedings. in the nature thereof within such sixty (GO) day period or prior thereto,. and shall- he diligently and continuously prosecuting any such proceedings to completion, All rights of the City Manager to terminate this Lease es the result of the occurrence of any such Lessee Default shall. be subject to and conditioned upon the Pity Manager having first given Leasehold Mortgagee written notice of such Lessee Default and Leasehold Mortgagee having failed to remedy such default or acquire Lessee's Leasehold Estate created hereby or oor:nrnence foreclosure or other appropriate proceedings in the nature thereof as set_ forth in and within the time period specified by this subparagraph (iv).. (v) A Lessee Default under this Lease which in the nature thereof cannot he remedied by Leasehold Mortgagee shall be deemed to be remedied if: (aa) within sixty (60) days after receiving written notice from the City Manager setting forth. the nature of suoh Lessee Default, Leasehold Mortgagee shall have acquired Lessee's Leasehold Estate or commenced foreclosure or other appropriate proceedings in the nature thereof; (hb) Leasehold Mortgagee shall diligently and continuously prosecute any such proceedings to completion; (cc) Leasehold. Mortgagee, within such sixty (60) day period, shall have fully cured any default that does not require possession of the Property, including a default in the payment of any monetary obligations. of Lessee under this Lease and shall thereafter continue to faithfully perform all such obligations that do not require possession of the Property; and. (dd) within ,six (6) months after Leasehold Mortgagee shall. have gained possession of the Property, Leasehold Mortgagee shall have employed an Acceptable Operator and shall continue to employ an Acceptable Operator throughout the Lease'I'et a, 29 (vi) If the Leasehold Mortgagee is prohibited by any process, or injunction issued 'by any court, or by reason of any action by any court having jurisdiction of any bankruptcy, debtor rehabilitation or insolvency proceedings involving Lessee from commencing, or prosecuting foreclosure -or other appropriate proceedings in the nature thereof, the times specified in subparagraphs (iv) and (v) above for commencing or prosecuting suoh foreclosure or other proceeding shall be extended for the period of such prohibition; provided. that Leasehold. Mortgagee shall have fully cured any default including it default in the payment of any monetary obligations of Lesseeander this Lease, and shall contimie to perform currently such Obligations as and When the same fall due, andd-provided that Leasehold Mortgagee shall diligently attempt to -remove any such prohibition. (vil) The City Manager .shall mail to Leasehold Mortgagee a duplicate copy by certified trail of any and all notices which the Lessor may from time to time give to or serve upon Lessee pursuant to the provisions of this Lease; no notice by the City 'Manager to Lessee hereunder shall be deemed to have been given unless and until a copy thereof has been mailed to the Leasehold Mortgagee. (viii) Foreclosure of a Leasehold Mortgage or any -sale thereunder, whether by judicial proceedings or by virtue of any power of 'sale contained in the Leasehold Mortgage, or any conveyance of the Leasehold Estate to Leasehold Mortgagee by virtue or in lieu of the foreclosure or other appropriate proceedings in the nature thereof, shall not require the Lessor's consent or constitute a breach of. any provision of; or a default under this Lease, Upon such foreclosure, sale or conveyance, the Lessor shall recognize Leasehold Mortgagee, or any other foreclosure sale purchaser, as tenant hereunder; provided, that Leasehold Mortgagee or any such foreclosure sale purchaser shall qualify as or shall employ a•n Acceptable Operator within six (6) months of the date of such foreclosure, sale or conveyance, and shall continue to qualify as or employ an Acceptable Operator throughout the Lease Term. Furthers provided, that in the event there aro two- or more Leasehold Mortgagees or foreclosure sale purchasers (whether the same or different Leasehold Mortgagees), the Lessor shall have. no duty or obligation whatsoever to determine the relative, priorities of such Leasehold Mortgages or the rights -of the different holders thereof and/or foreclosure sale purchasers. (ix) Subject to the restrictions and limitations imposed on the Lessor by the Charter of the City of Miami and the provisions of Section 11,12, Lessor and Lessee shall cooperate in including in this Lease by suitable amendment from time to time any provision which may be requested by Eta)/ proposed Leasehold Mortgagee, or may otherwise be reasonably necessary, to implement the provisions of this Section 11,12;. provided, however, that any such amendment shall not in any way affect the Lease Term. (x) Notwithst:andi;ng that this Lease otherwise contemplates that Net Insurance Proceeds or llet Condemnation Proceeds shall 'be deposited with an. escrow agent and disbursed pursuant tothe terms• of the escrow agreement with such escrow agent, whenever the Leasehold Estate shall . be encumbered by a Leasehold Mortgage during the Lease Term, all such Net Insurance Proceeds or Net Condemnation Proceeds shall be deposited with and disbursed by such Leasehold Mortgagee pursuant to its customary and commercially reasonable procedures.. 11.12.2, No Waiver. of Lessee's Obligations or Lessor's Rights, Nothing contained herein or in any Leasehold Mortgage shall be deemed or construed to relieve Lessee from .the full and faithful observance and performative of its covenants, conditions and agreements contained herein, or from any liability for the non:observance or non-performance thereof; or to require or provide for the subordination to the lien of such Leasehold Mortgage of any estate, right, title or interest of the City in or to the Project, the Property or this Lease, Nothing' in this Lease -shall be deemed an agreement on the part of the Lessor to subordinate its .fen simple interest- in the Property to the lien of any Leasehold Mortgage placed on the Leasehold Estate, ARTICLE XII COMPLIANCE WITH LAWS Section 12.1 Compliance with Laws, Lessee shall, at Lessee's sole cost and: expense, comply with all regulations of all Applicable Laws now in force, or which may hereafter be in force, pertaining to Lessee or its -use of the Property, and shall faithfully observe in the use of the Property or in the•performance of any .alterations (including, without limitation, .Lessee's work)' all Applicable Laws now in force, or which may hereafter be in force, Lessee shall indemnify (and such indemnity will survive the termination or expiration -of the Lease for a period of five (6) years), defend and save Lessor harmless from penalties, fines, costs, expenses, spits, claims, or damages resulting fiotii'I,essee's failure to perform its obligations in this Lease, 30 ARTICLE XIII ENVIRONMENTAL LIABILITY Section 13,1 Definition of Terms. For purposes of this Article XIII the following terms shall have the meaning attributed to them' herein: 13.1.1 "Hazardous Materials" means any toxic Of hazardous substance, material, or waste, and any other contaminant, pollutant or constituent thereof, whether liquid, solid, semi -solid, sludge and/or gaseous, including without limitation, chemicals, compounds, pesticides, petroleum products including exude oil and any fraction thereof, asbestos containing. materials or other similar substances or .materials whioh are regulated or controlled by, under or pursuant to any federal, state or local statutes, laws, ordinances, codes, rules, regulations, orders or decrees including, but not limited to, all Applicable Laws, 13,1.2 "Environmental Laws" shall include, but shall not be limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superiund Amendment and Reauthorization Act of 1986 ("Sara"), 42 U,S,C. §9601, et seq. (hereinafter oolleotively "CERCLA") the Solid Waste Disposal Aot, es amended by the Resource •Conservation and Recovery Act of 1976 ("RCRA") and subsequent Hazardous and Solid Waste Amendinents of 1984, also known as the 1984-"RCRA" amendments, 42 IT,S;C. §9601, et seq.; the Hazardous Material. Transportation Act, 49 §1801, et seq.; the Clean Water Act, as amended, 33 U,S.C, §1311, et seq.; the 'Clean Air Act, as amended, 15 U.S.C. §2601 et seq,; the Federal Insecticide, Fungicide, and .Rodenticide Apt ("FIFRA"), as amended, 7 U.:S.C, §136-136y; the Emergency Planning and Community Right -to -Know .Act of 1986 ("EPCRTKA" ar EPCRA"), as amended, 42 U.S-.C, §11001, et. seq, (Title III of Sara); the Occupational Safety and Health Act of 1970 -("OSHA"), as amended, 29 U,S.C. §651, et seq.; any similar state statute, including without limitation Chapters 252,255„376,403,442, Florida Statutes, as amended; and the regulations promulgated thereunder, and any other local laws regulations, including, but not limited to Chapter 24, Environmental Protection, of the Code of Miami -Dade. County, Florida, as all of the foregoing rriay be amended, modified, supplemented, superseded or replaced at any time during the Term, 'that govern or relate to: (i) The existence, cleanup and/or remedy of contamination of the. Property by Hazardous Materials; (ii) The protection of the environment from spilled, deposited or otherwise emplaced contamination by Hazardous Materials; (iii) The control of Hazardous -Materials; or (iv)- The use, generation, discharge, transportation, treatment, removal or recovery of Hazardous Materials, 1.3,13 "Costs" shall mean all posts incurred in connection with correeting.anyviolations of any Environmental Laws and/or in connection with the clean-up of contamination by Hazardous Materials on the Property, 13.'1.4"Clean Up" .si:rall mean any reniediation and/or disposal of Hazardous Materials at or from the Property, which is ordered by any federal, state, or local environmental regulatory agency. 13,1.5"Underground '.Storage Tarik'ss" shall mean any fuel oil, petroleum or gas underground storage tanks Atoll may be located on the Property ("t. STs"). Section 13,2 Lessee's Environmental Covenants. • The Lessee shall not pause or permit any Hazardous Materials to be brought upon., treated, stored, disposed of, discharged, released, produced, manufactured, generated, refined, or used upon, about or beneath the Property or any portion thereof by the Lessee; its agents, employees, contractors, Lessees, or invitees except as may he customarily used and required to conduct marina and restaurant operations and in eonrieotion with any other Permitted Uses. Lessee shall not permit any activities on -the Property that would violate Environmental Laws,' If Lessee should breach this covenant, Lessee shall. take all actions necessary to comply with all Enviromnental Laws and shall, at Lessee's sole cost and expense, perform any Clean Up, Lessee's obligation under this ,section shall survive the expiration or earlier termination of.this Lease for a period of one (1) year, 13,2,1 Environmental Testing Obligations Lessee shall conduct'a Phase Two Environmental Assessment and soil analysis of the Property before and after the Lease Term (or Renewal Term) to determine if it has left any Hazardous Materials 31 contaminants on the Property. If contamination by Hazardous Materials is found to be left on the Property, to the extent such contamination originated upon the Property arising from or caused by the presence, in or about the Property, of any Hazardous Materials placed on or about the Property by Lessee, or its agents, employees or Assignees, or at Lessee's direction, or by Lessee's failure to comply with all applicable Environmental Laws (and not as a consequence, for example, of migration of contamination from nearby properties) during the Lease Term, Lessee shall, at its sole cost and expense, pay to clean up the contamination of such Hazardous Materials, subject to the limitations within Section 13,4 herein. Additionally, upon Lessor's request (but not more frequently than once during any five year period during the Lease Term, runless the City has a reasonable basis to believe that Contamination by Hazardous Materials in violation of applicable Environmental Laws, then exists), Lessee shall conduot such soil analysis tests the City may require from time to time during the Lease Term and Renewal Term, if any; Lessee shall he responsible for the cost of any such tests Seetion 13,3Representation.byLessor. The Lessor represents and warrants that no lawsuits, claims, legal or administrative, have been. brought against Lessor, in connection with the environmental condition of the Property or the USTs as a result of the Lessor':; or any prior Lessee's use or occupancy of the Property, nor is Lessor aware of the existence of any Hazardous Materials thereon, except as may 'be present in connection with the USTs and/or the asbestos containing materials as expressly provided for herein, Section 13,4 Lessee's Indemnification. Lessee shall indemnify, protect,. defend and hold Lessor free and. harmless from and against any and all suits, actions, claims, regulatory actions, liabilities, penalties, losses, injuries,' and expenses, including ettorney's fees, resulting from the death or injury to any person, destruction or damage to property, arising from or eased by the presence, in or about the Property, of any Hazardous Materials placed on or about the Property by Lessee, or its agents, employees or Assignees, or at Lessee's direction, or by Lessee's failure to comply 'with all applicable Environmental Laws. Section 13,5 Asbestos. The Lessee aokn.owledges that prior to the Effective Date, the Lessee has undertaken an environmental site assessment of the Property and accordingly, the .Lessee knows that there may be asbestos containing materials. ("Aar) in the fernyof ceiling tiles, plaster walls and roofing material. The Lessee shall, at Lessee's sole cost and expense, Clean Upany well ACM in .the event that as a result o' building renovations or modifications such ACM becomes friable, Section 13.6 Survival of:Lessee's and Lessor's Obligations. The respective rights and obligations of Lessor and Lessee under this Article ME shall survive the expiration or termination of this Lease for a period of one (1) year..• Seetion 13.7 Cost of Environmental Rernediation, The Parties hereto shall be responsible for the cost of any environmental remediation or mitigation within the Property and the Submerged Lands on the following basis: (i) Lessee'sinitial: liability to satisfy environmental permitting requirements, including any environmental remediation or mitigation required as a condition to such permit, or to Clean Up any pre-existing contamination by Hazardous Materials in accordance with :Applicable. Law, provided herein shall he One Million Dollars ($1,000,000), and(i.i) .In the event the cost of remediation exceeds $1,000,000, the armiou°nt which .exceeds $1,000,000 will he split on a 50/50 basis between the Lessor and the Lessee (provided that Lessor may elect to offset the 50%/i share of the Lessor therefore against Rent thereafter corning due hereunder), One hundred percent (100°%) of the remediation costs paid by Lessee's remediation will be counted towards the Equity Contribution and the Minimum Level of investment, The Lessee shall he required to submit reasonably aooeptahlo documentation to the Lessor in order to facilitate the Lessors verification of Lessee's expenditures for any such remediation costs, ARTICLE XIV DAMAGE OR DESTRUCTION OF PROPERTY Section 14,1 Definitions, For the purposes of this Article XIV, the following words shall have the meanings attributed to them in this Section 14,1: (a) "Completely Destroyed" means the destruction of the safe, leasable use or ocoupancy of a substantial portion of the Property (excluding the Parking Facilities Retail Area), as determined by Lessee in its sole discretion, under this Lease which damage cannot 32 reasonably be repaired., restored or replaced within one hundred and eighty (180) calendar days from the date on which the damage occurred, (b) "Partial Destruction" means any damage to the Property (excluding the Parking Facilities Retail Area) which damage can reasonably be repaired, restored or replaced within one hundred eighty (180) calendar days from the date on which the damage occurred. Section 14.2 Lessee's Duty to Repair, Restore or Replace the Property After Damage. In the event of damage by fire or otherwise of the Property (excluding the Parking Facilities Retail Area) 'including any machinery, fixtures or equipment which is a part of the Property, 'the Parties agree as follows: (i) In the event of Partial Desti°tietion, within sixty (60) calendar days of the damage (subjeet to reasonable delay and/or Fore° Majeure), the Lessee shall use the Net Insurance Proceeds available for that purpose, together with Lessee's own funds (if the Net Insurance Premeds are insufficient) to commence and diligently pursue to -completion within one hundred eighty (180) calendar days from the date the damage occurred (subject to reasonable extension and/or Force Majeure), the repair, restoration or replacement of the damaged or destroyed portion of the Property ("Restoration Work"), and this Lease shall remain in full force and effect, with no abatement in Rent, (ii) In. the event the Property (excluding the Parking Facilities Retail Area) is Completely Destroyed at any time during the Lease 'ferrn, .inclusive of any Renewal Term, the Lessee, in its sole discretion, shall have the option (a) at the Lessee's sole cost and expense (together with Net Insurance Proceeds available for that purpose), tocommence and diligently pursue to completion the Restoration Work, in nceordance with the provisions of Section 14.3 below, and Lessee shall complete the Restoration Work within twelve (12) months from the date the -damage occurred (subjeet to reasonable delay and/or Force Majeure) and this Lease shall remain in full force and effect, with no abatement in Rent, or (b) to elect not to undertake the Restoration Work by providing written notice to .Lessor and in 'which event this Lease shall terminate, and the Lessee shall, at the Lessee's sole eo5t and expense, (but .using along with the Lessee's own funds, Net Insurance Proceeds available for that purpose) deliver possession of the Property to Lessor free and clear of all debris and Lessor and Lessee shall eueh be released thereby from any further obligations hereunder aceruing after the effective date of such termination,. except that such release shall not apply (aa) to any Rent or Additional Rent or other sums accrued or due (bb) Lessee's obligations regarding surrender: of the Property including the removal of debris, and (cc) environmental liability as provided for in Article XIII, (Id) In the event the Property (excluding the Parking Facilities Retail Area) is Completely Destroyed at any time during the fast Lease Year of the Lease Term (inclusive of any Renewal Term), and: Lessee has :not. timely exercised: any applicable option to extend the Lease Term for the next succeeding Renewal Term, if any, then either Party, in its sole discretion, shall have the right to terminate this Lease by giving written notice to the other Party within ninety (90) days from the date the damage ceo ined,. In the event this Lease is terminated as provided herein, the Lessee, hall, at the Lessee's sole cost and expense, (but using along with the Lessee's own funds, Net Insu.renee Proceeds available for that purpose) deliver possession of the Property to Lessor free and elear of all debris and Lessor and Lessee shall eaolrbe released thereby from any further obligations hereunder accruing after the effective date dwell termination, except that such release shall not apply (as) to any Rent or Additional Rent or other sums accrued or due (bb) Lessee's obligations regarding surrender of the Property including the removal of debris,. and (cc) environmental liability as provided for in Article XTII. Section 14.3 Performance of Restoration Work. • In the event Lessee undertakes any Restoration Work in accordance with the provisions of this Article, such Restoration Work by Lessee shall be performed as substantially as reasonably possible to the condition that existed immediately prior to the damage, and shall be performed in accordance with the provisions of Article Vi applicable to the construction of the initial Leasehold "improvements, to the extent reasonably possible, and subject to changes in Applicable Law, including, without limitation, building codes, Lessor hereby acknowledges and agrees that Lessee's obligations 'hereunder and the time periods set forth above are subjeot to Farce Majeure, and reasonable extensions, including, without limitation, based. on the severity of the damage, time 'required for adjustment of insurance proceeds, preparation of 33 construction drawings, obtaining building permits, and the bidding out of the construction work and engagementof a general eontraotor. Section 14,4 No Right to Terminate. Except for the Lessee's right to terminate this Lease in accordance with the provisions of Subsections 14,2(ii)(b) and (iii), Lessee waives the provisions of any statute, code or ;judicial decision which grants Lessee the right to terminate this Lease in the event of damage or destruction of the Property. Section 14.5 Lessee's Right to Terminate, If Lessee or Lessor elects to exercise the option given under Subsections 14,2(ii) or (iii), respectively, to terminate this Lease, then any and all Net Insurance Proceeds paid for damage or destruction of the Property shall be applied as follows: (i.) First toward debris removal; and (ii) Seeond, the balance of the proceeds, if any, after payment of any Rent and/or Additional Rent due through the effective date of termination, shall he paid as follows: (i) to Lessee to the extent ;such Net Insurance Proceeds are attributable to damage to the Leasehold Improvements and to any trade fixtures, furnishings, equipment or other personal property of Lessee; and (ii) to Lessor to the extent such. Insurance 'Proceeds are attributable to damage to any buildings 'or structures on the Property constructed. prior to the Possession Date (exclusive of damage to any Leasehold Improvements which Lessee shall have made to any .such existing buildings or structures). Section 14,6 Payment for Construction of the Restoration Work, To the extent this Lease is not terminated pursuant to the terns of Section 14,2, above, then Net. Insuinnoe Prooeeds shall be applied by the Parties to the payment of the cost of the Restoration Work (pursuant to this Article and Seotion 9,3) to restore the Property (exeludhag the Parking Facilities Retail Area). The Net Insurance Proceeds shall be paid out, the Restoration Work shall be performed, and the Lessee shall make additional deposits with an escrow agent, if any are required, all in accordance with Section 9.3, as maybe applicable Section 14.7 Collection. of Insurance Proceeds. The Lessor shall in no event be responsible for the non -collection of any insuranoe proceeds ;tinder this Leascbut only for insurance money that shall come into its hands. Section 14,8 Unused Insurance.Proceed.s and Deposits. In the event that following the substantial completion of any Restoration Work, any Net Insurance Prooeeds or sums deposited with an escrow agent or Lessor in connection with the Restoration Work shall remain in the hands of an escrow agent or the Lessor, if the Parties have agreed:' to allow the Lessor to hold the•insurance proceeds until completion of the Restoration Work, and if The Lessee shall not then be in default under this Lease in respect of "any platter or thing of which notice. of default Has been served on the Lessee, following the expiration of any applioable sure period following notice, then the remaining funds shall be applied first towards any unpaid Rent, and the balance paid to the Lessee, within thirty (30) days following. the substantial completion orally such Restoration Work. ARTICLE XV EMINENT DOMAIN S.eetion 15.1 Total Condemnation. In the event that all of the Property (or such portion thereof as shall, in the reasonable discretion of Lessor or Lessee, .renm.er it econom.ioally unfeasible to maintain in effect this Lease for its intended purpose) shall be taken for any public purpose 'by the right of condemnation, the exercise of the power of eminent domain or shall be conveyed by the Lessor and. Lessee acting jointly to avoid proceedings of such taking, the Rent and money to be treated as Additional Rent pursuant to this Lease shall be prorated and paid by the Lessee to the Date of Taking or conveyance in lieu. Thereof, and this Lease shall 'terminate and. become null and void as of the. Date -of Taking or such conveyance; and. the amount of damages resulting to Lessor and Lessee, respectively, and to their respective interests in and to the Property; the Leasehold Improvements, and this Lease, taking into account the Agreed Allocation Principles (as such term is defined below) shall be separately determined and computed by the court having jurisdiction and separate 34 awards and judgments with respect to damages to Lessor and Lessee, respectively, and. to each of their respective interests, shall he made and entered , In the event that a court shall make a single Net Condemnation Award without separately determining the respective interests of Lessor and Lessee, and if Lessor and Lessee shall not agree in writing as to their respective portions of an award within twenty (20) days, after the date of the final determination by the court of the amount of it, Lessor and Lessee agree to submit the matter to the court. on stipi lation for the purpose of a judgment determinative of their respective shares, in accordance with the Agreed. Allocation Principles, In the event for any reason the trial. jtidge refuses to :permit a deterniinat:ion by judgment, then the respeo-tive interests of Lessor and Lessee shall be determined by arbitration under the provisions set forth in Section 16,6 of this Lease, on the basis of the following premises (the "Agreed Allocation Principles"):. the Lessor shall be entitled to receive the then value of ita fee interest in the Property, assuming that such fee interest shall he subject to this Lease (and all of the terms and conditions thereof), which a buyer willing but not obligated to buy, would pay t.herefore in an arms length transaction., Lessee shall be entitled to the then value of its Leasehold Estate and the Leasehold Improvements, which a buyer willing but not,obligated to buy, would pay therefore in an a.rn's length transaction, In n:o- event shall Lessee be entitled to compensation for any fee simple ownership interest in the Property at the time of condemnation, Section 15,2 :Partial Condemnation. (a) In the event less than all of the Property shall be taken for any public use ar purpose by the right or the. exercise of the power of eminent domain, or shall be conveyed by the Lessor and Lessee acting jointly to avoid. proceedings of such taking, and Lessee shall determine in.its reasonable discretion that it is economically feasible to maintain in effect this Lease, then this Lease and all the oovenants, ocnditions and provisions hereunder shall be and remain in. full tierce and effect as to all of the Property not so taken or conveyed (except as provided in ,Section 15.5), Lessee shall to the extent the proceeds of the Net Condemnation Awi rd are trade available to it, pursuant to the terms hereof,' remodel, repair and restore the Leasehold Improvements on the Property so that they shall be reasonably oomparab.le to Leasehold Improvements on the Property prior to the coaadenination, taking into consideration the fact of the condemnation; provided, however, that in so doing, Lessee shall not be required to expend more than the amount of any Net Condemnation Award actually received by Lessee. (b) The Net Condemnation Award allowed to Lessor and Lessee shall be paid to and received by the Parties as follows: (i) There shall be paid to the Lessor the then value of the portion. of the Property so taken, assuming. that .such portion of the Property shall be subject to this Lease •(and all of the terms and conditions thereof), which a buyer willing but not obligated. to buy, would Pay therefore in an arms length transaction, (ii) There shall be paid to the Leases the then value of the portion of the Leasehold Estate and the Leasehold Improvements so taken, which a buyer willing but not obligated to buy, would pay. therefore in an arn's length transaction; (iii) There shall he paid to .the Lessee the amount required to complete the remodeling and repairs to the Property and the Leasehold Improvements thereon, required as a result of such taking; (iv) The :Lessor and Lessee shall be paid portions of the balance of the Net . Condemnation Award or awards, if any, which. are allocable 'to and represented by the value of theirrespeetive interest in the Property (consistent with the agreed allocation prineiptes set forth in subparts (i) through (iii), above), as found by the court in its condemnation award, In the event that a court slaal.l make a single Net Condemnation Award without separately determining the respective interests of Lessor and Lessee, and if Lessor and Lessee shall not agree in writing as to their respective portions of such. award within -twenty (20) 'days after the date of the final determination by the court of the amount of it, Lessor and Lessee agree to submitfhe matter to the eourt on stipulation for the purpose of a judgment determinative of their respective shares, in . accordance with the premises set forth in subparts (i) through (iii), above, In t:he event for any reason the trial judge refuses to permit a determination 'by judgment, then the respective interests of Lessor and. Lessee shall be determined by the arbitration provisions set forth under Section 16,6 of this Lease, Suction 15.3. Adjustment. of Rent Upon Partial Taking. In the event a part of the Properly shall be talon for any public use or putipose by the exercise of 35 the power of eminent domain, or shall be conveyed by Lessor and Lessee acting jointly to avoid proceedings of such taking, then Rent, and money to be treated as Additional Rent pursuant to this Lease shall be paid by Lessee to the Date of 'Faking or conveyance in lieu thereof, and after such date the Minimum Base Rent for the remainder of the Property shall be reduced in the same proportion as the reduction in the Fair Market Rent as a consequence of such taking, as determined in accordance with an appraisal conducted pursuant to the procedures set forth in Section 4,3,2, above. Section 15,4, Deposit of Condemnation Award with Escrow Agent, Unless the effect of a condemnation proceeding shall be to terminate this Lease by operation of law or as provided in Section 14.2 above, any Net Condemnation Award made in respect to the Property in a condemnation proceeding shall he deposited with an escrow agent selected by the Lessor and Lessee escrow agent) to be disbursed for the cost of restoring the Property and for other related purposes, Section 15,5, Temporary Taking. In the event that all or any portion of the Property shall be taken by the -right of oondemnation or the exercise of the power of eminent domain for governmental use or occupancy for a temporary period, this Lease shall not terminate and Lessee shall continue to perform and observe all of its obligations (including the obligation to pay Rent as provided throughbut this Lease) as though the temporary taking had not occurred except only to the extent that it may be prevented, from so doing by the terms of the order of the authority which make the temporary taking or by the conditions resulting froni the taking, including the loss of its possession of all or any part of the Property. In the event the taking for governmental occupancy is for a period entirely within the term of this Lease, then Lessee shalt be entitled to receive the entire amount of any Net Condemnation Award made for the taking, whether paid by way of damages, Rent or otherwise, If the period of governmental occupancy extends beyond the termination of the Lease Term, the Lessor shall rally be entitled to receive that portion of the Net Condemnation Award allocable to the period beyond the termination of the Lease Term, The amount of any Net Condemnation Award payable, to Lessee, on account of a temporary taking of all or any part of the Leasehold Improvements,. shall be deemed a part of the Lessee's Leasehold Estate for all purposes in this Lease, If the Net Condemnation Award does not separately determine the amount applicable to the taking of the interest of the Lessor in Ibis Lease and in the Leasehold Improvements and if Lessor and Lessee shall not agree in writing as to the proportion of the award so applioable to the respective Parties, then Lessor and Lessee shall submit the matter to the court on stipulation for the purpose of a judgment determinative of the interest of the Parties in accordance with the terms of this Section 15,5, In the event for any reason the trial judge refuses to pen -nit a determination by judgment, then the respective interests of Lessor and Lessee shall be determined by the arbitration provisions set forth under Section 16,6 of this Lease. ARTICLE XVI LESSEE DEFAULTS & LESSOR REMEDIES FOR DEFAULT Section 16,1 Lessee Default. The ocourrence of any one or more of the following events is deemed a "Lessee Default:" (a) If the Lessee defaults in the due and punctual payment of any installment of Minimum Base Rent, Percentage Rent or any other sums required to be paid hereunder as Additional Rent, as and when due and payable in accordance with this Lease, and such default continues for more than (10) ten days following reeeipt of written notiee from Lessor; (b) Except with respect to an event of Force Majeure, periodic tenant vacaneies, periodic repair and refurbishment to the Leasehold Improvements, periods of time required for insurance adjustments and reconstruction following casualty cir partial taking, in the event Lessee shah cease to operate its business, unless permitted by LeSSOr in connection with alterations or renovations, for a period of thirty (30) consecuth e days; (0) In the event a petition in bankruptcy under any present or future bankruptcy laws (including but not limited to reorganization ;proceedings or voluntary insolvency filing) be filed by or against Lessee and such petition is not dismissed within ninety (90) days from the tiling thereof, or in the event Lessee is adjudged a bankrupt; (d) In the event an Assignment for the benefit of creditors, is made by Lessee, except as provided in Section 11,3(a), (e) in the event of an appointment 'hy any court of a receiver or other court officer of Lessee's Properly and stroll receivership is not dismissed within ninety (90) days from the date of such appointment; 36 (t) In the event Lessee removes, attempts to remove, or permits to be removed from the Property, except in the usual course of trade, the Leasehold Improvements -(or any furnishings, fixtures, and equipment) installed or placed upon the Property.by the Lessee during the Lease Term; (g) In the event Lessee, before the expiration of the term of this Lease, and without the written consent of Lessor, vacates the Property or abandons the possession thereof (except with respect to an event of -Force Majeure, and excluding periodic tenant vacancies, periodic repair and refurbishment to the Leasehold Improvements, periods of time required for insurance adjustments and reconstruction following casualty or partial taking),. or uses the same for purposes other than the purposes for which the same are hereby leased, or ceases to use the Property for the purposes herein contained; . (.h) In the event Lessee does not accept the adjusted Minimum Base Rent determined by the . independent appraiser established for the Renewal Term after the conclusion of any dispute resolution proems- related thereto. (i) Subject to the rights of a Leasehold Mortgagee, pursuant to Section 11,:12, above, in the event an execution or other legal .proeess is levied upon a material portion of the goods, furniture, effects or other personal. property of Lessee brought on the Property, or upon the interest of Lessee in this Lease, and the same is not satisfied, dismissed or bonded within sixty (60) days from. such levy; or (j) In the event Lessee defaults in the due performance or observance of any material covenant, condition or provision of this Lease and such default continues. for more than sixty (60) days after written notice of the default from the Lessor to the Lessee, unless such default be .one. which cannot reasonably be cured within sixty (60) clays and the Lessee within such sixty (60) day period shall have commenced. and thereafter shall continue to diligently prosecute all actions neoessary to cure si1ch defaults, such failure shall constitute a Lessee Default. Section 16,2 Remedies of Lessor, (a) If any Lessee Default oecu.rs, Lessor shalt .have the right after the expiration of the applicable cure periods set forth in subsections (a) through. (j) `(each,, a 'Cure Period"), at the option of Lessor and subject to the rights of the Leasehold Mortgagee, to terminate this Lease upon providing fifteen (15) days -written notice if the default has not been cured by the expiration of such fifteen (15) day period, A Lessee Default shall be deemed to have occurred if the default has not been cured by the expiration of such fifteen (15) day period, Additionally, if any Lessee Default occurs, Lessor may, at its option, .from lime to time, without terminating this .Lease,. re-enter and re -let the Property, or any part thereof as the -agent and for the account of Lessee upon snob. teases and conditions as Lessor may deem advisable or satisfactory, in which event the rents received on such re -letting shall be applied first to the expenses of such re -letting and collection including but not limited to, necessary renovation and: alterations of the Property, reasonable attorneys fees, any real estate commissions paid, and thereafter toward payment of all sums due or to become due to Lessor hereunder, and.:if a sufficient sum shall not be thus realized or secured to pay such sums and other charges,_ at Lessor's option, Lessee shall pay Lessor any deficiency immediately upon demand therefore, notwithstanding. that Lessor may have received. periodic -rental in excess of the periodio rental stipulated in this Lease .in previous or subsequent rental periods, and Lessor may bring an notion therefore as such deficiency shall arise, Nothing herein, however, shall be construed to require Lessor to reenter and .re -let the Property in any event, Lessor :shall not, in any event, be .required to pay Lessee any surplus of any stems received by Lessor on a re -letting of said. Property in excess of the Rent provided in this Lease, (b) If a Lessee Default ocours, Lessor shall have the right to obtain injunctive and declaratory relief, temporary and/or permanent, agsinst Lessee or any acts, conduct or omissions of Lessee, and to further obtain specific performance of any terns, covenant or condition of this Lease. (o) if a. Lessee Default occurs, Lessor shall: have the :right, at its option, to declare the present value of the an of all Rent Or any portion thereof) for the entire remaining Lease Term, and. other indebtedness owing by Lessee to Lessor, if any (less the present value of the Fair Market Rent for the Property, determined as provided in Section 4,3,2., above, far the remaining Lease Term) immediately due and payable without regard to Whether possession of the Property shall have 'been surrendered to or taken by Lessor, and may commence notion immediately thereupon and recoverjuclgmnent therefore, (d) If Lessee Default occurs, Lessor, in addition to other rights and remedies it may have, shall have the right to remove all or any part of Lessee's personal property from the Property and any personal property removed mmay be ,stored in any public warehouse or elsewhere at' the cost of, and for the account of Lessee, and Lessor shall not be responsible for the care or safekeeping thereof whether in 37 transport, storage or otherwise, • and Lessee hereby waives any and all claim against Lessor for loss, destruction and/or damage or injury which may be occasioned by any of the aforesaid acts, (e) No swell re-entry or taking possession of the Property by Lessor shall be construed as an election on Lessor's ,part to terminate 'this Lease unless a written notice of such intention is given to Lessee, Notwithstanding any such re -letting without termination, Lessor may at all times thereafter elect to terminate this Lease for such previous Lessee Default. Any such re-entry shall be allowed by Lessee without hindranee, and Lessor shall not be liable in damages for any such re-entry; or guilty of trespass or forcible entry. (1) Any Rent which may be due Lessor, whether 'by acceleration. or otherwise as herein provided in:this Ait cle, Shall nelu.cle Minimum Base Rent,_Pereentage Rent. and any other rents, cost,:; and expenses denominated as Additional Rent.in this Lease, (g) 11 is expressly agreed that the for'hearanee on the part of Lessor in the institution of any suit or entry of judgment for any part of the Rent herein reserved to Lessor; shall not serve as a defense against nor prejudice a subsequent action for such Rent, Lessee hereby expressly waives Lessee's right to claim a merger Or waiv it of such subsequent action in any previous suit or in the judgment .entered therein, Furthermore, it is expressly agreed that claims for liquidated Minimum Base Rent and/or Percentage Rent may be' regarded by Lessor, i'f.it so elects, as separate and independent claims capable of being separately assigned, (h) Any and all rights, remedies and options given in this Lease to Lessor shall he cumulative and in addition to and without waiver of, or iri derogation of; any right or remedy given to it under any laws now :or hereafter in effect, Section 16,3 Waiver by Lessor. The waiver .(either expressed or implied by taw). by Lessor of any default of any term, condition or covenant herein contained shall not he a waiver of any subsequent default of the same or any other terns, oonditiion or covenant herein contained, The oonsent or approval by Lessor to or 'of .any act by Lessee requiring Lessor's consent or approval shall not he deemed to waive or render unnecessary Lessor's consent to .or approval of any subsequent similar act by Lessee. No reentry hereunder shall bar the recovery of rents or damages for the default or delay on the part of Lessor to enforce any right hereunder and shall not: he deemed a waiver of any preceding default by Lessee of any tenn, covenant or condition of this Lease, or a waiver of the right o'fLessor to annul this Lease or to re-enter the Property or to .re -let same, Section 16,4 Late Payments. In the event any payment due Lessor under this Lease shall not be paid on the due date, Lessee agrees to pay, in addition: to the payment then 'due, ono -half (0.5%o) percent of the amount due or the sum of -One Hundred. Dollars ($100), whichever is greater, for each clay that the payment is late, ("Late Fee"), and in the event. that any cheek,' bank draft, order for payment or negotiable instrument given to Lessor for any payment under Lease shall be dishonored for any reason whatsoever not attributable to Lessor, Lessor, in addition to the Late Fee, shall be entitled to make an administrative charge to Lessee of One I-lundred. and 0/100 Dollars (S100,00), or the actual charge, to Lessor by Lessor's .bank for dealing with such dishonored tender, whichever is greater, In the event that it shall be necessary for Lessor to give more than one (1) written' notice to Lessee of any violation of this Lease, :during the term hereof, Lessor shall be entitled to snake an administrative change to Lessee of One Hundred and 0/100 Dollars ($1.00,00) for each such subsequent notice after the first notice Lessee recognizes and agrees that the eharges which Lessor is entitled to make upon the conditions stated in this section represent, at the time this .Lease is made, a fair and reasonable estimate and liquidation of the costs of Lessor in the administration of the Property resulting from the events described which oosts are not contemplated or included in any Rent, or other charges provided to be paid by Lessee to Lessor in thisLease, Any charges becoming due under this.Seotion of this Lease shall he added to and become due with the late payment for which the charge was assessed -and shall he colleotible as a part thereof, Section 16,5 Remedies Cumulative, 'No remedy conferred upon or reserved to the Lessor or the Lessee shall be considered exclusive of any other remedy, but shalt be cumulative and shall be in addition to evety other remedy given under this Lease or existing at law or in equity or by statute; and evety power and -remedy given by this Lease to. the Lessor or the Lessee may be exercised 'from time to time 'and as often es oecas'ion inay arise or as may be deemed expedient by the Lessor or the Lessee. No delay or omission of Lessor or Lessee to exercise any right or power arising from any default shall impair any right or power, nor shall it be eonst:rued to he a waiver of any default or any acqurescenee in .it, 38 Section 16,6 Arbitration. (a) 12equest to Arbitrate, The Parties hereby agree that, subject to the consent of the City Manager and the Lessee, which consent -lay be withheld by either party for any reason, any dispute; disagreement or controversy arising under this Lease, or with respect to the interpretation or enforcement of this Lease may be settled by arbitration, Either Party may request to arbitrate by providing written notice to the other Party setting forth the nature of the request to arbitrate, Within fifteen (15) days of receipt of such request to arbitrate, the other Party shall respond as to its agreement or disagreement to arbitrate, Failure of the other Party to respond shall be deemed denial of a•request to arbitrate. (b) Procedures, In the event arbitration is agreed to, the following procedures will govern any arbitration according to tlais.L ase,_ (i) Within ten (10) days of the Parties agreeing to arbitrate, each party shall designate an arbitrator, (ii) Within ten (10) days after the appointment of the two arbitrators, the two arbitrators shall meet and appoint a third arbitrator which shall constitute the Arbitration Panel, (iii) Every member of the Arbitration Panel must be a member of the American Arbitration Association ("Member"), In addition to the foregoing criterion, each Member shall satisfy the following conditions: ( ) no Member shall be a person rdlio is or has been an employee of either the Lessor or Lessee during the five (5) year period immediately preceding his or her appointment; (ii) each Member shall be neutral and independent of the Parties to this Lease; (iii) no Member shall be affiliated with either Parties' auditors; and (iv) no Member shall have e conflict of interest with (including, without limitation, any bias towards or against) a Party hereto. (iv) If either party shall fail to designate a Member within ten (10) days after receipt of the written notice from the other party, then such other party may request the President of the Florida Chapter of the American Arbitration Association to designate a Member, who, when so designated, shall act in the same manner as if he had been the Member designated by the party so failing to designate an arbitrator. • (v) I.f the two Members appointed by the Parties are unable. to agree upon the third Member within ten (10) days from the last date of' designation, then upon the request of either of the two (2) Members, or either Party, sucb third Member shall be designated by the President of the :Florida Chapter of the American Arbitration Association, who shall appoint well third Member within ten (10) days of the request, (vi) A hearing shall be.commenced within thirty (30) days following the selection:o-f the Arbitration Panel, , The Parties shall each make a good faith effort to cooperate with each other in all respects in connection with the exchange, of documents relevant to the subject- dispute, A court reporter shall make a transcript of .the hearing. The Parties and the Arbitration Panel shall use their best efforts to cowhidethe hearing within ten (10) days. The Parties shall be entitled to such pretrial discovery as they may agree, or as determined by the Arbitration Panel, The Arbitration Panel- shall have the right to question witnesses at the hearing, but not to call witnesses,. The Arbitration Panel may grant continuances only by the agreement of both Parties. The Arbitration Panel may .render a decision at the close of the hearing, or may request briefs on any or tlt issues, Any and all such briefs, including reply briefs, shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no later than forty- five (45) days following the commencement of the hearing, The Arbitration Panel shall render a determination within thirty (30) days from the conclusion. of the hearing, and in the event briefs are submitted, Within thirty (30) days after receipt of said brief,:;. If no. determination is rendered within such time, unless the Parties agree otherwise, a new Arbitration Panel shall be selected as described above, but the new Arbitration Panel .shall render a determination solely .upon review of the record of the hearing without a further hearing, (vii) All actions, hearings and decisions of the Arbitration Panel shall be conducted, based upon and in accordance with the Commercial Arbitration Rules of the .American Arbitration Association, In determining any matter before there, the Arbitration Panel- shall apply the terms of this Lease, and shall not have the power to vary, modify or reform any terms or provisions of the Lease in any respect, No Arbitrator is authorized to .make an award of punitive oor exemplary damages, The Arbitration Panel shall afford a hearing to the Lessor and to the Lessee who shalt each have the right to he represented by counsel at such hearing and to call witnesses, and the right to submit evidence with the privilege of cross-examination on the question at iss'it.e, All arbitration hearings shall be held at a place designated by the Arbitration Panel in Miami -Dade County, Florida. 39 (viii) The Arbitration Panel selected hereunder shall agree to observe the Code :of Ethics- for Arbitrators in Commercial -Disputes promulgated. 'by the American Arbitration Association and the Am.eriean Bar A.ssociation, or any successor code. The decision of a majority with respect to any matter referred. to it under this Lease shall be final, binding and conclusive -on the Lessor and Lessee and . enforceable in any court of competent jurisdiction, Together with the determination, the Arbitration Panel shall provide a written explanation of the basis for the determination. Each party shall pay the fees and expenses of the Member of the Arbitration Panel designated by such party, such party's counsel and witness fees, and one-half (1/4) of ail expenses of the third Member of the Arbitration Panel, The decision of the Arbitration Panel will be final, and may be enforced according to the laws of the State of Florida and judgment upon the award rendered hy_ the Arbitration Panel shall be entered in any Court having jurisdiction thereof, ARTICLE XVH ACCESS BY LESSOR Section 17,1 Right of Enn, Lessor and Lessor's agents shall have the right to enter the Property at all reasonable times upon not less than twenty-four hours prior notice to the Lessee (except in the case of an emergency when no notice is required), to examine the same, Lessee shall have the right to designate a representative of Lessee to accompany Lessor during any such entry upon the Property. If Lessee shall not be personally present to open and permit entry into the Property at any time when in the event of an emergency, an entry therein 'shall be necessary, Lessor or Lessor's agents may enter the same. without :in any manner affeeting the obligations and covenants of this Lease: Nothing herein contained, however, shall 'be deemed or construed. to impose upon Lessor any obligation, responsibility or liability whatsoever, for the Dare, maintenance or repair of the Property or any part thereof, except as oftierwiseberein specifically provided. ARTICLE XVIII DAMAGE TO LESSEE'S PROPERTY Section 18,1 Loss and Damage. Lessor shall not be responsible fbr any damage to any property of Lessee (inolu.ding without limitation appliances, equipment, maehinery, stook, inventory, fixtures, furniture, improvements, displays, 'decorations, carpeting and painting), or of others located on the Property, nor for the loss of or damage to any property of Lessee, or of others- by theft or otherwise, except as resulting from the actions of Lessor or Lessor's agents, employees, or representatives. Lessor shall not be -liable for anyinjury or damage to persons or property resulting from fire, smoke, explosion, falling plaster., steam, gas, electricity, water, rain, or leaks from :any part of the Property or from the pipes, appliances or plumbing works or from the roof, street or subsurface or from any other plaee by dampness or by any -other cause of whatsoever nature. Lessor shall not be liable for any latent defect in the Property. All property of Lessee kept or stored on the Property shall be so kept or stored at the risk of Lessee only and Lessee shall hold Lessor harmless from any and all claims arising out of damage. to same, including subrogation claims by Lessee's insurance carriers, except as resulting from the actions of Lessor or Lessor's agents, employees, or representatives ARTICLE XIX HOLDING OVER, SUCCESSORS Section 19,1 Holding 'Over. In the event Lessee remains in possession of the Property after the expiration of the Lease Tenn, Lessee, at the option of Levu, shall be deemed to be occupying the Property as a Lessee at sufferance at - monthly rental equal to two (2) times the Minimum Base Rent and. the Percentage Rent, payable during the last month of the Lease Term hereof, In addition, Lessee agrees to pay monthly: (a) one -twelfth -(1/12) of the ad valorem taxes for the Property based upon the total ad valorem taxes payable for the Lease Year immediately prior to the Lease Year in which the expiration oceurs; (b) the monthly premium cost of insurance for which Lessee would have been responsible if this Lease had been renewed on the some terms contained herein; (o) all sales taxes assessed against sueh increased rent, and (d) any and all Additional Rent ()atomise payable by Lessee hereunder attributable to the period of suCh holdover, Such tenancy shall be subject to all the other conditions, provisions -and obligations of this Lease. Lessee's obligation to pay any rents or sums 'provided in this Lease shall survive the expiration or earlier termination of this Lease. Section 19,2 Successors. . All rights Enid liabilities herein given to, or imposed upon, the respective Parties hereto 8ha1l 40 extend to and bind the several respective heirs, executor, administrators, successors, and the assigns of the said Parties;. and if there shall be more than one Lessee, they shall be bound jointly and, severally by the terms, covenants and agreements herein. Nothing contained in this. Lease shall in any manner restrict Lessor's right to assign or encumber -this Lease and., in the event Lessor sells its interest in the Property and the purchaser assumes Lessor's obligations and covenants, Lessor shall thereupon be relieved of:all further obligations hereunder, ARTICLE XX EQUAL OPPORTUNITY & NON-DISCRIMINATION Section 20.1 Equal Employment Opportunities . • The Lessee agrees that during the Lease Tern.; (a) it will not discriminate against any employee or applicant for employment because of race, creed,. color,.pla.oe of birth, religion, 'national origin, sex, age, marital ,status, veteran and• disability status and will take affirmative action to assure that applicants are employed and that employees are treated during employment without regard to race, creed, color, place of birth, religion, national origin, sox, age, marital .status, veteran and disability status; (b) post in conspicuous places, available to employees and applicants for employment, notices, the form of which is to be provided by the Lessor, setting forth provisions for this nondiscrimination clause; (c) in all solicitations or advertisements for employees placed by or on behalf of the Lessee shall state that all qualified applicants will receive consideration' for employment without regard to race, creed color or national origin: and. (d)• if applicable, to send to each labor union or representative of workers with which the construction contractor has a collective bargaining agreement or other contract or understanding a notice, the form of which is Mho - provided by the Lessor, advising the union or representative of the Lessee's commitment and posting copies of the notioe in a conspicuous places available to employees.and applicants for employment, Seotion 20,2 Non -Discrimination. Lessee represents and warrants to the Lessor that it will comply with Seotiort}s 18-188 through. 