Sunset Harbor Part 2

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iii)

uring

Non-

Real Hours, pubic transt and

vae

pakng

sha

be

pomoed

pusuan to

a

reasonaby

and mutually

agreed

upon jon

makeing

efort

of

Cty

and

Deveope, the

cos

of

whch

makeing

efort

sha be

deemed

an "

Operating

Expense" of the

Garage.

A

sysem

for

decas,

pakng

passes,

tickes

or ohe

montoring

ofvae

usage (

including

vae

for any

restaurant occupants

of

the

Real.

Space)

sha

be

implemented

as

reasonaby

and

mutualy

agreed

upon

by

the

Paties so

tha

vaeopeaors

are

ony

abeto

uilizehe

numbe

of

pakng

spaces for

whch

they pay/

pe

pay.

Cty

sha in

good

fathendeavor

to

povdea

shutle

sevceor

ohe

pubic

transportaionfor

Garage uses

to encourage parking during

non-

Rea Hours

if

thee

is

a

reasonabe

demand for

same such

tha

doing

so

is

economcaly

pacica (

the

cos for whch

sha

no be included

in "

Operating .

Expenses"

for the

Garage) .

iv)

The cusomesof

theoccupansof

al

of

the

Real Space (

excludng

resauanparons, .

who

shal

not

be enitled

to free

pakng

but

sha

be

enitledto

parka

atimedtickerae

tha

is

no

more (

uness

Deveope agrees toa

hghe

raein

its

soe

dscreion).or

less

than

the

rates charged

by

the Cty

in

its

parking

garages

as

esabshed

by

the

Cty

Commission

from

time

to

time

as

heenabove

povded)

and

the

empoyees

of

alofthe

Real Space

sha be

enitledto

park

in

the

Garage free

ofcharge

subec

to the

vaidaion

and

deca

povsons

of

thsDeclaaion

andpaymen of

the

agreed

upon

annua

opeaing

expense

conribuion (

the "Conribution")

for

pakng

spaces

by

the

owne

of

the

Real

Space (

which may

be

passed

through

to

the

occupans

oftheReal Space) .

The

amount

of

the

Conribution

sha

intialy

be

equa

to thenumbe of Deveope

Spaces (

conempaed

to

be

546) ,

less

the

dffeence

between thetoa

number of Cty

code

required

parking spaces

alocabeto the

conempaed

supemarkeand

the

numbe

of

Cty

Supemake Spaces

conempaedtobe 78,

cacuaed

by

taking

the175

toaconempaed

supemarke

spaces less the

97

contemplated

Cty

Supermarket

Spaces)

andaso

less

the

number .

of Cty

code required parking-spaces allocable

topubceevaors, ext

stars

and

loading

aeas (

conempaedto

be

28) ,

and

theresut

of

thssubracionshal

be mtped

by

55

times

12 (

thecompee

anicpaed

cacuaion, in

arithmeic

symbols,

woud

be ( (

546-

78) -

28)

x

55 x12 = $

290,

400.

00)

pe

annumpus

saes

tax,

if

appicabe (

currenly,

saes

tax

woud

no be

appicabe

and

the

Paties

sha

reasonably

cooperate wth

each

othe to

restructure

the

mehodfor

paymen

colecion

of

the

Conribution

inorde tomnmze

the

obigaion

to

pay

saestax

in

the

evenof

a

changeinlaw

and

sha

be

paid

in

12 monthly

installments on

or

before

the fifth

day of

eachmonh

in.

advance

commencing

on

the

dae

theGaagefirst

opens

for

norma

business

opeaions

The amount of

the

Conribution

sha

increase

by

2 .

5% ( ove

thePior year

s

Conribution)

pe

yea stating

on

the

January

1

immediately

following

the

thrd

annvesay

ofFul

Occupancy

of

the

Rea

Space.

Rates

for non- employee decal

ac

teas

85

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card

and

specaeven

pemts

shall be reasonably and

mutually

agreed

upon

by

the

Paties,

but

sha

no

in

theabsenceof

reasonabe

jusificaion

be

less

than the rates

charged

by the Cty for parking

in

municipal parking

garages

operated elsewhere

in Miami

Beach by the

Cty.

v

Cty

shal

not

be

enitled

to assign

or

otherwise

deegae

responsibility for operating the Garage to any other person or

enity (

excep

tha

Cty

may enter into

a contract

with a third party

for

the

opeaon

of

the

greae

of

one-haf (

or

more)

orthree (

3)

of

the

pakng

garages

opeaed

by

the

Cty

wthnMam

Beach and include

opeaon

of

the

Garage

in

such

conrac-

theGarage

shal

not

be

included

in

determning

thethresholdfor

numbe

of

gaages (threeone-

haf)

is

me) .

Cty shall

operate

the garage solely.

utilizing

Cty

empoyees

or

employees

hired

pursuant

to a contract with the Cty for

theopeaon

of

the

greae

of

three

or

one-haf (or

more) of

the

pakng

garages

opeaed

by

the

Cty

wthn

MamBeach. If,

a

any

time

Cty

decdes

tha itno

longe

desires to

opeae

theGarage,

Cty

sha

alow

Deveope

a

its

soe

opion

to

etheopeaeor

engage a third party

contractor

designated by Developer and

reasonably

accepabe

to

Cty

to

opeae

the

Garage.

v)

he

Cty

and

Deveope

sha

reasonaby

and

mutualy .

alocaespecfc

portionsof

the

pakng

spaces

inthe Garage

forspecfc

types

of

uses (ex.

long

tem

parkes (

including public

pakng/

transtuses)

and

Real

Space

employees

wll

pakon the

uppe

leves,

wheshort

tem

parkeswll

park

on

the

owe leves;

furthe, specfc

occupans

of

the

Real

Space,

such

as the

conempaed

grocey

supemake,

may

be

designated a

specific area

for

its

cusome

parking,

a

Deveope

s opion,

to theexclusion

of

ohes) ,

if

reasonably

requred

for the

eficen

opeaons

of

the

Garage,

and

sha

take

reasonabe

seps (

including,

potenialy,

towing

inthe

Deveopes

reasonabe

dscreion) to

enforce

such

alocaions

v)

he

Cty

and

Deveope

sha

reasonabyand

mutualy

work

wth

each

ohe,

and

Deveope sha

use good

fath

nd

reasonabeefots

o

ge

thecoopeaon

of

the

occupans of

the

Real Space

to

avod,

to

the

maxmumexen

possbe

parking in

the

Garage

by

Rea

Space

empoyees a

times

when

they

areno

actualy

workng (

uness

they pay the

applicable non-

vaidaiondecal/

access

card

rae

and

vadaed

pakng

in the Garage

other that by

Retail

Space

cusomeswhe

they

are

actualy

shopping

a the

Real

Space.

The

inen of

the

foregoing

is

to promote public/ transit parking and

maxmze

evenue

from

the

Gaage

opeaion

whleprovdngvaidaed

no

cos

to

the

acua

customes and

empoyees)

parking

to

employees

and

cusomesof

theReal

Space only when they

are working/ shopping

a

the

Rea

Space.

