It:tBlmnrm

TABLE OF CONTENTS

RECITALS

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

1 1.DEFINITIONS .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
2.
GRANT
OF

9 4.

EASEMENTS . . . . . . . . .

USE FEE.9
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a)
b)
c)
d)
3.
e)
Use Fee ..................................
TERM. . . . . . . . . . . . . . . . . . . . .9
............................
Facility
8

Usage Payment ......... . . . . . . . . . . . . . . . . . . . . ..

9

Usage
Parking

10
5.

b)

Minimum Facility
Payment ......................
10 Gross
Revenues ........ . . . . . . . . . . . . . . . . . . . . ..
Payment Date. 10
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
GARAGE
OPERATIONS . . . 11
...............
a)Garage Operator 11
....................................
c)
Li
a
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l
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t
y
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Garage Management Agreement. 11
. . . . . . . . . . . . . .12
. . . . . . . ..d)

Hours and Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

12

e)
Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

12

1)
MB

Redevelopment,

Inc.Garage Easement

Agre ment . . .

12

g)

Manner of
Providing Priority Use of

USE
6.
Parking Spaces . . . 12
..
OF

GARAGE ........................................

12

a)

Grantee

12 b)
Use.
.................................
Owner

m:

1817f1UO 4 d)

Maintenance. . . . . . . . . . . . . . . . . . . 14

Equipment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
f)
14
g)
Repairs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
..... .......
Substi ute
Parking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
e)

14

Requirements. . . . . . . . . . . . .

h)

16

i)
Alterations..16
. . . . j)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Height. . . . . . . . . . . . . . . . . . . . . . . 16
.....................

8.FINANCIAL

16

AND RECORDS . . . . . .. . . . . . . . . . . . . . ...

a)
Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . .

16

b)

REPORTS

Audit

18

c)
Parking Revenues Statements. ...... . . . . . . . . . . . . ..
d)
Survival.. . . . . . . . . . . . . .~. . . . . . . . . . . . . . . . . . . . . . . . . . . ..
a)
Grantee Default.18. .b)
DEFAULT.. . . 18
.......... . ..........
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
9.

Termination

of Lease. .................................

Results. . . . . . . . . . . . . . . . . . . . . . . . . .17
...........

Gross
17

18 d)
Right to
Owner Default. ......................................
18 c)
Perform

the

Other

Party' s

19
CrossDefault. . . . . . . . . . . . . . . . . . . . . . . . . .20
............
NOTICE AND RIGHT TO
10.
Covenants. . . . . . . .

e)

GRANTEE' S DEFAULTS. ........21 a) Notice.. . . . . . . . . . . . . . . . .

Cure Right. .... . . . . . . . . . . . . . . .
21 b)
CURE

Acceptance.. . . .22
...................................
c)
22
d)
Payments.. . . . . . . . . . . . .e)
. . . . . . . . . . . . . . . . . . . . . . . . . . ..
22 11.
FACILITY
No Surrender or Modification ...........................
Priority. . . . . . . . . . . . . . . . . . . . . . . . . . . .22
...............
f)
21

MORTGAGES;

NOTICE

AND

RIGHT

CURE
OWNER'
DEFAULTS . . . . . . . . .

TO
SUCCESSOR
S
23 a)
Right to
Mortgage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Bf~: IBI70m
i)

0)
k)
I)

085

Grantee' s Self-Help
m)
Rights 26
. .Application
. . . . of
. . .Proceeds
. . . . from
. .
Insurance or
.............
Appearance
Condemnation Awards. . .26

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

..........
Rights
at Condemnation Proceedings . . . . .26
Faci
l
i
t
y
....................
Limited to Mortgagees. 26

Facility Mortgagee' s Assignment

Rights. . . . . . . . . . . . . . . . . .

27 12. DAMAGE,

DESTRUCTION

AND

a)

. . . . . . . . . . . . . . . . . . . . . . . . . .
Notice to Grantee 28
Obligation to Restore .................................
28 c)
Commencement
Construction Work.28
. . . d)
. . . . . .Effect. of. .Casualty
. . . . . .. on

b)
of

RESTORATION. . . 28
. . . . ..

this

Taking . . . . . . . . . . . . . . . . . .

28 e)
Funds
respect to a Successor Owner .......
CONDEMNATION. . . . . 30
.........
a)
Substantial
13.
30 b)Definitions..31
. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .

c)

Less than

a
d)

Substantial Taking .........................

31

Agreement . . . . . . . . . . . . . . . . . . . .

Restoration
with

29

Obligation to

Restore the
Garage. . . . . . . . . . . . . . . . . . . . . . .

Com encement

32 e)
of Construction

Work. . . . . . . . . . . . . . . . . . .. 32

Temporary

f)

Taking 32
...................................

g)

Intention of

h)Restoration . . . . . . . . . . . . . . . . . . ..
Parties 32
...............
33
I
N
SURANCE
R
E
Q
U
I
R
E
M
E
N
T
S
.
.
.
.
.
.
.
.
.
.
.
Funds . . . . . . . . . . . . . . . . . .
14. 34 a)Liability

Insurance. . . . . . . . . . . . .
35

c)

Other

Insurance .....................................
35 d)

34

b)Property

Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

Construction Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
36
e)

General

Provisions
Applicable

Bf~: rSI7QrH066

Effectiveness . . . . . . . . . . . . . . . . . . . .

b)

41

c)

d)

References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
41 Effect of Granting or Failure to Grant Approvals or

e)

Consents ..

41
Limitation on Liability
e)f)
d)
41
of Owner
42 Owner Exculpation .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
17.
and the City ...............
No Waiver of
LIABILITY. . . . . . . . . . . . . . . . . . . . 42.
. . ..
42
Limitation on
42 Limitation
Liability ......................
a)

c)
Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .b)
..........

on Grantee
Liability . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
42 Grantee Exculpation .43

No

Punitive

Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

43
HAZARDOUS

18.

Use of
a)
MATERIALS 43
.................................
Hazardous

43
43

Materials . . . . . . . . . . . . . . . . . . . . . . . . . . ..
b)
Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
c)
Indemnif cation. . 43
. . . . . . . . . . . . . . . . . d)

19.INDEMNIFICATION
Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
..............
AND

DEFENSE

43 a)
OF CLAIM.................
44
Indemnification. 43
. . . . . b)
. . . . . . . . . . . . . . .Contractual
. . . . . Liability
. . . . . ...................................
. . . . ..

c)
Defense of Claim,

45........................
Etc.
Notification and Payment ................. . . . . . . . . . . . ..
d)

45
Survival. 46
. . . .20.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
e)

INVALIDITY

18170rf

Bf~:

1087 27.
TERMS DEFINED IN
ANOTHER
AGREEMENT . . . . . .

47

28.

REFERENCES. . 47
. . . . . .a)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
..........

b)Table

of

Contents.47. .c)
. . . .Reference
. . . .to. Party
. . . . . . . . . . . . . .48
.....
........
.. . . . . . . . . . . .

d)

Agency's and

City' s

Governmental Capacity ...............

48
29.

e) Reference

to herein", ""
hereunder", etc. 48
. . . . . . . . . .

REMEDIES CUMULATIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
48 30.PERFORMANCE AT EACH
PARTY'S SOLE
COST AND
EXPENSE .48
. . . . . . . . . . . . . . . . .~. . . . . . . . . . . . . . . . . . . . . . . . . . . ..

31.CORPORATE
OBLIGATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

48 32.
OFFICIALS

TIME PERIODS ..........................................

50
49 34.
. . . . . . . . . . . . ..
35.INFLATION ADJUSTMENT. . .50
36.LATE CHARGES .........................................
50

AND

EXHIBITS Exhibit

EMPLOYEES . . . . 49
. . . . . . . . ..
33. CONFLICT
OF
INTEREST . . . . . . . . . . . . . . . . .

A Exhibit

NONLlABILlTY OF

B Exhibit

1 Exhibit 2 Exhibit
5(

e)

a)
5(
Exhibit

frk16\

00B
m~\

GARAGE EASEMENT AGREEMENT

THIS GARAGE EASEMENT AGREEMENT (the "Agreement') is made and entered

into as of the ~
1998 by and between RDP Royal Palm
day of
Hotel Limited Partnership, a Florida Imited partnership, its successors and/ or
Agency"), a Florida
assigns
Grantee"),and the Miami Beach Redevelopment Agency ( the "

kt '

public body

corporate

and politic, and

its

successors

and/

or

assigns.
RECITALS
A.
The Agency and Grantee have entered into that certain Agreement of
Lease the "Lease")of even date herewith,pursuant to which, among other things,Grantee

own and operate a first class convention center hotel ( the "Hotel") in
accordance with the terms thereof on the land described therein ( the Grantee
"
Land"),and as
hereto
particularly
descri
b
ed
on
Exhi
b
i
t
A
attached
incorporated
herein; and
and
more
agreed

has

to

the Agency has agreed

to cause

the construction of

the

Facility ( as

hereinafter

Hotel Corp., a Florida corporation (" SMHC"),

have entered into that certain Garage Development Agreement ( the Garage
"
pur
s
uant
to
SMHC
agreed
develop
which
on
Development Agreement'),
has to
the Agency' s behalf
containing a municipal parking garage and appurtenances
a facility ( the "
Facility")
hundred
and
containing approximately eight
three (803)parking spaces ( the "Garage")
and certain retail space (the "Retail Space") located in an area bounded by Washington
proximity of 16th Street, City of Miami Beach, Metropolitan
and Collins Avenues in the
Dade County, Florida, as more particularly described on Exhibit B attached hereto
defined).

B.
Moritz
The Agency and St.

and incorporated herein (

the "

use

Land"). C.
In connection
of parking spaces at

with

the operation of the Hotel,Grantee

requires

the

Garage. D.
The Agency desires to grant Grantee an easement over the Land
and the Facility (other than the Retail Space)in order to provide to Grantee such
parking spaces and access, ingress and egress for pedestrian and vehicular passage and traffic
upon and subject to the terms and conditions
the

contained herein.NOW, THEREFORE, in consideration of the

payment often ($
10.00)
dollars, the mutual covenants and payments hereinafter set forth, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto intending to be legally

the
the

other

bound, agree as follows:1.DEFINITIONS. For all purposes of this Agreement,

this Section 1 shall have the fol owing rneanings and

terms defined in

18 70r~ I

f~:

089 Affiliate" shall mean, with respect to any Person, any other Person that,
directly or indirectly, through one or more intermediaries, controls or is control ed by, or is
under common control with, such
Person. For the purposes hereof, the term " control" (
including the terms cont"rol ed by" and under
"
common control with")
shall mean the possession
of a Controlling

Interest. Building

Index" has

the meaning

Casualty Restoration" has

Section 14.

in

Section

12.City"means the City

Florida municipal corporation. Commencement

of

provided in

the meaning

Miami

Beach,a

Date"has the meaning

provided in Section 3.Condemnation Restoration" has

the meaning

in Section

13.Construction

Plans" has

the meaning

provided

in

the

Development
ownership

the ownership of
Agreement. Control ing Interest' means
or the ownership
greater than 50%of the voting
interests in a Person
greater
than
50%
the
votes
necessary
to
elect
a
majority
of
of
of the Board of
Garage

Directors

or other governing body of such Person. Date of

Taking" has the meaning provided

13.
Designee"
Drawings"

has the

in Section

meaning provided in

Section

11.Development

has the meaning provided in the Garage

has the meaning provided in
Section 2.Equity Interest' means, with
any entity,1)
other
than
(the legal (
as a nominee) or beneficial

Development

Agreement.

Easement'

respect to
ownership of outstanding voting or nonvoting stock of such entity if such entity is a
business corporation, a real estate investment trust or a similar entity, 2)
(
the legal
other than as a nominee) or beneficial ownership of any partnership.
membership or other
interest in a partnership, joint venture, limited liability company
voting or non- voting ownership
or
similar entity, (3)
a legal ( other than as a nominee) or beneficial voting or
voting
in
a
noninterest
trust
if such entity is a trust and (4)
any other voting

18170rn ,
090

Spaces" shall mean the number of Parking Spaces in the

x)
the total number of Parking Spaces in the Facility

Excess Parking

equal to the excess, if any, of (

y)
the sum of the Parking Spaces with respect to which MB Redevelopment, Inc.
over
and Grantee are entitled to have Priority Use under the MB Redevelopment, Inc.