18 - 190- of the Code of the City of Miami Code, as arnendecl, and incorporated herein by reference ("Code"), Lessee hereby represents and warrants that it does not and will not engage in discriminatory practices and shall not discriminate in connection with Lessee's use of the Property on account of race, national origin, ancestry, color, sex, religion, age, handicap, familial status, marital status or sexual orientation, F'u:rthernror e., should the Lessee have existing or introduce membership rules for patrons at the Property' that it will comply with the non-discrimination provisions incorporated within the Code, ARTICLE XXI MISCELLANEOUS Section 21.1 Accord and Satisfaction, No payment lay Lessee or receipt by Lessor of a lesser amount. than the Rent herein stipulated to be paid shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any cheek or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Lessor may aceept such cheek or payment without prejudice to Lessor's right to reover the balance of such Rent or pursue any other remedy provided herein or by law, Section 21,2 Entire Apreen3.ent Amendments.' Resolution of Conflicts, (a) This Lease, the REP, the Proposal, and the Exhibits attached hereto and forming a pant thereof as if lolly set .forth herein. :constitute all of the covenants, promises, agreements, conditions and understandings between. Lessor and Lessee concerning the Property and there are no covenants, promises, conditions or understandings, either oral or written, between them other than as are herein set forth Neither. Lessor nor Lessor's agents have, made nor shall be bound to any representations with respect to the Property except as herein expressly yet forth, and all representations, either oral or written, shall be deemed o be merged .into- this Lease. No course. of prior or future dealings between the Parties or their officers, erirployees, agents or affiliates shall be relevant.or admissible to supplement, explain or vary any of the terms of this Lease, Acceptance of, or acquiescence in, a course of performance .rendered under this or any :prior agreement between the Parties -or their affiliates shall not be relevant or admissible to determine_the meaning of any of the terms of this Lease, This Lease has been negotiated "at arm's. length" by and between Lessor and Lessee, each having the opportunity to be represented by legal ,counsel of its choice and to negotiate the form and substance of this Lease, and therefore in construing the provisions of this Lease neither party will be deemed disproportionately responsible for draftsmanship. (h) Except as herein otherwise provided, the Parties may only amend, alter, change, or 41 modify this Lease by execution of written instrument signed by the Parties. (c) If a conflict, error, ambiguity, ordisorepancy arises between the provisions of this Lease, the Proposal and the RFP, then the in resolving any matter 'between the provisions thereof (except where such an interpretation would result in a violation of Applicable Law) the provisions of this Lease shall take precedence over either the Proposal or RFP and the provisions of the RFP shall take precedence over the Proposal, Section 21.3 Independent Parties It is understood and agreed. by the Parties hereto that this Lease does not create a fiduciary or other relationship between Lessor. and Lessee, other than Lessor and Lessee or contracting parties, as applicable, Lessor and Lessee are and shall be independent contracting parties and nothing in this Lease are intended to make either Party a general or speeial agent, joint venturer, partner or employee of the other for any purpos e. Section 21,4 Notices. Any notice by the Parties required to be given must he served by certified mail return receipt requested, or by hand delivery, addressed to Lessor or Lessee at; If to Lessor at: City Manager City of Miami 444 SW 2nd Avenue, 1e Floor Miami, Florida. 33130 With a copy to; City Attorney Office of City Attorney 444 SW 2nd Avenue, 94u Floor Miami, Florida 33130 City of Miami Dept. of Public Facilities Asset Management Division 444 SW 2nd Avenue, Suite 325 Miami, Florida 33130 If to Lessee at: Grove Bay Investment Group, LLC 2950 SW 27 Avenue Miami, Florida, 33133 With a copy to; Holland & Knight LLP Attn: Richard A. Perez 701 Brickelt.Avenue, Suite 3000 Miami, Florida 33:131 All notices given hereunder shall be effective and deemed to have been given upon receipt by the party to which notice is 'being given, said receipt being deemed to have occurred upon hand delivery or posting, or upon such date as the postal authorities shall the notice to have been delivered, refused, or undeliverable, is evidenced by the return receipt or proof of deliver, Notwithstanding any other provision hereof, Lessor shall als-o have the right to give notice to Lessee in any other manner provided by taw If there shall be .mote than one Lessee, any notice required or permitted by the terms of this Lease may be given by or to any one thereof,. and ,shalt have the same force and effect as if given to allthereof Section. 21,5 Captions and Section Numbers. The captions; section numbers, and atilele- numbers appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of such sections or articles -of this Lease nor in any way affect this Lease, Section 21,6 Partial Invalidity. If any term, covenant or condition of this Lease or the .application thereof to any person or circumstances shall, to any extent,. be invalid or unenforceable, the re:nainder of this Lease, the application of such term, covenant or condition to persons or circumstances -other than 'those as to Which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Lease shall be valid and enforceable to the fullest extent permitted by law, Section 21-,7 Estoppel Certificate, Lessee agrees that it will, at any time and from time to time, within ten .(10) Business days 42 following written notice ley Lessor specifying that it is given pursuant to this Seetion,.exeoute, acknowledge and deliver to Lessor a statement in writing certifying that this Lease is unmodified. and in full force and effect (or if there have been modifications, that the same is in fill] force and effect and stating the modifications), and the date' to which the lylinimu.nr Base Rent, Percentage Rent and any other payments due hereunder from Lessee have been paid in advance, if any, and stating Whether ar not:there are defenses or offsets claimed by Lessee and whether or not to the best knowledge of Lessee, Lessor is in default in performance of any, covenant., agreement or condition contained in this Lease, and if so, specifying each such default of' which Lessee inay have knowledge, The failure of Lessee to -execute, acknowledge and deliver to Lessor a statement in accordance with the provisions ofthis Section within said ten (10) Business day ,period shall constitute Lessee Default hereunder and shall also constitute an acknowledgment by Lessee, which may be relied on by .any person holding or proposing to acquire an interest in the Property or any part thereof or this Lease from or through the other party, that this Lease is unmodified and in full force: and effect and that such rents have been duly and fully paid to and including the respective due dates immediately preceding the date of such notice and shall constitute, as to any person entitled as aforesaid to rely upon such statement, a waiver of any defaults which may exist prior to the date of such notice, It is agreed that nothing contained in .the provisions of this Section shall constitute waiver b,y Lessor of any default. in payment of Rent or other charges existing as of the date of' such notice and, unless expressly consented to in writing by Lessor and,. Lessee shall still remain liable for the same, Lessor agrees that it will, at any time and from time to time, within fifteen (ld) Business days following written notice. by Lessee specifying that it is given pursuant to this Section, execute., acknowledge and deliver to Lessee or any lender providing financing to Lessee, a statement in writing certifying that this Lease is unmodified. and. in full force and effect (or if there have been modifications, that the same is in hall force and effect and stating the modifications), and the date to which the Minimum Base Resit, Percentage Rent and any other payments due hereunder front Lessee have bean paid in advance, if any, and stating whether or not there are defenses or offsets claimed by Lessor and whether or not to the best knowledge of Lessor, Lessee is in default in 'performance of any, covenant, agreement 'Or condition contained in this Lease, and if so, specifying each, such default of which Lessor may have knowledge, The failure of Lessor to execute, acknowledge and deliver to Lessor a statement in aocordance with the provisions of this Section within said thirty (30) Business Day period shall constitute an acknowledgment by Lessor, which may be relied on by any Berson holding or proposing to acquire an interest in the - Property, including, without limitation, any leasehold mortgage upon the Leasehold Estate, or any part thereof or this lease from or through the other party, that this Lease is unmodified and in full force -and effect and that such rents have been duly and fully paid to and including the respective due dates immediately preceding the date of such notice and shall constitute, as to any person entitled as aforesaid to rely upon such statement, a waiver of any defaults which may exist prior to.the date of such not.ioe, Section 21,9 Waiver, Failure on the part of either Party to complain of any -action or non -action on the part of the other, no matter how long t'hp saute may continue, shall never be deemed to be a waiver by such panty of any of its rights hereunder. Further, it is covenanted and agreed that no waiver at any time of any of the provisions hereof by either party shall be construed as a waiver of any of the other provisions hereof., and that a waiver at any time of any of the provisions hereof shall not. be construed es* a waiver at any subsequent time of the same provisions, The consent .or approval to or of any .action by either party requiring such consent or approval shall not be deemed to waive o.r render unnecessary such consent -or approval to or of any subsequent similar sot by such party.. Section 21,10 Time ia of the Essence, Time is of the essence with respect to the performance of every provision ofthis Lease in which time of performance is a factor, Section 21,11 Governing Law. It is the intent of the Parties hereto that all questions with respect to the construction of the Lease and the rights and the liabilities of the Parties hereto shall be determined in accordance with the laws of Florida and that all disputes arising hereunder shall he board and decided in Miami-Ded.e County, Florida. Section 21.12 Waiver of Counterclaims. Lessee shall not impose any counterclaim or counterclaims for damages (except for cornpulsoiy counterclaims) in a summary proceeding or other action based. on termination or holdover, it being the intent of the Parties hereto that Lessee is ,strictly limited in such instances to bringing a separate action in the court of appropriate jurisdiction, The foregoing waiver is a material inducement to Lessor making, 43 executing and delivering this Lease and Lessee's waiver of its right to counterclaim (except for eompulsoty counterclaims) in any summary proceeding -or other action based on termination or holdover is done so knowingly, intelligently and voluntarily. Section 2 t,13• Waiver of Luty Trial. Lessor and Lessee hereby waive trial by jury in any action, proceeding or countercla.im`brought by either of the. Parties hereto against the other on, or in respeot of, any matter whatsoever arising out of or in any way connected with this. Lease, the relationship of Lessor and Lessee hereunder, Lessee's use or occupancy of the Lease Property and/or any claim of injury or damage. Section 21,14 Quiet. Enjoyment, Upon the ohservanoe by_thc:_Lesse hereu17de _C2f_all_tho_tf rms,spC2Yisions,J oi+enarlts_and conditions imposed upon the Lessee, the Lessor covenants to the Lessee that the Lessee shall peaceably and quietly hold, occupy and enjoy the Property for the Lease Term without any interruption, disturbance or hindrance by the Lessor, its suocessors:and assigns, or by persons claiming by, through or under the Lessor fbr the Property leased herein, or by persons with -title superior to the Lessor, its:suocessors and assigns, Section 21.,15 Surrender of Possession, • Upon the expiration or earlier termination of the Lease pursuant to the provisions hereof,- the Lessee shall deliver -to the Lessor possession of the Property in good repair and. condition, reasonable wear and tear excepted, • Section 21,16 Joint and Several Liability, If two or more individuals, corporations, partnerships or other `business associations (or any combination of two or more thereof) shall sign this Lease as Lessee, or by virtue of a Transfer assume the lights and Obligations of the Lessee hereunder, the liability of each such individuals, corporations, partnerships or other business associations (or any combination of two or more there'd) to pay Rent and perform all other obligations hereunder shall be deemed to he. joint and several, and all notices,. payments and agreements given or made 'hy, with or to any one of such individuals, corporations., partnerships or other business associations (or any combination of two or more thereof) shall be deemed to have been given or trade by, with or all of them. Section 21,17 Third Party Beneficiary, Nothing contained in this Lease shall be construed so as to confer upon any other party the rights of third party beneficiary, Section 21,18 R.adort. Radon i:s a naturally ocatlming radioactive gas that, when it has aecunluldted in a building in. sufficient quantities, may present health risks to persons who are exposed to it over time, Levels of Radon that exceed Federal and State guidelines have been found in buildings in Florida, Additional information regarding Radon and Radon testing may be obtained from your county public'health unit. Section 21,19 No Liability for Act of'othei Party Lessee shall not sign any contract, application for any license or permit or clo 'anything that may result in 'liability to the Lessor for any indebtedness or obligation of Lessee, unless expressly provided herein or approved in writing by tha Lessor, Exceptt-as expressly authorized in writing, neither Lessor nor Lessee shall make any express or implied agreement, warranties, guarantees or representations. or incur any• debt, or represent that their relationship is other than. Lessor and Lessee, unless otherwise agreed to herein for the -management :and operation of the Property and neither Lessor nor Lessee shall he obligated by or have any liability under any agreements or representations made by the other that are not expressly authorized as aforesaid. Lessor reserves the right, at its sole option, to refuse an agreement for any Federal, State or local grants and loans when the acceptance of 'same by either Lessor or Lessee may impose a hardship upon .Lessor or include obligations whlah extend beyond the Lease Terri, Section 21,20 Rights Privileges and Immunities ; Covenants. The Lessee shall have, and the Lessor shall fully cooperate in providing to the Lessee, for its use and enjoyment, all rights, privileges and haimunities as shall from time to time be granted or afforded by Federal, State or local law to restaurant operators or proprietors And operators and proprietors of uses comparable to those included. among the Permitted YJses, The Parties agree Chat each of the terms, covenants and conditions hereof agreed to be observed or . performed by.each party shall constitute concurrent conditions of exchange, Section 21,21 City ofMinmi Hiring Lessee agrees that a minimum of fifteen percent (15%) of the- contract value for the construction of the Leasehold ItnproVements will be performed by an entity then certified by Miami -Dade County as A 44 Community Small Business Enterprise, Lessee anticipates that the marina and restaurant operations at the Property will generate approximately 200 full time equivalent jobs upon stabilization. Lessee agrees to work with South Florida Work Force and the G ity's Economic Initiatives and Access Programs to advertise all of the Lessee's entry level positions. Commencing as of the date that the Leasehold Improvements are completed, Lessee agrees to use good faith efforts to ensure that at least sixty percent (60%) of its. employees are City of Miami residents, The calculation of -employees will be based on the total payroll of the Lessee, including operational and. administrative staff, After the third anniversary of the completion of the Leasehold Improvements, the commitment set forth above will be 'reduced to forty (40) peroent, The foregoing requirements. shall not apply to Sub -lessees, Lessee shall make an annual charitable contribution of thirty thousand dollars ($30,000) every year of the Lease Term to help fluid a charitable hospitality -related organization ,selected by Lessee in consultation with. the City :Manager. [signature page follows] 45 IN WITNESS WHEREOF', Lessor and Lessee have executed this Lease, or have caused the same to be executed, as of the date and year first above written, LESSOR: CITY OE MIAMI, a . unioipal corporation of the St E Flnri, a B AT'T"ES' ? By; Todd Ha Cit)s Clerk AM' RE Ivin Ellis, Dir isk Manage a,-nt Department City Attorney Johnny M Ctty-Man ED A''.TO FOR AND THE'.; GROUP, company , •rfAciG/Z Title PAL / .o(eig'y, Tizrt,e, ofeor Company Name By; Name Title Company Name 46 ` dt'ot a M 'ndez LESSEE; By; GROVE BAY INVESTMENT LLC, a :Florid ' •ited liabllit Title CORPORATE SEAL EXHIBIT "A" SCHEDULE OF LEASEHOLD IMPROVEMENTS" Minimum Marina Renovations • Complete interior/exterior restoration of the two (2) hangar buildings to afford best utilization of available space for dry rack storage and other uses, • Construction/refurbishment of visually appealing concrete pavement design and construction of -ns ayi r/hiratyartbnrneeraFpropriate-vuhie cs-and-loads-tcrresult-front': proposed -minim use. • Complete clock/bulkhead restoration or replacement alongside .marina in a manner hot ro-geneous in appearance with the restoration of the adjoining bulkhead for the casual and formal restaurantportions of the Property, Minimum Casual Restaurant Renovations • Installation of outdoor covering to facilitate patio use. • Instahatinn of air conditioning within the enclosed areas, • Complete renovation of restaurant according ,to federal, state and local regulations and.00de requirements, • Complete dock/bulkhead restoration or replacement alongside casual restaurant in a manner homogeneous to appearance with the restoration of the adjoining bulkhead, for the marina and Nana l restaurant portions of the Property, - • All •applicab le ADA requirements and improvements. Minimum Formal Restaurant Renovations • Complete remodeling of the interior to reflect the appearance of modern restaurants, Complete renovation of restaurant in compliance with all applicable federal, state and local regulations. • Structural modifications to windows so as to provide full height windows to improve waterfront. visibility, Repair of entire dock/bulkhead alongside formal restaurant in a manner homogeneous in appearance with the restoration of the adjoining bulkhead for the marina/casual restaurant portions of the Property, • All applicable ADA improve.' ents. Dock Renovations • Construction of e fixed dock in front of formal restaurant portion of Property; • Renovation of finger pier at casual restaurant. Garage Retail • Build -out of Parking Facilities Retail Area to be provided by City *The Leasehold Improvements set forth in. the Proposal, to the extent inconsistent with the description set forth herein, shall. supersede the descriptions set forth in this Exhibit A, 47- EXHIBIT "B" GRAY SHELL STANDARDS 1. Continuous smooth, clean, level completed concrete floor, ready to receive finishes. 2, Demising walls will be bill height metal stud, 3 5/8" 20 ga., 24" oc. 3, Storefront will have eight (8) aluminum frame glass entrance doors, evenly spaced, located as Lessee shall specity,with hardware installed; and storefront shall have laminated. safety glass window fronts, 4, Interior of exterior walls and interior of demising walls will be finished. with code compliant drywall, sanded, and ready for paint, S, No interior walls are provided. .6. Eight (8) Rear service door, evenly spaced, located as Lessee shall specify, with hardware installed. 7. Plumbing a. Water and sewer stubbed to meter room location to be agreed upon by lessor and lessee during the design process„ with water meter, .Lessee shall be responsible for distribution, b, Fire sprinkler system installed throughout, including risers, but without drops. 9. Electrical a, 200 amp, 3-Phase electrical, stubbed to panel in meter room location specified by Lessee and lessor during the design phase, with electrical meter. b. One (1) exit/emergency light fixture or as shown on -plan c, Conduit and box for exterior tenant signage or asshown on plan COMPOSITE EXHIBIT "Cl" PROPERTY LEGAL DESCRIPTION (PARCEL 1) (MARINA/BOATYARD UPLANDS) A portion of Tract A of Dinner Key, according to the plat thereof es recorded in plat book 34, at page 2, of the Public Records of Miami Dade County, Florida and a portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida -more particularly described as follows: Catnnrenoe at the Southwest corner, 'of the Northwest 14, of said Section 22; Thence. South 02°24'44" East, along the Southerly extension of' the West line of the NW 1/4 of said Section 22, for 436,51 feet; Thence North 86'27'43" East fer 75,86 feet to a point labeled Hi,-78-C, said point being a point of intersection with the U,S, Pier -bread Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami. Dade County, Florida, said line also being thee Northwesterly line of TILE, Deed No. 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Pubilo Records of Miami -Dade 'County, Florida; Thence along said U,S, Pier -Head 13u.lklieacl line, for the following described four (4) courses; 1) Thenoe South 77°01' 17" East, for 669,48 feet to a point labeled I-1L-78-B; 2) Thenoe North 74°08' 10" East for 526,25 feet to a point labeled HL-78-A; 3) Thence North 43°0.8'20" East for 250,00 feet; 4) Thence North 12°08'10" East, far 88.25 feet; Thence North 45°44'46" West, departing the previously described line, for 3,75 feet to a point on the outside face of an existing Seawall; Thence along the outside face of said seawall for the 'following described twelve (12 ) oourses; 1) Thence continue North 45°44'46" West for 12,58 feet; 2) Thence North 4.6°50'16" West for 262,72 feet to the Point of Beginning of the hereinafter described parcel; 3) Thence North 47°06'49" West for 73,59 feet; 4) Thence North 02°02'56" East for 0,70 feet; 5) Thence North 47'0'7'52" West for 59,52 feet; 6) Thence North 43°12'49" East for 100,72 feet; 7) Thence South 46°47'08" East for 61.00 feet; 8) Thence North 88°45'00" East for 0,64 feet.; 9) Thence South 47°14'37" East for 41,99 feet; 10) Thence North 61°42:'01" East for 21,07 feet; 11) Thence South 30°14'35" Fast for 2,75 feet; 12). Thence North 62°.06'03 East for 5,43 feat to a point of intersection with the Southerly extension of an existing chain link fence; Thence along said chain link fonoe and its .southerly extension for the following described three (3) °our;ses; 1) Thenoe North 49°34'23" West for 26,67 feet; 2) Thence South 49°46'11" West for 14,07 feet; 3) Thence North 46°34'27" West for 4:8,90 feet to a point of intersection with the Southeasterly extension of the edge of an existing concrete slab; Thence along the previously described edge of concrete and its Southwesterly and Northerly extensions for the following descried five (5) courses; 1)Thence North 41°51'16" East for 19,89 feet; 2) Thence North 45°40'17" West for 20,02 feet; 3) Thence North 41 °51'16" East for 10,30 feat; 4) 'Thence North.48°08'44" West for 26,07 feet; 5)Thence North 43° 17' 10" East for 63,60 feet to a point of intersection with the Boundary line of the tract of land desor.ibed , tnder Exhibit A in that certain Lease Agreement recorded in Official Records Book 99:16, at Page 1110, of the Public Records of Miami Dade County, Florida; Thence along the previously described Boundary line, and its Northerly extension, for the following described two (2) oourses; 1) Thence North 76° 17'34." West for 63,38 feet; 2) Thence North 12055'28" East for 138,99 feet to a point of intersection with the back of an existing concrete sidewalk; Thence along the back of saidconorete sidewalk, for the following described twenty one (21) courses; 1) Thence North 47°44'58" 'West for 12,22 feet to a point of curvature of a oircular ourve concave to the Northeast; 2) Thence Northwesterly, along the are of said. ourve to the right, having a radius -of 98,00 feet and a central angle of 16°31'40" for a distance of 28,27 feet to the point of tangency; 3) Thence North 31 ° 13' 18 West for 14.48 feet to a point of curvature of a circular curve concave to the Southwest; 4) Thence Northwesterly, along the arc of said curve to the left, having a radius of 100,00 feet and a central angle of 11'38'35" for a distance of 20,32 feet to a point of tangency; 5) Thence North 42°51'53" West. for 5.10 feet to a point of curvature of a circular curve concave to the Southwest; 6) Thence Northwesterly, along the arc of .Said curve to the left, having a radius of 33.00 feet and a central angle of 33°27'08" for a distance of 19.27 feet to the point of tangency; 7) Thence North 76°19'01" West for 64.42 feet; 8) Thence South 13°57'56" West for '1,47 feet; 9) Thence North 75°50'29" West for 25,93 feet; 10) Thenoe North 45°02'51" West for 18,31 feet to a point of curvature of e oircular curve concave to the Southwest; 11) Thence Northwesterly, along the are of said curve to the left, having a radius of 64,79 feet and a central angle of 11°21'21" for a distance of 12,84 feet to the point of tangency; 12) Thence North 56°24'12" West. for 5,41 teeth to a point of curvature of a circular curve concave to the Northeast; 13) Thence Northwesterly, along the are of said curve to the right, .having a radius of 23.50 'feet 49 and a central angle of 30°58'59" for a distance of 12,71 feet to the point of tangency; 14) Thence. North 2S°25' 13" West for 6.96 feet to a point of curvature of a circular curve concave to the South; 15) Thence Northwesterly, along the arc of said curve to the lefi, having a radius of 3.00 feet and a central angle of 51 °39' 10" for a distance of 2,70 feet to the point. of tangency; 16) Thence North 77'04'23" West for 125.67 feet to a point of curvature of a circular curve concave to the South; 17) Thence Northwesterly, Westerly and Southwesterly along the are of said curve to the left having e radius of 10.15 feet and a central angle of 14°26'49" for a distance of 2,56 feet to the point of tangency; 18) Thence South 88°28'48" West for 17,55 feet, 19) Thence North 76°52' 13" West for 28,42 feet; 20) Thence South 76°97'38" West for 40.18 feet to a point of curvature of a circular curve concave to the Northwest; 21) Thence Southwesterly, along the arc of said curve to the right, having a radius of 43,33 feet and a central angle of 09°48'56" for distance of 7,42 foot to a point of intersection with a line parallel with and 95,00 feet Northwesterly of, as measured at right angles, the Northwesterly outside face of an existing building; Thence South 13° 0:1'32" West, along the previously described line, for 135,78 feet; Thence South 12 46'52" West, departing the previously described line, for 37.38 feet to a point of intersection with a line parallel With and 95.00 feet Northwesterly of, as pleasured at righh angles, the Northwesterly outside face of an existing building; Thence South '13 07'29" West, along the previously described line and its southerly extension, for 148.75 feet; Thence South 07'43'57" West for 9,81 feet; Thence South 49'47'35" West for 4,49 feet; Thence South 43°01'12" East for 77.73 feet; Thence South 43'33'00" East for 54,15 feet; Thence South 43°26'13" East for 4.35 feet; Thence South'49°06'57" East for 20,77 feet to a point of curvature of a oiroular curve oonoeve to the northeast; Thence Southeasterly, along the arc of said ourVe to the left, having a radius of 374.00 feet anda central' angle of 09°28' I6" for a distance of 61,82 feet to the point of tangency; Thence South 57°35'13" East for 23.28 feet; Thence South 80°19'31" East for 172,00 feet; Thence South 79°19'15" East for 13,.23 feet to a point of intersection with the back of an existing concrete sidewalk nmning along the north side of Pan Arnerican Drive; Thence, along the baok of said existing sidewalk and its northeasterly extension, for the fbllowing described five (5) courses; 1) Thence South 74°54'37" East for 28,80 feet; 2) Thence South 77°42'57" East for 5,71 feet to a point of curvature of a circular curve concave to the Southwest; 3) Thence Southeasterly, along the arc of said curve to the right, having a radius of 222.00 feet and a central angle of 21°55'13" for a distance of 84,93 feet to a point on said curve; 4) Thence North 87°54'54" East for 5,28 feet; 5) Thence North 42°23' 1'1" East for 11.27 feet to the Point of Beginning. Containing 195,848 sq. ft, or 4.50 acres more or less. '50 LEGAL DESCRIPTION (PARCEL 2) (FORMAL RESTAURANT & RESTAURANT PARTING) A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book 34, at page 2, of the Publie Records of Miami Dade County, Florida and a portion. of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more particularly described as follows: Commence at the Southwest corner, of the Northwest' fa, of said Section 22; 'Thence South 02°24'44" East, along the Southerl extension. of the West line of the NW �4, of said Section 22, for 436,51 feet; Thence North 86°27'43•" East for 75,86 feet to a point of intersection with the U,S. Piet -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page .3, of the Public Records of Miami -Dade County, Florida, said point labeled HI_,-7.8 C'. and said line also being. the Northwesterly lino of TILE. Deed No. 19448 to City of Miami, recorded in Deed Book 3130,, at Page 260, of the Public, Records of Miami -Dade County, Florida; Thence along said TJ,S, Pier -Head Bulkhead line, for the following described four (4) courses; 1) Thence South 77'01'17" East, for 669.48 feet to a point labeled HL-78-B. on the previously named. plat; 2) Thenee North 74°08' 10" East. for 526,25 feet to a point labeled HL-78-A on the previously named plat; 3) Thence North 43°08'20" East for 250,00 feet to a point labeled IIL-76 on the previously named plat; 4) Thence North 12°08'10" East for 88,25 feet; Thence North 45°44'46" West, departing the previously described line, for 3,75 feet to a point on the outside fade of an existing Seawall; Thence along theoutside face of said seawall for the following described fifteen :(15 ) courses; 1) Thenee continue North 45°44'46" West for 12,58 feet; 2) Thence North 46°50'1.6" West for 262.72 feet; 3) Thence North 47°06'49" West. for 73,59 feet; 4) Thence North 02°02156' East. for 0.70 feet; 5) Thenee North 47°07'52" West .tbr 59.52 feet; 6) Thence North 43°12'49" East for 100.72. feet; 7) Theme South 46°47108" East for 61,00 feet; 8) Thence North 88°45'00" 'Fast for 0,64 feet:; 9) Thence South 47°14137" East :or 41,99 feet; 10) Thence North 61°42101" East for 21.07 feet; 11) Thence South. 