86

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v)

Anything contained

in this Declaration to the

conray

notwthstandng

inthe

even

Deveope deemnes

for any

reason

inDeveope

s

sole

and

absolute discretion

at any

time up

unil

egheenmonhs

ate

Ful

Occupancy,

and

heeafeinDeveope s

soe

but

reasonaby

execsed

business

judgment (i.e

ifDeveloper

pesensa

reasonaby

obecvecase

the

Cty shall not

have the

authority

to

second

guess

Deveope) ,

tha (

A)

theleve

ofpakng

demand

geneaed

by

Deveope

s tenan

s

and

hercusomesand

empoyees, .

togehe

wth

thedemand

geneaed

by

Cty

pemts

or

timed

ticke

pakng

is

suchtha

commitments made

by Developer

to its

tenans

reaed

to

adequacy

of

pakng

areor aeaegedtobe,

breached

or (

B)

the

adequacy

of

pakng

for tenans

and her

cusomes

and

empoyees

has

resulted

in complaints by

Developer'

s

tenans,

or

her

cusomes

orempoyees,

reave

to

the sufficiency

of

avaabe

pakng

or (

C)

the

concep

of

join

opeaionaconro

ofthe

Gaage

as

conempaed

by

ths

Agreemen

is not

working

efectivey

or

eficenly (

each an "Issue") ,

Developer

may

notify

the

Cty (

the "

Notice")

of

Deveope

s

deemnaion

ofthe

existenceof

an

Issue Wthn

15

days

ate

the

Notice

Developer and Ctyshalmeet

to

dscuss

atenaive

cousesof

acionfor

rectifying

the

Issue

whch

atenaives

may

include

adopion

of

any

of

the discretionary

conros

se

forthin

subparagraph (

c)

of

thsAgreemen

suchas

limting

timed

ticke

pakng

during

desgnaed

hours,

increasing

timed

ticke

pakng

raes

during

desgnaed

hours

or

reducing the number of

Pubic

Passes

during

desgnaed

hours,

or

ohe

atenaives

thamay

be

suggesed

by

ethe

of

the

Paties.

If

they

are unable to

agree on

acouse

of

acionfor

atempting

to

oban

a

resouionfor

the

Issue

and

during

the

timethe

couseof

aciontoaemp

toobtana

resouion

for

theIssueis

being

implemented, if

requested

by

Deveope,

Cty

sha

immediately

adop (

onan

ineimbasis)

any

poposa

suggesed

by

Deveope

to

alevae

theefecsof

theIssue

whe

theDeveope

and

Cty

connue

tomee

toworkout a resolution

for theIssue.

in

a

manne tha

is

reasonaby

saisfactory

toboth (

the

couseof .

action,

if

any,

tha resuts

in

a

pemanen

alevaionof

the

efecs

of

the

Issue

sha be

reered

to

as

the "Resolution") .

If

a

Resolution

is

reached

Deveope

s execse

ofitsrigh

torequire

reconveyance

conveyanceas povded

beow

sha

be inappicabeand no

Demand,

as

heenate deined

may

be

made

Developer and Ctyeach

agree

to

work

dligenly

and

in

good

fath

o

aemp

to reacha

Resolution

If,

ate

uilizing

dligenceandgoodfath

to

aemp

to

reachaResolution

a mutually

acceptable

Resolution

has

not been

reached

Deveope

may,

upon

60 days'

noiceto

the

Cty (

the "Notice

Peiod") ,

demand (

the "

Demand")

tha

the Cty

re-

convey

the Cty

Spaces,

Cty

Unt,

Cty

Eevaor and

ohecomponens

of

theTranst

Facility (

whch

for

carificaion,

does

no

includetheTransit

Facility .

DedcaionArea)

toDeveope

oritsdesgnee (in

whch

case

Cty

sha

aso

convey

a

no

addtiona

cos,

ohe

than

twce (once

87

MIAMI 699472. 17 7198217084

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for Developer'

s

unamortized portion and the other

for

the Cty'

s

unamorzed

portion)

any

remanng

unamorzed

cos

ove

the

first

10

years

thaDeveope

has no

padas

contemplated

inSection4 (

b)

above

alsystems, equipmen

and signage utilized

in

connection

wth

the

opeaonof

the

Garage

to

Deveope

or

itsdesgnee

regardess

of

who

intialy

pad

for

or

instaled

same) . If

Deveope

makes

the

Demand,

the

reconveyance

conveyance provided for below

shal

occur and,

un

thetime

of

reconveyance

conveyance (

or

rescsson

of

execise

if

appicabe , the

Cty

sha

connue

in

efec

any

proposa

suggested

by

Deveope

to

alevae

the

efecs

ofthe

Issue

The

Demand

may

ony

be

made

if

Deveope

has

purchased

a

least

150 Pubic

Passes

during

the

precedng

30

day

peiod

and

tha

has

no

aevaed

the

efecs

of

theIssue

Furthe,

any

Demand made

by Developer shall

be

deemed

wthdrawn

if,

wthn30

days

theeate,

Cty

agrees

to

adopt

for

so

long

as

is

necessary

any

proposal

submitted

by

Developer

to

alevaethe

efecsof

the

Issue

Upon

Developer'

s making

the

Demand,

such

reconveyance/

conveyance

by

the

Cty to

Developer

or

its

designee

sha bemade in

exchange

for a payment

by

Developer

to

Cty

of:

AA)

in the case

of

exercise

by

Developer

named

herein

or

an

afiliae

of

ths

rgh

on

or

beore

18

monhs

afteFul

Occupancy (

regardess

ofwhen

the

reconveyance

conveyance

occus) ,

and

povded

the

enire

Property

is

no

soldor othewsetransfered

excludng

by

foreclosure

ordeed

in

lieu

theeof)

toanunaffiliaed

thrd

paty

puchase

wthn

one (

1) year

afte

such

execse (if

such

a

saeor

transfe

occus,

the

saes

pice

sha

be

recauaedwthn

30

days

afte

such

sae.or

transfe

based

on (

BB)

below,

and

ths

righ

to

recacuaesha

suvve

such

sae

or

transfe) ,

the

ful

amoun

of

the

Cty'

s

Transit

Facility

Conribution

less

theportionthe

alocaed

to

the

Transit

Facility

Dedication Area and the Transit

Facility

Dedcaion

Area

Fnshes,

and

adused

to

excude

paymen

for

the Cty

Elevator

or any Cty Spaces previously conveyed/

reconveyed

to

Deveope or

lost through

condemnaon

ogehe

wth

smpeineest

theeon

a

the

raeof 4%

pe

annumfrom

the

daeof

each dsbursemen

un

the date

paid or

BB)

in

the case

of exercise by Developer

named herein

or

an

afiliaef

ths

rgh

onor

beore

18

monhs

afteFul

Occupancy (

regardessofwhen

the

reconveyance

conveyance

occus) , and

povded

the

enire

Property

is

sodorohewse

transfered

excludng

by

foreclosure

or

deed

in

lieu

theeof)

to

an

unaffiliaed

thrd

paty

puchase

wthn

one (

1)

yearafte

such

execse

the

greae

of (

M)

theFar

Make

Vaue

ofeach

Cty

Space a

the

time

of

execse

by

Deveopeof

sad

righ

torequirereconveyance/

conveyance

as

aforesaed

mutpied

by

the "

Fraction",

as heenatedened

pus

the

Cty

s

Transit

Facility Contribution attributable to the Cty

88

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Eevaor

or (N)

the

ful

amoun

of

the

Cty'

s Transt

Facility

Conribution less

theportion

theeof

alocaedto

theTransit

Facility

DedcaionArea

and

the

Transit

FacilityDedication

Area

Fnshes,

and

adusedto

excude

paymen

for the

Cty

Elevator or any

Cty

Spaces

prevously

conveyed

reconveyed

to

Deveope

or

lost

through

condemnaon

togehe

wth

ineest

theeon

a

thegreaeof (X) the

average yield.on

an

annualized basis

generated by

investments actually

made

by

the

Cty

inaccordancewththe

Cty'

s

Investmen

Policy and

Pocedure (designed

to

assure

the

pesevaon

of

pincpa,

a copy of

whch

has

been

furnshed

to

Deveope)

during

thelike

peiodof

time

or (

Y)

smpe

ineest

a

the

raeof .