Facility

Easement Agreement and this Agreement,

be amended and to the extent each agre ment is in
Garage

effect.Excess

Section

Usage Payment

4.
Facility" has

the

the Recitals. Facility Usage

Amount" has

respectively,

as

each agreement

the meaning

may

provided in

meaning provided in

Payment" has

the

meaning provided

Mortgage" means a Mortgage ( i)

that is held by a Person (
other than an Affiliate of a Successor Owner, except as provided below) which is
an Institutional Lender,ii)
which expres ly provides that it is subject and subordinate to the Easement
and to the terms of this Agreement, ( Iii) that is in a principal amount not more than
the then Facility Permit ed Debt and iv)
following the
( a photostatic copy of which is,
execution and delivery thereof, delivered to Grantee, together with a certification by Owner
confirming that the photostatic copy is a true copy of the Mortgage and a certification by
the Facility Mortgagee thereunder confirming the address of such Facility Mortgagee
for Notices.Notwithstanding anything contained herein to the contrary, an Affiliate of a Successor Owner
may be part of a lending group constituting a Facility Mortgagee for so long as such Affiliate (
i)
does not own more than
a forty-nine 4(9%)percent beneficial interest in the
debt held by such Facility Mortgagee with respect to Owner or the Facility Premises and (ii)
is not the lead lender or agent for the lending group.
Grantee shall,within ten (
10) days after receipt of a Facility Mortgage, execute an instrument
acknowledging
such receipt of such Facility Mortgage; provided, however, that Grantee' s failure to
execute such an instrument shall not affect the status or validity of the Facility Mortgage or
the
in Section

Facility
4.

rights of the Facility Mortgagee. Facility Mortgage " means the holder of
a Facility Mortgage; provided, however, that a Facility Mortgagee may not be an Affiliate of Owner ( except
if Owner is an Affiliate of a Facility Mortgagee that has caused the Facility Premises
to be transferred to such Affiliate in lieu of the foreclosure of the Facility
Mortgage of such Facility Mortgagee). Facility Permitted
the meaning
collectively, the Facility
month period
12)

provided

and the

Debt" has

Facility Premises" means,

in Section 11.

Land.

Fiscal

Year"shall

mean

twelve (

1817OfGl091

m:
Foreclosure Transfer" has the meaning
11.
Foreclosure Transferee" has

Section

11.Garage" has

provided

in Section

the meaning

the

provided in

meaning provided in

the Recitals.Garage

Development Agreement"

has the

the Recitals.Garage

Management Agreement"

has the meaning provided

in Section

5.
Garage

Operator"has

meaning provided in

the meaning

provided in Section 5.
GDP Implicit Price Deflator Index" means the implicit
price deflator index for gross domestic product as published by the U.
S.Department of Commerce (1987 =
100),
or

any successor index thereto, appropriately adjusted. Governmental Authorities" means the United
States of America, the State of Florida, the City, Metropolitan Dade County, the
Agency ( in its govemmental as opposed to proprietary capacity) and
any agency, department, commission, board, bureau, instrumentality or political subdivision ( including any county
or district) of any of the foregoing, now existing or hereafter created, having
jurisdiction over Owner or over or under the Facility Premises or any portion thereof or
or in front of,
the Facility Premises, or any
any street, road,avenue or sidewalk comprising a part of,
vault in or under the Facility Premises,
or airspace over the Facility Premises. Grantee Indemnified Parties" shall
mean
Grantee and its directors, officers, shareholders,
employees, successors, assigns, subtenants, agents, contractors, subcontractors, experts,
licensees, lessees, mortgage s, joint venturers, members, partners of a partnership constituting a
partner of Grantee,
trustees,partners, principals, invitees and Affiliates.
shall have the meaning
has

the

Grantee' s lien"

in Section

meaning provided in

9.Grantee land"

the Recitals. Gross Parking

Revenues" has the meaning provided in

Revenues Statement" has

the meaning provided

Gross Parking
Section 4.

in Section

8.Hotel"has the meaning provided in the

Recitals.Hotel Development Agreement" means that certain Hotel Development Agreement entered into on
the date hereof between the Agency and Grantee regarding

1817QrCl09ZHotel

fr~:

Agreement"means a writ en agreement between Grantee and Hotel

Manager pursuant to which Hotel Manager has agreed to manage and operate the Hotel
in ac ordance with the terms thereof, and any replacements, substitutions, restatements
Management

or

modifications

thereof.Hotel

Hospitality Corporation, a Delaware corporation, engaged

by Grantee to manage and operate the Hotel, or any successor, substitute or assign
thereof permitted by the terms of the Lease. Hotel
Manager" means

Opening

Holiday

Date"means

the

date on

which

the Hotel is opened

to

the public

for

business in ac ordance with the Hotel Management Agreement,but not later than the date
that is thirty ( 30)
days following the date of "Substantial Completion" of the Hotel as

that term is defined in the Hotel

Development Agreement.

Institutional Lender" means a Person which, at the time it becomes an

Institutional Lender, is a state or federally chartered savings bank, savings and loan
association, credit union, commercial bank or trust company or a foreign banking institution
in each case whether acting individually or in a fiduciary or representative ( such as an
agency) capacity); an insurance company organized and existing under the laws of the
United States or any state thereof or a foreign insurance company ( in each case whether
acting individually or in a fiduciary or representative ( such as an agency) capacity); an
institutional investor such as a publicly held real estate investment trust, an entity that

public or private investment entity ( in each

case whether acting
principal agent); brokerage or investment banking organization
in each case whether acting individually or in a fiduciary or representative ( such as an
agency) capacity) as principal or agent); an employees' welfare, benefit, pension or
retirement fund; an institutional leasing company; a financing subsidiary or division of a
New York Stock Exchange listed company; any govemmental agency or entity insured by
a govemmental agency or any combination of Institutional Lenders; provided that each of
the above entities shall qualify as an Institutional Lender only if (at the time it becomes an
Institutional Lender) it shall ( y) have assets of not less than $
100,000,
not be an Affiliate of the Agency or any Successor Owner (
000 adjusted for inflation and (z)
it being further agreed that none of the standards set forth in this definition shall
be applicable to participants or co- Ienders in a loan secured by a Mortgage which is held
by an Institutional Lender whether
( acting individually or in a fiduciary or representative ( such
as an agency) capacity).The term "Institutional Lender" also includes an Affiliate
of an Institutional Lender as described
qualifies

under the Code

as a " REMIC"

as

the

Recitals. Late

other
a

in this paragraph. Land" shall

in

or

or

have

Charge

the meaning provided

Rate"shall

mean

interest

at

a rate equal to

the lesser

per annum in excess ofthe prime rate in effect from time

percent ( 4%)
shall
The Chase Manhattan Bank, NA, if Citibank, N.A.
(
to time at Citibank, NA or

of

four
( i)

t~:

1817Qrc I

a prime rate; or the prime rate of any major banking institution doing business in New
York City, as selected by Owner, if none of the aforementioned banks shall be in existence
the maximum interest rate permit ed by
or have established a prime rate), and ( ii)
093

law. Lease" has

the meaning

Recitals. MB Redevelopment,
corporation, its successors

and/

provided in the

means
Inc,"

MB

Redevelopment,

Inc., a

Florida

or

assigns. MB Redevelopment, Inc.Garage Easement Agreement" means that

certain Garage Easement Agreement, as same may be amended, dated as of
September 20,1996,by and between the Agency and MB Redevelopment, Inc.,relating
to

the Facility Premises. Mortgage"means any mortgage or deed of trust,and

all extensions, spreaders, splitters, consolidations, restatements, replacements,
modifications and amendments thereof, that constitutes a lien on all or a portion of the Facility Premises
and any security interest in or assignment of the rents,issues or
profits related thereto. Net Insurance

Proceeds" has

the

meaning in Section 12.

New Tenant' s Documents" has the meaning
in the Lease.Notic:; e"
shall have the
provided

meaning provided

in

Section 16. Notice of Facility

Failure to

Cure" has

the meaning provided in Section 11.Notice of Failure to Cure"

10. Owner" means the Agency (or the City, or

if the City or any such instrumentality shall
any instrumentality of the Agency or the City,
succeed to the interest of the Agency hereunder), acting in its proprietary capacity,
or any Successor Owner, and any assignee of the Agency (or the City, or any instrumentality ofthe Agency or
the City,
if the City or any such instrumentality shall succeed to the
interest of the Agency hereunder)or any Successor Owner of its interest in the Facility
Premises and this Agreement, from and after the date of the assignment or transfer pursuant
to which such interests were assigned
shall

have

the meaning

in

Section

or transferred to such assignee or transferee. Owner Indemnified Parties" shall

mean,collectively, the Agency, the City,any Successor Owner and their
respective elected and appointed officials (including, without limitation, the Agency' s Chairman and Mernbers
the City' s Mayor and City Commissioners),
officials, officers, shareholders, members, partners, employees, successors,

and
directors,

1094

m: ISI70pn

mortgagees, trustees, joint venturers, partners, partners of a partnership constituting

partner of the owner of the Facility, trustees, principals, invitees and Affiliates.
Owner Indemnified

Parking Space"

Party" shall

foregoing.

meaning provided in Section

has the

2.
Partial Taking" has

any of the

mean

the meaning in

Section 13. Permitted Users" has

the

meaning provided

Section 2.Person" means an individual, corporation, partnership, joint

limited
liability company, limited liability partnership, estate,trust, unincorporated
venture,
association or other entity; any Federal, state,county or municipal tIovernment or
any bureau,department, political subdivision or agency thereof;and any fiduciary acting in such

in

capacity on behalf of

any

of the foregoing. Priority Use"refers to the sole use of one or more Parking Spaces
in the Garage, subject to the terms of this Agreement or, where applicable to
elopment, Inc.,sUbject to the terms of the MB Redevelopment, Inc.
MB Redev.

Garage Easement Agreement. Project Agreements" means those certain agreements, dated as
of the date hereof, between Grantee and the Agency and/ or the City, and which are
ached
listed on Exhibit 1,
which is a~
Accounting Firm" means
hereto and incorporated herein. Recognized
Ernst &Young/ Kenneth Leventhal; Coopers &Lybrand; Arthur Andersen; Price Waterhouse;
& or any successor entity of any of
Peat Marwick; Pannell, Kerr Foster;
Deloitte &Touche; KPMG
the foregoing or any other national certified public accountants mutually acceptable
to Owner
provided in

and Grantee.

Recognized Mortgage" has the meaning

the Lease. Recognized

provided in the
provided to the term

Mortgagee" has

Lease. Recognized

the meaning

Mortgagee Designee"

has the meaning

Designee"in the Lease. Recognized Mortgagee Foreclosure Transferee" has

the meaning provided to the term "Foreclosure

Transferee"in the Lease. Replacement Value"has the

1817( J~

f~:

any and all laws, rules,

means: (i)
statutes, codes, executive orders and requirements
charters,
regulations, constitutions, orders, ordinances,
of all Governmental Authorities having jurisdiction over Owner and/ or the Facility
part of,or lying in front of,
Premises or any street,road, avenue or sidewalk comprising a

095

Requirmnts"

under the Facility Premises (including, without

limitation, any of the foregoing relating to handicapped access or parking, the Building Code of
the City and the laws,rules, regulations, orders, ordinances, statutes, codes and
similar functions); (
requirements of any applicable Fire Rating Bureau or other body exercising
or permanent certificate or certificates of occupancy issued for
the temporary and/
ii)
any and all provisions and requirements of
force; and iii)
as
then
in
the Facility Premises
(
any property, casualty or other insurance policy required to be carried by Owner under
the

Facility

Premises or any

this

vault

or
in,

Agreement. Retail Space" has the meaning provided in

the Recitals. SMHC" has

the

Recitals.

the

Substitute Spaces" has

Successor
in Section 7.

is

not

the

Agency,

the

meaning provided in

City

the

Owner" shall

or any

meaning provided

mean an

instrumentality

of

owner of
Agency

the Facility Premises that

the

or
the City. Term''has the meaning

provided in Section 3.Total Taking" has

the meaning in Section 13.
Unavoidable Delays" has the definition
for
Lease" and "
"
Grantee"
in the Lease, but substituting Agreement"
in such
for Tenant''
''

definition. Use Fee" has

the meaning provided in Section 4.Use

has the meaning

provided

provided in

Fee

Com encement Date"

Section 4.