30°14'35" East for 2.75 feet; 12) Thence North 62°06'03" East: fir 87,88 feet to the Point of Beginning of the hereinafter described parcel; 13) Thence continue North 62.'06'03" East for 114,64 feet to a point of curvature of a circular curve concave to the West; 14) Thence Northeasterly, Northerly and Northwesterly, along the aro of said curve to the left, having a radius of 75.00 feet and a central angle of 80°48'49" for a distance of 105.78 feet to the point of tangency; 15) Thence North 18°42146" West for 101.33 feet to a point on the northerly right -of. -way line of Chart House Drive as shown on the sketch of survey elated ,January 14, 1985 referred file No, misc. 61.139 rev, and prepared by Sehwebke & Shiskin and Associates and as shown on that Specific Purpose Survey at Dinner Key Marina, prepared by Biscayne Engineering ; Thence North 76°03'06" West, along the previously described line, for 226.31 feet; Thence South 39°08'26" West, departing the previously described northerly right -of -)Nay line, -flit: 12,87 feet to a point on the northerly edge of pavement of Chart House Drive said point being on a circular curve concave to the Northeast and said point bears South 45°04'04" West from the center of said curve; Thence along the northerly edge of pavement of said. ChartHouse Drive for the following described three (3) courses; 1) Thence' Southeasterly along the are of said curve to the left, leaving a radius of273,78 feet and a eenttral angle of 04°52'06" for a distance of 23,26 feet to a point; 2) Thence South 29°13'50" West for 21.82 feet to a point on a circular cure ooneave to the Northeast and said point bears South 38°44'40" West from ti.e center of said curve; 3) Thenee Northwesterly along the arc of said curve tithe Right, having a radius of 348.97 feet and a central angle of 04°24`23" for a distance of 26.84 fact to a point of intersection with the Boundary line of the tract of land deseribed under Exhibit: A in that certain Lease Agreement recorded in Official Records Book 9916, at Page 1110, of the Public Records of Miami Dada County, Florida; Thenee along the previously described Boundary line, and its Northerly extension, for the following described two (2) courses; 1) Thence South 12°55'28" West for 152,77 feet; 2) Thence South 76°17'34" East for 63,38 feet; ThenceNorth 43°17'10" East, departing the previously described boundary line, for 5.77 feet; Thence South 74°27'18" East for 13.19 feet to a point of curvature of a circular curve concave to the Southeast; Thence Southeasterly, along the arc of said curve to the right, having a radius of 31,50 feet and •a central angle of 33°37109" East for a distance of' 18.48 feet to the point of tangency; Thence South 40°50'09" Fast for 37,58 feet to a point on the northerly end of an existing C.B,S. wall; Thence South 49°09'511' West, along the northerly end of said. existing C.B.S. wall for 0,43 feetto a point on th.e southerly face of said existing C.B.S. wall; Thence South 38°59'48" East, along the southerly face of said existing C,B.S, wall and its southerly extension, for 84.41 feet to the Point of Beginning. Containing 58,242 sq. ft, or 1.34 acres more or less. 51 LEGAL DESCRIPTION (PARCEL 3) (CASUAL RESTAURANT UPLANDS) A portion of Section 22, Tnvvnship 54 South, Range 41 East, Miami -Dade County, Florida, more particularly described as follows: Commence at the Southwest comer, of the Northwest'/n, of said Section 22; Thence South 02°24'44" East, along the Southerly extension of the WeaLline.slf the NW ' of said Section 22, for 436,51 feet;. Thence North. 86°27'43" East, departing the previously described line, for 75,86 feet to a point labeled .. HL-78-C saicipoint being a point of intersection with the U.S. Pier -Head Bulkhead line of 1939 as recorded in ,Plat Bork 74, ttt Page 3, of the Public Records of Miami -Dade County, .Florida, said line also, being the Northwesterly line of TILE, Deed No, 19448 to City of Miami, recorded in Deed .Book 3130,. at Page 260, of the Public Records of Miami -Dade County, Florida; Thenco along said U,S, Pier Head .Bulkhead line, for the following described four (4) courses; 1) Thence South 77°01'17" East, for 669.48 feet to a point labeled 11L-78-I3; 2) Thence North 74°08' 10" East for 526,25 feet to a point labeled' HL-78-A; 3) Thence North 43°08'20" East for 250,00 feet to a point labeled HL-76; 4) Thence North 12°08'10" East for 88.25 feet to a point of intersection with the southerly extension of the outside face of an existing Seawall; Thence along the outsiee face of said seawall and its southerly extension for the following described twelve (12) courses; 1) Thence North 45°44'46" West for 16.33 feet; 2) Thence North 46°50'1'6" West for 262.72 feet; Thence North 47°06'49" West for 73.59 feet; 3) Thence North 02°02'56" East for 0,70 feet; 4) Thence North 47°07'52" West .for 59,52 feet; 5) Thence North 43'12'49" .Bast for 100.72 feet; 6) Thence South 46°47'08' East for 61,00 feet; 7) Thence North 88°45'00" East for 0,64 feat; 8) Thence South 47°14'37" East for 41.99 feet; 9)'Thence North 61°42'01" East for 21,07 feet; 10) Thence South 30° 14'35" East for 2.75 feet; 11) Thence North 62°0003" East for 5,43 feet to the Point of Beginning of the hereinafter described parcel; 12) Thence continue North 62°06'03n East for 82.45 feet; Thence North 38°59'48" West, departing the previously described face of the seawall and running along the southerly face of' an existing C.`,B,S. wall and its southerly extension, for 84.41 feet; Thence North 49°09'51" East along the northerly end of said C,13,S, wall for 0,43 feet to point on the Edge of an existing Asphalt .Pavement; Thence along the Edge of said .Asphalt Pavement and its Northwesterly extension, for the following described three (3) courses; 1) Thence North 40'50'09" West for 37.58 feet to a point of curvature of a circular curve concave to the Southwest; 2) Thence Northwesterly, along the aro of said. curve to the left, having a radius of 31,50 feet and a eentral angle of 33°37'09" for a distance of 18,48 feetto the point of tangency; 3) Thence North 74°27'18" West for 13,19 feet to a point on the Northeasterly extension of the edge of an existing concrete; Thence along the. previously described edge of said concrete and its Northeasterly and Southwesterly extensions for the following descried live (5) courses; 1) Thenee South 43°17'10" West for 69.37 feet; 2) Thence South 48°08'44" East for 26.07 feet; 3) Thence South 41°51'16" West for 10,30 feet; 4) Thence South 45°40'17" East for 20,02 feet; 5) Thence South.41°51.'16" West for .19.89 feet to a point of intersection with an existing chain link fence; Thence along said chairs. link fence and its southerly extension for the following described three (3) courses; 1) Thence South 46°34'27" Fast for 48,90 feet; 2) Thence North 49°46111' East for 14,07 feet; 3) Thence South 49°34'23" East for 26.67 feet to the Point of, Beginning, Containing '12,356 sc1• f',, or 0.284 acres more or less, 52 LEGAL DESCRIPTION (PARCEL 6A) (MARINA SUBMERGED LANDS) A portion of Tract A. of Dinner Key, a.ccorcling to the plat thereof as recorded in plat book 34, at page 2, of the Public Records of Miami Dade County, Florida and. a portion of Section 22, Township 54 South, Range 41 East, Miami -Dade C.'unty, Florida, more particularly described as follows; Commence at the Southwest corner, of the Northwest'/a, of said Section. 22; Thence South 02°24'44" East, al<>og� the Southerly extension of the West line of the NW '/a of said Section 22, for 436,51 feet; Thence North 86927'43" East for 75,86 feet to a point of intersection with the 1.13, Pier-I-Iead Bulkhead line of '1939 as recorded in flat Book 74, at Page 3, of the Public .Records of Miami -Dade County, Florida., said point labeled FAIL-78-C" and said line also being the Northwesterly line of T,LI,F, Deed No, 19448 to City of Miami, recorded in Deed Book. 3130, at Page 260, of the Public Records of .Miami -Dade County, Florida; Thence along said U,S, Pier -Head. Bulkhead line, for the following described six (6) courses; 1) Thence South 77°01'17" East, for 669.48 feet to a point labeled HE-78-B on the previously named plat; 2) Thence North 74°08'10" East. for 526,25 feet to a point labeled HE-78-A on the previously named plat; 3) Thence North 43°08'20" East for 250,00 feet to a point labeled HE-76 on the previously named plat; 4) Thence North 12°08' 10" East for 88,25 feet; Thencealong the outside face of an existing seawall and. its Southerly extension for the following described twelve (12) courses; 1) Thence North 45°44'46" West for 16,33 feet; 2) Thence North 46°50'16" West for 262,72 feet to the Point of Beginning of the hereinafter described parcel;parcel; 3) Thence North 47°06'49" West for 73,59 feet; 4) Thence North 02°02'56" East for 0,70 feet; 5) Thence North.47°07'52" West for 59.52 feet; 6) Thence North 43' 12'49" East for 100,72 feet; 7) "Thence South 46°47'08" East for. 61.00 feet; 8) Thence North 88°45'00" East for 0.64 feet; 9) Thence South 47°1.4'37" East for 41.99 feet; 10) ThenceNoith 61°42'01" East for. 21.07 feet; '11) Thence South 30°14'35" East for 2.75 feet; :12) Thence North 62°06'03" East for 87.88 feet; Thenoe South 27°53'57" East, departing the previously described existing seawall, for 60,00 feet; Thence South 62°06'03" West for 118.88 feet; Thence North 47°14'37 West for 26.50 feet; Tf enco South. 42°45'23" West for 71..49 feet to the Point of Beginning. Containing 20,317 sq. ft, or 0.47 acres more or less. 53 LEGAL DESCRIPTION (PARCEL 6B) (SUBMERGED LANDS ABUTTING FORMAL RESTAURANT) A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat hook 34, at page 2, of the Public Records of Miami Dade County, -Florida and a: portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more particularly described as follows: Commence at the Soutl west corner, of the Northwest''/, of said Section 22 Thence South 02°24'44" East, along the Southerly extension of the West lute of the NW %a of said Scotion 22, for 436.51 feet; Thenee North 86°27'43" East for 75,86 feet to a point of intersection with the U,S, .Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said point labeled HLA78-C and said line also being the Northwesterly line of T,.I.I.F. Deed No, 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County, :Florida; Thence along said U,S. Pier -Head Bulkhead line, tier the following described four (4 ) courses; 1) Thence South 77°01'17" East, for .669.48 'feet to a point labeled HL 78-B on the previously named plat; 2) Thence North 74'08'10" East for 526,25 feet to a point labeled IL-78-A on the previously named plat; 3) Thence North 43'08'20" East for 250,00 feet to a point labeled HL.76 on the previously named plat; 4) Thence North 12°08' 10" East for 88.25 feet; Thence along the outside face of a'ti existing seawall and its Southerly extension for the following described two (2) courses; 1) Thence North 45°44'46 West for 16.33 feet; 2) Thence North 46°50'16" West for 262.72 feet; Thence North 42'45'23" East, departing the previously described existing seawall for 71.49 feet; Thence ,South 47°14'37" East for 26,50 feet; Thence North 62°06'03" East for 118.88 feet to the Point._ of Beginning of the hereinafter described parcel; Thence continue North 62°06'03" East for 175,75 feet to the point of intersection with the previously described U,S. Pier -Head Bulkhead line of 1939; Thence North 21°08'57' East, along the previously described line, for 146.73 feet; Thence North 76°03'06" West for 119.88 feet to a point of intersection with the outside face of an existing seawall; Thence along the outside fiioe of said existing seawall for the following described three (3) oour;ses; 1) Thence South 18°42'46" East for 53,81 feet to the point of curvature of a circular curve concave to the Northwest; 2) Thence southeasterly, southerly :and southwesterly, along the aro of said curve to the right, having a radius of 75,00 feet and a central angle of 80°48'49" for a distance of 105.78 feet to the point of tangency; 3) Thence South 62°06103" West for 114,64 feet to the Point of B eginnintZ. • Containing 20,579 sq. L. or 0.47 acres more or less; 54 EXHIBIT "D" STATE DEP AGREEMENTS 55 EXHIBIT"E° EXISTING DRY SLIP USE AGREEMENTS (TO BE INCLUDED UPON RECEIPT FROM LICENSEE1 56 EXHIBIT "F" EXISTING PARKING FACILITIES EXHIBIT "G" GROSS REVENUE REPORT 58 GROSS REVENUE SOURCE TENANT NAME GROSS REVENUE REPORT Month of Es1 Total Percentage \npiicable Fee and FI.State Gross Revenue Percentage .Percentage Fee State Use Tax Use Tax Due City Source Source Totals Monthly Fee iF MONTHLY FEE PLUS PERCENTAGE FEE AMOUNT DUE THIS PERIOD I hereby certify to the accuracy of this report, and acknowledge that (Tenant Name) has paid all applicable Florida State sales and use taxes which are due and payable, whether directly or indirectly, under FL. Statute 212 to the State of Florida Department of Revenue***, The City of Miami can relyon the above monthly report tobe true and accurate as submitted. SIGNATURE REMARKS DATE Tenant shall report Gross Revenues of the preceding month on or before the (enterdale) of each month. Any Percentage Rent due and payable shall be remitted with thls report. Make check payable to the City of Miami and return this report together with the proper remittance to: CITY OF MIAMI DEPARTMENT OF PUBLIC FACILITIES 444 SW 2ND AVENUE, 3RD FLOOR ATTENTION: LEASE MANAGER. MIAMI, FL. 33130 * Gross Revenue Report subject to change and revision, Rev. 10/10/13 EXHIBIT "H" • PAYMENT AND PERFORMANCE BOND PERFORMANCE AND PAYMENT BOND • BY TIIIS BOND, We , as Principal, hereinafter called CONTRACTOR, and , as Surety, are 'bound to the City of Miami, Florida, hereinafter called CITY, hereinafter referred to as OBLIGEE, in the amount. of _ _ _ _ _ __ Dollars ($__ _ for the payment whereof, CONTRACTOR and Surety bind themselves, their heirs, executors, administrators, successors and assigns, Jointly and severally WHEREAS, CONTRACTOR has by written agre:entit entered into a Contract, .Bid/Contract No,: . , awarded this day of 20 with which Contract -Documents are by reference incorporated herein and made a part hereof and specifically include. provision for liquidated damages, and other damages .identified and for the purposes of this Bond are hereafter referred to as the "Contract," TI'IE CONDITION OF THIS BOND is that if CONTRACTOR; ] , Performs the Contract between CONTRACTOR and for construction of the Contract being made a part of this Bond by tferonce, at the times and in the manner prescribed in the Contract; and. 2. Pays CITY all losses, liquidated damages, expenses, costs and attorney's fees, including appellate proceedings, that CITY sustains as a result of default by CONTRACTOR under the Contract; and 3. Promptly makes payments to all claimants, as defined by Florida Statutes 255.05(1) for all labor, materials .and supplies used directly or indirectly by -CONTRACTOR in the per•:tbrmanee of the Contract; THEN CONTRACTOR'S OBLIGATION SHALL BE VOID; OTHERWISE, IT SHALL REMAIN IN FULL FORCE AND EFFECT SUBJECT,, HOWEVER, TO THE FOLLOWING CONDITIONS; 3,1 A claimant except a laborer, who is not in .privity with CONTRACTOR, and who has not received payment for its labor, materials or supplies, shall, within. forty-five (45) days after beginning to furnish.labor, materials or supplies for the prosecution of the work, trrnish to CONTRACTOR, a notice that he intends to look to the bond for protection, 3,2 A claimant who is not in privity with CONTRACTOR and who has not received payment for its labor, materials or supplies, shall, within ninety (90) days after performance of the labor or after complete delivery of the materials or supplies, deliver to CONTRACTOR and to the Surety, written, notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment, 3,3 No action for the labor, .materials or supplies may be instituted against CONTRACTOR or the Surety unless' the notices stated under the preceding conditions (2,1) and (2.2) have been given, 3.4 Any action under this Bond must be instituted in accordance with the longer of the ap•plioable.Notiee and Time Limitations provisions prescribed in Section 255,05(2) or Section 95.11, Florida Statutes. 60 4 Performs the guarantee of all work and materials furnished under the Contract for the time specified in the Contract; then THIS BOND IS V(ID. OTHERWISE IT REMAINS IN FULL FORCE AND EFFECT, Whenever, CONTRACTOR shall be, and is declared by CITY to be, in default under the Contract, _ having performed CITY obligations there under, the Surety may promptly remedy the default or shall promptly: 4,1 Complete the Project in accordance with the terms and conditions of the Contract Documents; or 4,2 Obtain a bid or bids for completing the Project in accordance with the terms and conditions of the Contract Documents,_ and upon determination by Surety of the lowest responsible Bidder, or if elects, upon determination by and Surety, jointly of the lowest responsible Bidder, on'ange fora contract between such Bidder and and make available as work progresses (even. though there .should. be a default or a .succession of defaults under the Contract or Contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the Contract Price; but not exceeding, including other costs and damages for which the Surety' may be liable. hereunder, the amount set forth in the first paragraph hhereof The term "balance of the Contract Price" as used in this paragraph, shall mean the total amount payable by CITY to CONTRACTOR under the Contract and any amendments thereto, less the amount properly paid by . to CONTRACTOR, No right of action shall accrue on• this bond to or for the use of any person or corporation other than CITY named herein, The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and compliance or noncompliance with any formalities connected with the • Contract or the changes does not affect Surety's obligation under this Bond, Signed and sealed this day of • , 20_ WITNESSES/ATTEST, CONTRACTOR: Contractor) 61 (Name (CORPORATE SEAL) IN THE PRESENCE OF: INSURANCE COMPANY Fact) By: (Agent and Attorney -in - (Street) Address: (City/State/Zip Code) Telephone No,: 62 EXHIBIT "I" EXISTING IMPROVEMENTS EXHIBIT ",I" INSURANCE REQUIREMENTS Lessee, at its sole cost, shall obtain and maintain in full .force and effect at all times throughout the period ofthis Lease, the following insurance coverage; I. Commercial General Liability Limits of Liability Bodily Injury and. Property Damage Liability Each Occu.rxence $1,000,000 General Aggregate Limit $2,000,000 Products and Completed Operations $1,000,000 Personal and Advertising Injury $1,000,000 Damage to rented premises $100,000 Endorsetnents Required City of Miami lasted as an Additional Insured Additional insured endorsement required Conti ).gent Liability & Contractual Liability Premises/Operations Liability II, Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Cornbined Single Limit Any Auto/Owned/Scheduled. Including Aired, Borrowed or Non -Owned Autos Any One Accident. Endorsements Required City dfMiami listed as an Additional Insured III,. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation $500,000 IV, Employer's Liability Limits of Liability Bodily injury caused by an accident, each accident $500,000' Bodily injury caused by disease, each employee $500,000 Bodily injury caused by disease, policy limit $500,000 Liquor Liability A, Limits of Liability Each Occurrence $1,000,000 VI, Excess Liability/Umbrella Policy A, Limits of Liability Bodily Injury and Property Damage Liability 64 Each Occurrence. $3,OOO,00O Aggregate $3,000,000 City of Miami listed as an additional insured, 'Umbrella should include liquor liability VIL Marine Operators Legal Liability A. Limits of Liability Eaoh Occurrence $1,0o0;000 VIIL "All Risk" Causes of Loss: special form coverage, including theft, windstorm and flood coverage, and equipmelit breakdown coverage, Valtiation: 100%. replacement cost on building. and Lessee's business personal .property, including improvements, all its equipment, fixtures and furniture. The Lessee must furnish a Certificate of insurance for affording coverage for the building or premises Business Income and Extra Expense should be included preferably issued on an Actual Loss Sustained Basis, The City's .Department of Risk Management, reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Lessee. The Lessee shall provide any other insurance or security reasonably required by the City, The polioyor pol.ioies,of insurance required shall provide for notice of eanoellation or material changes in accordance to policy provisions. Said notice should be delivered to the City of Miami, Department of Risk Management, 444 SW 2 Avenue, 9«' Floor, Miami, Florida 33130, with copy to City of Miami, Department of Public Facilities, 444 SW 2 Avenue, art Floor, Miami, Florida 33130, or such other address that may be designated from time to time, A current evidence and policy of insurance evidencing the aforesaid: required insurance coverage shall be supplied to Department of Public Facilities of the City at the commencement of this Lease and a new evidence and policy shall be supplied at least twenty (20) days prior to the expiration of each such policy, Insurance policies required above shall be issued by companies authorized to do business under the laws of the State, with the following qualifications as to. management and financial strength: the company or companies should be rated "A-" as to management, and no less than Blass "V". as to financial strength, in accordance with the latest edition of Best's Key Rating Guide, or the company or companies holds a valid Florida Certificate of Authority issued by the State of Florida, Department of insurance, and. is a member of the Florida (-guarantee Fund, .Receipt of any documentation of .insurance by the City or by any of its representatives, which indicates less coverage than required, does not constitute a waiver of Lessee's obligation to fulfill the insurance requirements herein, • hi the event Lessee shall fail to procure and place suoh. insurance, the City may, but shall not be obligated to, procure and, place sane, in whichevent the amount of the premium paid shallbe paid by Lessee to the City as an additional foe upon demand and Shall in each instance becollectibleon the 'first day of the month or any subsequent month following the date of payment by the City. Lessee's failure to procure insurance shall in no way release Lessee from its obligations and responsibilities as provided herein. 65 INSURANCE REQUIRE.IVIE.NTS CONSTRUCTION PORTION MARINA/RESTAURANTS I.. Commercial General Liability Limits •ofLiability Bodily Injury and Property Damage Liability Each Occurrence • $1,000,000 General Aggregate Limit $2,000,000 Products/Completed Operations $1,000,000 Personal and Advertising Injury $1,000,000 II. HI, Endorsements Required City of Miami listed as an Additional Insured Employees included as insured Independent Contractors Coverage Contractual Liability Premises/Operations Explosion, Collapse and Underground Hazard Loading and Unloading Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident Endorsements :Required City of Miami listed as an Additional Insured Worker's Compensation Limits of Liability Statutory -State ofPlorida Waiver of subrogation USL&IH if Applicable $1,000,000 IV. Employer's Liability A., • Limits of Liability . $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury oaused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit V. Owner's & Contractor's Protective A, Limits of Liability Each Occurrence $1,000,000 $1,000,000 Policy Aggregate City of Miami listed as named insured VI., Excess Liability/Umbrella Policy A, Limits of Liability Bodily Injury and. Property Damage Liability Each Occurrence 66 Aggregate $5,000,000 City of Miami listed as an additional insured . VII. Payment and Performance Bond TBD VIII. City orMiami Listed as Obligee Builder's Risk Causes of Loss; Special /All Risk Valuation: RepIacemu.ent Cost Deductible: 5% wind and hail City listed as loss payee IX. Protection and Indemnity (If applicable) $ I ,000,000 .Jones Aot included, 67 EXHIBIT "C" Parking Agreement (attached) 12 GROVE BAY PARING FACILI'I IES AGREEMENT BY AND BETWEEN CITY OF MIAMI, FLORIDA, A MUNICIPAL CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF FLORIDA, DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI, D/B/A MIAMI PARKING AUTHORITY, AND GROVE BAY INVESTMENT GROUP, LLC GROVE BAY PARKING FACILITIES AGREEMENT This GROVE BAY PARKING FACILITIES AGREEMENT (this "Agreement") is entered into this day of ("Effective Date"), by and between (i) CITY OF MIAMI, a municipal corporation organized under the laws of the State of Florida (the "City") (ii) the DEPARTMENT OF OFF-STREET PARKING of the City of Miami d/b/a MIAMI PARKING AUTHORITY, an agency and instrumentality of the City of Miami, Florida ("MPA"), and (iii) GROVE BAY INVESTMENT GROUP, LLC("Grove Bay" and, together with the MPA and the City, the "Parties"). RECITALS A, The City owns the waterfront properties located at 3385 Pan American Drive and 51 Chart House Drive, Miami Florida, as more particularly described in Exhibit "A" (the "Marina Property") and that certain property at the intersection of South Bayshore Drive and Pan American Drive as more particularly described in Exhibit "B" (the "Parking Property"). B. Under the terms of Request for Proposals No. 12-1.3-001 (the "RFP"), the City sought bids for the lease and redevelopment of the Marina Property and for the lease of approximately 40,000 square feet of retail uses (the "Parking Facilities Retail Area") to be located within the Parking Structure (as defined below). C. Consistent with the thirds of the RFP, the City approved a Lease Agreement (the "Lease") with Grove Bay for the Marina Property and the Parking Facilities Retail Area. D. The RFP and the Lease contemplate that the MPA will construct certain improvements within the Parking Property to, among other matters, replace existing parking spaces that served the Dinner Key Auditorium and provide convenient parking for the patrons of the existing and proposed development contemplated by the Lease. E. Section 1.1.27 of the Lease contemplates that, with respect to the Parking Property and the Parking Structure, the City and MPA are deemed interchangeable terms in relation to the parking obligations; however, the Lease does not fully describe the contemplated relationship between the City, MPA and Grove Bay with respect thereto. F. The MPA was created, pursuant to Section 23 of the Charter of the City of Miami, Florida ("Charter"), to manage off-street parking facilities throughout the City of Miami. G. The Florida Interlocal Cooperation Act of 1969, Chapter 163, Part I of the Florida Statutes ("Act"), permits local governmental units to make the most efficient use of their powers by enabling them to cooperate with other agencies on a basis of mutual advantage and thereby to provide services and facilities in a manner and pursuant to forms of governmental organization that will accord best with the needs of local communities, such as those contemplated herein. H. Pursuant to Sections 23 and. 29-B(c) of the Charter, the City and MPA entered into that certain Interlocal Agreement, dated (the "Interlocal Agreement"), which Interlocal Agreement contemplates