4% pe

annum

ineach

case

from

the

dae

ofeach

disbursement

un

the

daepador

CC)

in the case of exercise by Developer named herein

oran

afiliaeofths

righafte18

monhs

ateFull

Occupancy

regardess

ofwhen

the

reconveyance

conveyance

occus)

or inthecase

of

execse

by

a

successor

Deveope

tha

is

no

afaedwth

Deveope

named

heen

a

any

time

the

greae

of (X)

the

fulamoun

of

the

Cty'

s. Transit

Facility

Conribution

less

theportiontheeof

alocaed

to

the

Transit

Facility

Dedication

Area

and

the

Transit

Facility

DedcaionArea

Fnshes,

and

adusted

toexclude

payment for

the Cty

Elevator

or

any

Cty Spaces

previously

conveyed/ reconveyed

to

Deveope

or lost

thoughcondemnaion

togehewthineest thereon

a

the

greae

of (

i)

he

average yied

on an annuazed

basis

generated by investments actually made by the Cty

in

accordance with

the

Cty'

s

Investmen

Policy

andPocedure (

desgnedto

assue

the

pesevaon

of

pincpa,

a

copy of which has been furnished

to

Deveope)

during

the

like

peiod

of

timeor (ii)

mpe

ineesta

the

rae

of

4% pe

annum

in

each case

from

the

date

of

each

dsbursemen

un

the

dae

pad,

and (

Y)

theFar

Make

Vaueof each

Cty

Space

a

the

timeof

execse

by

Deveope

of

sad

righto

requrereconveyance

conveyance

as.

aforestated multiplied

by

the

Fractionpusthe

Cty'

s

Transit

Facility

Contribution atributabeto

the Cty

Elevator.

In

addtion

to

the

amoun

to

be

pad

pusuan to (

AA) , (

BB) ,

or (

CC) ,

as

appicabe

twce (once

for Developer' s unamortized costs

and

once

for

Cty

s

unamorzed

cos)

any

remanngunamortized

cost

ove the

firs

10

yearsthaDeveope

has no

pad,

as

conempaed

above

on

al

equpmen

and signage utilized

inconnection

wththe operation

of

the

Garage sha

be

pad

to the

Cty.

The Fraction

sha be 56%, whch

was

calculated

based

on the

cost per

Cty Space actually

paid by the

Cty

toDeveope

in

conras

wth

theagreed

upon

vaue

of

each

Cty

Space

in

the

Garage

based on

ctea

pproved

by

the

Paties.

Cty

shal,

wthn .the

Notice

Peiod (

or

such reasonably longer time

frame

as

Deveope

sha

reques,

inorder to enable

Developer to

put

togehe

its

funding

for

the

paymen

tobe

made

by

it) ,

re-

convey the

89

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Cty

Spaces

and CtyElevator and convey the

aforestated

systems,

equpmenandsgnage

toDeveloper or

its

designee .freeand

clea

of

al

liens

and

ohewse

subec

only

to

the matters affecting those

spaces,

equpmen

andsgnage

a

the

time

of

Deveope s

conveyanceof

those

spaces

to,

orpuchase

of

suchsystems,

equipment

or

signage

by,

the

Cty

and

any

matesceaed

by,

joinedin

rendeed

agans

or

requesed-

by

Deveope.

Upon suchre

conveyance

conveyance

Cty and

Deveope sha

adus

al

revenues-and expenses

collected

or

incurred

under thsDeclaaion

as

of

the

date of

the re-

conveyance/ conveyance,

and

Cty

sha

tun

ove

to

Deveope

or

its

designee

conro

of the

segregaedaccoun

ino

whch

Revenues are

to

be

deposited

pusuan to

thsDeclaaion .and

al

mones

theen

and

Cty

sha

coopeaewth

Deveope

or

itsdesignee

in

the

ordely

turn-

ove

of

conro

ofthe

Garage. The

paymen

to be made

by Developer to

the .

Cty

under

this

subparagraph (

vii)

hal

be pad

in

casha

the

timeof the

reconveyance

conveyance

and

Deveope

sha

be

liabefor payment of

any

transfe

taxes (

documentary

stamps,

sutaxor

ohewse

tha

may

be

payabe

on

sad

transfe, if

any

are

payabe

At

any

time

prior

to

thereconveyance

conveyance

conempaed

hereby,

Developer may rescind

its

execse

of

the

righ

to

requiresuch

reconveyance/

conveyance.

Notwithstanding anything

to

the contrary provided in

this

Declaaion

itis

the

inen

of

the

Paties

tha

theDeveope

s right

to

requre

a

conveyance

reconveyance

of

the

Cty'

s

ineests pursuant

to

ths

subparagraph

(

c) (

vf)

halexs

ony

unde

thelimted

crcumsancein

whch

the

Deveope

deemnes

as aorestaedtha

there

are

parking

Issues

and a Resolution mutually acceptable

to

the

Paties

as

aforesaedhas

no

been

found Ths

subparagraph

4 (

c) (

vii)

s

no

intended

to

afford

Deveope

an opportunity

to

reacqure

the

Cty'

s

ineests

soley

to

take

advanage

of

the

appecaon

in

the

vaue

or

pakng

spaces

or

to

recapue

a

lage

share

of

the

revenues

generated

from the Garage.

d.

Standad

for

Opeaion

Deveope shal

opeae

manan

and

repace

orcauseto

be

opeaed

mananedandrepaced

al

portionsof

Property (

including

theReal

Space)

ina

first

cass

manne.

Cty

sha

opeae

access,

vaidaionandcolecion

systems

for the

Garage

in

a

firstcass

manne.

Al

portions

of

the

Property

sha

be

opeaed

in

accordance

wththe

limtaions

conanedinths

Declaaion

e

Collection

of

Revenues

and

Allocation of

Operating

Expenses.

i)

Al

revenues

fromthe

Real

Space

shal be pad

to

andbe the

soe

propety

of

Deveope.

Al "

opeaing

expenses" of

the

Rea

Space

sha

be

borne

by

Deveope

wthou

contribution

by

the

Cty

andwthou

being

paid from

the

Revenue of

theGarage.

90

MIAMI

699472.

17 7198217084

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7/274

ii) l

revenues

from the opeaionof

the

Garage

the "Revenue") ,

including

the

Conribution

shall be deposited

by

Cty

and

or

Deveope,

as appicabe

in

a

dedcaed

bank

accoun (

the

Operating..

Accoun")

and

no

ohe

sums

shal

be co-mingled

wth

the

funds in sad

accoun (

povded,

however,

tha

for

expenses

tha are

partialy

alocabe

to

the

Garage

and

patialyallocable to

the Retail

Space,

Deveope

may

deposit

money

ino

the

Operating

Accoun tocove

the

portion

alocabe

to theReal

Space

and then

cut

one

check to

the

appicabe

povde

of

sevce

ouof

the

Operating

Accoun) .

The

Operating

Accoun

sha

intialybe

funded with an estimated three

monhs

of

Operating

Expenses,

with

the Cty

funding the Cty Fraction

and

theDeveope

funding

the

baance

One

twefth

of

theannua

Conribution

sha be deposited

in

the

Operating

Accoun

no lae

than

the

fifth

day

ofeach

monh

in

advance Al

Revenues of

the

gaage

tha

are

collected by

the

Cty shall be

deposited

into

the Operating

Accoun

wthn

one

business

day (

revenues

ecevedon

Friday,

weekends

and

lega

holidays

wll

be

deposited

no

lae

than

the next business

day)

of

her

colecion

Ifa

any

time the

Operating

Account has

insufficien sums

tocove

Operating

Expenses,

the

Paties

sha

deposit

the

deficiency

wthn

three (

3)

business days

ate

notice

sad

deposit,

being

aocaed

to

Cty

based

on

the

Cty

Fraction

wth

the

baance

to

the

Deveope) .