GRANT OF EASEMENTS. The

Vehicles"has the meaning provided in Section 2.2.
Agency, as the fee owner of the Land and the Facility, hereby grants and
creates for the benefit of Grantee, and its customers,
and licensees collectively, the "
invitees,tenants
contractors, agents, servants, employees, guests,
Easement') solely for the purpose of parking up
Permitted Users")a non- exclusive easement ( the "
(
hereinafter defined) in and on Parking Spaces ( as hereinafter defined)
to 174 Vehicles as
existing in the Garage,and for access, ingress, and egress for pedestrian and vehicular
passage and traffic over and upon the Facility Premises in connection with

18170r~ I
096 The floor plans attached hereto and incorporated herein as Exhibit 2 depict (
and three 8
the approximate location of the eight hundred
( 03)individual Parking
i)
the Retail Space and (iii)
the area over which
( i)
Spaces to be provided in the Garage, i

the Easement is granted hereunder. The term " Parking Space" as used in this Agreement
shall mean a space designed for the parking of automobiles, vans, trucks,motorcycles
Vehicles'')and complying
similar vehicles (''
and
other
3.TERM. Subject to and upon the terms and conditions
this Agreement (the Term'?
" shall take effect as of the earlier to
occur of the Use Fee Commencement Date and the Hotel Opening Date (
(
the Expiration of the Term
the Commencement
"
Date")and shall terminate upon the latest to occur of x)

with

the Requirements.

set forth herein, the term of

date on which the improvements on the Grantee land are

the date on which the
no longer operated or intended to be operated as a hotel and (z)
i
m
provements
c
o
ns
t
r
u
c
t
e
d
thereon
from
time
land
and
the
fo time are no
Grantee
longer subject to parking

of the

lease, ( y)
the

requirements under
Requirements. 4.USE FEE.a)Use Fee. Grantee agrees to pay Owner,
the Hotel Opening Date, which, for
commencing on the later to occur of i)
(
the
purposes
of this subsection 4(
shall
not be later than twenty-four ( 24)
months after
a),
the date Grantee is obligated to commence construction of the Hotel ( subject to Unavoidable
the

Delays) under

(
the date
and in ac ordance with the Hotel Development Agre ment and ii)
c
o
n
s
t
r
u
c
t
i
o
n
of
the
Garage
is
substantially
compl
e
ted
on which x)
(
in
Drawings
with
Const
r
uct
i
o
n
and
Dev
e
l
o
pment
the
Garage
contains at
the
and y)
(
accordance
Plans
least 174 Parking Spaces of which the Permitted Users are entitled to have Priority Use as
the general public (the "Use Fee
provided herein and is opened for business to
Commencement Date"),an annual use fee t
( he Use
" Fee")in the amount of
One Hundred Fifty- Six Thousand Six Hundred Dollars ($ 156, 600), which Use Fee shall
be payable pursuant to

subsection 4(

c).
The
and 4(
b)
descr
i
b
ed
in
Section
6
below.
The
Use
charges
Fee

shall be

e),

Use

prorated

subject, however, to the terms contained in subsections 4(

Fee shall be in addition to the parking

for any period of

less

than

Facility Usaqe Pavment. In consideration of Grantee' s obligations

one full Fiscal Year. b)
pay
hereunder, Owner agrees to
to Grantee,from and after the Use Fee

Cornmencement

Date,pursuant to

subsection

4(
e),
a

percentage of

annual Gross Parking Revenues, which percentage shall

Usage Payment"):
i)
Owner shall pay
the

Facility

to

200,000

of

Grantee an amount equal to

annual Gross Parking Revenues;

be as

13. 05%
of the

follows (the "

first $1,

18170r~ I
provided, however, the
each Fiscal Year shall be applied

097

first $156, 600 of the Facility Usage Payment for

as a credit against the Use Fee for

Minimum Facility Usaae Pavment. If at any time or from

Year.c)
"
time to time during the term of this Agreement the amount (the Excess
the cumulative aggregate Use Fees paid by Grantee from
Usage Payment Amounf'), if any, by which i)
(
and after the Use Fee Com enc ment Date exceed (ii)
the cumulative
from
and
after
received
by
Grantee
Facility
Payments
the
Use Fee
aggregate
Usage
is greater than $
313,200 the Facility Usage Payment thereafter shall
Commencement Date
( 156,$600 for each Fiscal
to the greater of a)
be payable at a rate equal
Usage Payment calculated in accordance with subsection
the Facility
Year or (b)
4(
b)above,until
that

Fiscal

Amount no longer exceeds $313,

"
200.d)
Gross Parking Revenues. For
- purposes hereof, Gross
Parking Revenues" shall mean, with respect
to any Fiscal Year,any and all gross rents,receipts or fees
or other parking
revenues from the operation of the Garage.

the

Excess

Usage

Payment

The

following shall, however, be excluded from Gross Parking Revenues:

i)
Federal, state and municipal excise,sales, resort, use, and other
taxes collected from Garage customers as a part of or based
upon the sales price of any goods or
services, including without limitation, gross

receipts,

parking, garage,or similar taxes collected from Garage customers;

Allowances, rebates and refunds not included
ii)

in
Revenues in accordance with
of any financing or

Gross

Parking

refinancing

of

iv)

The proceeds of any insurance or

generally

all or any part

accepted

of

any

accounting principles;

Iii)The

proceeds

the Facility Premises;

condemnation award; v)Proceeds from

the sale
of

all

or

any

portion

of

the Facility Premises; and vi)Rents,

receipts
Payment
other revenues of any kind from the Retail Space. e)
pay
the
set
shall
amount
forth
on
the
applicable,
Gross Parking Revenues Statement ( as defin d in subsection 8(
c)
below).As applicable,in
any
amount
simultaneously with the delivery
each month,i)
Owner
shall
pay
required
(
or

Date.Owner

or

Grantee, as

to Grante

18 70r~ I098

m:

Grantee shall pay any

hereof for the preceding month or ( ii)
8( c)
subsection
by Grantee of the
receipt
days
required amount within
ten (10) following the
to
subsection 8(c)
hereof
Gross Parking Revenues Statement required pursuant

for
the preceding

Garaae Ooerator. The "Garge Operator" shall

a)
a nationally recognized parking garage operator designated by Owner from the
mean i)
(
attached hereto and incorporated herein
a)
set forth on Exhibit 5(
list of such operators
any other parking garage operator designated by
or ii)
(
month.

5.
GARAGE OPERATIONS.

Owner

and approved by

Owner shall cause the Garage

Garage ManaQement Aareement. i)
b)
operated and managed exclusively by the Garage Operator in accordance with the
conditions of this Agreement, pursuant to a written garage

Grante.

to be
terms and
management agreement ( any such agreement, together with any amendments or modifications thereto,
being hereinafter referred to as the "Garage Management Agreemenf1 providing for
terms of
limitation the
services, and containing terms and conditions ( including without
hereof), reasonable and customary for the operation of a
and 6(
subsections 5(
c)
c)
of
and not inconsistent with the requirements
garage in accordance with the terms
of this Agreement. Owner and Grantee agree that the Garage Management Agreement
shall further provide that the Garage Operator shall provide to Grantee and the Permit ed Users
Priority Use of that number of Parking Spaces as the manager engaged by Grantee to
manage and operate the Hotel, or any successor or assign thereof, shall request from time to
time by not less than twenty-four 24)hours advance notice to the Garage Operator,
such request to be made in writing or in accordance with procedures
mutually acceptable to the Garage Operator, Owner and Grantee; provided, however, that such
number of Parking
Owner shall (
one hundred seventy- four ( 174).ii)
w)
perform or cause to be performed Owner' s material obligations
Garage Operator
under the Garage Management Agreement and (x)enforce the performance by the
of all
Spaces

shall not

exceed

its material obligations under the Garage Management Agreement. iii)Owner shall
promptly give Grantee a copy of any notice of default,event of default,
of

termination

or cancellation sent

received by Owner regarding the Garage Management Agreement. iv)

Owner
least
days prior to the
shall y)
( deliver to Grantee, at fifteen (15)
Agreement or any amendment
execution thereof,copies of any proposed Garage Management
or

8r~:

18170re

1099 copies of the Garage Management Agreernent and any

the Garage Management

amendment

or modification of

Liability.Grantee shall not incur any liability to Garage Operator

c)
under the Garage Management
Agreement.

Agre ment.

d)
Hours and SecuritY. The Garage shall be open twentyday 365 (
or,if applicable, 366) days a year, and

a
hours
shall keep
24)

shall

the Garage appropriately

maintain

in accordance with the

e)
5(

appropriate

four (

Owner

lighted and

Standards. The Garage shall be operated

security. e)

standards of

quality

and

operation

described on Exhibit

incorporated
hereto
and
herein. f)
MB
at ached
Agreement
to
No
t
w
i
t
h
s
t
a
n
d
i
n
g
anything
this
the
contrary, in the
Easement
Gar
a
Qe
in
Redevelocment. Inc.
Agreement.
event that,due to a casualty, Partial Taking or otherwise, the Garage contains less than
the sum of the Parking Spaces with respect to which MB Redevelopment, Inc. and
Grantee are entitled to have Priority Use under the MB Redevelopment, Inc.
Garage Easement Agreement and this Agreement, respectively ( as each agreement may be amended
the number of Parking Spaces in the
and to the extent each agreement is in effect),
Garage of which Grantee is entitled to have Priority Use hereunder shall be equal to the excess,
the number
the number of Parking Spaces in the Garage over i
if any, of i)
( i)
(
of Parking Spaces of which MB Redevelopment, Inc. is entitled to have Priority
Use pursuant to the MB Redevelopment, Inc.Garage Easement Agreement;
provided, however, that the number of Parking Spaces of which Owner is required to provide Priority
Use to Grantee under this Agreement will remain
Manner of Providing Priority Use
such calculation. g)
of ParkinQ Scaces. The Garage Management Agreement shall provide that the manner
in which Garage Operator shall provide Priority Use of Parking Spaces to Grantee and the
Permitted Users shall not be inconsistent with this Agreement and shall

unchanged

by any

be reasonably acceptable
Grantee Use. The Permitted Users may
Grantee.6.USE OF GARAGE. a)
use the Garage solely for the purpose of parking Vehicles of the Permit ed Users. The Garage
may not be used by the Permitted Users for any other purpose without
to

Owner Use. Owner may use and allow the

the
prior written consent of Owner. b)
purpose
of
of
the
for
the
the parking of Vehicles of the
use
Garage
general public, including, without limitation, the customers, contractors, agents,
Hotel Users")of the hotel
"
servants, employees, guests, invitees and licensees collectively, the Loews
commonly

m:
1100 Beach Hotel, which

has

18170pr
of 1601 Collins Avenue, Miami
also use the Garage for any other purpose;

a street address

OWner may
Beach, Florida the " Loews Hotel").
any such other purpose is not incompatible with the operation of a first
provide that i)
class convention center hotel, ii)
(
such other purpose does not negatively affect in any material
respect the Easement and the other rights granted to Grantee pursuant to this Agre ment
and Hi)
(
Owner consults with Grantee prior to using the Garage for any such

purpose.c)
Charges for Garage. The parking charges for Permitted
Users shall be established by the Garage Operator, SUbject to the approval of
OWner; provided, howevr, that i)
( charges to Grantee for Hotel valet parking shall not exceed
charges for parking for the employees of
fifty percent 50%)
the
self- park rate;and (ii)
of
Grantee or the Hotel Manager that work at the Hotel shall not exceed the lowest of x)
(
the monthly parking rate, (
y)fifty percent ( 50%)
of the self- park rate or z)
( the
contract parking rate. The Permitted Users will in no event be charged more than the lower of m)
(
the rate charged to the
the self- park rate charged to the general public or n)
(
other

Hotel Users.d)Preference. Grantee agrees to utilize all

prior to utilizing other parking facilities not located on the
parking spaces in the
Grantee Land and to encourage the use of the Garage by
ap licable

Loews

available

Garage

Permitted

the

other

Users.

Allocation of Parking Spaces. If,

e)
Intentionally Omitted. f)
at any time during

this Agreement, Grantee is

actually unable to utilize 174 Parking
Spaces at all times because the spaces in such parking area are occupied by
vehicles not belonging to Permitted Users, Grantee shall notify OWner in writing and OWner
shall cause the Garage Operator to take all such steps as are necessary to insure that
the Permitted Users are
given appropriate Priority Use of 174 Parking Spaces in
its 174 spaces occurs
more
accordance with this Agreement.
If such inability to use
times in any three 3)
than three (3)
( week period,then Owner shall effect a remedy of
more of the remedies described on
the situation pursuant to
or
one
attached hereto and incorporated herein ( and such remedies, without
f)
Exhibit 6(
limitation,will be expressly accorded to Owner in the Garage Management Agreement) or any other
remedy that results in a rernedy of the situation. The actual remedy or remedies
so used shall

the Term

of

be selected by Owner acting

reasonably

OWNER' S COVENANTS AND

after consulting with Grantee. 7.

in or over

and/ or

OBLIGATIONS. a)
lR.OWner
!.

the Land
Facility and may use
may grant other easements or rights
the Land and/ or Facility, in each case subject to the Easement, for
any purpose permitd herein in the sole discretion of Owner; provided, however, that i)
( any
i
n
c
o
r
n
p
a
t
i
b
l
e
be
the
operation
easement
,
right
shall
not
a
first
class
or
use
with
of
such

t~:

18170P~

II 0

I not negatively affect in any material respect the Easement and the other rights granted
any such easement, right or use shall
to Grantee pursuant to this Agre ment, ( iii)
Owner shall
provide parking rights only with respect to the Excess Parking Spaces and ( iv)
such
other
right
consult with Grantee prior to granting or permitting any
easement, or
b)
Construction. Owner shall, at its expense, cause the construction
on the Land of the Garage substantial y in accordance with the Construction Plans
use.

and Development
Comoatibil tv to Hotel. Owner, at its expense, shall operate,
c)
maintain and manage ( or cause the operation, maintenance and management of)the
Facility Premises (including the Retail Space) in a manner compatible with a first class
Drawings.

convention center

Maintenance. Owner, at its expense, shall take good care of,

d)
and keep and maintain, the Facility Premises in good and safe order and condition and
shall make all repairs therein and thereon necessary to keep the Facility Premises in good
hotel.

and safe order and condition,however the necessity or desirability therefor may arise.
Owner shall, at its expense, keep clean and free from dirt, mud, standing water,
rubbish,obstructions and physical encumbrances all areas of the Facility
Equipment. Owner shall maintain all the necessary building
e)
and operating equipment and fixtures located at or used in connection with the operation of
the
Premises.