that MPA will be responsible for the construction of the Parking Facilities and certain obligations of the City under the Lease, as modified in this Agreement. I. The Parties desire to enter into this Agreement in order to set forth the agreements and covenants of the Parties, in connection with the Parking Property and the Parking Facilities to be constructed thereon, including, without limitation: (i) the MPA's obligations in connectionwith the construction of the Parking Facilities, (ii) the respective obligations of the Parties with respect to the operation of the Parking Facilities, including, without limitation, the Parking Facilities Retail Area, (iii) the rights of Grove Bay and its Permittees to use the Parking Facilities; and (iv) such other agreements with respect to the Parking Facilities, including, without limitation, the Parking Facilities Retail Area, contained herein. NOW, THEREFORE, in consideration of the mutual promises of the Parties contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: ARTICLE I DEFINITIONS Section 1.1 Definitions. Any word contained in the text of this Agreement will be read as the singular or the plural and as the masculine, feminine, or neuter gender as may be applicable in the particular context. Capitalized terms used but not defined herein will have the meanings assigned to such terms in. the Lease. Notwithstanding the foregoing, the following capitalized terms shall have the following meanings: "Approved Architect" shall mean any design professional listed as "Architect of Record" for the construction of the Parking Facilities. The Approved Architect shall be certified under 481.219, Florida Statutes to practice architecture. "Building Operating Systems" shall have the meaning ascribed to such term in Section 2.4(d) of this .Agreement. "Business Day" shall mean Monday through Friday, inclusive, other than (i) holidays recognized by the City of Miami or the federal government and (ii) days on which the City of Miami or federal government closes for business as a result of severe inclement weather or a declared national emergency which is given legal effect in the City of Miami. If any item must be accomplished or delivered under this Agreement on a day that is not a Business Day, then it shall be deemed to have been timely accomplished or delivered if accomplished or delivered on the next following Business Day. Any time period that ends on other than a Business Day shall be deemed to have been extended to the next Business Day. "Certificate of Occupancy" shall mean a permanent certificate of occupancy (free of any conditions) that must be obtained from the appropriate Governmental Authority as a condition to the lawful occupancy of the applicable Parking Facilities (as such term is defined below), or any phase, component or portion thereof, "Certified Area" shall have the meaning ascribed to such term in Section 3.3(f) of this Agreement. "City" shall have the meaning ascribed in the preamble of this Agreement. "City Commission" shall mean the legislative body of the City as designatedin the Charter of the City of Miami. "City Manager" shall mean the chief executive officer and administrator for the City and which, unless stated otherwise herein this Agreement, shall be responsible for the primary administrative decision -making authority for the City. "Commercially Reasonable Business Efforts" shall mean, that, as and whenrequired, the Person charged with making such effort is timely and diligently taking, or causing to be taken, in good faith the steps usually and customarily taken by an experienced real estate lessee or owner, as applicable, seeking with reasonable due diligence to lawfully achieve the objective to which the particular effort pertains. "Design" shall have the meaning ascribed to such term in Section 3.2 of this Agreement. "Excess Parking Hours" shall mean the amount of free parking time provided by the MPA to any Qualified Marina User parking within the Parking Structure during any period in which more than eighty (80) Qualified. Marina Users are simultaneously parked within the Parking Structure, but only with respect to the amount of actual free parking time provided by the MPA to those Qualified Marina User(s), in excess of_ eighty (80), parking within the Parking Structure during such period. "Executive Director" shall mean the chief executive officer and administrator for the MPA and which, unless stated otherwise herein this Agreement, shall be responsible for the primary administrative decision -making authority for the MPA. Executive Director shall also mean any duly authorized designee of the Executive Director for minor contractual matters. "Existing Parking Facilities" shall have the meaning ascribed to such term in Section 4.3 of this Agreement. "Facility Parking Spaces" shall have the meaning ascribed to such term in Section 3.3(d)(2) of this Agreement. "Final Completion" shall mean that, after Substantial Completion, the MPA has completed all punch list items to the reasonable satisfaction of Grove Bay. "First Class Standards" shall mean a quality that is equal to or in excess of the quality of first class mixed use parking and retail projects located in the Cities of Miami, Miami Beach, and Coral Gables. . "Governmental Requirement" shall mean building, zoning, subdivision, traffic, parking, land use, plat and street or other public works, environmental, occupancy, health, accessibility for disabled and other applicable laws, statutes, codes, ordinances, rules, regulations, requirements, and decrees, of any federal, State of Florida, Miami -Dade County, Florida, City of Miami, state, county, municipal or other governmental or quasi -governmental authority or agency pertaining to any or all of the Property. "Grove B y" shall have the meaning ascribed to such term in the Preamble to this Agreement. "Initial Trust Fund Contribution" shall have the meaning ascribed to such term in Section 3.4(0 to this Agreement. "Interlocal Agreement" shall have the meaning ascribed to such term in the Recitals to this Agreement. "Lease" shall have the meaning ascribed to such term in the Recitals to this Agreement. "Marina Property" shall have the meaning ascribed to such term in the Recitals to this Agreement. "MPA" shall have the meaning ascribed to such term in the Preamble to this Agreement. "MPA Site Spaces" shall have the meaning ascribed to such term in Section 4.2(a) to this Agreement. "Parking Facilities" shall mean the Parking Structure, including the Parking Facilities Retail Area, and those other surface parking spaces to be constructed by the MPA, at its sole cost and expense, within the Parking Property, each in accordance with the Design. "Parking Facilities Retail Area" shall have the meaning ascribed to such term in the Recitals to this Agreement. "Parking Property" shall have the meaning ascribed to such term in the Recitals to this Agreement. "Parking Structure" shall mean the multi -level parking facility that the MPA contemplates constructing on the Parking Property in accordance with the Design. "Parties" shall have the meaning ascribed to such tem. in the Preamble to this Agreement. "Permittees" shall mean, with respect to the applicable Party, any tenant, subtenant or other authorized occupant or user of any portion of the Parking Facilities and their respective officers, directors, employees, agents, partners, contractors, representatives, customers, visitors, invitees, guests, licensees and concessionaires. "Plans and Specifications" shall mean the plans and specifications for the Parking Facilities approved by the Parties and based on the Design. "Property" shall mean, collectively, the Marina Property and the Parking Property. "Property Directional Signage Regime shall have the meaning ascribed to such term in Section 4.4 of this Agreement. "Qualified Marina User(s)" shall have the meaning ascribed to such term in Section 4.2(b) of this Agreement. "Qualified Parker" shall have the meaning ascribed to such terra in Section 4.1(a) of this Agreement. "Shared Plumbing Facilities" shall mean the central plumbing system for the Parking Structure. "Substantial Completion" shall mean completion of the Parking Facilities, including the Parking Facilities Retail Area, in accordance with the Plans and Specifications and with all Governmental Requirements (but not including improvements within. the Parking Facilities Retail. Area intended for the occupancy of tenants beyond the Grey Shell Standards attached hereto as Exhibit "E"), as evidenced by the following: (i) issuance of a certification given by the applicable Approved Architect in AIA Fond G-704 (or a certificate containing language substantially similar to G-704 that is no less protective of owner than a G-704 certificate), and provided that the only items of work necessary to complete the Parking Facilities consist of those items that will not materially interfere with the use and occupancy of the Parking Facilities for their intended purpose (the punch list items), (ii) issuance of Certificates of Occupancy for the Parking Facilities (including the Parking Facilities Retail Area), (iii) issuance of a certification by the MPA that Substantial Completion of the Parking Facilities (including the Parking Facilities Retail Area) has occurred, and (iv) confirmation by the City of Miami and Miami -Dade County that the streets an.d. rights of way, as shown on the Plans and Specifications, can be used by the public for vehicular and pedestrian purposes as shown on the Plans and Specifications. ARTICLE II LEASE Section 2.1 Assignment of Rights by City. Pursuant to the terms of the Interlocal Agreement, the City has assigned to MPA, among other matters, its rights and obligation with respect to the Parking Facilities, including its obligation to construct the Parking Facilities and. provide the parking spaces for use by Grove Bay and its Permittees, each pursuant to the terms and conditions set forth in the Lease, as amended in this Agreement. The intent of this Agreement is to clarify the respective rights and obligations of the City, MPA and Grove Bay with respect to the use by Grove Bay and its Permittees of the Parking Facilities and to delineate the obligations of the City and MPA to Grove Bay with respect to the construction and operation of Parking Facilities. The City and MPA hereby represent to Grove Bay that (a) this Agreement has been approved by the City and the MPA, (b) the Interlocal Agreement has been approved by the City and MPA, and (c) no further approvals or consents are required from any other parties to effectuate the matters set forth in this Agreement and the Interlocal Agreement. Section 2.2 Status of Lease. The Parties agree that there exists the need to amend certain commitments and obligations set forth in the Lease to clarify the respective rights of the Parties as related to the Parking Property and the construction, operation and maintenance of the Parking Facilities. This Agreement shall be deemed an amendment to the Lease. In the event of any inconsistency between the teams of this Agreement and the terms of the Lease, then the terms of this Agreement shall control. Except as specifically modified in this Agreement, all of the terms and conditions of the Lease shall remain in full force and effect. Section 2.3 Terri. The term of this Agreement shall commence on the Effective Date, and shall terminate concurrently with the expiration or teiniination of the Lease, unless sooner terminated pursuant to any applicable provision of this Agreement. The term of this Agreement shall include any renewal terms under the Lease (if exercised by Grove Bay or its successors in interest or authorized assigns) and, individually and collectively shall be referred to as the "Term." Provided Grove Bay is not in default of this Agreement, if Grove Bay exercises any Renewal Option under the Lease, then this Agreement will be deemed extended on the same terms and conditions as provided herein (without the need of any further action by the City, MPA, or Grove Bay). Section 2.4 Alterations. (a) Grove Bay may, at its expense, make (or permit its Permittees to make) any non-structural alterations, additions, improvements and/or changes to the Parking Facilities Retail Area without the consent of the City or MPA. For avoidance of doubt, the City has entered into this Agreement in its proprietary capacity and not in its governmental capacity. Therefore, the City reserves all rights to review and approve any plans for alterations, additions, improvements and/or changes to the Parking Facilities (whether structural or non-structural) in its governmental capacity and pursuant to such laws, ordinances, and regulations adopted pursuant thereto. (b) Grove Bay may, at its expense, make any structural alterations, additions, improvements and/or changes to the Parking Facilities Retail Area with the prior consent of the City (not to be unreasonably withheld, conditioned or delayed by the City). Grove Bay shall be responsible for applying, paying for, and securing any and all governmental approvals and permits from all applicable public agencies with respect to such structural alterations, additions, improvements and/or changes. (c) Except as may be conditioned by the approval rights set forth in Section 2.4(b), the City and, to the extent necessary, the MPA agree to sign any permit applications presented to the City or MPA by Grove Bay (or its successors or assigns) pursued consistent with the terms of this Agreement and to take all such other actions as are reasonably required to allow Grove Bay to accomplish any such alterations, additions, improvements and/or changes to the Parking Facilities Retail Area permitted pursuant to the terms of this Agreement. The City will reasonably cooperate with, and assist Grove Bay with, the approval of any and all municipal permits; provided, however, that the City retains all municipal governmental and planning level attributes in reviewing such permits and determining are in conformity with applicable laws, regulations, and conditions. (d) Any and all improvements constructed within the Parking Facilities Retail Area by Grove Bay, or at the request of Grove Bay or its Permittees, that constitute permanent structural alterations, including additions or improvements to the heating, ventilation and cooling system, or the electrical, the mechanical, plumbing or life safety systems (the "Building Operating Systems") serving the Parking Facilities Retail Area, shall become the property of the City at the termination of this Agreement. Notwithstanding anything contained herein to the contrary, (i) all machinery, fixtures (other than fixtures constituting any portion of the Building Operating Systems), trade fixtures, furniture, equipment (including without limitation all machinery and equipment that may be attached to the floor of the Parking Facilities Retail Area), and other personal property installed or placed in the Parking Facilities Retail Area provided by or at the expense of Grove Bay or any Permittees, regardless of the manner of attachment to the Parking Facilities Retail Area or the improvements thereon, shall be and remain the property of Grove Bay (or of its Permittees), removable by it at its option at any time, including upon the expiration or earlier termination of this Lease, so long as such removal would not create any structural damage or permanent alteration, substantial or material damage to structural or exterior components of the Parking Structure. Grove Bay shall, however promptly repair any damage caused by said removal from the Parking Facilities Retail Area and promptly restore the Parking Facilities Retail Area to the same condition as it was prior to such removal or be liable to the City for all repair and costs. This duty of Grove Bay (as related to the restoration of the Parking Facilities Retail Area for damages occasioned by such removal prior to the expiration or termination of the Lease) shall survive the cancellation or expiration of this Agreement and the Lease. ARTICLE III DESIGN AND CONSTRUCTION Section 3.1 Parking Facilities. Pursuant to the Lease (as modified in this Agreement), the MPA will construct the Parking Facilities within the Property, at its sole cost and expense (except for the payment by Grove Bay of the Parking Trust Fund Contribution in the manner set forth in Section 4.10 of the Lease and modified in this Agreement). MPA shall construct the Parking Facilities consistent with the Plans and Specifications in a good and workmanlike manner in accordance with all Governmental Requirements, good industry practice and First Class Standards. For avoidance of doubt, the obligations of the MPA as related to the construction of the Parking Facilities includes the payment of any governmental assessments, including, but not limited to, any impact fees, permit fees, or other charges, related to the construction of the Parking Facilities. Section 3.2 Design of the Parking Facilities. The Parties hereby agree that the Parking Facilities shall be constructed in accordance with the design attached hereto as Exhibit "C" (the "Design"). Section 3.3 Construction of Parking Facilities. (a) MPA shall be responsible for construction of the Parking Facilities in accordance with the Design to achieve Final Completion of the Parking Facilities. The MPA, at its sole cost and expense, will seek and obtain all necessary government approvals and permits for the construction of the Parking Facilities, including, but not limited to, approvals necessary to permit the uses contemplated by this Agreement and the Lease. (b) MPA shall cause the appropriate insurance described in Exhibit "D" to be maintained (and shall provide evidence thereof) during construction of the Parking Facilities. The MPA shall cause the contractor to obtain payment and performance bonds in fond, substance and scope in compliance applicable Section 255.05, Florida Statutes, and all applicable codes and ordinances. (c) Except to the extent specifically provided in this Agreement with respect to those obligations of the MPA related to the Parking Facilities, in no event shall either party have any liability to the other under this Agreement for construction of the other party's improvements (d) The Parties further agree that the Parking Facilities shall be constructed and the Parking Facilities Retail Area delivered to Grove Bay in accordance withthe following minimum requirements: (1) the Parking Facilities Retail Area shall be constructed (and delivered to Grove Bay) substantially in accordance with the "Gray Shell Standards" attached to the Lease as Exhibit "E"; (2) the Parking Facilities will consist of a three level parking garage containing not less than 333 parking spaces within the Parking Structure and 80 surface parking spaces within the Parking Property (collectively, the "Facility Parking Spaces") and approximately 40,000 square feet of first floor retail space, and such other portions of the Parking Facilities set forth in the Plans and Specifications; (3) the Parking Facilities shall be completed in accordance with all Governmental Requirements necessary for issuance by the applicable Governmental Authority of a Certificate of Occupancy, and delivered to Grove Bay broom -clean and free from debris caused or created by the MPA or its agents, employees, contractors, and subcontractors and in a manner so that same shall be accessible and usable by Grove Bay and all applicable Permittees, including, without limitation, subtenants, and retail customers, for customary loading and parking purposes; and (4) the Parking Facilities will be constructed wholly within the boundaries set forth in the Design. (e) MPA shall be responsible for promptly repairing any substandard or defective work affecting the Parking Facilities Retail Area; provided, however, that nothing in this Agreement shall in any way limit the right of Grove Bay to assert claims resulting from patent or latent defects in the construction of the Parking Facilities for the period of limitations prescribed by applicable law. (f) The parties acknowledge that the dimensions and usable area of the Parking Facilities Retail Area have not yet been definitively established because the final design of the Parking Facilities has not, as of the date hereof, been completed. Upon delivery of possession of the Parking Facilities Retail Area, the MPA shall specify in writing to Grove Bay the amount of usable area contained within the Parking Facilities Retail Area. Within forty five (45) days after taking possession of the Parking Facilities Retail Area, Grove Bay may cause the square footage of the usable area (enclosed and under roof) of the Parking Facilities Retail Area to be measured by an independent, professional, certified and licensed architect who will certify to the MPA and. Grove Bay the actual usable area of the Parking Facilities Retail Area (the "Certified Area"). The measurement of the usable area shall be based on the Business Owners and Managers Association (BOMA) Standard. If the Certified Area varies from the area specified in the notice provided by MPA, the usable area of the Parking Facilities Retail Area shall be modified to be the Certified. Area as herein provided, and the 4.1.3 Rent and any other rent, charge or receipt under this Lease based upon the square footage of the Parking Facilities Retail Area shall be adjusted proportionately to reflect the Certified .Area. Section 3.4 Parking Trust Fund Contribution. (a) Current Status. The Parties acknowledge and agree that Grove Bay deposited $1,242,500 with the City in compliance with Grove Bay's obligation related to the Initial Parking Trust Fund Contribution as set forth in Section 4.10 of the Lease (the "Initial Trust Fund Contribution") and that the Lease provides that the total aggregate contribution (inclusive of the Initial Trust Fund Contribution) payable by Grove Bay towards the construction of the Parking Facilities is $4,970,000. However, under Section 4.10 of the Lease, the City is obligated to return the Parking Trust Fund Contribution to Grove Bay if the MPA has not obtained building permits for, and commenced construction of, the Parking Facilities by January 1, 2015. The Parties acknowledge and accept without objection that the MPA has not obtained building permits for, or commenced construction of, the Parking Facilities by January 1, 2015. In addition, under Section 4.10 of the Lease, the amount of the Parking Trust Fund Contribution was based on constructing Parking Facilities with 497 parking spaces and, as such, the reduction of the size of the Parking Facilities (as set forth in the Design) would entitle Grove Bay to an equitable reduction in the overall Parking Trust Fund Contribution. Furthermore, as set forth in Section 4.10 of the Lease, the City agreed to finance Grove Bays Parking Trust Fund Contribution over 20 years; however, the City and the MPA have requested that, and Grove Bay has hereby agreed to, pay the full amount thereof in conjunctionwith the construction of the Parking Facilities. (b) Agreed Accommodations. Grove Bay hereby agrees to waive its entitlement to a return of the Parking Trust Fund Contribution as a result of the matters set forth above and hereby agrees to waive its entitlement to finance the Parking Trust Fund Contribution as contemplated by Section 4.10 of the Lease, which waivers are based on the accommodations set forth in this Agreement and further conditioned on the following agreement hereby reached between the Parties: (i) the City will release the Initial Trust Fund Contribution to MP.A upon MPA delivering notice to the City that the MPA has receivedthe applicable building permits to construct the Parking Facilities, (ii) the Parking Trust Fund Contribution (in the amount modified herein) will be released or paid to MPA in conjunction with the construction of the Parking Facilities as set forth in Section 3.6 of this Agreement, (iii) the aggregate amount of the Parking Trust Fund Contribution shall be a stipulated amount of $4,000,000 (which stipulated sum is based on multiplying the total number of parking spaces within the Parking Structure by $12,000), (iv) Grove Bay will deposit the balance of the Parking Trust Fund Contribution (a total of $2,757,500) in a separate, segregated and limited purpose account in the name of Grove Bay (evidence of which to be provided to the City and MPA), within thirty (30) days of the MPA delivering notice to Grove Bay that the MPA has received the applicable building permits to construct the Parking Facilities, (v) the City will return to Grove Bay the Initial Parking Trust Fund Contribution (and, for avoidance of doubt, Grove Bay's obligation to make any future contribution related thereto shall terminate) if the MPA has not obtained building permits for, and commenced construction of, the Parking Facilities, within twelve (12) months after the Possession Date, (vi) the phrase "Parking Facilities Conditions," as defined in the Lease, is hereby amended to replace the reference to "approximately 497 parking spaces" with "approximately 333 parking spaces within the parking garage and 80 surface parking spaces within the property in which the Parking Facilities are located," (vii) the third sentence of Section 4.1.1 of the Lease is hereby deleted in its entirety and replaced with the following: "Notwithstanding the foregoing, if the Parking Facilities Conditions are satisfied, but only after January 1, 2018, then the amount of the Minimum Base Rent shall remain at $1.9 million and will not increase to $2.0 million as set forth above and, if the Parking Facilities Conditions are satisfied, but only after June 1, 2018, then the amount of the Minimum Base Rent shall remain at $1.8 million for the duration of the Lease (each subject to adjustment as set forth in the following sentence)," and (vii) the City and the MPA will use the Parking Trust Fund Contribution solely to pay the cost of construction of the Parking Facilities and other ancillary and incidental purposes related to such construction. Notwithstanding the modification to the amount of the Parking Trust Fund Contribution set forth herein, Grove Bay hereby acknowledges and agrees that the total amount of privately funded improvements to the Property, referred to in the Lease as the "Equity Contribution," will not be less than $17,900,000. For avoidance of doubt, if the total number of parking spaces within the Parking Structure is less than the 333 parking spaces set forth in the Design, the total amount of the Parking Trust Fund Contribution shall be reduced based on the method of calculation set forth above. Section 3.5 Configuration of the Retail Space. As set forth in Section 3.3(d)(1) of this Agreement, the MPA will complete the Parking Facilities Retail Area substantially in accordance with the "Gray Shell Standards" described on Exhibit "E" attached to the Lease. The Parties hereby agree that the Parking Facilities Retail Area shall be configured in accordance with the configuration attached hereto as Exhibit "E" (the "Retail Configuration"). At any time prior to the submission of the Design to the City for approval of the building permit plans, the MPA and Grove Bay may mutually agree to modifications of the Retail Configuration (without the need to amend this Agreement). If Grove Bay requests modifications to the Retail Configuration after submission of the building permit plans for approval by the City, but prior to Substantial Completion of the Parking Facilities Retail Area, then MPA agrees to work cooperatively with Grove Bay to modify the design to accommodate such request; provided, however, that MPA does not have to agree to any changes that (i) will materially delay the construction or Substantial Completion of the Parking Facilities or. (ii) result in a change order or any additional material costs to the MPA for which the Grove Bay has not expressly and unconditionally agreed to assume such additional costs. Section 3.6 Progress Payments for Construction of Parking Facilities. The MPA will have the right to receive payments from the Parking Trust Fund Contribution (in the amount as modified under Section 3.4(b) of this Agreement) pursuant to a draw down schedule to be mutually agreed to by the MPA and Grove Bay and subject to the following procedures and conditions: (i) on the first day of each month, the MPA will submit to Grove Bay an application for payment, certified by the project architect, including a statement from the MPA as to the percentage of work performed up to the last day of the previous month and the amounts sought therein from the Parking Trust Fund Contribution for labor and materials furnished to the project; (ii) within ten (10) days after receipt of each monthly application for payment, Grove Bay will pay directly to the MPA any undisputed amount for which the MPA has made an application for payment, less any amounts previously paid by Grove Bay and a retainage in, the amount of ten percent (10%) of the amount otherwise payable to the MPA; (iii) Grove