If

either Party

fals

to pay any

amount

payabe

by

it ino

the

Operating

Accoun

whendue,

sad

amoun

sha

accue

ineest

from the

date

due

unil

pada

the

Deault

Rae

and

the

Party

no

in

deaultofits

paymen

obigaionshal

be

enitledto

Collection

Costs

for

enfocemenof

the other

Party'

s payment

obigaion

iii)

he

Operating

Accoun

sha

be

se

up

so

tha

it

is

accessbe

by

the

Cty

and

Deveope

by

compute,

so tha each wll

aaltimes know

the

saus

ofthe

Operating

Accoun.

The

Operating

Accoun sha

be

esabishedwth

the

Insituiona

Lender holding

the

financing

encumbering

the

Real

Space or

its

designee,

if

required by

the

tems

of

said

financing,

or

othewse

wth

anothe Insituiona

Lende (

whch.

sha

be

a

bank

orsavngs

and

loan

assocaion

uness

mutualy

agreed

to the

conray)

mutually and reasonably

agreed

to by

the

Paties.

Cty

and

Deveope, each

acting

aonewll

have

signaory

authority

on

the

Operating

Accoun,

athoughDeveope shal be the

primaysignaory

and

Cty

sha no,

wthoutpior

noticeto

Deveope, sgn

any

check

orohe

item

petanng

to

the Operating

Account

as

a

signaory.

The

cos

of

mananng

reparing

insuring,

and when

necessay

repacing

those

portions

of

the

Property (

or

componens theeof) ,

including

the

Garage,

as

enumeaed

on Schedule1

aached

heeo, in

the

pecenages

noedon

sad

Schedule

wheheor

no

techncaly

a

part

of

theRea

Space (

the "

Operating Expenses") ,

sha

be allocated to

the Garage and shall ultimately be payable

by

the

Cty

andDeveope

in

poportion

to

the

numbe

of

Cty

Spaces and

Real

Spaces

owned

by

each

from

time

to

time

in

reaionto the tota

91

MIAMI 699472. 17 7198217084

5/20/05 2:

13 PM


8/274

ofal

Rea

Space

and

Cty

Spaces in

the

Garage

fromtime

to

time

intialy,

the

Cty

wll

pay

535/

1081=

49.

49$

and Developer

wll pay

50.

511 based

on

the

conempaed

1081

toa

pakng

spaces

inthe

Garage;

the

Cty

s sharesha

heenate

be

reered

to

as

the "

Cty

Fraction

and

sha

be

adused

from

time

to

time

if

and

a

thetime

if

any,

tha

the raioof Cty Spaces to Developer Spaces changes) .

Operating

Expenses sha

includeal

coss

incurred

for preparing

annua tax

reunsand

financia

staemens

for

the

condomnium

assocaion

of

whch

the

Garage

isa

part

and

alof

the

cossand

fees,

if

any,

payabe

to

the

Forida

Dvsion

of

Condomniums

on

accoun

of

the

Property

being

a

condomnum

Operating

Expenses

sha

aso

include

any

coss

actually incurred

by

Developer during the

Extended

Warranty

Peiod

as

heenate

deined (

and

Developer may

issue

its

consrucion

warranes,

a no

cost

othe

than

theactua

coss

of

warany

work

peformed

to

manan

repar

or

repace for

the

peiodof

timebeyond the

time

frames

tha

are

typca

for

commecia

consrucion (

the "

Extended

Warranty

Peiod") ,

to

theexten

exenson

of

such

time

frames

is required

under the Condominium

Act

of

Forida in

lieu

of

the

contractor

extending

itsconstruction

waranies

for

such

time

frame)

for

performing any

warranty work

during

the

Extended

Warranty

Peiod

To the extent any

item

of

Operating

Expense

is

no

enumeaed

on

sad

Schedule

1,

the

Paties

sha

in

good

faith and reasonably

agree on

an

equitable

allocation

between the

Rea

Space and

the

Garage,

using

the

methodology

used

for allocating

the

items tha

arese

forth

on

such

Schedule

1.

The Patiesagree

tha

Operating

Expenses

sha

include

wthou

limtaion

any

insurance

deductibes .(

provided they

are in accordance with

Section

6 (

b)

below)

and

capta

expendtures

when

pad,

but

sha

no

include

the

coss

of

Intia

Construction

any

costs

covered

by

insurance

or

condemnaion

awad

proceeds

tha

are

actualy

coeced,

or

costsof

correcting

deective

work

or

maeias (

except

during

any

extension

peiodbeyond

one

yearfor

intia

constructionwaranies unde the

Condominium

Act) .

Operating

Expenses

sha

include

thecostsof

rouine

day

to

day

manenance

of

the CtyElevator and Transit

Facility

Dedcaion

Area

Fnshes,

such as sweeping and

cleaning.

Operating

Expenses

sha

specificalyexclude alothemaintenance

coss (

including

the

coss

of

a

sevce

conrac

for

manenance

of

the

Cty

Eevaor,

whch

sevce

conrac

sha

be

subject

to Ctys

reasonabe

appova) ,

and

al

coss

of

reparing

and

repacing

the

Cty

Eevaor

and

Transit

Facility

Dedcaion

Area

Fnshes,

whch

sha

be

pad

for in

ful

by

the

Cty

based

on

a

budget

reasonaby

approved

by

the

Cty

and reconciled

annually.

iv

Deveope

sha

consult

and

coordinate with Cty

in

prepaing

an

annua

budget for

Revenue

and

Operating

Expenses,

whch

budget

sha

be

pepared

and

finaized (

wth

the

appova,

no

uneasonaby

wthhed,

condtoned

or

deayed

of Ctyand Developer)

a

least

60

days

beore

the

year

end

for

the

po

budge (

the

budge

92

MIAMI 699472. 17 7198217084

5 /

20/

05

2: 13

PM


9/274

year

sha

be

the

calendar

year

unless mutually

agreed to the

conray) ,

or the

budge

for the prior year

shal

govern for

purposes

ofthe

monhy

budgeed

paymensto

be

madefor

the

nex

caendaryear

una

budge

for the

curen

year is

furnshed

and

appoved,

subec

to

quately

and

cumuave

year-end

reconcaiono

relec

acua

coss) .

The

budge

as

so

finaized

sha

include

Cty'

s

figures for

pesonne

and

any

oheexpenses

incurred

or

anicpaed

to

be

incurred

by

Cty.

Cty

sha

promptly

noify

Deveope

if

the

actua

pesonne

or

ohe

coss

incurred

by

it

devae

by

more

tha 5%

from

the

amount

releced

on

such

appoved

budge.

Developer shal

provide

Ctywith

quately

and

annua

reconcaions

including

reasonably

requested

supporting

documenaion

wthn30

days

aftethe

end

of

each

quate

60

days

in

the

case

of

the

annua

reconcaionand

the

amoun of

any

adusmen

resulting

from such

reconciliation shall be

paid

by

the

appicabe

Party

to

the

ohe

wthn30

days

aftetheappicabe

reconcaions

furnshed

to

Cty.

Deveope

agrees

tha

the

costs

incurred

by

it

for

Operating

Expenses (

and

Cty

agreestha

thecosts

incurred

by

itfor

pesonne)

shal be

consisten

wththecosts

incurred

by

smlar

faclities

of

smlar

sze

inthe

vcnty

of

the

Property (

Cty

faclities,

n the case of costs to

be incurred by

the

Cty) ,

takng

inoconsideaionthenaureof themaeiasuilized

inthe

construcionof

the

Property

andthe

leves

ofuseofthe

Property.