Repairs. All repairs made by Owner shall be substantial y equal

Garage.
f)
qual
i
t
y
in quality to the original of the items being repaired and shall be made in
compliance with the
g)
Substitute Parking. Iffor any reason whatsoever, including,
Requirements.
without limitation, Unavoidable Delay, default by SMHC under the Garage
subsection
Development Agre ment, a Total Taking, a Partial Taking or a temporary taking under
the
provisions
s
u
b
s
ection
the
appl
i
c
ati
o
n
or
casualty,
damage,
f),
of
of
or
destruction
13(
f)(
ii),
Owner is unable to or does not provide to the Permitted Users
5(
Priority
period
accor
d
ance
Agr
e
ement
,
for
any
Garage
the
Spaces
at
of
174
with this
in
Parking
Use
of time from and after the Hotel Opening Date then, notwithstanding anything to
the contrary in this Agreement or any Project Agreement, Owner shall
provide substitute parking

in accordance

the following requirements: i)

The number of substitute
x)
174
be equal to (
parking spaces (the " Substitute Spaces")required to be provided shall
minus y)
(
the number of available Parking Spaces in the Garage as to which Permit ed
with

Users have Priority

Use

if~:

1817or~

l 02

80%
of the Substitute Spaces or such
greater number as may be required by the Requirements applicable to the Hotel shall be
I)
1200 feet or II)
(
located, from the main entrance to the Hotel,within the lesser of (
the distance required by the Requirements in order for the Hotel to be in compliance
ii)

No less than

with the Requirements

conceming

Owner shall take

parking;iii)

such

reasonably requests to ensure that Permitted Users have access to

convenient,

actions

as Grantee
the Substitute Parking in a

safe and

manner; iv)Grantee shall be entitled to Priority Use of

the same extent as it is entitled to have Priority Use of parking at
secure

the

Substitute Spaces

the Garage

to

under

days
within thirty 30)
(
shall,
pocket
costs
r
e
a
s
o
n
a
b
l
y
incurred
as
a
result
of
Granteefor all out-offollowing demand, reimburse
the utilization of Substitute Parking, which costs may include,without limitation, additional
payroll costs of providing transportation for Permitted Users to and from the location
at which Substitute Spaces is provided and the cost
this

Owner
Agreement; v)

additional security; vi)The Use Fee shall be proportionately reduced

Spaces bears to 174 for
in the same proportion as the number of Substitute
so long as Substitute Spaces are required
of

be provided hereunder; vii)Permitted Users shall pay parking

(
the rate
charges for the Substitute Spaces at a rate that is not greater than the lower of x)
that would have been charged for such parking spaces if such parking spaces had been
to

the provisions of subsection 6(

provided at the Garage, in accordance with
c) of this
the
at
facility
or
parking
general
char
g
ed
to
y)
lot
the
public
Agreement, and (
the rate

in

which the
Substitute

g)shall limit

Owner' s

Spaces are located; and

obligation to restore the

viii) Nothing in this subsection

7(

( the above
as provided in this Agreement. Owner acknowledges that i)
Agreement
is
a
material inducement to Grantee
this
to
covenant to provide the Substi ute Spaces pursuant
to enter into the Lease and the Agreement and (ii)that in the event of a
breach of such covenant, monetary darnages will be inadequate to compensate Grantee for
harm resulting from such breach, and Grantee shall have,immediately upon such
c)
hereof, the right
and notwithstanding the provisions of subsection 9(
failure to provide parking
to seek injunctive relief to compel the cure of such breach or damages to compensate Grantee
for Owner' s failure to provide the Substitute Parking. Nothing herein shalllirnit
any claim Owner may have
Garage

1817()

11
03 h) Reauirements. Owner, at its expense, shall
respect
to the construction, maintenance and operation
with
Re
q
u
i
r
e
m
e
n
t
s
with
comply
all
of the Facility Premises, including but not limited to maintaining all permits and
licenses necessary for the operation of
f~

the
Alterations. Owner may make alterations ( structural
Facility Premises. i)
no such alteration ( whether during
or othelWise) to the Facility; provide, however, that (i)
the course of making such alteration or thereafter) may negatively affect in any material
(
respect (x)
the efficiency, function, compatibility or first class quality of the Garage or y)
any
of the rights of Grantee under this Agreement and ii)
(
Owner
provides Grantee
thirty (30)days prior notice of any such alteration, such notice to include a copy of

the plans and

Height. Owner hereby
specifications for such alteration. 0)

agrees that

for so long

hotel shall be operated on the Grantee Land, Owner shall not increase the height of
the Facility so as to adversely affect the useful enjoyment of the swimming pool

as

located on the Grantee

AND RECORDS a)Books and Records. Owner shall at all
times during the term of this Agreement keep and maintain separ(ate from any of the
Owner' s other books, records and accounts),and shall cause the Garage Operator
to keep and rnaintain, accurate and complete records pertaining to the Garage,
Land.

8.
FINANCIAL REPORTS

Gross Parking Revenues, in accordance with generally accepted

accounting principles, consistently applied, with such exceptions as may be provided for in this Agreement,
and provided that Owner (and the Garage Operator) may make reasonable modifications in
such books of account as are consistent with the Garage Operator' s standard
practice in accounting for its operations under garage operating agreements generally.
Grantee and its representatives shall have, during normal business hours and upon reasonable
advance notice, access to inspect the books and records of OWner and the Garage
Operator pertaining to the Garage,including, without limitation, books of account properly reflecting
the operations of the Garage, which books and records shall be kept in the City of
Miami Beach, Florida. Grantee shall have the right to cause an audit by any
accordance with generally accepted accounting principles) of such books and
(
Recognized Accounting Firm in
but not more frequently
than one ( 1)
records to be made at any time (
time in any twelve ( 12)month period),at Grantee' s expense ( a copy of which shall
reflecting the

be delivered to Owner). Such right of inspection and audit

may be exercised at any time within
three 3
( )years after the end of the Fiscal Year to which such books and
records relate, and Owner and the Garage Operator shall maintain all such books and records for at

least such period of time and, if any dispute between the parties has arisen and
remains unresolved at the expiration of such period of time,for such further

Rtt:

18 70r~ II
Results. If,
upon any

b)
Audit

audit by

Grantee as described above

O
p
e
r
a
t
o
,
(
an
i)
error (which shall mean
of the books or records of Owner or Garage
a mistake in calculation or an accounting error, but shall exclude any error based

04

Owner or the Garage Operator acted imprudently or unwisely in

operation
and management of the Garage) shall be revealed which results in there
the
having been an underpayment to Grantee of the Facility Usage Payment for any Fiscal Year
for which Gross Parking Revenues Statements are being audited pursuant to
subsection
8(
a),
the amount of any such underpayments of Facility Usage Payment which
may be disclosed by such audit, together with interest accrued thereon at the Late
Charge Rate from the date on which such underpayment should have been paid until the
(
date of payment of the correct amount, shall be paid to Grantee
upon thirty 30)
an
be
r
e
veal
e
d
which
in
there
days demand or ii) error shall
results
having been an
overpayment by Owner to Grantee of the Facility Usage Payment, Grantee shall remit the
amount of such overpayment ( less the cost ofsuch audit, l5'ut not more than the

on assertions that

days after the completion of

Owner within thirty (30)
such audit. If such error results in there having been an underpayment to Grantee
of the Facility Usage Payment for any Fiscal Year being audited pursuant to subsection
a)in an amount
percent of
8(
equal to or exceeding three (3%)
the Facility Usage Payment theretofore paid by Owner in respect of such Fiscal Year,then the cost of such
audit shall be paid
by Owner to Grantee upon thirty (30)days demand. If Grantee
does not notify Owner of any error in the
calculation of Facility Usage Payment within
3)
the
end
of
any
Fiscal
three (
years after
Year,then Grantee shall be
objections
to
c
o
nc
l
u
s
i
v
e
l
y
have
waived any and all
with respect to any Facility
deemed

amount

of such overpayment) to

Usage

Statements. As soon

Payment

as

with

respect to such Fiscal Year. c)

Gross Parkinq Revenues
but in no event later than thirty (30)days after

available,
of each month, Owner shall

deliver to Grantee an
the
" Parking Revenues Statemenf') for
both such month
unaudited Gross Parking Revenues statement ( a Gross
and the Fiscal Year to date. Each Gross Parking Revenues Statement shall also set forth
such month (
the Use Fee and the Facility Usage Payment and the net amount payablefor
on a cumulative Fiscal Year- to-date basis) and any Excess Usage Payment Amount.By
the end of the fifth calendar month following the end of each Fiscal Year, Owner shall
furnish to Grantee a copy of the annual Gross Parking Revenues Statement
statements shall have been audited by
for the previous Fiscal Year which
(
the
Accounti
n
g
accuratel
y
reflecting
Recognized
Firm)
annual Gross Parking Revenues, the Use Fee
a
and the Facility Usage Payment payable for such previous Fiscal Year, the Use Fee
and the Facility Usage Payment actually paid during such previous Fiscal Year and any Excess
Usage Payment Amount as at the end of such previous Fiscal Year,all
prepared and certified by Owner and such Recognized Accounting Firm in
accordance with generally accepted accounting principles consistently applied. If any such annual Gross
Parking Revenues Statement shall indicate that there was an overpayment or an underpayment of the
Use Fee and/or the Facility Usage Payment for such previous Fiscal Year, then
(
the amount
of any such overpayment shall be retumed, within thirty 30)
end

18170fG II

rr~:
06 against

the Use Fee and sue for damages for any remaining sum; provided, however,
any
such
offset shall not limit any other right or remedy available to Grantee,except to
that
the extent that such offset cured such failure. If Owner defaults in the performance of any

nonmonetary obligation required of it under this Agreement (other than the covenant to
the Facility
containing 174 Parking Spaces and providing Priority Use thereof
as provided herein and to provide the Easement for parking),and Owner fails to cure
such default
within thirty (30)days after Notice by Grantee to Owner of such default, or if
such a default is of such a nature that it cannot reasonably be
remedied within thirty (
30)days after the giving of such default Notice but
( is otherwise susceptible to cure), and
Owner shall
i
)
within
3
0)
days
after
the
giving of such default Notice,
not (
thirty (
advise Grantee of Owner' s intention to institute all steps ( and from time to time,
as reasonably requested by Grantee, Owner shall advise Grantee of the steps being taken)
necessary to remedy such default which such steps shall be reasonably designed to effectuate a cure
thereafter diligently prosecute
of such default in a professional manner),and (Ii)
r
e
medy
compl
e
t
i
o
n
such
steps
necessary
to
the
same,
then
Grantee
to
all
is entitled to
sue for damages. If, following the date
that is one hundred twenty (120) days
the
Hotel
Date,
the
Garage
is
not
open for business and Owner
following
Opening
has failed to achieve Substantial Completion as defined in the
Garage
Development Agreement) ofthe Facility containing 174 Parking Spaces and providing Priority Use thereof as
provided herein and to provide the Easement for parking pursuant to this Agreement, then,
g),
Grantee shall be entitled to
in addition to the provisions of subsection 7(
seek injunctive relief or specific performance to compel the cure of such default and/
or w
(
)
pursuant and subject to the provisions of subsection 9(d),
the
c
o
ns
t
r
u
c
t
i
o
n
of
the
complete
Garage pursuant to the provisions hereof at Owner' s sole cost and expense. Owner
the covenant to build the Facility containing 174 Parking
acknowledges
that x)
(
Spaces and providing Priority Use thereof as provided herein and to provide the Easement for parking
is a material inducement to Grantee to enter into the Lease and this Agreement and y
(
)
that
such
the
event
a
of
covenant,
damages
will
be
of breach
in
monetary
inadequate to compensate Grantee for harm resulting from
such breach and, in addition to the provisions
7(
shall
subsection
have the right to seek injunctive
g),
Grantee
of
build

relief

or specific

performance to compel

the cure

of

such
breach. d)Right to Perform the Other Party's Covenants. i)
default
shall occur and be continuing beyond any applicable grace period,either party
If a
may, but shall be under no obligation to,perform the obligation of the other party giving
rise to such default, without waiving or releasing the other party from any of
in the event of a
its obligations contained herein, provided that such party shall exercise such right only
days
notice to the other party.
bona fide emergency or after five (5)
hereof,Owner grants Grantee an additional
Without limiting the provisions of subsection 9(c)
easement on the Facility Premises to permit Grantee to exercise its cure rights or to permit Grantee
to maintain its Easement if for any

reason

m:

1817Of~

1107

Any amount paid by Grantee in performing the obligations

ii)
Agreement
as set forth above, including, without limitation, all costs
this
and expenses incurred by Grantee in connection therewith, shall be reimbursed to
Grantee within
thirty (30)days after Grantee' s demand therefor, together with
interest thereon calculated at the Late Charge Rate from the date of notice of any such
payment by Grantee to the date on which payment of such amounts is received by Grantee.

of Owner under

If any Successor Owner fails to reimburse Grantee for such amounts, Grantee shall have
upon recording a claim of lien in
a lien against the Facility a( "Grantee' s Lien")
Publ
i
c
the
Records of Dade County, Florida for any such unpaid amounts and for the

accrued or accruing thereon. Grantee' s Lien

also secure attomeys' fees incurred

by Grantee incident to the collection of such amounts, whether or not legal proceedings
are initiated, and if initiated, at the trial court and appellate levels and in postjudgment proceedings. All Grantee' s Liens shall be superior to the lien of any mortgages encumbering
the Facility or any part thereof,whether recorded prior to or aTter the date of recording the claim
of lien, and all such Grantee' s Liens may be foreclosed by suit brought in the name of
Grantee in like manner as a foreclosure of a mortgage on the real property. Grantee may,
at its option, sue to recover a money judgment for unpaid amounts without thereby
waiving the Grantees' Lien securing the same ( provided, that upon payment of any
interest

shall

money judgment,such Grantee' s Lien shall be deemed satisfied and shall be

this subsection 9(
d)(
of record).Notwithstanding the foregoing provisions of
Ii),
from and after the date a Successor Owner becomes the owner of the Facility,
Grantee may not exercise its rights
under this subsection 9(
d) unless and until a
Notice of Facility Failure to Cure (as defined below) has been delivered to each Facility
Mortgagee and no such Facility Mortgagee has cured or elected to cure such default
Owner
of such Successor

such
promptly discharged

pursuant

Notwithstanding anything to the

to Section 11 hereof. iii)
long
Agreement,
so
as
Agreement
the
in
for
this
and
MB
Redevelopment, Inc. Garage Easement Agreement are both in effect simultaneously, if the same default by
Owner shall occur and be continuing beyond any applicable grace period on a simultaneous
basis under both the MB Redevelopment, Inc.Garage Easement Agreement and
this Agreement, Grantee shall not have any of
the rights provided under subsection 9(
i)
and (
d)(
Ii)
hereof with regard to that default unless MB Redevelopment, Inc.has designated
contrary

this

in writing to Owner that Grantee be the sole Person,under

both

Cross-Default. A default by Grantee under

rights. e)
the Lease and/or the Hotel Development Agreement that occurs and
continues beyond any applicable cure period, including but not limited to any cure period
applicable to a Recognized Mortgagee, shall constitute a default under this
Agreement, which default under this Agreement automatically will be deemed to have
continued beyond any applicable cure period, including but not limited to any cure period
such

agreements, to exercise such

a)and (b) above, in the

applicable to a
Recognized Mortgagee. Without limitation to subsections 9{
event of such a default under this Agreement, Owner shall be entitled to sue

18 70r~

m:

II09

Mortgagee shall advise Owner ofthe steps being taken) necessary to

remedy such default (which such steps shall be reasonably designed
to effectuate the cure of such default in a professional manner), and
ii) thereafter diligently prosecute to completion all such steps
necessary to remedy the same, it being acknowledged by Owner that,
if possession or control of the Easement is required to effect the cure,
the diligent prosecution of a foreclosure of a Recognized Mortgage
shall constitute a part of the steps necessary to remedy such default.
10( b), (
Notwithstanding the foregoing provisions of this subsection
five 5)
(
following the delivery of a Notice of Failure to Cure,within
Business
i)
Days following the written request of any Recognized Mortgagee (which request may be contained
to
in the notice from such Recognized Mortgagee to Owner given pursuant
such
Recognized
subsection 10(b)(
1)),
Owner shall
deliverto
Mortgl:fgee a
statement certifying the aggregate amount then due and in arrears hereunder and the estimated per
diem increase in such amount, but no such request shall increase or toll any of the time

subsection 10( b)
without in any way
and (ii)
limiting the obligations of Grantee hereunder or the rights of Owner hereunder,
such Recognized Mortgagee or its Recognized Mortgagee Designee or

periods provided

for

in

this

Transferee shall not be required to payor cause to be paid any

b)or
y)
(
payable by Grantee under ( x) clause ( ii) of subsection 8(
Recognized Mortgagee

Foreclosure

last

amounts

sentence of

c) Acceotance.
subsection 8(
c).
Owner shall accept performance by a Recognized Mortgagee of any covenant, condition or agreement
on Grantee' s part to be performed hereunder with the same force
the

effect as though performed by Grantee. d)

and
Pavments. Notwithstanding
made
other
pr
o
vi
s
i
o
n
of
to
Owner
any
this Agreement, no payment
by
any Recognized Mortgagee shall constitute the Recognized Mortgagee' s agreement that such payment was, in

fact,
under

the terms of

Agreement.

PrioritY.If there is
Mortgagee, to the exclusion
more
of all other Recognized Mortgage s, whose Recognized Mortgage is most senior in lien shall be recognized
unless such
by Owner
as having cure rights under this Section 10,
first priority Recognized Mortgagee has designated in writing to Owner a Recognized Mortgagee whose Mortgage (
as such term is defined in the Lease)
due

this

e)

than one Recognized Mortgagee, only that

exercise such rights. f)

No Surrender or
not to accept a voluntary surrender, termination or modification of
shall remain a lien on Grantee' s
at any time while any Recognized Mortgage( s)

is

junior in lien to

Modification. Owner

this

Agre ment

agrees

the Grantee Land. It is further understo d and agreed that any

shall not be bound by any surrender, termination
such Recognized Mortgagee( s)

leasehold estate in

rrf:
0

termination

or modif cation is made with

18170r~

III

the prior

written consent of

such

the foregoing,Owner' s waiver or postponement of

Recognized
any obligation of Grantee or any remedy Owner may have under this Agreement shall
not consti ute a modification for purposes
Mortgagee. Notwithstanding

FACILITY MORTGAGES; NOTICE AND RIGHT TO

hereof.11.
CURE SUC ES OR OWNER'
to MortaaliJe. Each Successor Owner shall have the
right to secure indebtedness in an amount not to exceed Facility Permitted Debt without
Grantee' s approval pursuant to a Mortgage that qualifies as a Facility Mortgage.
Only
Facility
encumber
the
or
any
Mortgage
thereof
may
Facility Premises
one 1)
(
part
DEFAULTS. a)Ri~ht

atter a sale of the

anyone time.b)
"
Permitted Debf' means,
Facilitv Permitted Debt. Facility
Tr
a
nsf
e
r
i1ity
Pr
e
mi
s
es
a
F
a
c
i
l
t
y
or
Mortgagee,
( i)
Fa9.
Foreclosure by a

the

amount equal

at

principal

which, in the

case of

to

not

more than 75%

of the consideration received by Owner (

sale to an Affiliate, shall not exceed the fair market

value of

the Facility Premises) directly for such sale of the Facility Premises ( including, however,
any Mortgage debt assumed or taken subject to by such transferee) and ii)
any
(
to
amount
by
Grantee
pur
s
uant
subsection
a).
In
greater principal
approved
11(
addition, Facility Permitted Debt shall include any debt obtained in connection with I)
a
(
required Casualty Restoration or Condemnation Restoration, as applicable, if the Net Insurance Proceeds
are,
or the Net Condemnation' Award is,inadequate to achieve the
required Casualty Restoration or Condemnation Restoration, as applicable and (II)any advances
made by a Facility Mortgagee with respect to the Facility Premises for the
payment of taxes, assessments, insurance premiums or other costs incurred for the protection of
the Facility Premises or the liens created by the Facility Mortgage, and reasonable
expenses incurred by such Facility Mortgagee, by reason of default by Owner under
the Net Insurance Proceeds are not inadequate as a
such Facility Mortgage; provided, however, that x)
(
of
the
by
maintain
failure
Owner
result
to
the insurance required hereunder, ( y)
any
by
the
Owner
that
debt
(
any
refinancing
thereof
incurred
such
debt)
shall
such
including
the
of
only
the
increase
Permitted Debt
for
amount
purposes of effecting
such Casualty Restoration or Condemnation Restoration or paying the advances set forth in
the preceding clause ( II)
and, following the repayment of such debt by the Owner that
and (ii)
shall govem the level of Facility
such
debt,
t
h
e
provisions
of
clauses (i)
incurred
Permitted Debt except
(
to the extent the provisions of this clause apply to a
subsequent casualty or condemnation or such payment under or in connection
with a Facility Mortgage);and (
z)
with respect to any purchaser of the Facility Premises from any Owner that
and (ii)
shall govem the level of Facility
incurred such debt, the provisions of clauses (i)
Permitted Debt except
( to the extent the provisions of this sentence apply to a
subsequent casualty or condemnation or payment

18170r~
such Facility Mortgagee shall advise Grantee of the steps
being taken)necessary to remedy such default (which such steps shall
be reasonably designed to effectuate the cure of such default in
thereafter diligently prosecute
a professional manner), and ( ii)
necessar
y
to remedy the same, it
to completion all such steps
being acknowledged by Grantee that, if possession or control of the
Facility Premises is required to effect the cure, the diligent prosecution of
a foreclosure of a Facility Mortgage shall consti ute a part of the
steps necessary to remedy such default. Nothing in this Agreement
shall require a Facility Mortgagee or its Designee or
Foreclosure Transferee to cure any default of Owner not reasonably
susceptible of being cured by such
1112

subsection
11(
Person.Notwithstanding the foregoing proQisions ofthis
to
Cure,
within
e),
five 5)
(
following the delivery of a Notice of Facility Failure
may
be
contained
which
request
any
Business Days following the written request of
Facility Mortgagee (
to
pursuant
in the notice from such Facility Mortgagee to Grantee given
a
statement
Facility
del
i
v
er
to
1)),
e)(
subsection 11(
such
Mortgagee
Grantee shall

certifying the aggregate amount then due and in arrears hereunder and the estimated per diem increase
in such amount, but no such request shall increase or toll any of the time periods
without in any way limiting Grantee' s
provided for in this subsection 11 e)
and ii)
(
(
rights hereunder or the obligations of Owner hereunder, such Facility Mortgagee shall not be required
under ( x) clause ( i)
of
to payor cause to be paid any amounts payble by Owner
or (
subsection 8(b)

last sentence of subsection 8( c)).f)

the
AcceDtance. Grantee shall accept performance by a Facility Mortgagee of any covenant, condition or
agreement on Owner' s part to be performed hereunder with the same

y)

Payments.
and effect as though performed by Owner. g)
force
Notwithstanding any other provision of this Agreement, no payment made to Grantee
by any Facility Mortgagee shall constitute the Facility Mortgagee' s agreement that such payment was,

in
of this Agreement. h) No Surrender
or Modification. Grantee agrees not to accept a voluntary surrender, termination or modification
this Agreement at any time while any Facility Mortgage shall remain a lien on all or
fact,

due under

the

terms

of

Facility Premises. It is further understood and agreed that any such

Facility Mortgagee shall not be bound by any surrender, termination or
modification of this Agreement unless such surrender, termination or modification is made with
consent of such Facility Mortgagee. Notwithstanding the foregoing, Grantee'
prior

any portion of

the

written
the
s waiver or postponement of any
have under this Agreement

obligation of Owner

or any

remedy Grantee

may

I
1870fGt

113 i)
Grantee' s Self-

of this
Notwithstanding the foregoing provisions
Help Riahts. 1)
for any reason)to cure any default
any,
fails
(
Section
in paragraph (3)
Owner described
of subsection 11 e)
(within thirty 3(0)
by
days following receipt of the Notice of Facility Failure to Cure regarding such default,
perform the obligation of
then Grantee may, upon notice, but shall be under no obligation to,
Owner the breach of which gave rise to such default, without waiving or releasing Owner
from its obligations with respect to such default. Owner hereby grants Grantee access to
the Facility Premises in order to perform any such obligation. Any amount paid by
obligations as provided in this subsection 11(i)(
Grantee in performing Owner' s
1),
including all costs and expenses incurred by Grantee in
connection therewith,
shall be reimbursed to Grantee within thirty ( 30)days following Grantee' s demand therefor,
together with a late charge on amounts actually paid by Grantee, calculated at the Late Charge
Rate from the date of notice of any such payment by Grantee to the date
if a Facility Mortgagee, if
11,

on which payment of such amounts is received by Grantee.