Bay's progress payment, occupancy or use of the Parking Facilities, whether in whole or in part, shall not be deemed an acceptance of any work not conforming to the requirements set forth in this Agreement; and (iv) upon Final Completion, Grove Bay shall pay the MPA the entire unpaid balance of the Parking Trust Fund Contribution. For avoidance of doubt, Grove Bay's obligation to pay any amounts to the MPA from the Parking Trust Fund. Contribution shall commence after the MPA has completed the requisite percentage of work pursuant to the draw down schedule entitling the MPA to payments in excess of the Initial Trust Fund Contribution. The MPA will look solely to the City to receive funds from the Initial Trust Fund Contribution, which amounts Grove Bay has deposited in escrow with the City. ARTICLE IV OPERATION OF PARKING AREA Section 4.1 Facility Parking Spaces. (a) Upon Substantial Completion of the construction of the Parking Facilities, the MPA will make the Facility Parking Spaces accessible to Grove Bay, for use by Grove Bay and its Permittees, and their respective employees, patrons and customers, suppliers and contractors (the "Qualified Parkers") on a non-exclusive basis. The Facility Parking Spaces will be available during the one (1) hour before through the two (2) hours after the established operating hours of uses established on the Property by Grove Bay or its Petniittees, on a three hundred sixty-five day per year basis, throughout the Lease Tenn, at hourly and daily parking rates that will not exceed the parking rates in effect from time to time for comparable parking facilities in Coconut Grove (subject to the specific limitations set forth in Section 4.2 of this Agreement). MPA shall have the right to collect parking revenues from the parking spaces located within the Parking Property, subject to the limitations in Section 4.2 of this Agreement. (b) The Parties acknowledge and agree that the Parking Facilities are being constructed with the intention that such Parking Facilities will serve to satisfy the parking requirements imposed by applicable law arising from the contemplated development within the Marina Property and the Parking Facilities Retail Area and, to the extent any additional parking spaces are available after such needs are met, the additional spaces shall be made available to the general public on the terms and conditions set forth in this Agreement. The MPA and City hereby agree to execute all required permit applications and to take all such other actions as are reasonably required to evidence that the parking requirements created in connection with the development of the Parking Facilities Retail Area and the Marina Property are satisfied by the Parking Facilities. The MPA and. City agree not to take any action that may hinder the ability of the Marina Property or the Parking Facilities Retail Area to satisfy any parking requirements imposed by applicable laws or regulations from the parking spaces available at the Parking Facilities. Section 4.2 MPA Site Spaces. (a) Grove Bay hereby agrees to permit the MPA to place parking equipment, and collect all parking revenues from, those certain parking spaces within the Marina Property specifically identified on attached Exhibit "F" (the "MPA Site Spaces"). (b) In consideration for the use of the MPA Site Spaces and the other accommodations reached with Grove Bay in. this Agreement, the MPA agrees (i) that, through the twentieth anniversary of this Agreement, the MPA will not charge any parking fee for the first one-half (1/2) hour that a Qualified Parker's vehicle is parked within the Property; (ii) that, for the term of this Agreement, the MPA will not charge any parking fee to any person using the Parking Structure that stores a boat at the Marina Property (the "Qualified Marina User"), subject to the following restrictions: (x) such parking shall be limited to one (1) parking space within the Parking Structure per boat stored by the Qualified Marina User at the Marina Property, (y) the MPA will provide free parking to a Qualified Marina User within the Parking Structure for no more than 12 hours per calendar day and, if ,such. Qualified Marina User exceeds such period, the MPA will directly charge the Qualified Marina User for any time in excess thereof at the applicable standard parking rates, and (z) the MPA will. charge Grove Bay for any Excess Parking Hours at the applicable standard parking rate; (iii) that Grove Bay will have the exclusive right to use (without charge) the parking spaces located on the top floor of the Parking Structure (which area will be specifically designated for such exclusive use and segregated pursuant to means mutually agreed to between the parties); and (iv) that the MPA will be responsible for the entire cost (including maintenance) of any specialized equipment or signage necessary to meter and designate the MPA Site Spaces; provided, however, that the number, design, and location of such specialized equipment and signage shall be subject to the approval of Grove Bay. The City acknowledges that the revenue derived by the MPA from the MPA Site Spaces shall not be deemed Gross Revenue to Grove Bay. The means of parking validation within the Property shall be determined by the MPA in the exercise of its reasonable discretion; provided, however, that if the validation process selected by the MPA creates operational issues, beyond a minor inconvenience, for the tenants located within the Property, then the MPA will in good faith consult with Grove Bay to revise operations and implement improvements thereto. (c) For avoidance of doubt, the agreement set forth above regarding the use of the parking spaces managed by the MPA within the Property are in addition to the provisions in the Lease, which the MPA hereby agrees and acknowledges to, providing (i) that, for the first year after Final Completion of the Parking Facilities, the MPA will not charge any parking fee for the first hour and a half (1.5) that a Qualified Parker's vehicle is parked within the Property (subject to appropriate validation), and (ii) that, for the second year after Final Completion of the Parking Facilities, the MPA will not charge any parking fee for the first hour (1) that a Qualified Parker's vehicle is parked within the Property (subject to appropriate validation). Section 4.3 Opening of Parking Facilities. Prior to the issuance of a Certificate of Occupancy for the Parking Facilities, MPA shall make its reasonable effort to make available to Grove Bay such parking spaces as necessary to operate and open the development contemplated for the Marina Property to the public prior to the Final Completion of the Parking Facilities, on the same basis as the Facility Parking Spaces, within the existing parking garages and parking lots owned or controlled by MPA or the City of Miami within close proximity to the Property (the "Existing Parking Facilities"). However, MPA's failure to make such parking spaces available shall not be deemed a default of this Agreement if the MPA has undertaken reasonable efforts to make available to Grove Bay such Existing Parking Facilities and, under such circumstances, the Parties hereby agree to work cooperatively to find solutions that would permit Grove Bay to meet any applicable parking requirements imposed by applicable law or zoning code or if the failure to make such parking spaces available are due to public safety and public liability considerations. The obligations of the MPA set forth in this Section 4.3 are in addition to the obligations of the City related to the same subject matter as contained in the Lease. Section 4.4 Signage. MPA. shall institute and enforce a uniform signage regime for the Parking Facilities that will apply to all directional signage (the "Property Directional Signage Regime"), which the MPA may revise from time to time. Grove Bay and its Permittees shall have the right to place all other signage on the Parking Property (including, without limitation, any signage related to the uses established by Grove Bay or its Permittees within Property), which right shall be subject only to the requirements of applicable laws, and regulations including City and County Sign Codes, and the requirements set forth in the Lease. Other than signs consistent with the Property Directional Signage Regime, the MPA shall not install (or permit any other party to install) any other signage within the Parking Property. Section 4.5 Nature of Parking Facilities. The Parking Facilities will serve as Public (Municipal) Parking Facilities and will be open and accessible to the public during all hours of operations. Nothing in this Agreement will be construed or interpreted to change their essential and primary nature as Public (Municipal) Parking Facilities nor will Grove Bay undertake any actions to undermine their character as such. The Parking Facilities, excluding the Parking Facilities Retail Area, will be managed, supervised and controlled by MPA. ARTICLE V MAINTENANCE OF PARKING FACILITIES Section 5.1 Maintenance of Parking Facilities. (a) Following Final Completion of the Parking Facilities, MPA shall keep and maintain or cause to be kept and maintained the Parking Facilities (including the non-structural components of the Parking Facilities Retail Area) in a good and safe state of repair and in a clean and orderly condition, complying with First Class Standards. All maintenance, monitoring and repair conducted by the MPA during regular business hours of those businesses operating within the Parking Facilities Retail Area shall be scheduled, whenever practicable after input from Grove Bay, to minimize disruption of such businesses, except in an emergency (where telephonic notice and input shall be given as soon as possible). The City will reimburse the MPA, in the manner set forth in the Interlocal Agreement, for the cost of maintenance of the non-structural components of the exterior of the Parking Facilities Retail .Area. (b) The MPA will be responsible for periodic repainting of all exterior surfaces of the Parking Facilities, maintaining all landscaping within the Parking Property, and maintaining its equipment, fixtures, furnishings, and other personal property in good condition and repair. All maintenance shall be at the MPA's sole cost and expense and will be subject to a continuing quality of maintenance and appearance and physical condition of the Parking Facilities substantially commensurate with maintenance, health, and safety standards maintained by MPA and secondarily by Grove Bay. (c) Following Substantial Completion of the Parking Facilities, MPA shall maintain insurance as set forth in Section 9.1(b) of the Lease Agreement and, for avoidance of doubt, such insurance shall cover the MPA Site Spaces and, to the extent applicable, name Grove Bay as an additionalinsured in such policies. The Parties acknowledge that the inclusion of this requirement is not intended to waive or limit the provisions set forth in Section 768.28, Florida Statutes. Section 5.2 Covenants of the Parties. The Parties shall comply (as applicable) with the following covenants during the term of this Agreement: (a) Except with respect to the rights granted to Grove Bay and its Permittees under this Agreement, MPA and City shallnot be permitted to use any portion of the Parking Facilities for any use (whether or not such use is of a temporary nature) that may be competitive to any of the uses existing or contemplated by Grove Bay or its Permittees within the Property, providedthat nothing herein shall be deemed to prohibit the use of the Parking Facilities as Public Municipal Parking. (b) Grove Bay shall cause the installation of grease traps and, if warranted, additional similar precautions standard in the trade, of sufficient size and design to catch grease, fat and oils disposed into the sinks and floor drains with respect to any use of the Parking Facilities Retail Area warranting the installation of such devices. (c) Each Party shall not use the plumbing facilities for any purposes other than that for which they were constructed, or dispose of any foreign substances therein. (d) All space within the Parking Structure and the equipment contained therein must at all times be adequately ventilated, filtered and maintained and any odors therefrom must be exhausted and dispersed in accordance with First Class Standards. (e) Each Party shall treat the respective areas of the Parking Property within its control as often as necessary to keep it free and clear of all pests, including rodents and insects. (f) MPA shall operate, repair, maintain, monitor and replace any damaged or defective, cooling towers, condenser water loop and other HVAC equipment within the Parking Structure (but only to the extent such equipment was installed by the MPA to service areas within the Parking Facilities other than the Parking Facilities Retail Area) to a First Class Standard, subject to interruption for repair, replacement, emergencies and Force Majeure Events. (g) MPA shall operate, repair, maintain, monitor and replace the Shared Plumbing Facilities within the Parking Structure to a First Class Standard; provided, however, the expense of any breakage, stoppage or damage to the Shared Plumbing Facilities caused, in whole or in part, by Grove Bay or its Permittees shall be borne by Grove Bay. (h) Grove Bay shall, or shall cause its subtenants (x) to operate, repair, maintain, monitor, and replace any damaged or defective, cooling towers, condenser water loop and other HVAC equipment located within the Parking Structure (but only to the extent such equipment was installed by Grove Bay or its Permittees to service areas within the Parking Facilities Retail Area) and (y) to enter into annual maintenance contracts from a reputable heating, ventilating and air conditioning contractor to maintain and service such equipment. Section 5.3 Intentionally Deleted. Section 5.4 Indemnity. Grove Bay shall indemnify, defend and save MPA, City, and their respective officers and employees, hannless from and against any and all claims, actions, damages, liability and expense in connection with loss of life, personal injury and/or damage to or destruction of property arising from or out of any occurrence in, upon or at the Parking Facilities Retail Area, or the occupancy or use by Grove Bay of the Parking Facilities Retail Area, or any part thereof, or occasioned wholly or in part by any act of omission of Grove Bay, its agents, contractors, employees, servants, customers, invitees, lessees, representatives, licenses, patrons or guests, sub -lessees or concessionaires. In case MPA, City, and their respective officers and employees, shall be made a party to any litigation commenced by or against Grove Bay covered by this indemnity provision, then Grove Bay shall protect and hold MPA harmless and pay all costs and attorney's fees incurred by MPA, City, and their respective officers and employees, in connection with such litigation, and any appeals thereof. Grove Bay shall also pay all costs, expenses and reasonable attorneys' fees that may be incurred or paid by MPA in enforcing the covenants and agreements set forth in this Section 5.4 of the Agreement. This Section shall survive the cancellation or expiration of this Agreement, as applicable. ARTICLE VI RESTORATION Section 6.1 Damage or Destruction of the Parking Facilities. (a) In the event of damage to or destruction of all or any part of the Parking Facilities during the Term of this .Agreement, MPA shall be obligated to repair and restore the Parking Facilities to the condition that existed immediately prior to the casualty in substantial accordance with the Plans and Specifications, using insurance proceeds (and to the extent damages occur in excess of insurance proceeds, MPA shall pay such excess, including any deductibles). (b) Any such reconstruction shall be performed in substantial accordance with the Plans and Specifications for the portion of the Parking Facilities damaged and in a good and workmanlike manner, in accordance with all Governmental Requirements, and in accordance with the terms and conditions of this Agreement and the Lease. Upon completion of any such repair and restoration, any remaining insurance proceeds paid by reason of such damage shall be distributed to MPA. (c) In the event of any repair, renovation, or redevelopment of the Parking Facilities, which interferes with the continuing operation of the Parking Facilities, the MPA and the City will use its Commercially Reasonable Best Efforts to provide Grove Bay with alternative locations (including parking on -site, at City Hall, the parking areas at Regatta Park, or in the adjacent areas) to provide the necessary parking for the continuing operation of the uses contemplated or developed by Grove Bay at the Property in such number and on the terms and conditions applicable to the Facility Parking Spaces. The alternative locations will be subject to the reasonable approval of the City Manager. During such period of time, the City shall agree to equitably adjust the 4.1.3 Rent to reimburse Grove Bay for any reasonable rent abatements required under any subleases entered into by Grove Bay for tenants within the Parking Facilities Retail Area related to such casualty events. ARTICLE VII REPRESENTATIONS, WARRANTIES, AND COVENANTS Section 7.1 Representations and Warranties of MPA and City. The MPA and the City, as applicable, make the following representations, warranties, and covenants, which will survive the execution of this Agreement: (a) That the MPA and City have taken the requisite actions to make this Agreement binding upon the MPA and City, and the MPA and City, to the best of their opinion, information and belief, have a valid and binding agreement granting the MPA the authority to enter into this Agreement and provide to Grove Bay all rights and benefits which are the subject matter of this Agreement (with exclusion of the rights to the Parking Facilities Retail Area, which arc granted by the City under the Lease). (b) That there is on the Effective Date and shall be throughout the Term, legal and physical ingress and egress to the Parking Facilities from a paved public street for vehicular traffic and perpetual legal and physical ingress and egress for pedestrian traffic. (c) There are and will be no known or readily discoverable Applicable Laws, private restrictions or other conditions which restrict or prevent the Parking Facilities from being used and operated as contemplated herein and in the Lease. (d) All of the representations and warranties of the MPA and City contained in this Agreement shall continue to be true as of the Effective Date and throughout the Lease Term, and said representations and warranties shall be deemed to be restated and affirmed by the MPA and City as of the Effective Date without the necessity of the MPA's or the City's execution of any document with regard thereto. Section 7.2 Representations and Warranties of Grove Bay. Grove Bay makes the following representations, warranties, and covenants, which will survive the execution of this Agreement: Grove Bay affirms it has taken the requisite actions to make this Agreement binding upon it and the authority to enter into this Agreement and provide to the City and MPA all rights and benefits which are the subject matter of this Agreement. ARTICLE VIII REMEDIES Section 8.1 Self -Help Rights. In the event MPA or Grove Bay fails to perform any of its non -monetary obligations under this Agreement and such failure continues for more than thirty (30) days after delivery of written notice by the non -defaulting party to the defaulting party that such obligations have not been performed, or if such obligations are not susceptible to being performed within thirty (30) days, if such party fails to commence any such performance within the thirty (30)-day period and prosecute the same diligently to completion, then the non -defaulting party shall have the right but not the obligation to perform such obligations on behalf of and for the account of the defaulting party. The non -defaulting party shall complete any repair, restoration or other work it undertakes pursuant to this Section 8.1 in a good and workmanlike manner in accordance with all Governmental Requirements, good industry practice and First Class Standards. The non -defaulting party is hereby granted an easement across the defaulting party's portion of the Property to effect its self-help rights hereunder, provided that exercise of its rights hereunder shall be carried out so as to minimize disruption with the operations on the defaulting party's portion of the Property and shall not unreasonably interfere with, delay or impair the ability of the defaulting party or its successor to complete improvements on its portion Property or cause a breach of the peace . If a party exercises its self-help rights under this Section 8.1 following a breach by the other party, the defaulting party shall reimburse the non -defaulting party for an amount equal to all documented labor and materials direct costs actually incurred, verified and expended and substantiated by the non -defaulting party in connection with such exercise of its self-help rights under this Section 8.1 the authority to enter into this Agreement and provide to Grove Bay all rights and benefits whichare the subject matter of this. The self-help rights shall not be used to commit a breach of the peace and may only be exercised in accordance with Florida Landlord/Tenant Law, Section 8.2 Other Remedies. MPA, the City, and Grove Bay shall each have such other remedies available at law or in equity by virtue of the laws of the State of Florida for breach by the other hereunder. Section 8.3 Limitation of Liability. Notwithstanding anything to the contrary contained in this Agreement, each party specifically agrees that the liability of each other party hereunder shall be limited to the right, title and interest of such party in and to its portion of the Property, the improvements and any other land or improvements on its portion of the Property. ARTICLE IX EASEMENTS Section 9.1 General. (a) This Agreement shall allow and provide for easements necessary and required for the purposes expressly set forth in the Lease and for the benefit of the officers, employees, patrons, licensees and guests of the City, the MPA, Grove Bay and its Permittees. The grant of an easement by a grantor shall bind and burden its Property which shall, for the purpose of this Agreement, be deemed to be the servient tenement (but where only a portion of the Property is bound and burdened by the easement, only that portion shall be deemed to be the servient tenement), and shall survive the total or partial destruction of the subject matter of the easement and shall run with the land. (b) The grant of an easement to a grantee shall benefit its Property which shall, for the purpose of this Agreement, be deemed to be the dominant tenement (but where only a portion of the Property is so benefited, only that portion, shall be deemed to be the dominant tenement). (c) Unless expressly provided otherwise, all easements granted herein are non- exclusive and in common with the Party of the servient tenement, and irrevocable for the term herein provided for any such easement, and for the benefit of the Party of the dominant tenement. Any easement provided or reserved under this Agreement which is designated as non-exclusive shall permit the Party of the servient tenement to utilize such easement areas for its own purposes and/or grant other easements or interests therein which are not inconsistent with that of the dominant tenement hereunder or with this Agreement. (d) The grant of an easement shall run to the benefit of the Party that is the grantee of such easement, its successors and assigns; and the grantee of such easement, its successors and assigns as Party of the Property so benefited by such easement shall have the right to allow its Permittees to use such easement subject to the limitations in this Agreement. (e) All easements granted hereunder shall be utilized in compliance with all Permits and other Governmental Requirements and in accordance with First Class Standards. (0 All easements granted hereunder shall exist by virtue of this Agreement, without the necessity of confirmation by any additional document. No easement may be terminated except by written instrument signed by the Party that is a grantee of such easement provided the consent of that party will not be unreasonably refused, delayed, conditioned or denied. Upon the termination of any easement (in whole or in part) or its release (in whole or in part) in respect of all or any part of any Property, the same shall be deemed to have been terminated or released without the necessity of confirmation by any other document. However, upon the request of the Grove Bay or the MPA, as the case may be, and at such requesting Party's expense, such Party will sign and acknowledge a document memorializing the existence (including the location and any conditions), the termination (in whole or in part), or the release (in whole or in part), as the case may be, of any easement, if the form and substance of the document is reasonably acceptable to such Party. Section 9.2 Grant of Easements. The Parties hereby grant, to its respective tenants, customers, invitees, and licensees subject to such reasonable limitations as shall be imposed by the owner and holder thereof, and reserves unto itself and its tenants, customers, invitees, and licensees, the non-exclusive right, subject and subordinate at all times to the rights of the City and the general public to the following: (a) easements in the common area of each parcel for ingress to and egress from other parcels; (b) easements in the common area of each parcel for the passage of vehicles; (c) easements in the common area of each parcel for the passage and accornrnodation of pedestrians; (d) easements for access roads across the common area of each parcel to public - and private roadways; (e) easements for the installation, use, operation, maintenance, repair, replacement, relocation and removal of utility facilities in appropriate areas in each such parcel; (f) easements on each such parcel for construction of buildings and improvements in favor of each such other parcel; (g) easements upon each such parcel in favor of each adjoining parcel for the installation, use, maintenance, repair, replacement and removal of common construction improvements such as footings, supports and foundations; (h) easements on each such parcel for building overhangs, other overhangs and projections encroaching upon such parcel from adjoining parcel such as, by way of example, marquees, canopies, lights, lighting devices, awnings, wing walls and the like, if necessary; (i) appropriate reservation of rights to grant easements to utility companies; (1) appropriate reservation of rights to dedicate road rights -of -way and curb cuts; (k) easements in favor of each such parcel for pedestrian and vehicular traffic over dedicated private access roads; and (1) easements in favor of Grove Bay and its Permittees to use the covered areas (breezeways and walkways) adjacent to the Parking Facilities Retail Area (except such areas as necessary to permit pedestrian movement through the Parking Structure) for outdoor seating, special events, and other ancillary uses related to the business conducted therein. Section 9.3 No Dedication of Easements and Benefit to Permittees. Nothing contained in this Agreement, including the grant of any or all easements herein provided, shall be deemed to constitute a dedication of any Property or any portion or portions thereof to any governmental body or agency or to the general public, or construed to create any rights in or for the benefit of any Persons other than the City of Miami, MPA. and Grove Bay, it being the intent that the City of Miami, MPA and the Grove Bay by this Agreement shall be strictly limited to and for the purposes herein expressed. Either such Party may, however, extend the benefits of the easements created by this Agreement to its Permittees subject to the limitations in this Agreement provided such Permittees shall observe and obey applicable rules and comply with this Agreement. No Permittees, other than heirs, successors, and assigns of the applicable Party that is the grantee of an easement, shall acquire any rights in, to or under any easement. Section 9.4 Utility Easements. Nothing contained in this Agreement shall be deemed to prohibit or limit the right of MPA and Grove Bay to (i) grant easements to any governmental unit, public body and/or utility company for the construction, installation, operation, maintenance, monitoring, repair, relocation, modification, extension or alteration of sanitary sewers, storm drainage systems, fire protection installations, gas, water, electric power and lighting and telephone lines, mains and trunks in, under or across its Property, or (ii) transfer or assign to any public body and/or utility company any of the