HomeMy WebLinkAboutR-2020-074 City, Authorizing to Execute an Occupancy Agreement Between the City and Dania Live 1748 LLC, for a Broward Sheriff's Office (''BSO'') Substation Located at Dania Pointe Shopping Center Ph I RESOLUTION NO. 2020-074
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO
EXECUTE AN OCCUPANCY AGREEMENT BETWEEN THE CITY AND
DANIA LIVE 1748 II, LLC, FOR A BROWARD SHERIFF'S OFFICE (`BSO")
SUBSTATION LOCATED AT DANIA POINTE SHOPPING CENTER PHASE
II; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, on October 15, 2015, the City Commission passed and adopted Ordinance
#2015-022, amending the Dania Beach Code of Ordinances to change the Municipality's
Comprehensive Plan regulating development and use regulations, including those governing
development of the Dania Pointe Shopping Center Phase II ("Premises"); and
WHEREAS, pursuant to Development Design Guidelines and Development Standards
for Dania Pointe approved by the City Commission, as a condition of approval, Dania Live 1748
II, LLC was required to provide a police substation for the City's use at no cost to the City
within the shopping center premises; and
WHEREAS, the City's and BSO's use of the Premises has been negotiated with Dania
Live which are embodied in terms and conditions set forth in an Occupancy Agreement (the
"Agreement"), a draft copy of which is attached as Exhibit "A" and is incorporated into this
Resolution by this reference; and
WHEREAS, the Agreement is not a lease and is not subject to Florida Statutes Chapter
83, the state Landlord-Tenant law, but is an agreement solely for City's and BSO's use of the
premises in connection with provision of police services as set forth in the City-BSO police
Service Agreement; and
WHEREAS, the term of the Agreement shall commence on the Delivery Date and expire
at midnight on October 14, 2025, unless the Agreement is extended by mutual written consent of
both parties;
NOW, THEREFORE,BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA BEACH, FLORIDA:
Section 1. That the foregoing "Whereas" clauses are ratified and confirmed to be true
and correct and they are made a part of and are incorporated into this Resolution by this
reference.
Section 2. That the proper City officials are authorized to execute an Occupancy
Agreement with Dania Live 1748 II LLC, for a BSO substation, after the Office of the City
Attorney approves its terms; a draft copy of the Agreement is attached as Exhibit "A" and is
incorporated into this Resolution by this reference.
Section 3. That all resolutions or parts of resolutions in conflict with this Resolution
are repealed to the extent of such conflict.
Section 4. That this Resolution shall take effect immediately upon its passage and
adoption.
PASSED AND ADOPTED on July 28, 2020.
ATTEST:
THOMAS SCHNEIDER, CMC R` LORI LEWELLEN
CITY CLERK �.� 7, MAYOR
APPROVED AS TO FORM AND CORRECTNESS:
I
THOMAJ J.iXNS R\(b
CITY ATTORNEY
2 RESOLUTION 92020-074
DANIA POINTE SUBSTATION
DRAFT JULY 10, 2020
OCCUPANCY AGREEMENT
This Occupancy Agreement(the"Agreement")is made and entered this of July 2020(the"Effective
Date")at Dania Beach,Florida by and between Dania Live 1748 II LLC,a Delaware limited liability company(the
"Owner'),the City of Dania Beach,Florida, a Florida municipal corporation existing pursuant to Florida Statutes
Chapter 165 (the"C ")and the Broward Sheriffs Office("BSO" and,together with the City,the"Occupants").
The Occupants and the Owner shall be referred to as the"Parties"and each a
RECITALS
City is a Florida municipal corporation, governing the municipality identified as the City of Dania Beach,
Florida(the"Municipality").City is responsible for the provision of police services for the Municipality.
To provide police services for the Municipality, on October 1, 2010, City and BSO entered into an
"Agreement for Police Services"(the"PSA"). The PSA was amended by First Amendment dated January 13,2013,
Second Amendment dated January 27, 2014, Third Amendment also dated January 27, 2014, Fourth Amendment
dated October 1,2014,Fifth Amendment dated June 9,2019, Sixth Amendment dated August 4,2016,and Seventh
Amendment dated May 2,2017,(all collectively referred to as the"Service Agreement").
Owner is the owner of Phase II of the Dania Pointe Shopping Center located at 140 South Compass Way,
Dania Beach,Florida(the"ShoppingCenter").enter").An affiliate of Owner owns Phase I of the Shopping Center.
On October 15, 2015, City passed and adopted Ordinance#2015-022, amending the Dania Beach Code of
Ordinances to change the Municipality's Comprehensive Plan regulating development and use regulations,including
those governing development of the Shopping Center (the "Ordinance"). Pursuant to Development Design
Guidelines and Development Standards for Dania Pointe approved by the City (the "DDG"), as a condition of
approval, Owner was required to provide a police substation for City's use' at no cost to City within the Shopping
Center(the"Premises").
The Parties wish to provide for the City's and BSO's use of the Premises on the terms and conditions set
forth herein. For all purposes, the Parties agree that this Agreement is not a lease and is not subject to Florida
Statutes Chapter 83, but is an agreement solely for Occupants' use of the Premises in connection with provision of
the Services to the Municipality as set forth in the Service Agreement.
NOW, THEREFORE, in consideration of Ten Dollars($10.00)and other good and valuable consideration
paid by each Party to the others, the receipt and adequacy of which hereby are acknowledged, the Parties hereby
agree as follows:
AGREEMENT
1. Recitals;Defined Terms.The foregoing Recitals are true, correct and complete and are incorporated
herein by reference. All capitalized defined terms contained in the DDG shall have the same meanings in this
Agreement unless specifically stated otherwise.