Notwithstanding anything to the contrary in this Agreement, for so long
2)
as this Agre ment and the MB Redevelopment, Inc. Garage Easement Agreement are both in effect
simultaneously, if the same default by Owner shall occur and be continuing beyond any
cure period on a simultaneous basis under both the MB
applicable
Redevelopment,. Inc.Garage Easement Agreement and this Agreement,
Grantee shall not have any of
the rights provided under subsection 11 1)(
above with regard to that default
(
1)
unless MB Redevelopment, Inc.has designated in writing to Owner

that Grantee be the sole Person, .under both such

Aoplication of Proceeds from Insurance or Condemnation
rights.0)
Awards. To the extent that this Agreement requires that insurance proceeds paid in connection with any
or the proceeds of an award paid
damage or destruction to the Facility Premises,
in connection with a taking referred in Section 13 hereof, be applied to restore any
portion of the Facility Premises, no Facility Mortgagee shall have the right to apply the
agreements, to exercise such

proceeds of insurance or awards toward the payment

of

except for the

reasonable

the

its

Facility Mortgage,
Proceedinas. A Facility

costs of collection thereof. k)

Aopearance at Condemnation

Mortgagee shall have the right

condemation

sum secured by

proceedings

to

appear in any

and to participate

in

any

and all

Rights Limited to Facilitv Mortgaaees. The rights

appeals in connection therewith. I)
Facility Mortgagee under the provisions of this

I
I

I
I

hearings,

trials

and

granted

to a

Wrt1817OfG1 '-

Facility Mortgaoee' s Assignment Rights.

m)

Notwithstanding anything contained in this Agreement to the

contrary, a Foreclosure Transfer shall not require the consent of Grantee or constitute a
breach of any provision of or a default under this Agreement. Upon any such Foreclosure
Transfer, Grantee shall recognize the Foreclosure Transferee as Owner hereunder;
provided, however that such new Owner shall deliver to Grantee, or shall cause to be
delivered to Grantee, within thirty (
30)days after the execution thereof, a true and
effecting such transfer, including an assumption agre ment,
correct copy of the instrument( s)
if
i)

ii)
Notwithstanding anything contained in this Agreement to
Foreclosure Transferee shall be liable under
or
other
Mort
g
agee
the contrary, no Facility
this Agreement unless and until such time as it becomes Owner hereunder, and then only
for so long as it remains Owner
ap licable.

hereunder.

iii)
Foreclosure Transfer" means a
i)

Defintos:

"
occurring
transfer

Facility Mortgage, or any sale of Owner' s interest in

Agreement, or any other transfer or assignment of Owner'

a result of the foreclosure of a

the Facility Premises and this
s interest in the Facility Premises and this Agreement, by judicial proceedings pertaining
to a Facility Mortgage or by virtue of the exercise of any power contained in a
Facility Mortgage, or.by deed- in-Iieu or other consensual conveyance, or

as

x)by or

otherwise:
Mortgagee

or its

Designee

on behalf of Owner

or Foreclosure

to

a Facility

Transferee);

y)by or on behalf of Owner or a Facility

Mortgagee or its Designee or Foreclosure Transferee) to a purchaser ofOwner'
s interest in the Facility Premises and this Agreement at a
foreclosure sale pursuant to a Facility Mortgage or by a Facility Mortgagee ( or
its Designee or its Foreclosure Transferee) after consummating
or

a Foreclosure

Facility Premises and

assignee

other
this
Agre ment.

Mortgagee that is

the

designee

as described in

Foreclosure
ii)

above.
purchaser, transferee or

Transfer

or

in

clause (

x)

Transferee"
means
"

the
the

a Foreclosure Transfer of Owner' s interest in

Designee""
means an Affiliate of a Facility
iii)
nominee of such Facility

817Of~

DAMAGE, DESTRUCTION
1115 12.

Facility is damaged or destroyed in

whole or in any material part by fire or other casualty, Owner shall notify Grantee of same
as soon as reasonably possible after Owner' s discovery
AND

to Grantee. If the

RESTORATION a)Notice

same.b)Obligation to Restore. If all or any portion of the Facility

is damaged or destroyed by fire or other casualty, ordinary or extraordinary, foreseen
or unforese n, then ( x)
if the Agency, the City or any instrumentality of the Agency or the City
this Section
is the Owner, such Owner shall,in accordance with the provisions of
initial
used
the
and
speci
f
i
c
at
i
o
ns
for
of
the
construction
Facility,
12 and the plans
restore the Garage to the extent
necessary to provide 174 Parking Spaces (
and such additional Parking Spaces as may be required under any other parking
easements, use agreements or equivalent agreements then affecting the FacilitY (none of which may
( if
provide for rights to Parking Spaces other than the Exces Parking Spaces))or y)
such
Owner
the
Owner,
Successor
shall,
accor
d
ance
any Successor Owner is
in with the
provisions of this Section 12 and the plans and specifications used for the initial
construction of the Facility, restore the Garage to
the extent neces ary to provide 803 Parking
Spaces, in each case so that the Facility e(xcluding the Retail Space) is substantially
(
Casualty
" Restoration"),
equal in quality to the original quality of the Facility a
of

Insurance Proceeds shall be

regardless of whether the Net

sufficient therefor. "Net

proceeds
paid
mean the actual
following a
fire or other insured casualty. Any alterations to the Garage made in connection with such
i)
of this
restoration shall be subject to the provisions of subsection 7(
Agreement. Nothing in this subsection 12(b)
shall affect the Easement or Priority Use

Insurance Proceeds" shall

of 174

amount

of

insurance

Parking
or other obligations of

Owner under this Agreement.

commence
the
shall
construction
work in
days after the receipt of any Net
connection with a Casualty Restoration within ninety 90)
(
Insurance Proceeds payable with respect to the casualty that caused the need for such
Spaces

c)
Commencement of Construction Work. Owner

Casualty

Restoration
and

shall diligently

pursue

the

completion

of

such Casualty Restoration. d)

Effect of Casualty on this Agre ment. i)
In
in
Section
shall
casual
t
y
as
described
this
this
Agreernent
of
a
12,
event
ect to subsection 12(b)
above) without diminution of
continue for the remainder of the Term subj(

the

with ( x) a fair and equitable abatement of

a fair and equitable
reduction
the Use Fee and ( y)
amount
referred
of the 1,200, 000"

any of Grantee' s obligations hereunder,

but

frU817OfG1 16

ii)

the period of the Casualty Restoration, Owner shall supply

site parking
the parking spaces required to befumished to Grantee by Owner through offhereof
to
the
extent
subsect
i
o
n
7(
under
this
pursuant to
g)
required
Agreement.
During

Restoration Funds with resoect to

e)

Successor Owner.

i)
From and after the date that the Facility is owned by a
Successor Owner, all Net Insurance Proceeds shall be deposited with any Facility

Mortgagee that is an Institutional Lender, or, if none, with another Institutional Lender
mutually acceptable to such Successor Owner and Grantee pursuant to a mutually
acceptable trust agreement. Provided such Successor Owner is conducting the Casualty
Restoration in accordance with this Agreement, the Net Insurance Proceeds shall be paid
out from time to time as the Casualty Restoration progresses, upon the written request of
such Successor Owner, which request shall
be-acompanied
by the following:
A)

A certificate

signed by such Successor Owner and the architect

or engineer in charge of the Casualty Restoration, dated not more than fifteen (
15)
days prior to such request, setting
that the sum then requested either has
forth: 1)
been
Owner or is justly due to contractors,
subcontractors, materialmen, engineers, architects or other Persons who have rendered services
or furnished materials for the work specified, and stating that no part of such
expenditures has been or is being made the basis of any previous or then pending request

paid by such

Successor

for the withdrawal of the Net

Insurance

amount

described

outstanding

in

services and materials; 3)

that,except for the
subsection 12(e)(
i)(
1)
A)(
hereof, there is no

indebtedness

which

is

Proceeds; 2)
a brief description of the

actually known to the

then due

Persons signing such certificate,

for labor, materials, or services
in connection with

after due inquiry,

Casualty

Restoration; 4)that the cost,

as estimated by the Persons signing such certificate, of the work required
to complete the Casualty Restoration does not exceed the amount of the
remaining Net Insurance Proceeds,plus any amount deposited by such Successor Owner (
with the Person holding the Net Insurance Proceeds) to defray
the

the expenses of
that the work
and

specifications

described

has

the

Casualty

been completed
and

applicable thereto, in a good

Restoration;

in

and 5)
with the plans

ac ordance

m: ,
70n' , '

8'

7 B)
Lien waivers, title

insurance

company

reports or

such other evidence to the effect that there has not been filed with respect to the
Facility,any vendor's, mechanic's, laborer's,materialman' s or other lien which has not
been discharged of record, except such as
then

will be discharged

by payment of the amount

Such other documentation regarding the

and C)
Restoration as any Facility Mortgagee or such other Institutional Lender shall
requested;

Casualty

Such Successor Owner shall, prior to the commencement

reasonably
require. ii)
of the Casualty Restoration, fumish to Grantee an estimate of the total cost of
the Casualty Restoration certified by the architect or engineer in charge of the
Casualty Restoration. If such cost estimate or any subsequent estimate provided pursuant
hereof shall show that the cost of eompleting the
to sub ection 12(
e)(
i)(
A)(
4)
Casualty Restoration is in excess of the amount of the Net Insurance Proceeds
then available, such Successor Owner sii'all promptly deposit with the holder of the Net
Insurance Proceeds an amount equal to such excess.The arnount so deposited shall be included
in the Net Insurance Proceeds for all
12. iii)
Upon compliance by such
foregoing provisions of this Section 12,
the holder of the Net
Successor Owner with the
Insurance Proceeds shall pay, to such Succes or Owner or the Persons named in
purposes

the certifcate

of this Section

to in subsection 12(
e)(
i)(
A),
Proceeds,
from the Net Insurance
an amount equal to ninety percent 90%)
of the cost of the Casualty Restoration which
(
is evidenced by the request.At the completion of each contract or subcontract
refer ed

Restoration, the balance of the Net Insurance Proceeds relating to that portion of
the work, to the extent of and as required to complete the payment of
Casualty Restoration costs relating to that portion of the work, shall be paid to such
Successor Owner and such Successor Owner shall provide to Grantee reasonable evidence that the
Casualty Restoration relating to that portion of
in connection with the Casualty

the

work has been paid for in full.

iv)
If the amount of

exceed the entire cost of the Casualty

Restoration, such excess, upon completion of the Casualty Restoration, shall be paid to and
retained by such Successor Owner (
any Net Insurance

Proceeds

shall

subject
13.CONDEMNATION. a)
the.
provisions of any Facility Mortgage).
Substantial Taking. If all
public
for
any
or quasi- public purpose by any
or Substantially
of the Garage is taken
lawful power or authority by the exercise of the right of condemnation or
eminent domain ( a Total
this Agreement shall remain in full force and effect until such time as
''Taking"),
Owner grants
or causes to be granted to Grantee an easement ( pursuant to
to

All

11

Wrb: IBI70m
9

equitable abatement of the Use Fee

and (

y)

200, 000" amount

the 1,
b)
hereof and the "$313,

200"

a fair
refer ed

and

equitable reduction of

to in subsection

4(

and

c)
amounts referred to in subsection 4(
hereof.d)Obligation to
600"
All of the Garage is taken as provided in
Restore the Garage. If less than Substantially
if the Agency, the City or any instrumentality of the
hereof, then (x)
subsection 13( c)
such Owner shall,in accordance with
is
the
Owner,
or
the
Agency
City
the provisions of this Section 13 and the plans and specif cations used for the initial
of the Facility, restore the Garage to the extent necessary to
construction
provide 174 Parking Spaces (and such additional Parking Spaces as may
be required under any other parking easements, use agreements or equivalent agreements then affecting the
Facility ( none of which may provide for rights to Parking Spaces other than the Excess Parking
the Owner, such Owner shall,
in
Spaces)) or y)
if a Successor Owner is
(
and
plans
and
specifications
accordance with the provisions of this Section" 13
the
used for
the init al construction of the Facility, restore the Garage to the extent necessary to
provide 8'('
i3 Parking Spaces ( to the extent feasible under Requirements), in each case so
the
Facility ( excluding the Retail Space) is substantial y equal in
that
"
Restoration"), regardless
quality to the original quality of the Facility ( a Condemnation
of whether any condemnation award shall be
sufficient therefor. Nothing in this subsection 13(
d)
shall affect
156,

the

Easement or Priority Use

of 174

Parking

Spaces

or other obligations of Owner under this Agreement. e)

Commencement
of
Construction Work. Owner shall commence the construction work in connection with a Condemnation
Restoration within ninety (90) days after receipt of the condemnation award arising

from the damage or destruction

caused the need for such Condemnation Restoration and shall diligently pursue the
Temporary Taking. If the temporary use of the whole or any portion
completion of such Condemnation Restoration. f)
is
taken
the
Garage
of
for a public or quasi-public purpose by a lawful
power or authority
by the exercise of the right of condemnation or eminent domain, Owner
(
business days thereof. The Term shall not be
shall give Grantee notice within five 5)
reduced or affected in any way by reason of such temporary taking and Owner
shall supply the Parking Spaces required to be fumished to Grantee by Owner pursuant to subsection
g)
hereof and Grantee shall continue to pay to Owner the Use Fee
7(
as reduced by the Facility Usage Payment with an equitable reduction or abatement
of the
is
for
peri
o
d
in
excess
such
Use Fee;provided, however, if
a
temporary taking
days, then
of
one hundred twenty ( 120)
that

deemed a permanent taking and the provisions of subsections

hereof, as applicable, shall apply.
g)Intention of Parties.
13(
and 13( c)
a)
shall not consent
The existence of any present or future law or statute notwithstanding, Owner ( i)

such

taking shall be

UB' 7OfGI120
Requirements, all rights
any condemnation

or

h)

to

surrender the Garage or any part thereof by

of less than Substantially All of the Garage.