Deveope

furthe

agreesthano

paymen

of

Operating

Expenses

sha

be

madetha

is

no

inaccordance

wth

thethen

curren

budge

and

or the

gudenesseforthinthsAgreement uness

appoved

by

the

Cty,

whch

appova

shall not be

unreasonably

wthhed, deayed

or

condtioned

In

order

to

allow Developer and

Cty

to

veify

the

charges

made

by

the

oheheeunde,

eachagreesto

make

its

books

and

records

solely

pertaining to

such

charges

available

for

inspection

a

reasonabe

times

and

on

reasonabe

advance

noice

for

revew

by

the

ohe,

no

morethanthree

times

pe

year,

uponnoice

furnshed

to

the

Party

whoserecords

are

being

revewed,

wthn

180

days

afte

recep

of

the

annua

reconciliaion

for

theappicabe

yea

and

the

audt

must proceed promptly thereafter and

be

completed within

1 year

ate

recep

ofthe

annua

reconciliaionfor

the

appicabe

year) .

An

audt

or

review shall

be

performed annually by Cty or

Deveope

pesonne

oran

ndependen

cetfed

pubc

accounan

reasonaby

accepabe

to

Cty

and

Deveope

and

who

is

not

padon

a

conngen

feebasis.

Inthe

even

ethe

Party

issuccessfu

in

disputing

any

amoun

pad

by

it

undepoest,

thesuccessfu

Party

sha

be

entedo

embusemen

of

suchamoun,

togehe wth

ineest

theeon

from

the

dae

padun

the

dae

rembuseda

the

Deault

Rae

v

Inconnection wththe

quately

and annual

reconcliaions

to

be

efecedas

povded

in (

iv)

above

any amounts

inthe

Operating

Accoun

ino

whch

Revenues ae

deposited

inexcess of

those

reasonably

needed or

projected

to be

needed

to

pay

Operating

93

MIAMI

699472.

17 7198217084

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Expenses

heeafe

comng

due (

taking

ino

consdeaion

Revenues

tha

wll

be

added

tosuch

accoun

theeate)

shal be dstributed

to

the

Paties

in the same proportions

as Operating

Expenses are paid

by

the

Paties.

v)

It

is

the

inenion

of

the

foregoing

provisions

tha

Cty

shall

ultimately

receive and

retain that portion

of al

Revenue

thais

equa

to

the

Cty

Fraction

that

Cty shall ultimately

pay

tha .

portion .of

al

Operating

Expenses

equa

to the Cty Fraction,

an d

that

Developer

shall ultimately receive an d

retain, the

remaining

Revenues

and

be

liabe

for the remaining Operating

Expenses.

v)

Following

each

annua

reconcliaion,

and

subecto

any

aud

adustmens,

Deveope

sha

distribute

to Cty

and

Deveope

any

amouns in

the

Operating

Accoun

ove

the

then

esmaed

threemonhs

poeced

Operating

Expenses.

This dstribution

wll

no

occu

un

the

budget

for

the

nex

ensuing

year

has been

approvedin

fina

form

by

the

Paties.

f.

emedies.

If

ethe

Party

breaches

its

obigaionto

opeae

manan

repar

and

when

necessary,

repace

as

se

forthin

ths

Declaaion

the other

Party

may send written notice to

such

breaching

Party

and

ifsuch obligations are not performed by

the

breaching

Party

wthn

15

days

from

recep

of

such

noice (

ifnot

reasonably

capabe

of

being

fully -

pefbrmed

wthn

15

days,

suchtime

frame

sha

be

extended

for

such

reasonabe

addtiona

time as

may

be

needed

to perform

so

long

as performance

commences

within

such 15 day

peiodand

proceeds

coninuously

in

good faith

and

with

due diligence

un

compeion) ,

then

the

Party

gvng

noice

sha

have

the

right

wthou

limiting

any

ohe

righstha

may

be

avaabe

to

peform

such

obigaions

and

bll

the

breaching

Party

for

the

reasonabe

coss

of

such

peformance

If

the

breaching

Party

sha

not

pay such

bll

wthn

15 days.

of

recep,

then

ineest

shal accrueon theunpad

amoun

from

the

time

it

was

expended

un

pad

a the

Deault

Rae

andthe

non-

breaching

Party

sha

be

enitled

to

Collection

Costs

for

enorcemen

of

the

breaching Party' s payment

obligation.

Notwithstanding

the

foregoing,

in

the

evenof

an

emergency,

the

notice

and

opportunity

to cure provided above

shall

not be required but,

rahe,

only

such

notice as may

be reasonable under the circumstances

sha

be

requred (

including

teephonc

noice

or

no

noice

a

a) ;

the

Party

reying

upon

the

povsons

of

ths

sentence

shall

only

peform

such

work

as is

reasonably

necessary

to

stablize

the

situaion

and

emnae

the

emergency

stuaion

and

al

othe or addtionawork

sha

requre

noice

and

opportunty

to

cue

as

povded

above

The

povsons

of

ths

subpaagraph

sha

specificaly,

wthou

limtaion

be

appicabe

to

th e

remedying of

violations

of Legal Requirements by

the

respecve

Paties

as

esewhee

povded

in ths

Declaration.

94

MIAMI 699472.

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11/274

5.

Taxes.

a

Deveope

sha

pay,

wth

the

maximum allowable

dscoun,,

al

taxes

and

assessmens,

rea

and

pesona,

whehe

genea

or

speca,

leved

agans

the

Rea

Space,

the

Deveope

Spaces,

the

Deveope

Unt

and

her

respecve

componens.

The Paties

acknowedge

tha,

due

to

the

Cty'

s

ownership

of

the

Cty

Spaces,

the

Cty

Unt,

the

Cty

Eevaor

and

the

equpmen

and

signage

for the

Garage

opeaion

they

should

be entitled to

an exemption from real

esae

and

pesona

propety

taxes

and

assessmens (

except,

potenialy,

for

the

Cty

Non-

Supermarket

Spaces) .

Deveope

agrees

to

coopeae

wth

Cty,

a

no

cos

to

Developer,

in attempting to realize

sad

exemption

To

the

exen

an

exemption

from

taxes

isnot

avaabe

Cty

sha

pay,

wth

the

maxmum

aowabe

dscoun,

al

taxes

and

assessments,

rea

and

pesona,

whehe

genea

or

specia,

leved

agans

the

Cty

Spaces

and

its

componens;

povded

however,

tha

if

supemake

use

inthe

Rea Space

is changed

to

another

use,

Developer

shall

pay or reimburse th e

City

for

an y

taxes and assessments

for

the

Cty

Supermarket

Spaces

tha

the Cty

would

otherwise

be

obigaed

to

pay

if

the

Cty

Non-

Supermarket

Spaces

area

the time

exempt (

i.e

if

the

curen

exemption

for

the

Cty Non- Supermarket

Spaces

is

emnaed,

the

foregoing

povso

sha

be

inapplicable) .

To

the

exen

an

exemption

from

taxes

is

no

avaabe

in respect

of

the

Cty

Unt,

the

equipment

and signage

for

the Garage

operation or the

Cty

Eevaor,

the

taxes

and

assessmens

reaed

theeo,

and

its

componens,

sha

be

included in

Operating

Expenses.

b..

The foregoing shall no t

preclude

either City or

Deveope

from

contesting

taxes,

so

long

as

appropriae

sepsare

taken

to

preven

a

sae

of

the

Property

on

accoun

of

non-

paymen

theeof.

The

Party

appealing

taxes

sha

be

responsbe

for

the-

ful

cossfor

any

such

appea

c..

Wth

respect

to

assessmens

ony

the

foregoing

shall

no

pecude

paymen in

installments,

to

the

exen

avaabe

d.