easements on its Property with respect to utilities granted to the other Party hereunder, without the necessity of the payment of any compensation to the grantee of such easement. Section 9.5 Rights Temporarily to Close and to Enter in Emergencies. MPA and Grove Bay each reserves the right to close off its portion of the Property or any improvements on its portion of the Property temporarily for (a) such reasonable periods of time as may be legally necessary to avoid the possibility of dedicating the same for public use or to prevent the acquisition or creation of prescriptive rights by anyone; and (b) such reasonable periods of time as may be reasonably necessary for cleaning, repair, alteration, improvement or maintenance or as required for emergencies provided that this shall not change the character of the Parking Facilities as an area for public parking. Furthermore, MPA and Grove Bay each reserves the right to enter the respective Party's Property, as applicable, in case of emergency in order to prevent or minimize damage or destruction to personal property, the improvements on such Party's portion of the Property or to preserve and protect the health and safety of persons, as such MPA and Grove Bay, as applicable, shall deem necessary or desirable in such emergency situation. In exercising such right, MPA and Grove Bay each will use reasonable efforts under the circumstances not to interfere with the use of such easement area (or the operations of the Building's structural, mechanical, electrical, or plumbing systems (including telecommunication systems, data systems and life - safety systems) by the grantee thereof. Section 9.6 Additional Easements. To the extent the Plans and Specifications provide for additional conduits, lines, wires, equipment, mains, pipes, cables or other facilities on or running through one Property but serving the other and such facilities are actually constructed as part of the Parking Facilities, each of MPA and Grove Bay hereby grants to the other easements to the extent required to install, lay, maintain, monitor, repair, replace and use the same, subject to the terms and conditions of this Agreement. If it becomes clear that additional easements or rights of use or rights of way are necessary or desirable to effectuate the purposes of this Agreement to allow efficient operations to a First Class Standard on the Parking Facilities, regardless of whether such proposed additional easements are provided for in the Plans and Specifications, each Party, as owner of the servient tenement, hereby agrees to grant to each other Party, as owner of the dominant tenement, such additional easements as are necessary and desirable. No Party shall be required to grant any such proposed additional easements to the extent that such easement would materially adversely interfere with the use (or contemplated use) and occupancy of any portion of the Property or materially affect access to or operation of any portion of the improvements existing or contemplated to exist on the Property. At the request of any Party, the other Party shall execute document(s) to confirm such additional easements and shall record such document(s) against the affected Property(s) in the public records of Miami -Dade County, Florida. Any additional easements granted pursuant to this Section 9.6 shall be non-exclusive unless otherwise agreed by the applicable Party(s). Section 9.7 Term of Easements. Unless specifically otherwise provided in this Agreement, the easements granted in this Agreement shall automatically expire on the termination of this Agreement without the necessity of further action. ARTICLE X NOTICES Section 10.1 Notice. Any notice, communication, request, reply or advice or duplicate thereof in this Agreement provided or permitted to be given, made or accepted by either party to any person must be in writing and may be given or be served by e-mail, or by personal delivery, or by using a recognized overnight delivery service and shall be sent or delivered to the e-mail or physical address for each party set forth below, or such other addresses as may be designated by ten (10) days' prior notice. If to the MPA at: Chief Executive. Officer Miami Parking Authority 40 NW 3rd Street, Suite 1103 Miami, Florida, 33128 With a copy to: City Attorney Office of City .Attorney 444 SW 2nd Avenue, 9th Floor Miami, Florida 33130 If to Grove Bay at: Grove Bay Investment Group, LLC 2640 South Bayshore Drive Miami, Florida 33130 With a copy to: Holland & Knight LLP Attn: Richard A. Perez 701 Brickell Avenue, Suite 3000 Miami, Florida 33131 City of Miami Director Dept. of Real Estate and Asset Management 444 SW 2nd Avenue, Suite 325 Miami, Florida 33130 If to the City at: City Manager 444 SW 2nd Avenue, 10th Floor Miami, Fl. 33130 Notices shall be deemed to be effective (A) if by e-mail at the time and on the date when sent (provided that the sender of such communication shall also deliver a duplicate copy thereof by sending within one (1) Business Day via mail, overnight delivery or courier, to the appropriate parties), or (B) if personally delivered, as shown on a receipt therefor (which shall include delivery by an internationally recognized delivery service) on the date of delivery or on the date delivery was refused by the addressee. Section 1 ]..1 ARTICLE XI ASSIGNMENT, SUBLEASES, AND TRANSFER Assignments, Subleases, and Transfers. (a) Grove Bay shall not require the approval of either the MPA or the City in order to sublease any portion of the Parking Facilities Retail Area to a Permittee if such use constitutes a Permitted Use under the terms of the Lease Agreement. Any transfer or conveyance of the interests of Grove Bay in this Agreement (other than a sublease as permitted in the preceding sentence) shall require approval of the City Manager and the Executive Director, which approval may not be unreasonable withheld, delayed or conditioned; provided, however, that any transfer or conveyance of this .Agreement in conjunction with an Assignment of the Lease approved in accordance with the procedures set forth therein shall be deemed an approval of the transfer or conveyance of this Agreement. A transfer or conveyance by Grove Bay of its interest pursuant to any approved transfer or conveyance shall be deemed to release Grove Bay from all further liability arising under this Agreement in respect of any period after the date of such transfer or conveyance. (b) If any portion of the Property is, directly or indirectly, sold or otherwise transferred, such transferees shall be subject to this Agreement and the transferees shall be bound by its transferor's obligations and enjoy its transferor's benefits hereunder as fully as if such transferees were originally parties hereto, and such obligations and benefits shall run with and be binding upon the Property and be binding upon all subsequent owners thereof, including any easements, claims or liens arising under this Agreement against a prior Party of a Property which shall continue as to any transferee of such Property. For avoidance of doubt, if the MPA dissolves, or for any other reason the rights and obligations of the MPA are transferred to the City or any other instrumentality of the City, then the references in this .Agreement to MPA shall be deemed, for all purposes, to be references to the City or any successor entity to the MPA. Section 11.2 Priority of Agreement. The parities all expressly understand, acknowledge and agree that municipal real property of the City or of MPA cannot be mortgaged, lien or pledge and that any such lien, encumbrance , is disallowed under Florida law and expressly disallowed by the City and MPA. This Agreement and the rights, interests, liens and easements created hereunder shall be prior and superior to any Mortgage or other lien upon or against any interest in Party's Property other than such liens as by law have priority over the lien and operation of this Agreement. ARTICLE XII MISCELLANEOUS Section 12.1 Entire Agreement. This Agreement, the Exhibits attached hereto and forming a part hereof as if fully set forth herein, and the Lease constitute all of the covenants, promises, agreements, conditions and understandings between the parties concerning the Parking Facilities and there are no covenants, promises, conditions or understandings, either oral or written, between them other than as are herein and therein set forth. No party nor its respective agents have made nor shall be bound to any representations with respect to the Parking Facilities except as herein expressly set forth, and all representations, either oral or written, shall be deemed to be mergedinto this Agreement. No course of prior or future dealings between the parties or their officers, employees, agents or affiliates shall be relevant or admissible to supplement, explain or vary any of the terms of this Agreement. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement between the parties or their affiliates shall not be relevant or admissible to determine the meaning of any of the terms of this Agreement. This Agreement has been negotiated "at arm's length" by andbetween the parties, each having the opportunity to be represented by legal counsel of its choice and to negotiate the form and substance of this Agreement, and therefore in construing the provisions of this Agreement no party will be deemed disproportionately responsible for draftsmanship. Section 12.2 Written Amendments. Except as herein otherwise provided, the Parties may only amend, alter, change, or modify this Agreement by execution of written instrument signed by all of the Parties. Section 12.3 Independent Parties. It is understood and agreed by the parties hereto that this Agreement does not create a fiduciary or other relationship between the parties, other than contracting parties. The parties are and shall be independent contracting parties and nothing in this Agreement is intended to make any party a general or special agent, joint venturer, partner or employee of any other for any purpose. Section 12.4 Captions and Section Numbers. The captions, section numbers, and article numbers appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of such sections or articles of this Agreement nor in any way affect this Agreement. Section 12.5 Partial Invalidity. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. Section 12.6 Waiver. Failure on the part of any party to complain of any action or non -action on the part of the other, no matter how long the same may continue, shall never be deemed to be a waiver by such party of any of its rights hereunder. Further, it is covenanted and agreed that no waiver at any time of any of the provisions hereof by any party shall be construed as a waiver of any of the other provisions hereof, and that a waiver at any time of any of the provisions hereof shall not be construed as a waiver at any subsequent time of the same provisions. The consent or approval to or of any action by any party requiring such consent or approval shall not be deemed to waive or render unnecessary such consent or approval to or of any subsequent similar act by such party. Section 12.7 Time is of the Essence. Time is of the essence with respect to the performance of every provision of this Agreement in which time of performance is a factor. Section 12.8 Governing Law. It is the intent of the parties hereto that all questions with respect to the construction of the Agreement and the rights and the liabilities of the parties hereto shall be determinedin accordance with the laws of Florida and that all disputes arising hereunder shall be heard and decided in Miami -Dade County, Florida. The parties shall bear their own attorney's fees. Section 12.9 Arbitration. The parties hereby agree that, subject to the consent of the City Manager, Executive Director, and Grove Bay, which consent may be withheld by any party for any reason, any dispute, disagreement or controversy arising under this Agreement, or with respect to the interpretation or enforcement of this Agreement may be settled by arbitration pursuant to the procedures set forth in Section 16.6 of the Lease. For avoidance doubt, the reference to "each party" or any reference to "Lessor and/or Lessee" in Section 16.6 of the Lease shall be deemed a reference to the MPA, City and Grove Bay. Section 12.10 Waiver of Jury Trial. The parties hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on, or in respect of, any matter whatsoever arising out of or in any way connected with this Agreement, the relationship of the parties hereunder, Grove Bay's use or occupancy of the Parking Facilities and/or any claim of injury or damage. In an effort to expedite the conclusion of any litigation the parties agree not to file permissive counterclaims in any actions arising under this Agreement. Section 12.11 , Quiet Enjoyment. Upon the observance by the Grove Bay hereunder of all the terms, provisions, covenants and conditions imposed upon the Grove Bay, the MPA covenants to the Grove Bay that the Grove Bay shall peaceably and quietly hold, occupy and enjoy the Parking Facilities Retail Area for the Lease Term without any interruption, disturbance or hindrance by MPA, or their respective successors and assigns, or by persons claiming by, through or under the MPA for. the Parking Facilities Retail Area, or by persons with title superior to the MPA, or their respective successors and assigns Section 12.12 Recording of a Memorandum of this Agreement. A Memorandum of This Agreement briefly summarizing its terms shall be recorded in the public records of Miami - Dade County, Florida. Section 12.13 Number; Gender. Whenever required by the context, the singular shall include the plural, the neuter gender shall include the male gender and female gender, and vice versa. Section 12.14 Counterparts. This Agreement may be executed in separate counterpart copies, all of which counterparts shall have the same force and effect as if all parties hereto had executed a single copy of this Agreement. Section 12.15 Schedules and Exhibits. All Exhibits referenced in this Agreement are incorporated by this reference as if fully set forth in this Agreement. Section 12.16 Including. The word "including" and variations thereof, shall mean "including without limitation." Section 12.1.7 No Construction Against Drafter. This Agreement has been negotiated andprepared by the parties and their respective attorneys and should any provision of this Agreement require judicial interpretation, the court interpreting or construing such provision shall not apply the rule of construction that a document is to be construed more strictly against one party. Section 12.18 Rights Not for Benefit of Third Parties. In no event and under no circumstances whatsoever shall the rights herein granted or to be granted inthe future pursuant to this Agreement, to or for the benefit of any party be deemed to be for the benefit of the public. No individual or entity that is not a signatory to this Agreement (other than successors and permitted assigns of the signatories of this Agreement) shall have any rights or privileges under or arising out of this Agreement, nor shall any person or entity that is not a signatory to this Agreement otherwise be deemed a third party beneficiary of this Agreement. Section 12.19 Agents and Representatives. No Person other than the parties to this Agreement, and the permitted assignees of such parties, shall have any liability or obligation under this Agreement. Section 12.20 Further Assurances. Each of the parties to this Agreement shall execute such further assurances as any other party may reasonably require to confirm and perfect the transaction described in this Agreement. Section 12.21 Rights and Remedies Cumulative. The rights and remedies of the parties under this Agreement, whether provided by law, in equity, or by this Agreement, shall be cumulative, and the exercise by any party of any one or more of such remedies shall not preclude the exercise of any other remedies for the same such default or breach. Section 12.22 Estoppels. The parties hereto shall, from time to time, within fifteen (15) Business Days of request in writing of any other party, without additional consideration, execute and deliver an estoppel certificate consisting of statements, if true (and if not true, setting forth the true state of facts as the party delivering the estoppel certificate views them), that (i) this Agreement is in full force and effect; (ii) this Agreement has not been modified or amended (or if it has, a list of the amendments); (iii) the party requesting the estoppel certificate is not then in default; (iv) the parties have fully performed all of their respective obligations thereunder; and (v) such other statements as reasonably may be required by any party or any other appropriate party such as their respective partners, investors and lenders. Failure to respond to an estoppel request within fifteen. (15) Business Days following the date of request shall constitute certification as true and correct, in all material respects the statements contained therein. Section 12.23 Covenants Run With the Land. It is intended that the covenants, grants, easements, agreements, promises and duties of each party as set forth in this Agreement, shall be construed as covenants and not as conditions, and that, to the fullest extent legally possible, all such covenants shallrun with and be enforceable against both the covenantor and the affected Property or constitute equitable servitudes between the Property of the respective covenantor, as the servient tenement, and the Property of the respective covenantee, as the dominant tenement. Unless the content indicates otherwise, every covenant, easement, agreement and promise of each party as set forth in this Agreement shall be deemed a covenant, easement, agreement and promise made for the joint and several benefit of the other parties and every duty of each party as set forth in this Agreement shall be deemed to run to and for the joint and several benefit of the other parties Section 12.24 Licenses and Permits. Accept as provided for herein, Grove Bay shall, at its sole cost and expense, apply for, secure and obtain any and all licenses, approvals, consents,. and permits necessary in connection withany tenant's use and occupancy of the Parking Facilities Retail Area. Section 12.25 Compliance with Laws. Grove Bay accepts this Agreement and hereby acknowledges that its compliance with all applicable laws, ordinances and codes of federal, state and local governments, as they may apply to this Agreement. [signature page follows] INWITNESSWHEREOF, the parties have executed this Grove Bay Parking Facilities Agreement, or have caused the same to be executed, as of the date and year first above written. ATTEST: ATTEST: BY: ATTEST: BY:. Todd B. Hannon City Clerk (Affix City Seal) APPROVED AS TO FORM AND CORRECTNESS: BY: Victoria Mendez City Attorney GROVE BAY: GROVE BAY INVESTMENT GROUP LLC, a limited liability company of the State of Florida By: Name: Title: MIAMI PARKING AUTHORITY, an agency and instrumentality of the City of Miami, Florida BY: Arthur Noriega Chief Executive Officer CITY OF MIAMI, a municipal corporation of the State of Florida BY: Daniel J. Alfonso City Manager APPROVED AS TO INSURANCE REQUIREMENTS: BY: Anne -Marie Sharpe Risk Management Director Exhibit "A" Marina Property LEGAL DESCRIPTION (PARCEL 1) (MARINA/BOATYARD UPLANDS) A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book 34, at pace 2, of' the Public Records of Miami Dade County; Florida and a portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more particularly described us follows: Commence at the Southwest corner, of the Northwest VI, of said Section 22; Thence South 02°24'44" East, along the Southerly extension of the West line of the NW 1/4 of said Section 22, for 436,51 feet; Thence North 86°27'43" East for 75.86 feet to a point labeled H.L-78-C' said point being a point of intersection with the U.S. Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said line also being the Northwesterly litre of TILE Deed No. 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County, Florida; Thence along said U,S. Pier -Head Bulkheadline, for the following described four (4) courses; 1) Thence South 77°01'17" East, for 669.48 feet to a point labeled IIL-78-13; 2) Thence North 74°08'10" East for 526.25 feet to a point labeled H'L-78-A; 3) Thence North 43°08'20" East for 250.00 feet; 4) "Thence North 12°08' 10" East for 88.25 feet; 'Thence North 45°44'46" West, departing the previously described line, for 3.75 feet to a point on the outside face of an existing Seawall; Thence along the outside face of said seawall for the following described twelve (12 ) courses; 1) Thence continue North 45°44'46" West lire 12.58 feet; 2) Thence North 46°50'16" West for 262.72 feet to the Point of Beginning of the hereinafter described parcel; 3) Thence North 47°06'49" West for 73.59 feet; 4) Thence North 02°02'56" East for 0.70 feet; 5) Thence North 47°07'52" West for 59.52 feet; 6) Thence North 43°12'49" East for 100,72 feet; 7) Thence South 46°47'08" East for 61.00 feet; 8) Thence North 88°45'00" East for 0.64 feet; 9) Thence South 47° 14'37" East for 41.99 feet; 10) Thence North 61 °42'01 " East for 21.07 feet; 11) Thence South 30° 14'35" East for 2.75 feet; 12) Thence North 62°06'03" East for 5.43 feet to a point of intersection with the Southerly extension of an existing chain link fence; Thence along said chain link fence and its southerly extension for the following described tlu'ee (3) courses; 1) Thence North 49°34'23" West for 26.67 feet; 2) Thence South 49°46'11" West for 14.07 feet; 3) Thence North 46°34'27" West for 48.90 feet to a point of intersection with the Southeasterly extension of the edge of an existing concrete slab; Thence along the previously described edge of concrete and its Southwesterly and Northerly extensions for the fallowing descried five (5) courses; 1) Thence North 4I°51'l6" East for 19,89 feet; 2) Thence North 45°40'17" West for 20.02 feet; 3) Thence North 41°51'16" East for 10.30 feet; 4) Thence North 48°08'44" West for 26.07 feet; 5)Thence North 43°1.7'10" East for 63.60 feet to a point of intersection with the Boundary line of the tract of land described under Exhibit A in that certain Lease Agreement recorded in Official Records I3ook 9916, at Page 1 1 10, of the Public Records of Miami Dade County, Florida; Thence along the previously described Boundary lino, and its Northerly extension, for the following described two (2) courses; 1) Thence North 76°17'34" West tier 63,38 feet; 2) Thence 'North 12°55'28" East for 138.99 Pict to a point of intersection with the F' ack of an existing concrete sidewalk; Thence along the back of said concrete sidewalk, for the following described twenty one (21) courses; 1) Thence North 47°44'58" West for 12.22 feet to a point of curvature of a circular curve concave to the Northeast; 2) Thence Northwesterly, along the arc of said curve to the right, having a radius of 98.00 feet and a central angle of 16°31'40" for a distance of 28.27 feet to the point of tangency; 3) Thence North 31°13'18" West for 14.48 feet to a point of curvature of a circular curve concave to the Southwest; 4) Thence Northwesterly, along the arc of said curve to the left, having a radius of 100.00 feet and a central angle of 11 °38'35" for a distance of 20.32 feet to a point of tangency; 5) Thence North 42°51'53" West for 5.10 feet to a point of curvature of a circular curve concave to the Southwest; 6) Thence Northwesterly, along the arc of said curve to the left, having a radius of 33.00 feet and a central angle of 33°27'08" for a distance of 19.27 feet to the point of tangency; 7) Thence North 76°19'01" West for 64.42 feet; 8) Thence South 13°57'56" West for 1.47 feet; 9) Thence North 75°50'29" West for 25.93 feet; 10) Thence North 45°02'5 l" West for 18.31 feet to a point of curvature of circular curve concave to the Southwest; 11) 'Thence Northwesterly, along the are of said curve to the left, having a radius of 64.79 feet and a central angle of 1 1°21'21" for a distance of 12.84 feet to the point of tangency; 12) Thence North 56°24'12" West for 5.41 feet to a point of curvature of a circular curve concave to the Northeast; 13) Thence Northwesterly, along the arc of said curve to the right, having a radius of 23.50 feet and a central angle of 30'58'59" for a distance of 12.71 feet to the point of tangency: 14) Thence North 25°25'13" West for 6.96 feet to a point of curvature of a circular curve concave to the South; 15) 'Thence Northwesterly, along the arc of said curve to the left, having a radius of 3.00 feet and a central angle of 51°39'10" for a distance of 2.70 feet to the point of tangency; 16) Thence North 77°04'23" West for 125.67 feet to a point of curvature of a circular curve concave to the South; 1 7) 'Thence Northwesterly, Westerly and Southwesterly along the arc of said curve to the left, having a radius of 10.15 feet and a central angle of 14°26'49" for a distance of 2.56 feet to the point of tangency; 18) Thence South 88°28'48" West for 17.55 feet; 19) Thence North 76°52' 13" West for 28.42 feet; 20) Thence South 76°07'58" West for 40.18 feet to a point of curvature of a circular curve concave to the Northwest; 21) Thence Southwesterly, along the arc of said curve to the right, having a radius of 43.33 feet and a central angle of 09°48'56" for a distance of 7.42 feet to a point of intersection with a line parallel with and 95.00 feet Northwesterly of, as measured at right angles, the Northwesterly outside face of an existing building; Thence South 13° 01'32" West, along the previously described line, for 135.78 feet; Thence South 12 46'52" West., departing the previously described line, for 37.38 feet to a point of intersection with a line parallel with and 95.00 feet Northwesterly of, as measured at right angles, the Northwesterlyoutside face of an existing building; 'Thence South 13 07'29" West, along the previously described line and its southerly extension, for 148,75 feet; Thence South 07°43'57" West for 9.81 feet; Thence South 49'47'35" West fear 4.49 feet; Thence South 43°01'12" East for 77.73 feet; Thence South 43°33'00" Last for 54.15 feet; Thence South 43°26' 13" East for 4 55 feet; Thence South 48°06'57" East for 20.77 feet to a point of curvature of a circular curve concave to the northeast; Thence Southeasterly, along the arc of said curve to the left, having a radius of 374.00 feet and a central angle of 09°28' 16" for a distance of 61.82 feet to the point of tangency; Thence South 57°35' 13" Fast for 23.28 feet; Thence Sou h 80° 19'31" East for 172.00 feet; Thence South 79°19' 15" Last for 13.23 feet to a point of intersection with the back of an existing concrete sidewalk running along the north side of Pan American Drive; Thence along the back of said existing sidewalk and its northeasterly extension, for the following described five (5) courses; 1) Thence South 74°54'37" East for 28.80 feet: 2) Thence South 77°42'57" East for 5,71 feet to a point of curvature of a circular curve concave to the Southwest; 3) Thence Southeasterly, along the arc of said curve to the right, having a radius of 222.00 feet and a central angle of 21°55'13" for a distance of 84.93 feet to a point on said curve; 4) Thence North 87°54'54" Last for 5.28 feet; 5) "1"hence North 42°23' 11" East tier 11.27 feet to the Point of Beginning. Containing 195,848 sq. ft. or 4,50 acres more or less. LEGAL DESCRIPTION (PARCEL 2) (FORMAL RESTAURANT & RESTAURANT PARKING) A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat hook 34, at page 2, of the Public Records of Miatni Dade County, Florida and a portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more particularly described as follows; eminence at the Southwest corner, of the Northwest '/,, of said Section 22; Thence South 02°24'44" East, along the Southerly extension of the West line of the NW v4, of said Section 22, air 436.51 feet; Thence North 86°27'43" East for 75.86 feet to a point of intersection with the U.S. Pier -Head Bulkhead line o1' 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said point labeled I1L.-78-C and said lane also being the Northwesterly line of T.I,I.F. Deed No. 