quit

taking

or

reason

of

Restoration Funds.
From and after the date that the

i)

Facility

is owned

by a
Successor Owner, the Net Condemnation Award shall be deposited with any Facility
Mortgagee that is an Institutional Lender, or, if none, with an Institutional Lender mutually
acceptable to such Successor Owner and Grantee pursuant to a mutually acceptable trust
agreement. Provided such Successor Owner is conducting the Condemnation Restoration
in accordance with this Agreement, the Net Condemnation Award shall be paid out from
time to time

as the Condemnation Restoration progresses, upon the written request of such

Successor Owner, which request shall be accompanied by the following:

A certificate signed by such Successor Owner and the architect

of
the
Condemnation Restoration, dated not more than fifteen (
charge
15)days prior to such request, setting

A)

or

engineer

in

that the sum then requested either has

forth: 1)
been
paid by such Successor Owner or is justly due to
contractors, subcontractors, materialmen, engineers, architects or other Persons who
have rendered services or fumished materials for the work specified, and stating that
no part of such expenditures has been or is being made the basis of
any previous or then pending request for the withdrawal of the Net

Condemnation

a brief description of the

Award; 2)

services and materials; 3)

that,except for the
subsection 13(h)(
i)(
1)
A)(
hereof,there
is no outstanding indebtedness actually known to the Persons signing such certificate, after
due inquiry, which is then due for labor, materials, or
services
amount described

in

in connection with the Condemnation Restoration; 4)

that the cost,
as estimated by the Persons signing such certificate, of the
work required to complete the Condemnation Restoration does not exceed the
amount of the remaining Net Condemnation Award,plus any amount deposited
( ith the Person holding the Net Condemnation
by such Successor Owner w
Award)to defray
the

expenses

of

the

Condemnation

Restoration; and 5)
that the work described has been completed in ac ordance with the
plans and specifications applicable thereto, in a good and

18170pe
a deductible determined by Owner of not more
than $10,
000
per occurrence, subject to adjustrnent for inflation and designating Owner as a named
shal include the fOllowing: (
under this subsection 14(a)
insured. The insurance required
not
less
amount
in
an
liability
coverage
than
i)
Garagekeeper' s legal
adjustment
inflation)
per occurrence,
00)
subj
e
ct
(
to
000.
five million dollars ($5,
for
000,
not
than
with a deductible determined by Owner,
but
more one hundred
per loss,subject to adjustment for inflation;
thousand dollars ($ 100, 000.
00)
automobile liability insurance covering any automobile owned, not owned
and ( Ii)
or hired
million
dollars
($
000,000.
00) (
than
ten
less
10,
in an amount not
subject to adjustment for inflation)per
occurrence, with a deductible determined by
thousand
dollars
($
100, 000.00)
one
hundred
Owner
of not more than
adjustment for inflation. Such insurance shall meet
per loss,subject to
all of the standards, limits, minimums and requirements described in SeCtion 7.

1122

with

7 of the Lease,exceptfor the provisions regarding

determinations shall

be

made

by Owner except for the determination

Recognized

made pursuant

Mortgagees and except that all

to '

m)of the Lease, which shall be made by Owner

7(
7.
Prooerty Insurance. At all times during
subject to the approval of Grantee and the City).b)
and
sole
cost
expense, shall carry or
the Term,Owner at its
its equivalent) property damage insurance protecting Owner against
(
cause to be carried " All Risk"or
cost valuation and a stipulated value
loss to the Facility Premises with replacernent
Full Replacement Value (
endorsernent in an amount not less than the
and meeting all of the other standards,
as determined in this Section 14)
8 of the Lease, except that (
limits, minimums and requirements described in Section 7.
i)
the provisions regarding Recognized Mortgagees shall be deemed to run in favor
of
and refer to Facility Mortgagees rather than Recognized Mortgagees, ( Ii)
all determinations shall be made
7. 8(d)
of the Lease, which
by Owner (except for the determination made pursuant to Section
Section

shall be made by Owner subject to the approval

reference in Section 7.

of

Grantee and the City) and iii)

(
the

"
of similar size and location"
n)
of the Lease to hotels
8(
shall be deemed to be a reference to garages of similar size and location
all times during the Term, Owner
Other Insurance. At
to the Facility. c)
to
the Facility Premises meeting all of
with
respect
shall procure and carry insurance

limits, minimums, and requirements described in Section 7.9 of

the provisions regarding Recognized Mortgagees shall be
the Lease, except that (i)
deemed to run in favor of and refer to Facility Mortgagees rather than Recognized

the standards,

on Gross Parking
amount of Business Interruption Insurance shall be based
paid
only
Owner,
(
i
v)
all
det
e
r
m
i
nations shall be
shall
Revenues, ( iii)
all Business Interruption proceeds
to
be

Mortgagees, (Ii)the

a)(
v)
ofthe
the determination made pursuant to Section 7.9(
except for
by Owner (
approval
of
Grantee
and
the
City)
the
Lease, which shall be made by Owner subject to
and
made

18 70r~
1127 If to

Grantee: RDP Royal Palm Hotel Limited

Partnership clo Peebles Atlantic Development
Corporation
Suite 4650 100 S.
E.
Second
Street

Miami, Florida 33131 Attention:

R.Donahue Peebles, President

with a copy to:RDP Royal
Palm Hotel Limited Partnership clo
Peebles Atlantic Development
Corporation

2600

Virginia Avenue,

N.
Suite 606 .
Washington, D.
C.
20037
Attention: S. P.
Newell,

Executive
Vice President
with a
copy to:
Holland &Knight
LLP Thirtieth Floor 701

Brickell

Avenue Miami, Florida

33131 Attention: Stuart K.

Hoffman, Esq.
If to Owner:

City of Miami

Beach City Manager

1700 Convention Center Drive

Miami Beach,
Florida 33139 with
copies to:City

of

Miami Beach City Attorney 1700

Convention
Center
Drive Miami
33139 and

Beach, Florida

18170rc

f:
1128 and
to:
Miami

Beach Redevelopment

Agency Executive
Director 1700 Convention
Center Drive Miami
Beach, Florida 33139
with copies to:
Miami
Redevelopment Agency
and General Counsel

Beach

Drive Miami Beach, Florida

33139
Joel
N.
Minsker, PA Bloom &

Minsker 1401 Brickell

1700 Convention Center

in the manner provided in

Avenue, 7th FI.Miami Beach, FL 33131 Any Notice may be given,
(
on behalf of either party by itS attomeys designated by such party
this Section 16, x)
by Notice hereunder, and (y)
at the request of Owner,on its behalf by any Facility
Mortgagee designated in such request, and ( z)
at the request of Grantee, on its
behalf

by
Notice

shall

be

on the

this

effective

date delivery
thereof

in

Recognized Mortgagee designated in such request. b)Effectiveness. Every

on the date actually received, as indicated on the receipt therefor or

any

is

Agreement to the "date" of Notice

date,

recipient thereof. c)References. All references

effective
shall mean the

refused by the intended

as provided in

the

preceding subsection 16(

d)Effect
b).

of

Failure to Grant Aporovals or Consents. All consents and approvals which may be
given under this Agreement shall, as a condition of their effectiveness, be in writing. The granting by
a party of any consent to or approval of any act requiring consent or approval under
the terms of this Agreement, or the failure on the part of a party to object to
any such action taken without the required consent or approval, shall not be deemed a waiver
by the party whase consent was required of its right to
Grantina or

other act. e)
Standard. All consents
and approvals which may be given by a party under this Agreement shall not
be unreasonably withheld or conditioned by such party and shall be given or denied within the tirne
require

such

consent or approval

for any

provided, and if no such time period has been provided,within a reasonable

time. Upon disapproval of any request for a consent or approval, the disapproving
party shall, together with Notice of such disapproval, submit to the requesting party a written
statement
period

18170n

1129

and the City. Except as

constitutional, statutory, common law
such liability may be eliminated or reduced by any
or other protections afforded to public bodies or govemments, including, but not
sovereign immunity statutes, the liability of Owner and the City, in
limited to,
the aggregate, including, without limitation, with respect to gross negligence and willful
misconduct) for damages or otherwise, arising out of or in connection with any breach
otherwise)
ofthis Agreement or any injury (whether physical ( including death), economic or
incurred in connection with this Agreement or the Facility Premises, shall be limited to the
000, 000, adjusted for inflation, in the aggregate for this Agreement
amount of 2,
and all of the Project Agreements. As used in the preceding sentence, the
breach" and injury"
" shall include all breaches and injuries arising out of the
terms "
facts and circumstances resulting
in such breach or injury. Nothing contained herein shall be deemed
to be a waiver or Iimitationpf any
17.

LIABILITY. a)Limitation on Liability of Owner

equitable

remedies available

Owner
to Grantee. b)

Exculoation. Except

for

in its proprietary
or willful misconduct and then only to the extent such party
none of the Owner
capacity as opposed to its govemmental capacity, if any),
hereof with respect to the Agency
Indemnif ed Parties ( except as provided in subsection 17(a)
have any liability
shall
and the City and any Successor Owner)
personal or otherwise) hereunder. Nothing contained herein shall be deemed a waiver or limitation
acted

conversion, fraud

of
equitable remedies available to Grantee. c)
No Waiver of Limitation on
in
this Agreement is in any way
Liability. Nothing contained in this Section 17 or elsewhere
s liability
intended to be a waiver ofthe limitation placed upon the Agency' s and the City'
any
other constitutional,
Fla.Stat.,or of
as set forth in Section 768.28,
public bodies or govemments; provided,
statutory, common law or other protections afforded to
be applicable
however, that this Section 17 shall not
any

Owner pursuant to subsection 18(c)

Limitation on Grantee Liability. The liability of Grantee (including, without limitation,
hereof.d)
with respect to gross negligence and willful misconduct) for damages or otherwise, arising out of or
in connection with any breach of this Agreement or any injury whether
or
physical in(cluding death),economic or otherwise) incurred in connection with this Agreement
for
of
$
2,
000,
amount
limited
to
adjusted
Pr
e
mi
s
es,
shall
000,
the Facility
the
be
As
Project
Agr
e
ement
s
.
the
inflation, in the aggregate for this Agreement and all of
"shall include all breaches and
used in the preceding sentence, the terms "breach" or injury"
injuries arising out of the facts and circumstances resulting in such breach or injury. Nothing
to

the

contained herein shall be

indemnity

of

8[~: \
70fG'

8 ,

19 shall survive

133

Survival. The provisions

e)

of this Section

the

termination of this Agreement.

20. INVALIDITY OF CERTAIN PROVISIONS If any provision of this Agreement or the application
thereof to any Person or circumstances is,
to any extent, finally determined by a
court of competent jurisdiction to be invalid and unenforceable, the remainder of this Agreement,
and the application of such provision to Persons or circumstances other than those as to which

it is held invalid and unenforceable, shall not be affected thereby and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.21.
EASEMENT AND COVENANTS
restrictions

granted

RUN

WITH LAND

The easements, covenants, obligations and

terms of this Agreement are appurtenant to the Land and

the
Grantee Land, and such easements, covenants, obligations and restrictions shall run with the
ownership of such parcels of land, and shall be binding upon and inure to the benefit to
the parties hereto and their respective successors, assigns, employees, agents
and personal representatives. The granting of the Easement herein is intended to create a property
right in Grantee which cannot be eliminated or impaired under federal or state law nor be
deemed property of the estate in a bankruptcy of the Agency or
the City
or any Successor Owner. The covenants, restrictions and obligations set forth in this Agreement
under

the

are integrally related to the grant and maintenance of

the Easement hereunder and

the Lease.22.NO THIRD PARTY BENEFICIARY No Permitted User of any parking space in the
Garage shall be deemed to be in privity with the Owner under this Agreement or to be
a third party beneficiary to any rights which the Owner may have granted to Grantee
hereunder as a result of such user receiving parking rights in the Garage
limiting the foregoing provisions
from Grantee as permitted hereunder. Without in any way
Agreement
in
this
confer
upon any Person,
nothing
of this Section 22,
shall
other than the parties hereto and their respective successors and assigns, any rights or
remedies under or by reason of this Agreement; provided,however, that a Facility
Mortgagee or its Designee and a Recognized Mortgagee or its Recognized Mortgagee Designee
shall be third party beneficiaries hereunder
to the extent same

granted rights hereunder. 23.APPLICABLE LAW;EXCLUSIVE VENUE. This Agreement and the
rights and obligations of the parties hereunder shall be governed by and construed in accordance
with the laws of the State of Florida, both substantive and remedial, without
reference to principles of conflict of laws.The exclusive venue for any litigation or
are

frUB, mGl1J4 24.