Each

Party

agrees

to

coopeae

wth

al

reasonable

requests

of

the

ohe

in

an

atempt

to

have

any

portion

of

the

Property

reasonably

requested

by

the

ohe,

or

any

componen

theeof,

sepaaey

assessed for

tax purposes.

e

If

either

Party

breaches

its

payment obligations under

ths

paagraph

the

ohe

Party

sha

have

the

righ,

but

no

the

obigaion

a

any

time

theeate,

to remedy the

breach

by paying the

appicabe

amoun

to

the

appicabe

authority,

and any such payment

sha

accrue

ineest

a

the

Deault

Rate

from

the

date

pad

un

the

dae

repad,. .

nd

the

non-

breaching

Party

sha

be

enitled

to

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Coecon

Costs for

enfocemen

of the

breaching Party' s

payment

obigaion

6.

Insuranceand

Restoraion

a.

Types

of

Insurance

Deveope (

and in

thecase

of (

iv)

beow

Cty, -

uness

Cty

is

enitled

by

law

and

eecsto

sef

insure

ths

coveage

in

which

case the Cty shall be

liable for

almatters

tha

woud

have been

coveedhad

Cty

mananed

such

coveage

asifit

wee

mananng

such

coveage

sha

manana

al

times

wheths

Declaaion

remans

in

efec,

a

its

cos

but

subec

toconribution

as

Operating

Expenses (

equitably allocated between the

Retail Space and

Garage

as

contemplated

by Schedule 1 attached hereto or Section

4 ( e) (

iii).

eeo).,

the

following:

i) "

peca

form

insurance on the Property

including

in

respec

of

the

Garage

equpmen

intialy

purchased

and

instaled

by

Cty

and

any

repacemens

theeof)

agans

alrisks

of

physca

loss

or

damage (

including

wndsorm

in

an

amoun

no

less

than

100%

offul

repacemen

cos (

excludng

excavaon

foundaions

and

footings) ,

wth

an

agreed

amoun

endorsemen if

coverage is by way

ofa

banke

policy.

Sad

policy

sha

include

demolition

and

debris

emova

coveage

ii)

ommeca

genea

liablity

insurance (

including

banke

conracua

liablity,

pesona

injury

and

advertising

injury,

and if

appicabe

liquor

liablity)

coveing

the

Property

in

amounts

of

a

least $

, 000,

000

pe

occurence

in

the

aggregae $

1,

000,

000

poducs

liablity

and

compeed

opeaons

aggregae

and $10,

000, 000

excess umbrela

coveage

iii)

al

times

during which

construction

is

being

peformedin

connecon

wth

the

Property,

builde

s

risk

insurance

wth

limts

of

coveage

no

less

than

tha

specfed

in

subparagraph

i)

above

independent

conracor

s

insurance

and

banke

conracua

liablity

insurancewth

limts

of

coveageno

less

thantha

specfed

in

subpaagraph (

ii)

bove

In

addtion

owne s

and

conracor

s

poecive

nsurance wth

a

mnmum

coveage

of $,

000, 000

sha

be

requred

unessal

contractors performng

work

inconnection

wth

such

consrucion

manan

no

less

than $

1,

000,.

000

of

genea

liablity

insurance

namng

the

Paties and

ther

mortgagees as

addtiona insureds

and

saisfying

the

sandards

seforth

esewheein

ths

Declaaion

for insurance

to be maintained

by the Patties;

iv)

workes

compensaion

insurance

a

legally

requred

leves

and

empoye

s

liablity

insurance

inan amount not

less

than $

,

000,

000

for the

beneit

of

al

empoyees

eneingupon the

Property

as

a

resut

ofor

in

connection with

their employment

by the

96

MIAMI 699472.

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Party mananng

such

coveage

or

any

agen,

repesenave

licensee

or

conracorofsuch

Party (

or

where -such Party is otherwise legally

liabe) ;

v

insurance

agans

loss

or damage

by boiler

or

compessoror

inena

exposonof.

a

boile

or

compressor

ifsuch

items sha

be locaedon

the

Property

wth

limts

of

coverage

no

less

than

tha

specfed

in

subpaagraph (

i)

above

v)

en loss/

business

ineruption

insurance

for up

to

18

monhs, if

reasonaby

avaabe

in

respec

of

the

Revenue

geneaed

from

the

Garage,

as

mutually

and

reasonably agreed upon by

thePaties;

and

vi)uch

ohe

insurance

including,

wthout

limtaion

flood

pae

gass,

macous

msche

and

wongfu/

discriminatory

temnaion

insurance,

and

in

such

amouns,

and

such

increasesto

the

foregoing

coveages,

as

are

customaily

mananed

wthrespec

to

faclities

smlar

in

consrucion locaion

and

use

to the

faclities

locaed

onthe

Property.

b.

Standads

for

Insurance

The

policiesprovded

for

in

subpaagraph, (

a)

may

conan

a

reasonabe

deductibe

no

toexceed

50,

000

for

propety

peils (

excludng

wndsorm ,

2%-

of

vaue

for

wndsorm

pe, $

00,

000 for

floodand

earhquake

peils

and $10, 000

for genea

liablity

coveage

uness both

Paties

approve of

hghe

or

dffeen

deductibes

in

her

reasonabe

dscreion

The policies

mananed

sha name

each

Party

and

any

mortgagees

of

such

Party of

whch

noicehas

been

povded

as

addtiona

named

insureds (

in

the

case

of.

casuaty

and

liablity

poces)

and copesof

the

policies and

cetificaesof

insurance shall

be

provided

to al named

insureds

promptly

upon

reques.

The

insurance companies providing insurance

sha have

a

Bests

raing

ofno

less thanA(-)

VI (

or

its

equvaen)

a

the

timeeach

policy

is

acqured

or

renewed

Each

policy

of

casuaty

and

liablity

insurance

sha

conan

a

waveof

subogaon

righs

agans.

the

ohe

Party,

its

morgagees)

andtenan (

s) ,

and

her

respective

agens,

empoyees

and

repesenaves;

and each

Party,

for

itsef

and

for

its

mortgagee(

s)

and

tenan(

s)

and

ther

respective

agens,

empoyees

and

repesenaves,

waves

any

liablity

tha

the

ohe

Party

or

its

mortgagee(s) or

tenan (

s)

or

ther

respective

agens,

empoyees or

repesenaves

mgh

have

whch

was

coveedor

would

have been covered

by

the insurance

provided for

in

this

subpaagraph

The amoun of

any

deductibe

sha

be deemed

an

Operating

Expense (

and

sha

be

aocaed

between

the

Paties

inthe

same

manne

as

insurance

poceeds,

of

whch

the

deductibe

is

a

subsitue .

Al

insurance may be

maintained through

a blanket

policy

or

pocess

and

sha

be

reasonaby

aocaed

amongst

the

propeties

coveed

andbetween

the

Garage

andthe

Rea

Space.

97

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C

Remedes.

Intheeven

ethe

Party

fals

to

mananthe

insurance

requred

heeunde,

theohe

Party

may,

but

shal

not be

obigaed

toobansuch

nsurance coveage

for

the

breaching

Party

and

the

breaching.

Party

shal, '

wthn15 days

of

demand theeor,

rembuse

the

ohe

for

the

reasonabecos

theeof.

If

the

breaching

Party

fals

to

do

so,

ineest

sha

accueonthe

amoun oweda

the

Deault

Rae

fromthe

daepad

un

the

dae

rembused

and

the

Non-

breaching

Party

sha be

enitled

to

Collection

Costs

for

enorcemen

of

the breaching Party'

s

payment obligation.

d.

Casualty.