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miann-Dade County, Florida; Thence along saaicl 13.S, Pier -Head Bulkhead line, for the following described four (4) courses; 1) Thence South '77'01'17" East, for 669.48 feet to a point labeled I11,-78-B on the previously named plat; 2) Thence North 74°08'10" East for 526.25 feet to a point labeled I41,-78-A on the previously named plat; 3) Thence North 43°08'20" East for 250.00 feet to a point labeled FIL-76 on the previously named plat; 4) Thence North 12°08'10" East for 88.25 feet; Thence North 45°44'46" West, departing the previously described line, for 3.75 feet to a point on the outside face of an existing Seawall; Thence along the outside free of saki seawall fi>r the following described fifteen (15 ) courses; 1) 'Thence continue North 45°44146" West for 12.58 feet; 2) 'Thence North 46°50'16" West for 262.72 feet; 3) Thence North 47°06'49" West for 73.59 feet; 4) Thence North 02°02'56" East for 0.70 feet; 5) Thence North 47°07'52" West for 59.52 feet; 6) Thence North 43°12'4t;" East for 100.72 feet; 7) Thence South 46°47'08" East for 61.00 feet; 8) Thence North 88°45'00" East for 0.64 feet; 9) Thence South 47° 14' 37" East for 41.99 feet; 10) Thence North 61 °42'01 " East for 21.07 feet, 11) 'Thence South 30°14'35" East for 2.75 feet; 12) Thence North 62°06'03" East for 87.88 feet to the Point of Beginning of the hereinafter described parcel; 13) Thence continue North 62°06'03" East fir 114.64 fret to a point of curvature of a circular curve concave to the West, 14) Thence Northeasterly, Northerly and Northwesterly, along the arc of said curve to the left, having a radius of 75.00 feet and a central angle of 80°48'49" for a distance of 105.78 feet to the point of tangency; 15) Thence North 18'42'46" West for 101.33 feet to a point on the northerly right-of-way line of Chart House Drive as shown on the sketch of survey dated January 14, 1985 referred file No. arise, 61-139 rev, and prepared by Schwebke & Shiskin and Associates and as shown on that Specific Purpose Survey at Dinner Key Marina, prepared by Biscayne Engineering ; Thence North 76°03'06" West, along the previously described line, for 226.31 feet; Thence South 39°08'26" West, departing the previously described northerly right-of-way line, for 12.87 feet to a point on the northerly edge of pavement of Chart House Drive said point being on a circular curve concave to the Northeast and said point bears South 45°04'04" West from the center of said curve; Thence along the northerly edge ofpavement of said Chart House Drive for the following described three (3) courses; I) Thence Southeasterly along the are of said curve to the Left, having a radius of 273.78 feet and a central angle of 04°S2106" for a distance of 23.26 feet to a point; 2) Thence South 29° 13'50" West fbr 21.82 feet to a point on a circular curve concave to the Northeast and said point bears South 38°44'40" West from the center of said curve; 3) Thence Northwesterly along the arc of said curve to the Right, having a radius of 348.97 feet and a central angle of 04°24'23" for a distance of 26.84 feet to a point of intersection,with the Boundary line of the tract of land described under Exhibit A in that certain Lease Agreement recorded in Official Records Book 9916, at Page 1110, of the Public Records of Miami Dade County, Florida; Thence along the previously described Boundary line, and its Northerly extension, for the following described two (2) courses; 1) Thence South 12°55'28" West for 152.77 feet; 2) Thence South 76° 17'34" East for 61.38 feet; Thence North 43°17'10" East, departing the previously described boundary line, for 5.77 feet; Thence South 74°27' 18" East for 13.19 foot to a point of curvature of a circular curve concave to the Southeast; Thence Southeasterly, along the arc of said curve to the right, having a radius of 31.50 &et and a central angle of 33°37'09" East for a distance of 18.48 feet to the point of tangency; Thence South 40°50'09" East for 37.58 feet to a point on the northerly end of an existing C.B.S. wall; Thence South 49°09'51" West, along the northerly end of said existing C.B.S. wall for 0.43 feet to a point on the southerly face ot'said existing C.B.S. wall; Thence South 38°59'48" East, along the southerly face of said existing C.B.S. wall and its southerly extension, for 84.41 feet to the Point of B9inning. Containing 58,242 sq. ft or 1.34 acres more or less. LEGAL DESCRIPTION (PARCEL 3) (CASUAL RESTAURANT UPLANDS) A portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County. Florida, more particularly described as follows: Commence at the Southwest corner, of the Northwest 'A, of said Section 22; Thence South 022444" East, along the Southerly extension of the West line of the NW 1/4 of said Section 22, for 436.51 feet; Thence North 86°27'43" East, departing the previously described line, for 75.86 feet to a point labeled 111.-78-C said point being a point of intersection with the U.S. Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said line also being the Northwesterly line of TILT. Deed No. 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records or Miami -Dade County, Florida; Thence along said U.S. Pier-Hcad Bulkhead line, for the following described tbur (4) courses; 1) 'Thence South 7701'17" East, fbr 669.48 feet to a point labeled I EL-78-B; 2) Thence North 7408'10" East for 526.25 feet to a point labeled 11L-78-A; 3) Thence North 43°08120" East for 250,00 feet to a point labeled HI,-76; 4) Thence North 12°08'10" East air 88.25 feet to a point of intersection with the southerly extension of the outside lace of an existing Seawall: Thence along the outside face of said seawall and its southerly extension for the following described twelve (12) courses; 1) Thence North 45°44'46" West for 16.33 feet; 2) Thence North 46°50'16" West for 262.72 feet; Thence North 47°0649" West for 73,59 feet; 3) Thence North 02°02'56" East for 0.70 feet; 4) 'Thence North 47°07'52" West for 59.52 feet; 5) Thence North 43°12'49" East for 100.72 feet; 6) Thence South 46°47'08" East for 61.00 feet; 7) Thence North 88°45'00" East for 0.64 feet; 8) Thence South 47°14'37" East for 41.99 feet; 9) Thence North 61°42'01" East for 21.07 feet: 10) Thence South 30°14'35" East for 2.75 feet; II) Thence North 62°06'03" East for 5.43 feet to thc Point of Beginning or the hereinafter described parcel; 12) Thence continue North 62°06'03" East for 82.45 feet; Thence North 38°59'48" West, departing the previously described face of the seawall and running along the southerly face of an existing C.B.S. wall and its southerly extension, for 84.41 feet; Thence North 49°0951" East along the northerly end of said C.B.S. wall for 0.43 feet to a point on the Edge of an existing Asphalt Pavement; Thence along the Rdge of said Asphalt Pavement and its Northwesterly extension, for the following described three (3) courses; 1) Thence North 40°50'09" West for 37.58 feet to a point of curvature of a circular curve concave to the Southwest; 2) Thence Northwesterly, along the arc of said curve to the left, having a radius of 31.50 feet and a central angle of 33°37'09" for a distance of 18.48 feet to the point of tangency: 3) Thence North 74'27'18" West for 13.19 feet to a point on the Northeasterly extension or the edge of an existing concrete: Thence along the previously described edge of said concrete and its Northeasterly and Southwesterly extensions for the following descried five (5) courses; 1) Thence South 43°17'10" West for 69.37 feet; 2) Thence Smith 48°08'44" East for 26.07 feet; 3) Thence South 41'51'16" West for 10.30 feet; 4) Thence South 45°40'17" East for 20.02 feet; 5) Thence South 41°51'16" West for 19.89 feet to a point of intersection with an existing chain. link fence; Thence along said chain link fence and its southerly extension for the following described three (3) courses; 1) Thence South 4634'27" East for 48.90 feet; 2) Thence North 49°46'1 1" East for 14.07 feet; 3) Thence South 49'34'23" East for 26.67 feet to the Point of Beginning. Containing, 12,356 sq. ft, or 0.284 acres more or less. LEGAL DESCRIPTION (PARCEL 6A) (MARINA SUBMERGED LANDS) A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat book 34, at page 2, of' the Public Records of1\ timid Dade County, Florida and a portion of Section 22, Township 54 South. Range 41 East, Miami -Dade County, Florida, more particularly described as thliows: Commence at the Southwest corner, of the Northwest 1/4, of said Section 22; Thence South 02'2444East, along the Southerly extension of the West line of the NW 1/4 of said Section 22, for 436.51 feet; Thence North 86°27'43" East for 75.86 feet to a point of intersection with the U,S. Pier -Head Bulkhead line. or 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade C'ourity, Florida, said point labeled HL-78-C and said line also being the Northwesterly line of TILE. Deed No 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County, Florida; Thence along said t 15, Pier -Head Bulkhead line, for the following described six (6 ) courses; I) Thence South 7700117" East, for 669.48 feet to a point labeled FIL-78-B on the previously named plat; 2) Thence North 74°08'10" East for 526,25 feet to a point labeled IL-78-A on the previously named plat; 3) Thence North 43°0820" East for 250.00 feet to a point labeled HL-76 on the previously named plat; 4) Thence North 12°08'10" East for 88.25 feet; Thence along the outside face of an existing seawall and its Southerly extension for the following described twelve (12 ) courses; 1) Thence North 45°44'46" West .1Or 16.33 feet: 2) Thence North 46'50'16" West for 262.72 feet to the Point of Beginning of the hereinafter described parcel; 3) Thence North 47°06'49" West for 73.59 feet; 4) Thence North 02°0256" East for 0.70 feet; 5) Thence North 47°07'52" West for 59.52 feet; 6) Thence North 43°1249" East for 100.72 feet; 7) Thence South 46°47'O$" East for 61.00 feet; 8) Thence North 88'45'00" East for 0.64 feet; 9) Thence South 47'14'37" East for 41.99 feet; 10) Thence North 61042'01" East tier 21.07 feet; 11) Thence South 30°1435" East for 2.75 feet; 12) Thence North 62°0603" East for 87,88 feet; Thenec South 2705357" East, departing, the previously described existing seawall, for 60.00 feet; Thence South 62°06'03" West for 118,88 feet; Thence North 47°1437" West for 26.50 feet; Thence South 42°4523" West tsar 71.49 feet to the Point of Beginning,. Containing 20,317 sq. ft. or 0.47 acres more or less, LEGAL DESCRIPTION (PARCEL 613) (SUBMERGED LANDS ABUTTING FORMAL RESTAURANT) A portion of Tract A of Dinner Key, according to the plat thereof as recorded in plat hook 34, at page 2, of the Public Records of Miami Dade County, Florida and a portion of Section 22, Township 54 South, Range 41 East, Miami -Dade County, Florida, more particularly described as follows: Commence at the Southwest corner, of the Northwest 'A, of said Section 22; Thence South 02'24'44" East, along the Southerly extension of the West line of the NW Vl of said Section 22, for 436.51 feet; Thence North 86°27'43" East far 75.86 feet to a point of intersection with the U.S. Pier -Head Bulkhead line of 1939 as recorded in Plat Book 74, at Page 3, of the Public Records of Miami -Dade County, Florida, said point labeled HE-78-C and said line also being the Northwesterly line °UTILE. Deed No. 19448 to City of Miami, recorded in Deed Book 3130, at Page 260, of the Public Records of Miami -Dade County, Florida; Thence along said U.S. Pier -Head Bulkhead line, for the following described four (4 ) courses; I) Thence South 77'01'17" East, for 669.48 feet to a point labeled HL-7843 on the previously named plat; 2) Thence North 74°08'10" East for 526.25 feet to a point labeled H1.-78-A on the previously named plat; 3) Thence North 43°08'20" East for 250.00 feet to a point labeled HL-76 on the previously named plat, 4) Thence North 12°08'10" East for 88.25 feet; Thence along the outside face of an existing seawall and its Southerly extension for the following described two (2) courses; 1) Thence North 45°4446" West for 16.33 feet: 2) Thence North 46°5016" West for 262.72 feet, Thence North 42°45'23" East, departing the previously described existing seawall for 71.49 feet; Thence South 47'14'37" East for 26.50 feet, Thence North 62°06'03" East for 118.88 feet to the Point of Bepinning of the hereinafter described parcel; Thence continue North 62°06'03" East for 175,75 feet to the point of intersection with the previously described U.S. Pier -Head Bulkhead line of 1939; Thence North 21°08'57' East, along the previously described line, for 146.73 feet; Thence North 76°03'06" West for 119,88 feet to a point of intersection with the outside face of an existing seawall; Thence along the outside face of said existing seawall for the following described three (3) courses; 1) Thence South 18'42'46" East for 53.81 feet to the point of' curvature of a circular curve concave to the Northwest; 2) Thence southeasterly, southerly and southwesterly, along the are of said curve to the right, having a radius of 75.00 feet and a central angle of 80'48'49" for a distance of 105.78 feet to the point of tangency; 3) Thence South 62°0603" West for 114.64 feet to the Point of Beginmnst. Containing 20,579 sq. ft. or 0.47 acres more or less, Exhibit "B" Parking Property A PORTION of TRACT OF DINNER KEY, ACCORDING TO ME PLAT THEREOF, AS RECORDED IIV PLAT BOOK ,34, PAGE 2 OF THE PUBLIC RECORDS OF WWI-DADE COUNTY, FLORIDA AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE INTERSECTION OF THE Guy MONUMENT LINES OF SW 27TH AVENUE iVITH SOUTH BAY SHORE DRIVE AS SHOWN ON SAID PLAT GE DINNER KEY; THENCE NORTH 38 DEGREES 10 MINUTES 31 SECONDS EAST, ALONG ME ,VONUMENT UNE OF 5449 BAYSHORE DRIVE, FOR A DISTANCE OF 632,12 FEET; THENCE SOUTH 44 DEGREES 34 MINUTES 37 SECONDS EAST, ALONG THE NORTHWESTERLY EXTENSION OF THE HISTORIC RIGHT-OF-WAY UNE AS SHOWN ON THAT BOUNDARY SURVEY 'DINNER KEY CONVENTION CENTER'S ADJACENT PARKING LOT" PREPARED 8Y GOLD COAST ENGINEERING CONSULTANTS INC DATED SEPTEMBER -30, 1 999,FOR A DISTANCE OF 7Z 62 FEET ro THE POINT OF BEGINNING OF THE FOLLOVIING DESCRIBED PARCEL OF LAND; THENCE NORTH 38 DEGREES 10 MINUTES 31 SECONDS EAST, ALONG A LINE PARALLEL WITH AND /ZOO FEET SOUTHEASTERLY OF, AS MEASURED At RIGHT ANGLES TO, THE mommair LINE or sA10 BAYSHORE DRIVE, FOR A DISTANCE OF 60,63 FEET To A POW T OAI A CURVE; SAID POINT BEARS NORM 38 DEGREES ,36 MINUTES 40 SECONDS WEST, FROM. THE RADIUS POINT OF THE NEXT DESCRIBED CIRCULAR CURVE CONCAVE TO THE SOUTHEAST AND RAMC A RADIUS OF 45.00 FEET; THENCE ALONG SAID CURVE TO THE RIGHT FOR AN ARC DISTANCE OF 7.25 ,FErr THROUGH A CENTRAL ANGLE OF 9 DEGREES 13 MINUTES 50 SECONDS TO A POINT OF REVERSE CURVATURE WITH A CIRCULAR CURVE CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 70,00 FEET; THENCE AI ONO SAID CURVE TO THE LEFT FOR AN ARC DISTANCE OF 2738 FEET THROUGH A CENTRAL ANGLE OF 22 DEGREES 24 MINUTES 39 SECONDS TO A POINT OF TANGENCY; THENCE NORTH 38 DEGREES 10 MINUTES 31 SECONDS EAST, ALONG A LINE PARALLEL WITH AND 84.50 kLi SOUTHEASTERLY OF, AS MEASURED AT RIGHT ANGLES 10, THE MONUMENT LINE OF 5410 BAYSHORE DRIVE, FOR A 0/STANCE OF 74,33 FEET' TO A POINT OF CURVATURE WITH A CIRCULAR CURVE CONCAVE TO 77-IE NORTHWEST AND HAVING A RADIUS OF 70.00 FEET THENCE ALONG SAID CURVE ro THE LEFT FOR AN ARC DISTANCE OF 21,86 FEE, THROUGH' A CENTRAL ANGLE OF 17 DEGREES 53 MAIMS 48 SECONDS TO ,A POINT OF REVERSE CURVATURE' WITH A CIRCULAR CURVE CONCAVE TO THE SOUTHEAST AND HAVING A RAMS OF 85.00 FEET; THENCE ALONG SA/0 CURVE TO rile RIGHT FOR AN ARC DISTANCE OF 26,55 FEET THROUGH A CENTRAL ANGLE OF 17 DEGI?ECS 53 MINUTES 48 SECONDS TO A POINT or TANGENCY (MC LAST MENTIONED FIVE COURSES BEING ALONG THE EX/STING BACK OF WALK OF SAID BAYSHORE OWE); THENCE NORTH 38 DEGREES 10 MINUTES 31 SECONDS EAST, ALONG A UNE PARALLEL WITH AND 7700 FEET SOUTHEASTERLY OF, AS MEASURED AT RIGHT ANGLES TO, THE mavumair UNE 06 SAID BAYSHORE DRIVE, FOR A DISTANCE OF 39,60 FEET TO A POINT ON A CURVE; SAID pow( BEARS NORTH 21 DECREES 53 MINUTES 46 SECONDS WEST, FROM THE RADIUS POINT OF ME NPXT DESCRIBED CIRCULAR CURVE CONCAVE TO THE SOUTHEAST AND HAVING A RADIUS OF 1500 FEET; THENCE ALONG SAID CURVE TO T HE RIGHT FOR AN ARC DISTANCE OF 13.38 FEET THROUGH A CENTRAL ANGLE OF 51 DEGI?EES 05 MINUTES 53 SECONDS TO A POINT OF COMPOUND CURVATURE WITH A CIRCULAR CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS' OF 25,00 FEF.T; THENCE ALONG SAID CURVE TO THE RICHT FOR AN ARC OISTAN'CE OF 1 1.38 FEET THROUGH A CENTRAL ANGLE OF 26 DEGREES 05 MINUTES 12 SECONDS TO A POINT OF TANGENCY; THENCE' SOUTH 34 DEGREES 44 MINUTES 51 SECONDS EAST FOR A DISTANCE OF 6,61 FEET; THENCE SOUTH 31 DECREES 1 1 MINUTES 12 SECONDS EAST FOR A DISTANCE OF 207.40 FEET ro A POINT OF CURVATURE WITH A CIRCULAR CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 60,00 FEET; THENCE ALONG SAID CURVE TO THE 1.0. 1 FOR AN ARC DISTANCE OF 33.93 FEET THRO0GH A CENTRAL ANGLE OF 32 DEGREES 24 MINUTES 01 SECONDS TO A POINT OF TANGENCY; THENCE SOUTH 63 DEGREES 35 MINUTES 13 SECONDS EAST FOR A DISTANCE OF 0,42 FEET TO A POINT or CURVATURE WITH A CIRCULAR CURVE CONCAVE TO T HE NORTHEAST AND HAVING A R4D1U5 OF 72.00 6667; THENCE ALONG SAID CUR4f TO THE LEFT FOR AN ARC 0/STANCE OF 19,66 FEET THROUGH A CENTRAL ANGLE OF 1 5 DEGREES 38 MINUTES 34 SECONDS TO A POINT OF TANGENCY; THENCE SOUTH 79 DEGREES 13 MINUTES 47 SECONDS EAST FOR A DISTANCE OF 6,47 FEET; THENCE SOUTH 75 DEGREES 35 MINUTES 44 SECONDS EAST rae A DISTANCE OF 4.30 FEET; THENCE SOUTH 14 DEGREES 59 MINUTES 22 SECONDS WEST, ALONG THE NORTHWESTERLY LINE OF PARCEL 5, AS SHOWN ON THAT TOPOGRAPHIC SURVEY PREPARED BY MAWR. G. VERA & ASSOCIATES DATED MARCH 5, 2012, FOR A DISTANCE OF 266.99 FEET,THENCE NORTH 44 DEGREES 34 MINUTES 37 SECONDS WEST, ALONG THE HISTORIC RIGHT-OF-WAY LINE AS SHOWN ON THAT BOUNDARY SURVEY ?MINER KEY CONVENTION CENTERS ADJACENT PARKING Lot' PRE -PARED BY GOLD coAsT ENGINEERING CONSULTANTS INC DATED SEPTEMBER 30, 1 999, FOR A DISTANCE OF 394.43 FEE! TO THE POINT OF BEGINNING (SAID COURSE BEING ALONG ALINE PARALLEL WITH AND 50,00 FEET NORTHEASTERLY OF, AS MEASURED' Ar RIGHT ANGLES To, A LINE ESTABLISHED BETWEEN THE MONUMENT LINE OF BAYSHORE DRIVE AND rno. CERTAIN U,S,C, & G,S, ,VONUMENT (OCAIED AT THE ROOF OF THE CITY OF MIAMI HALL BUILDING 45 SHOWN ON THAT SPECIFIC PURPOSE SURVEY 'DINNER KEY MARINA AREA' PREPARED BY FERNANDO GATELL DATED MARCH 3, 2000). SAID PARCEL OF LAND CONTAINING 79,320 SQUARE FEET OR 1,82 ACRES MORE OR LESS, LYING AND BEING IN SECT7ON 22, TOWNSHIP 54 SOUTH, RANGE 41 EAST, CITY OF MIAMI, MAUI -DADE Exhibit "C" Design (attached) GROVE BAY PARKING GARAGE PROGRESS SET OCT 12, 2015 ARCHITECTURE.• ENGINEERING WOLFBERG ALVAREZ + PARTNERS 3225 AVIATION AVE., SUITE 400 MIAMI, FLORIDA33133 V 305.666.5474 F 305.666.4994 WOLFBERGALVAREZ.COM n :w 12.c •IC F' RADA. 61r W oo' AST 5i o=TY14•J9 Ror0.00' Aa11.4' (•YIJ'S0' A 'O%NS d'NNPJr H A PONTION 00 oIcco-A DINNER KEY WSrgVIC RIGID-O -qA,'/ tar AS SWAN av 741r OP,I1 41,P1' ,^ Ali. 544/41. 'Ph4(R N0Y 1W:{ MAZY C NKR'S 1.01' HOW (0 414040 COAST 140.v(001,0. 00115W/Ah15i,hc 41rd05(f'1d1APER.10, 099 , ssr Ae nw ns JAIU JY-. /d%J.IB'• • .F o FFnj' EY n[< 00.404lNr LAT or til 4Rg1r barer 4N 144/ k PS 1N.NLLENr ticlr(0 A! rlld BK'( /440/ 1ONr Ba4MA: AS sln 0v (,44 UR'u14' 548004E (FRkV OJ GA [UAEAa(NOV 04/ 0/02 i(0 B L£G44 DESCRIPTION u In rvx n .vP U. f A .11 1 1 pr 4* 4 1 1 Ste '4A. Act Jn ary5 uu(II! aer .A 44 f A>avl A 44 5G W. 1 5a S5 jJ YiNI(} Al S N§Ds l4 /Vn !u' ':[xtv ; nR 1451 P.O.C. CERrff?ED r01 • taw. xsna Arnw,vt. SURVEYORS CERTIFICATE: s :mn AHr• icietiY We AtAt a S'tGi'(6k't SIliDtat i?tu:4 ui...AY vvn A al. a Ama.w„I.rcwu:e waemt .ovti '440204 Nt 1.%'f�PF'pO0140(1WiT'IM./4 M1( 4:t44 M YxV.' 444( tuttu 48144 A5 6m dh Nv nN! SPttYa' eV:vNS r..rsn cr I!1>nxwn urtu w<,•x J, xeor {, ; ttsn0.. Y3,Ji0 S4Ytwf tra fa at, ACNt➢ 0.0 Rt a, SPECIFIC PURPOSE SURVEY PREPART-0 .FOR: MIAMI PARKING AUr4IORI(Y ,.aeon, 11, 70Anmy 48 .40M, .ran, 11 Fast, my et 4Wa'• 4iaAtrAMA Cvunly, panda A4A'JAJJW-39a.AJ(4IA1 A PORTION OF TRACT 'A" DINNER KEY (P.R. 34, PC. ?) SURVEYORS NOTES tYn 5 i .40 a 1E0IYYYF n VKV al 4,w,[sS Pajatli kOR6; Pao PO! MS Vd6A4, racxan., fil9SMIT nxs A. ' xe)mx wf Kin. taimavvi ✓10,m (H0101 vn+,01t 00, o aie4;:i(p rr ccn ii.(cx,rny6 t.w`.I r• N"r:,uv iiEi`r"v<nn evaN't (Aeerar r:r ra r:INvrms, ac'HS•w'•xnv, 0 ON` A PARR tY all (0 va0fpn: (sans n W (a, (MY 6.4'Jti dorrwor ,-•..14I•• NIAnttAt tor MM.) IOWA WNW nl r:N',C 4(//1 aR AR' 4 71, 4P4lrm•N;ir4444 4naµ�» onsian ...Set:000L'1:'< /; 4l (at £` *„ irt(/I, �,*. INrP 0tAIvh6R9 • 44/8,4 6 RVLYQ44 HIM IM or.41 rz IM v++.... as rn M,,:pea lre'e're Oro gi, This /e- n 'rlohnda P 5'urrcy :IJ-50..3 NOTE: mr PAINT :WKS Afi ;HON ON THIS SURVEY WERE PI7EVIOI154Y LOCATED fttY twOon ROUND HOUND urrawav suivect, INC. tt,W. , • 0\1, VI 4417:1(0$ \..04640515. s 0555.05. 2')!)?' 55 4550A.1555 N544514515 44501 // ilt7Sal,„ia1,117,1:4,:ii;Z;314q% :CA '4n 4 t• - °0.02.5'41' A PORTION OF IPACT "A" DINNER KEY (PH J4, PG 2) s /. IMMO 54`0404-05, WAY in Os 5055ee 454 Mar 54.4500, 505655 14500 .445-5 55441400100 0044555 .40.45501I 5555450 WV . 555544550 AY COO 400451 NV/MAW 0014,45its 0t4 MILO 555454045 30 4105 54443445444-45445' 401/ 55515415400 OLIN& VIC 4404054044 UHE 055505054 0200 AND 55i414556105 U.ga 0 0.5. 055m51115 ocAten AI flA MCA Or MC 005 01 Maw 1144! IVO& 4.1 WWI 041 naar 5455.4570 54454054 .5/5504 154104,0Are 154.150 .'00'404022w*, 507,10,005 051,44 NO MARCH 54550 BOUNDARY SURVEY PREPARED FOR: MAO PARKING AUTHORITY S4/1,nA 22, 10•,454 Sew(li, 00.9i. 41 fusl,' 0/pa 1/1214 11105144011 0111,2, A PORTION OF TRACI "A" DINNER INY (PH 34, PO. 2) ,_,S01,5,40140...,32fie,I,z,, 55,55htt, 5, tt.fla at MOM • 014,NRWS • 1,14 54501,055 n:luvt Ws•• 5.55w 144.i.".44 This a Wound, Nurrby 10. AJ 5250 4 -,=1 o _ ,'^ 1111II,IIIII0 f•IJ111 Jrri .II I]I;II • LOT AREA .130.0195. • BU¢gxGFOOmxm* Anss. triail . PAma. DRIVES.306125.1_ g ESE --GREEN... cs. ® . 0Alx0AISrs0000LOS=]SB<B01 • TOTAL FLOOR ®• raAl06EA=ft,11. . COIMONPREina .. GARAGE=s5951, sp. • 0•GSF. GAF.E a ss. COMMON TREA.52151. GROVE BAY PARKING GARAGE LEGAL 01.1.1P110 ca.e....rs., nunts ftroccoftiftoftfterofttooft 101 COVERAGE: B11-1-011.G. FLOP Gann =• GARAGEna2.105F. .an 111nnen GROVE BAY PARKING GARAGE smmeaexaaeear. 11eersaueywyeR6 uvunweeve :. 1,n ernat, n x....s wpa mu To Na beet of fF MCNtacla or Engineers know., fto plans, and specifications campy eN N opolicalste mm(mum cedes and Uft applicable 14e—.afety .tondard. on determined 00 IM1e local mnnory in accoreonce *Rh F.E.C...c6an 1103.].4.4 o1w Chapter 633. Florida Slatutea =ncce : swr WOLFBERG ALVAREZ m5 Ah unox AVE.. SINE Roo AAMPAIS NOLFBERGALVARELCONI GROVE BAY PARKING GARAGE § coftko efts oft ISSUE CATE REVISPN DATE 1 11.014 6 G3.00 VIEW FROM CORNER OF SOUTH BAYSHORE DRIVE AND PAN-AMERICAN DRIVE SCALE: F.T.S. 3 VIEW FROM CORNER OF SOUTH BAYSHORE DRIVE AND CHART HOUSE DRIVE G4.01 SC11E: is Ilia bast , the Architects or Engineer.. 4na.bd9a Ma Oa= and epeciticationa camp VIEW FROM PAN-AMERICAN DRIVE SCALE: F.T.S. VIEW FROM CHART HOUSE DRIVE iN 0. applicable minimum codes and Me applicable lire —vats!, atcodards as determined by Me local uuthanty m accordance with FAG auction 11037.4.4 and Chapter x33. Florida Statutes. SCALE: F.T.S. WOLFBERG ALVAREZ xrtF.clu0.E ExamFf 3225 Avr,i1014 AVE. sVrtEaw UMW . aassec.a Art OtINIS Mt Mat. GROVE BAY PARKING GARAGE ISSUE DATE DR.1111,IG TIME ms nest® G4.01 11 1 1d 1 1 1101 11 nor I I I IG I I II 1 1 1 Uci, /11110'Illllli111II,Or d111a11111k 1[1111alliL 71i 111111 1f1i1i1 111n (111111111110111111111110111IL Il lllll 1111111101llllol 11111111c1111111111101111IL Ta tbv be. d the Architact'a or Erpinvera kno.ledge. the plum and ape ficabanv c py L 111111111111 1 I 1 applicable minimum cadev and applicable fire-aarery ad by the local au y in accordanu with F9.C. va.5on 1103.7.4A and Cnapler 633. Rodda Statutes. TCOMPREHENSIVE SITE PLAN WOLFSERG ALVAREZ ®y T0.01( BCOBE EXGWEE5(3 EB GROVE BAY PARKING GARAGE o. ORAwytotyntE gee. actlaaect sax A1,01 EDFIRST FLOOR PLAN SCALE: 3/32- = 1•-0• To th. beet of the 7Uilea' e or Engineer's knowledge. the plans and specifications comply linth the applicable minimum code. and N applicable Ore—ealaly standards m determined by the local authority accordance with F.B.C. mention 110.37.4.4 and Chapter 633, Florida Statutes WOLFBERG ALVAREZ VUOLFEERGALVAREZCOIS GROVE BAY PARKING GARAGE ISSUE DATE REVISION Olaf A3.01 PARKING TOTAL • Ground Floor- N/A • Second Floor- 115 ps • Third Floor- 115ps • Fourth Floor- 11:13 ps Subtotal 333 ps(within parking garage) To the beat IN the Mcbitact, or Engineers kno. ge. . plum and specifications comply .00, the applicable minimum codes nna the applicable fire-.3lety standards as determined by Na local 3Uwrfb m accordance with F.B.C. section 1103.2.4.4 and Cbopter 6 orido Statutes. CDTHIRD FLOOR PLAN SCALE: 2/92• = 1'-0e WOLFBERG ALVAREZ — u Rowo iat LFemGavae¢c w GROVE BAY PARKING GARAGE ISSUEDATE o REinslox S �u • DRAWINGTME rum PIN • A3.03 O O O O I I I I I I I I I O 6 -1 IP. 610I�,.: Irk/IIIfad MilaniMil Mg I MNIMPice M0 It�_l 1111� _ a u p ��t m F ed ibmag M �� 1 iAC. 0mm/ iN. •njormB1mm1 '1 1_� /1 1 ■��1 IF 4111MI II•- IMII IIlMY1N�11�_► 11►1�i®11EL 01■■ IIIMEI ��`�;;' IOI 5CC1011CG =111�I� IIIMM_ ®E mIvN I_ 7AlwOmWNi•1■ ari% 91� i�I ..1�1II�D��'I 6 M 9I .: , ,I , ,fie ICI mo.^!0II_ III F W Illt. is Me hest of the ArMitectis or Engineer's Nneeledge, the plans and epecinoMene cnioniS tM applicable m m codes and the applicable lira —safety standards as determined by the local authority in accordance with 0.B.0. section 110.3.7.4.4 and Chapter 633. Florida Statutes. ROOF PLAN WOLFBERG ALVAREZ 0001IIELTURE ENGINEENNO 3s36 ONAVE_surtEsoO uw. V 305.666.5414 AA .416 ES 01:12151 GROVE BAY PARKING GARAGE ISSUE DATE REVISION OPTE 3DRAWING 1111-E emir max A3.05 mLSi Va 1111in «airAParEav R111111BIl alLIERIMTrW T,, s !i%i l / lr.111, t_ i, NR'1�► / ��I%yTll.F,l!t i j'ir Or** ' ��wwwi'C/ SIGNAGE ro the sae: a m. Arceteat. or Engineer, imowied9= tbe onO sPa ,cco11a... tea, with i4,�i SeAi�a�lfa'Lil� ��ia TYPICAL PANELS SCAE:1/+'=1.-0. it,,, 1,O1l50* SIGNAGE ,.ridome as deform,. by a local authority ,. accordance with e_ea ,.Fla. 1 10s.9.4.4 end Chapter OM. Florida seamtm SOUTH ELEVATION SCAM s/sr = >.'-u• EAST ELEVATION SCAM s/as' = i•-o' GROVE BAY PARKING GARAGE IssuE once REVISION DATE ORe.V.ONG TITLE 3 nv.FlOS8 SHEEr NUMB. A4.01 } e I a a a 0 a a6" a a 0 9 l a 1 9 a la a a � 0 a a u a a IA a e 0 0 a I a a tettia A a 0 a It laITI PaitaNG LONGITUDINAL SECTION 00010. 3/02" = 1.-0" PFAXVIG itteiMG PARKING MMHG TRANSVERSAL SECTION SCAM 3/92" = w comply rtn u..aarrom. m,imam ..a...nd tha wa am —safety , .a.m... determined er the lomi =MorirM accordance 0m F..a.C...cion 110.33.4.4 and Chapter 6 arida Statutes.. WOLFEERG ALVAREZ TAY eatfirrECRIRE ENGNEECNNG 1726 AVIATION WE, Gliti£400 ...9002416 MAR. GROVE BAY PARKING GARAGE ISSUE DATE a Nu REVISION PATE taMWDMITME SIMKINS SHEETNUMBER A5.01 Exhibit "D" INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE CONSTRUCTION COMPONENT GROVE BAY Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami listed as an additional insured DOSP d/b/a Miami Parking Authority Continent and Contractual Liability Waiver of Subrogation Premises/Operations liability Explosion, Collapse and Underground Hazard Loading and Unloading II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami included as an additional insured DOSP d/b/a Miami Parking Authority listed as additional insured Worker's Compensation Limits of Liability Statutory -State of. Florida Waiver of subrogation IV. Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit V. Umbrella Policy A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 10,000,000 Aggregate $ 10,000,000 City of Miami listed as an additional insured Excess Follow Form over all applicable liability policies DOSP d/b/a Miami Parking Authority VII. Owners & Contractor's Protective Each Occurrence General Aggregate . City of Miami listed as named insured DOSP d/b/a $1,000,000 $1,000,000 VI. Payment and Performance Bond $TBD City of Miami and. DOSP d/b/a Miami Parking Authority listed as obligees VIII. Builders' Risk Causes of Loss: All Risk -Specific Coverage Project Location Valuation: Replacement Cost Deductible: $10,000 All other Perils 5% maximum on Wind City of Miami and DOSP d/b/a MPA listed as loss payees A. Limit/Value at Location or Site $ B. Coverage Extensions: As provided by the carrier 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. 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, Uldwick, 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. GR( V Exhibit "E" Retail Configuration EAY PARKINGGARAGE 1B l000szoo The MPA Site Spaces are generally located within the areas shown bubbled on this exhibit. The final location and number of MPA Site Spaces shall be determined upon final approval by the City of the applicable plans for the redevelopment of the subject property or any modification thereof. Grove Bay shall have the right to reconfigure the MPA Site Spaces in order to accommodate the entry and access points to the Parking Structure and future service areas to accommodate tenants of the Marina Property and; from time -to -time, Grove Bay shall have the right to temporarily close off the MPA Site Spaces, without compensation to the MPA, for construction staging, special events and other similar types of temporary conditions or events. 1 2 3 1 4 In [xi illmt I/WM MEMONOMI 0111MINIIMMNIINEP= IN11•111 NININNEIMINE2SMOMNIMMIIMI INMINIM1111111111! 11111111M1111/ MIIIEPTIIMMErIAMMTM 1....1.4eankmeamme.C.0,4.0.. P br' alS,CFC THE HARBOUR 2640 S Sayshore Miami, FL 33133 ARQUITECTONICA xprz•virl 33.". Grove Bay Investment LLC 3.1 2640 S. SayShafe 0‘3,33 Suite SS Miami, FL NM f,..mtare !isrR33.3A33.33E/3,A3f.... 1 ty.P EU:MEER GOA,. B T.PC.0031StATA.33:33 ITAAvA3A t! 1,'GEOFECHIal4 COS.RiAta: • j • SITE PLAN A-010 $1) CD cro