ENTIRE AGREEMENT; NO WAIVER

This Agreement shall constitute the entire agreement between the parties as to the
subject matter hereof. Notwithstanding anything to the contrary set forth in this Agreement,
the terms of this Agreement shall supersede the terms of that certain Letter of Intent with
respect to the development and operation of the Improvements dated March
5,
1997, executed by the Agency, the City, RDP Royal Palm Hotel Limited Company
and RDP Shorecrest Hotel Limited Company, and any replacements, substitutions,
restatements or amendments thereof. No covenant, agreement, term or condition of this
Agreement shall be changed, modified, altered, waived or terminated except by a written
of change, modification, alteration, waiver or termination executed by Grantee and
the Owner.No waiver of any default shall affect or alter this Agreement, but each and
every covenant, agreement, term and condition of this Agreement shall continue in full force and

instrument

effect with respect to any other then existing or subsequenf default thereof.This Agreement
may be executed. in counterparts, each of which shall be deemed an original but all
of which together shall represent
one
instrument. 25.RECORDATION Grantee shall have the right to record this Agreement in the
pertaining to the Garage' and shall pay and discharge all costs, fees and
taxes
land records

in connection therewith. 26.

ADDITIONAL PHASE OF FACILITY The Agency will ensure that the

developmentof
the existing
the north side of 16th Street between Collins and Washington
City- owned parking lot on
Avenues in Miami Beach,Florida will be compatible with and enhance the
Hotel and its vicinity.27.
TERMS DEFINED IN ANOTHER AGREEMENT Definitions in any Project Agreernent or in
the Garage Development Agreement of terms in this Agreement shall survive the termination of

the Project

Agreement

or

Garage
Captions. The captions of this
Agreement, as applicable. 28. REFERENCES a)
Agreement are for the purpose of convenience of reference only,and in no way define, limit
or describe the scope or intent of this Agreement or
Development

in
construed in

any

this Agreement. b)Table of Contents. The Table of

purpose of convenience of reference only,and is not to be deemed or

any way affect

Contents is for

the

m: ,

8170f~ I '

37 34.

than thirty (30)days shall

TIME PERIODS Any time periods in this Agreement of less
be deemed to be computed based on business days regardl
( ess of whether any such
being
is
as
computed
based on business days).In
time period
already designated
addition, any time period which shall end on a day other than a business day shall be deemed
to extend to the
next business

ADJUSTMENT Unless otherwise expressly provided hereunder, any dollar

as " adjusted for inflation"
or subject
"
to adjustment
amount
in
for inflation"or
(
words of similar import) shall be adjusted by multiplying such amount by
a fraction, the numerator of which shall be the GDP Implicit Price Deflator Index for
the calendar year immediately preceding the date of such adjustment, and the denominator of which
shall be the GDP Implicit price Deflator Index for the calendar year during which
the Hotel Opening Date occurred. All amounts subject to adjustment hereunder shall be
adjusted effective as of January 1 of each year pursuant to the formula described above.
If the GDP Implicit Price Deflator Index ceases to be published, and there is
no successor thereto, such other reasonably similar index as OWner and Grantee mutually
designate shall be substituted for the
day.35.
INFLATION

this Agreement

described

GDP Implicit
If either party hereto shall fail to make
payment required hereunder within thirty 30) days after the same shall be due,the late

Price Deflator

any

Index. 36.LATE CHARGES

from

Late Charge

Rate. All interest

due

the

due

payment shall bear interest

date

until the date paid at a

payable under this Section

rate equal

to the
36 shall be

k',

m: ,

8170fn

1138 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names by their duly authorized representatives and delivered as their
act and deed,intending to be legally bound by its terms and
OF

DADE )r RDP Royal Palm

J' Mh~/
a
'. Florida

provisions.

Hotel partnersHJp;' c\';'

Limited

limited

partnership

Y4:,/~H/' , ... bl:;

By:
7-.'
lT: E~
t;
ospitality Corporation I, 8 ~}
PADC ~
corporation,General

Date:

WITNESSES:

5/~/"

~
as

Partner. ~J.'
:"' ~\.~.,;

i!

c~q~~
Date: &/.

c."J/1~'

j>',

i"
t3'~
STATE
OF

FLORIDA )ss:COUNTY

o.i 0 ~
Date: p,
ICf "
if The...
foregoing instrument

was acknowledged before me this ~ day of 1998, by

R.
Donahue Peebles, as President of PADC Hospitality Florida corporation,
as General Partner of RDP ROYAL PALM HOTEL LIMITED PARTNERSHIP, a Florida
limited partnership, on behalf of such partnership. He is
personally known to me or produced

driver' s
My Commission

license as identification.

expires:

a v Florida.
Public,
otary
tate
Name: ~
..-. . /
of Florida Print
OFAClALN ARYSEAL
C-~
FLORIDA
BARBARACFERRER NarARY PUBLIC srATEOF

ATTEST:

U817OfGI 39

BEACH REDEVELOPMENT AGENCY a

Florida public bo corporate
and politic BY:_~~

MIAMI

Robert

ftu~

Neisen

i"
I',

01" ".

Kasdin Chairman
O.
t'

Parcher Secretary

By:

llt >.,

1./','>.,:-'"

In
It

v 1",!.,..,'
\ \ \ "........

i,

........
tf;\

Ir-""6/>Date:

1 .;. <
9". ,'" "

a:

0>

0 z,'..,:
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Date: F_
f/
fP

FORM &
LANGUAGE

FOR

DADE

R p enl

ss:

EXECUTION

COUNTY

OF

WJL~

TO

SEAL]APPROVED AS

Agency

Date

STATE OF FLORIDA
The foregoing
r...,,.
t":;!"
dC"",,.....-:
day of 1998, by
was acknowledged before me this ~

instrument

Neisen

,
O.Kasdin, as Chairman, and Robert Parcher, as ecre of
of such public
behal
f
on
and
politic,
BEACH REDEVELOPMENT AGENCY, a public body corporate

the MIAMI
body. They are personally known

to

me

or
produced

valid
driver' s

Florida
licenses as

identification. vttd Notary

PUblii>~
IOrida Print
/: _.. ./
...
Name:C 1<<
JlJI'My Commissionexpires:OFFICIAL NOTARY

SEAL BARBARA C
FERRER NOTARY PUBUC Sf

ATE

18170n

f:

1141 RXHlRlT

sCRIPTJON OF THF. I.

ADF.

AND

of Lots 7
South 12.
65 feet (measured along the lot line)
and
15
the
14,all of
North 10. 0
Lots 6 and
feet (

RPLAND The
and

rneasured along

the lot line) of Lots 5 and 16,all

ALTON BEACH,
according to the plat
56,of FISHER' S FIRST SUBDMSION OF
at
Book
2,
77,
of the Public Records
in
Page
recorded
Plat
of Dade County, Florida, together with that certain parcel of land lying East and
adjacent to the above described parcel;said parcel bounded on the South by
the South line of the above described parcel extended Easterly;bounded on the North
by the North line of the above described parcel extended Easterly; bounded on the East
by the Erosion Control Line of the AtlaIltic Ocean
in Block

thereof, as

and bounded on
Block
by the East line of the above mentioned
56.SHORECREST I,
the
l
i
n
e)
measur
e
d
along
lot
of
The South 40. 00
feet (
Lots

the West
AND

one-half of Lots 4 and 17,

all in
Block 56, of FISHER' S FIRST SUBDMSION OF ALTON BEACH, according
to the plat thereof, as recorded in Plat Book 2,at Page 77, of
the Public Records of Dade County, Florida, together with that certain parcel of land
lying East and adjacent to the above described parcel; said parcel bounded on the
South by the South line of the above described parcel extended Easterly; bounded on
the North by the North line of the above described parcel extended Easterly; bounded on
5 and 16

and

the North

the

Line of the Atlantic Ocean

the East line of the above mentioned

East by the Erosion Control

the West by

Block 56.
All lands described
lying and

abovelocated,

and

bounded

on

fU8170rG1 43

Lots

10,
Block 57,Fisher'
11,
12 and 13,
9,
as recorded in Plat
s First Subdivision of Alton Beach, according to the Plat thereof,
Publ
i
c
Fl
o
r
ida,
the
Recor
d
s
of
Dade
County,
together with all
71
Book 2,
of
Page
(
of 16th Street Avenue
"

8,

parcel: BEGINNING at the Southwest comer of

less and except the fol owing described
C"),
s First Subdivision of Alton Beach Plat; thence
Block 54 of said Fisher'
North
of
said
Block 54,
880 0'
53" East along the South line
a distance of 443.
08 feet, to the Southeast comer of said Block 54;thence South
07035' 04"
West,a distance of 96.26 feet,to a point of cusp with a
thence along the arc
of said curve to the
tangent curve concave to the Southwest;
radius
of
25.
00
feet
and a
left,having a
00",
an arc distance of 39. 27 feet,to a point of
central angle of 90000'
West,
thence South 880 00'53"West
thence
North
82024'
52"
a
tangency;
distance of
24.75 feet;
00 feet North of and parallel
with,as
along
aline 8.
of
Block
57
of
the
North
line
said
plat,
measured at
a distan<;.
rightangles to
e
of 382. 18 feet to
a point

on the Easterly Right- of-Way line of Washington Avenue; thence North

18
170nl

153

Exhibit 5(a)
List

of

Garage

Operators 1. USA
O.
Parking P.

Box 7193
Ft.
Lauderdale,
Florida

33338 305)

Quick
524-6500 2.

Park Hank
Sopher 425
East 61st Street

New York,
New York

10021

212)303.
4200 3
Apcoa, Inc.Corporate

Headquarters
McDonald Investments

Center

800 Superior
Ohio

Avenue Cleveland,

44114-2601 216)
0700 4.
522-

Central Parking System

Monroe Carel 240121st Avenue
South

Suite 200

18170n I
154

Exhibit

e)Standards of Quality and Operation

5(

Garage Operator. Garage Operator shall acknowledge receipt of

for Garage 1.
shal
l
and
agree that in its management and operation
of
this Agreement
copy
of the Garage pursuant to the Garage Management Agreement, it will comply with the
provisions of this Agreement, including, without limitation, those provisions granting
rights to
to Grantee preferential
a

use 174 Parking Spaces. 2. Consultation with Grantee. On a weekly

basis, the General Manager ofthe Garage will meet with the Hotel General Manager or his
designee for the purpose of coordinating the operation of the Garage in order that
Permitted Users are provided with service consistent with the level of quality proVIded by the Hotel
so that the

Garage will

operate as
appear t<<;>

Chal' ges.
Garage Operator
anamenity
of the Hotel. 3.
will establish such mechanism and procedures, which may include (i)
linking the Garage payment system
to the Hotel' s computer, as Grantee may reasonably request,and Grantee
ofshall reimburse Garage Operator for its reasonable outpocket costs incurred in connection
a
for
Permitted
Usertherewith, and I
(
i)
providing
validation system.Grantee will remit

to Garage Operator on
of

a monthly

basis all such charges actually collected ( net

commissions and chargebacks). 4.Name.

_' Garage Operator will not use the
or any other trademark, trade name or service mark relating to the

credit card

name of the Hotel

Hotel,except as and to

extent authorized in writing by Grantee. 5.

Insurance. Grantee
and its Affiliates, the City, any Recognized Mortgagee and any Facility Mortgagee shall be
named as additional insureds on all liability insurance maintained by the Garage Operator
the

and shall

be

Emoloyees. All
entitled to certificates of insurance reflecting such insurance. 6.
at all times conduct themselves in a courteous manner.In
Garage employees shall
the event Grantee reasonably objects to the performance or conduct of any Garage employee, based
on complaints by a Hotel guest or other suf icient evidence, Garage Operator

will
Disclaimer.
the matter and, if warranted, take appropriate action. 7,
shal
l
(
provide
di
s
c
l
a
i
m
er
s
pat
r
o
ns
Garage
Operator
written
to
and/
or (
At Grantee' s request,
i)
Garage
the
Garage,
wri
t
ten
mutually
acceptable
in each case
Ii)
post notices in
review

to

Garage Operator and

Grantee,

informing Garage patrons

that the

Garage is not owned

18 70r~

Bf~:
1155

Exhibit

6(

t)Remedies 1. Mark 174 spaces in the Facility for Grantee'

s exclusive use, which 174 exclusive spaces shall be designated by

the Owner and Grantee

in good faith. 2.Cause a licensed and
third party towing company to remove

working

together

unauthorized vehicles

marked

bonded

from the

spaces. 3.Terminate

the Garage

Operator. 4.
Impose

fines

onor charge penalties

theGarage Operator. IVECOI'
6"
I'

IH OfFICIAL _""""
FlORIDA.RECORD
SOOJ<OFo.

velfREO

HARvEY

IIY1t "

RUVIN

cI.
SlIlllll'

uiecouWTY.

to