In

the

even

any

portion

of

the

Property,

or any

componenstheeof,

is

damaged or destroyed by

reason of.

casualty,

Deveope sha

promptly

in

goodfath

and

wth

due

dligence

setle

the

loss (

including pursuing

funding

ofthe

insurance

proceeds)

and

thereafter

promptly restore the damaged or destroyed portion to at

least the

following

exen: (

i)

the

Property

shall

be restored

to

substanialy

the

condtion

it

was

inprior tothedamage or

destruction (povded,

tha

if

restoration to

substantially

the

condtion

they

weeinpior

to

the

damage or

destruction

is

no

then

pemtted

by

appicabe

Lega

Requremens

restoraion

shal

be

toas

nealy

the.

condition

they

were in prior

to

the damage

or

destruction

as

may

then

be

pemtted

by

appicabe

Lega

Requremens)

or (

ii)

he

damage or

destruction

canbe

resored

to

such

dffeen

condtion

subec

to

the

povsons

of

ths

Declaaion

however,

respecting

reocaion

of

easemens

and

ohe

mates,

the

Cty

Spaces

shal

be

resored

in

accordancewth (i)

above)

and

no

change

in

the

charace

ofthe

Property

as a

rea/

resauan/

office

poec

shal be

efeced

wthou

the

Cty'

s

appova,

whch

wll

not

be

unreasonably

wthhed, deayed

or

condtoned)

as

the

Deveope

may

deemne

in

its

soe

dscreion

and furthe.

The

insurance proceeds payable on

accoun

of

damage or

destruction

to

the

Property

sha

firsbe

appied

towad

the

resoraion

obigaions

seforth

heen

and thebaance

sha

be

dsbursedto

and

reaned .

by

Deveope

as

itssole

property.

In

theeven

Deveope

breaches

its

restoraionobigaionsunde ths

subparagraph

or

unde

paragraph

regadng

restoraion

ate

condemnaon

the

Cty,

ate

30 days

piorwitten

noice

shal

be

enitled

to

peform

such

resoraion

a

the

Deveope

s

reasonable

cost,

and

theDeveope

sha

rembuse

the

amouns

so incurred

togehewth

neest

theeon

fromthe

dae

pad

un

thedae

rembused

a

the

Deault

Rae

promptly

upon

demand,

and

Cty

shal

be

enitled

to

Collection

Costs

for

enfocemen

of

the

Deveope s payment

obigaion

7.

Condemnaon

a

In the

even

al

or

any

portion

of

the

Property,

or

any

componen

theeof,

is

condemned

or

taken

through

emnen domain,

by

deed

in

lieu

theeof or

by

any

ohe

means,

Deveope

sha

be

MIAMI

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entedto execsetoa

and

soeconro

ove

the condemnaon

poceedngs (

including,.

wthou

limtaion

deenses

agans

the

taking,

if

any,

wthdrawa

and

dsbursemen (conssen

wththe last

senence

of

ths

subparagraph (

a) )

ofal

poceedsof

the

takng

and

the

exen (subec

to

the

expess

povsons

of

ths

Declaaion)

of

restoraion,

if

any) .

Cty

sha

promptly

notify

Deveope

of

any

condemnaon

proceedng

institutedagans

any

ineest

of

Cty

in

the

Property,

or

of

any

witten

noiceeceved

by

the

Cty

in

respec

of

a

poenia

condemnaion

of

any

such ineest,

and

auhorzes

Deveope

to

inevene

and

assume

the

deenseof

any

such

proceedng

and the

negoiaions

petanng

to

any

such

noice

of

poenia

condemnaion

on

behaf

of

the

Cty (

andto the

excuson

of

the

Cty) ,

conssen .

wth

the

povsons of

ths

Section

7.

Cty

furthe

auhorzesthe

consoidaion

of

any

separae

condemnaion

proceedngs

in

respec of

the

Cty'

s

ineests and

the

Deveope s

ineests in

the

Property.

The

Cty

sha

no be

enitled

to

cones the

takng

or

rase deenses

or

take

any

ohe

acions

in

respec of the

condemnaion

wthou

Deveope

s

consen

in

its

absoue

and

soe

dscreion

Cty

sha

fully

coopeae

wth

and

join in

any

sipuaions

or ohe

documents

reasonably

requesed

by

Deveope in

furtheance

of

the

foregoing.

Except as

specfed in

the

last

senence

of

ths

subpaagraph (

a) , (

i) he

Cty

hereby

assgnsal

righ,

title

nd

ineest

of

the

Cty

in

respec

of

any

acua

or

poenia

condemnaion

poceedngs

afectingany

ineest

of

the

Cty

in

the

Property

to

Deveope, (ii)

he

Cty

sha

no be

enitled

to

share

in.

any

portionof

the

awad

or

to

receve

a

sepaae

awad

iii)

Cty

hereby

waves

any

and

al

righs

tha

itmgh

ohewse

have to

shareinsuch

awad

and (iv)

Cty

hereby

waves

any

andal

righs

tha it

mgh

ohewse

have

to

oban

a

sepaae

awad

The

Cty

sha be

enitledto

consu

wth

Deveope

in

respec of

any

mates

petanng

to

any

condemnaion

and

to

st

in

on

meeings

petanng

to

any

condemnaion

but the

decisions

made

by

Deveope

in

its

soe

dscreion

sha

be

binding

on

Cty

so

long

as

they

are

conssen

wththe

povsons

of

ths

Declaaion

The

Paties

have

agreed

tha, in

the

even

of

a

taking,

Cty'

s

portion

of

the

awad

sha

be the

amoun

specfed in

subpaagraph (

b)

below

and

the

condemning

authority

is

auhorzed

and drected

to

alocaesad

amoun

to

Cty

and

pay

such

amoun

drectly

to

the

Cty

ou

of

the

fina

condemnaonawadproceeds.

b.

If

any

pakng

spaces

are

taken

or

any

portion

of

the

Garage

is

taken

such

tha

pakng

spaces

must be

reconfgued

in

Deveope

s

soebut

reasonaby

execsed

business

judgment

in

orde

for

them

to

be

useabe

and

as

a

resut

of

such

reconfiguaion

thee

is

a

loss

of

pakng

spaces,

the

numbe

of

pakng

spaces

so

takenor

lost as a

resut

of

reconfiguaion

sha

first

be

apped

to

reduce

the

numbe

of

Cty

Spaces (

andif

Rea

Spaces

are

taken

or

lost,

Cty

sha

re

convey

to

Deveope (

or

its

designee)

the

numbe

of

Cty

Spaces

requred

to

implement

the

foregoing

alocaion (

and

if

al

Cty

Spaces

ae

lostor

re

conveyed (

or

the

numbe of

Cty

Spaces

remanng

99

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atethe

takng

and

any

reconfiguaion

is

less than

100) ,

Cty

sha

aso

convey any

remanng

Cty

Spaces

and

the

Cty

Unt,

Cty

Eevaor

and al equpmen and

sgnageuilized in

connecon wth

the

opeaion

of

the

Garage

to

Deveope (or

its

designee) ,

regardessof

the

amoun

pad

for,

or

who

pad

for

or

instaled

same and

the

Cty'

s

righs in

respec

of

ths

Declaaionsha

temnaeand

ves

in

Deveope (or

its

designee)

uponpaymen

to the

Cty

of

thepaymen

povdedfor

heen) , whchre

conveyance (

and

equpmen

and

sgnage

conveyance if

appicabe

sha be

free

and

cear

ofal

liens

and

encumbrances

ohe

than

those

existing

when

Deveope

orignaly

conveyed the

spaces

to the

Cty (

or

when

Cty

acqured

the

equpmen

or

sgnage

and

any

mates

ceaed

by,

joinedin

rendeed

agans

or

requesed

by

Deveope) .

As

Cty'

s

soeawad

for

the lost/

re

conveyed

spaces

and

or the

Cty

Eevaor,

Cty

sha

be

enitled

to

paymen ofanamoun equa

to (

i)

n

the

case

of

loss/re

conveyanceof

the

Cty

Eevaor, an

amoun

equa

to

the

Cty'

s

Transit

Facility

Conribution

atributabe to the

Cty

Eevaor

wthou

ineest

or

ii)n

the

case

of

lost/

re

conveyed

spaces,

an

amoun

pe

Cty

Space

lost (

including by

way

of

re

conveyance

to

Deveope (-

or

its

desgnee)

or

ohewse

as

aresut

of

the

taking

or

reconfiguaion

as

povded

heen

equa

to thegreae

of (

A) theFar

Make

Vaue (

deemned

in

accordance

wth

the

povsonsof

ths

Declaaion

and

no

pusuan

to the

mechan

sm

customaily

used

in

condemnaon

poceedngs) ofeach

Cty

Space

a ,

the

time

of

loss/

reconveyance

mutipied

by

the

Fraction

or (B)

the

Cty

s

Transit

Facility

Conribution

atribuabe

to

the

Cty

Spaces

dvded

by

535

and-

mutpied

by

the.

numbe

of

Cty

Spaces

los/reconveyed

wthou

ineest.

In

addtion,

upon

a

loss/

conveyancere

conveyance

of

al

Cty

Space,

twce (

once for

Deveope

s-,

unamorzedcoss

and

once for

Cty'

s

unamorzed

cos)

any

remanng

unamorzed

cos

ove

the

first 10 years

tha Deveope

has

no pad,

as conempaed

above on

al

equpmen

and sgnage

uilizedin

connecon

wth

the

opeaon

of the

Garage sha

be

pad

to

the

Cty.

Deveope

sha

be

liabe

for

paymen of

any

transfe

taxes (

documentary

stamps,

sutax

or

ohewsetha

may

be

payabe

on

any

such

conveyance

re

conveyance if

any

are

payabe The

Paties

acknowedge

tha

the

foregoing

paymen

is

no

and

wll no be

relecive

of

farmarke

vaue

or

the

amoun tha

the

condemning

authority

woudbe

obigaed

to

pay

for

the

Cty

Eevaor

or

spaces

so

lost/

re

conveyed but

is

meey

nendedas

an

agreedupon

paymen

and

alocaionbetween

the

Paties

whch

takes

ino

consdeaion

varous

compromses

be.tween

the

Paties

in

respec

of

the

negoiaionstha led

up

to

the

eneing

ino

of

ths

Agreemen andthe

transactionevdenced

hereby.

Thee

sha be no

paymen

due

to

Cty

for

the

Cty

Unt

or,

excep

as

specificaly

povded

above the

equpmen

andsgnage

to be

conveyed

by

the

Cty

if

appicabe

From

and

aftethe.

daeofsuch

takng (

or

possesson

to

the

conveyng

authority,

if

lae) ,

he

pecenages

uilized

for

purposes

of

caculaing

the

reaive

conribuions of

the

Cty

and

Deveope

in

respec

of

Operating

Expenses

and

Revenues sha

be

adused

proportionaey,

efecveas

100

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17/274

of

thedae

of

the

taking

or

possesson as

appicabe In

the

even

of a

takng

thepovsons

of

subparagraph

6( d)

of

ths

Declaaion

sha

appy

as

between

Cty

and

Deveope

and

the

portion

of

the

Property

tha is

no taken

sha

be

resored

as

requred

theenand

the

condemnaion

proceeds

avaabe

as

a

resut

of

the

condemnaion

sha

be used

for

resoraion

as and

to the

exen

se

forth

theen

for

insurance -proceeds.

C

Inenionalyomtted.

d.

Upon

any

condemnaion

tha does

no

resut

ina

temnaion

of

the

Cty'

s righsunde

ths

Declaaion

Developer

shal

uilize

o

much

of

the

condemnation

award

proceeds as

may be

received and needed

for

resoraion

to

resore

the Garage to

the

condition

called

for by

Section

6 ( d)

inthe

case

of

casuaty.

8. "

5h &

Aton"

Trade

Name.

Cty (

ony

in

its

capacity

as

a

Party

to

ths

Declaaion)

acknowledges

being advised

of

Developer'

s

proprieay

ineest

inthe

trade

name

115h &

Aton"

and

wllnot

dspute

same

Cty

may

usethe

name "

5h &

Aton

as

a

locaiona

reeencefor

the

Garage,

but

sha

no .

ohewse

use

such

name

Cty

furthe

agrees

to

comply,

a

noou

of

pockecos

to

Cty,.

wthany

requremenstha

Deveope

may

reasonably

impose

from

time

to

timein

orde

to

poec

its

righs

wth

respec

to the

115h &

Aton"

trade

name

9.

Deveope

s

Rght

of Frst Ref

9

Reusa

to

Purchase.

IfCty

desires

to

sel

al

of

it

ineests

in

the

Property

and

enes

inoa

conrac (

whch

conans

no

conngences (

or inrespect

of

which al

conngences

have

expred)

other

than

a

contingency

for

exercise

by

Deveope

of

its

righof

first

reusa)

to do

so (

Cty may

no

sel

partia

ineests

in

the

Property) ,

Cty

sha

firs

offe its

ineests in

the

Property

to

Deveope (

and

sad

conrac

shal be

conngenon

Deveope

no

execising

its

righ

of

first

reusa) ,

who

may

acqure

same

for

an

amoun

equa-

o

the

greae

of (a)

the

ful

amoun

of

the

Cty'

s

Transit

Facility

Conribution

less

the

portion

theeof

aocaedto the

Transit

FacilityDedication Area and

the

Transit

Facility

Dedcaion

Area

Fnshes,

and

adustedtoexclude

paymen

for

the

Cty

Eevaor

or

any

Cty

Spaces

prevously

conveyed

reconveyed

to

Deveopeor

lost

though

condemnaion

wthou

ineest

or (

b) Far

Make

Vaue

for each Cty

Space multiplied by

the

Fraction

pus

the

Cty'

s

Transit

Facility

Contribution

atributabe

to

the

Cty

Eevaor.

There

sha

be

no

paymen

due

to

Cty

for

the

Cty

Unt

or,

excep

as

specificaly

povded

in

Subparagraph 7(

b)

above

the

equipmen.

and

signage

to

be

conveyed

by

the

Cty.

Deveope

shal

have

30

days

from

the

dae

Cty

offesits

ineest ,

in -

the Property

to

Deveope

wthn

whch

to .

eec

to

accep

such

offe,

whcheecon

sha

be

evdenced

by

a

witten

acceptance

to

the

Cty. -

Once

accepted

101

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18/274

Deveope

sha

cose

onthe

puchaseof

Cty'

s

ineests in

the

Property by

no laethanthe

lae of the

date

provdedfor inthe

conrac

obaned

by

the

Cty

from

a

thrd

paty (

whchtriggeed

the

righs

ofDeveope

unde

ths

paragraph

or

60 days ate acceptance

by

Deveope,

whchtime

frame

may

be

extended by

Developer

for

a

reasonabe

addtiona

peiodno to

exceed

an

addtiona

60

days

in

orde

tooban

funding

for the

acqustion

Developer shall pay

al

cash

a

closing

Conveyance

sha

be free

and

cear

of

al

liens and

encumbrances ohethanthose

existing

when

Developer orignaly

conveyedthe

Cty

Spaces

to the

Cty (

or when

Cty

acquired the

equpmen

or

sgnage

to

be

conveyed)

and

any

matesceaed

by,

joined

in

rendeedaganstor

requesed

by

Deveope) .

Income

andexpenses

sha be

poraed

as

of

the

closing

dae

Cty may

no

sel

parts

of

its

ineests

in

the

Property.

Deveope

may,

a

itssoe

opion,

designae

a

desgnee

to

acqurethe

Cty'

s

ineest

in the

Property.

This

paragraph

shall

not

apply

to any

conveyance

by the

Cty

to

a

successorgovenmena

authority,

but

shall be

binding

on

such

successor.

This provision

is

agreed to

in

recognition of the unique

aspects

of

th

Documents

Sunset Harbor Part 2