2. Premises. The Premises which are the subject of this Agreement consist of approximately two
thousand three hundred twenty-five(2,325)square feet of space within the Shopping Center, identified as Space 0-
102 as depicted in that floor plan titled "Broward County Sheriff's Office, Dania Pointe — Shopping Center O",
which is attached hereto as Exhibit A-1 (the"Floor Plan"), located at the northern end of the Shopping Center, as
depicted on the site plan titled "Dania Pointe", which is attached hereto as Exhibit A-2(the"Site Plan")and use of
the Reserved Parking Spaces as set forth below. The roof,foundation, exterior of the perimeter demising walls,and
load bearing structural columns of the Shopping Center of the Premises are not a part of the Premises and Owner
' See pages 47 and 48 of the DDG.
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reserves the right to place signs or equipment (including utility equipment) and to perform additional construction
within such areas.
3. Construction of Premises.
a. Owner's Work. Owner shall construct the Premises in accordance with the Floor Plan and in
accordance with the specifications attached hereto as Exhibit B-1 ("Owner's Work"). Owner shall notify
Occupants when the Owner's Work to be performed within the Premises has been substantially completed
(the "Completion Notice"). For purposes hereof, "substantially complete" means that Owner's Work has
been completed to the point that: (i)the work that needs to be completed consists of non-structural punch
list type items; and (ii) Occupants can enter the Premises to commence Occupants' Work and to install
fixtures,and equipment. Occupants shall promptly inspect Owner's Work and,if there are any deficiencies
therein,Occupants shall promptly(within fifteen(15)business days)deliver to Owner a punch list detailing
the defective items, and Owner shall correct the deficiencies as soon as reasonably practical. If Occupants
do not timely submit such a punch list, Occupants conclusively shall be deemed to have accepted all of
Owner's Work.If Occupants do timely submit such a punch list,Occupants shall be conclusively deemed to
have accepted all of Owner's Work not specifically indicated as defective on such punch list.
b. Occupants'Work. Within five (5) business days after receipt of the Completion Notice
(the"Delivery Date"), Occupants shall take possession of the Premises and shall commence to perform the
improvements, alternations and installations described in Exhibit B-2 (the "Occupants' Work"). The
Occupants' Work shall be performed by Occupants: (i) at their sole cost and expense, (ii) in compliance
with all Laws, and(iii) in accordance with Approved Plans(as defined below).Before starting Occupants'
Work or filing for permits, Occupants must submit to Owner, for its review and approval, plans and
specifications for Occupants' Work(the"Plans"). Owner shall inform Occupants of any objections to the
Plans within thirty (30) days after receipt. If Owner provides objections to the Plans, Occupants shall,
within fifteen (15) days of receiving Owner's objections, deliver to Owner revised Plans, which Owner
shall acceptor reject within the next fifteen(15)days. The term"Approved Plans"refers to the final Plans
which have been approved by Owner. Owner's review and approval of Occupants' Plans is not an
affirmation by Owner that the Plans (or Occupants' Work) comply with applicable Laws nor does the
approval impose any liability on Owner. Before starting the Occupants' Work, Occupants must provide to
Owner: (a) the "Contractor Indemnity Agreement" (attached as Exhibit `B-3") signed by the Occupants'
contractor;(b)certificates or other evidence that Occupants and their contractor have the insurance required
by this Agreement; and (c) permits or other evidence that Occupants have obtained all governmental
approvals required for the construction of Occupants' Work. Once Owner receives and approves the
foregoing, Occupants promptly shall commence and complete Occupants' Work in accordance with the
Approved Plans. Occupants shall pay, when due, all charges for labor and materials associated with the
Occupants' Work. Before commencing the Services, Occupants must obtain and deliver to Owner: (1) all
governmental approvals and inspections (including any certificate or occupancy)required for Occupants to
use and occupy the Premises (the "Occupancy Permits"); and (2) paid invoices for all the Occupants'
Work, along with final lien waivers from all contractors who performed any Occupants' Work (the
"Invoices and Lien Waivers"). Occupants shall perform any Occupants' Work in a manner that minimizes
the disruption of ongoing business and other activities in the Shopping Center and limit its construction and
staging areas to the interior of the Premises. Each day, Occupants must remove any debris or materials in
the Common Areas caused by the construction of Occupants' Work. Parking of vehicles of persons
performing any portion of the Occupants' Work is only allowed in the Reserved Parking Spaces.If Owner
or its representative inspects the Premises and determines that Occupants' Work is not being done in
accordance with the Approved Plans, Occupants shall immediately correct the deficiencies or omissions.
Any alterations to the Premises to be performed after the Occupants' completion of Occupants' Work shall
be subject to the same approval procedures. Occupants shall not, under any circumstances, at any time
during the Term(as defined below)of this Agreement, dig below the base course level of the pavement in
the Common Areas without the express written permission of Owner and without utilizing a contractor
chosen or approved by Owner. Notwithstanding anything to the contrary set forth herein, Occupants shall
be required to use the telecommunication infrastructure installed by Owner at the Shopping Center to
transmit voice and data to the Premises(the"Tel/Data System")with an Owner-approved service provider.
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Connection to the Tel/Data System shall be at Occupants' sole cost and expense and performed in
compliance with the Design Criteria & Handbook after coordination by Occupants through Owner's
designated site personnel.
C. No Construction Liens. Occupants shall have no power or authority to permit construction,
mechanic's, materialmen's or other liens to be placed upon the Premises in connection with maintenance,
alterations, modifications or otherwise("Occupants'Liens"). The interest of Owner shall not be subject to
liens for improvements made by Occupants. Owner shall not be liable for any work, labor or materials
furnished to the Premises by or through Occupants or anyone claiming through Occupants. No
construction liens or other liens for any such work, labor or materials shall attach or affect the interest of
Owner in and to the Premises. Owner has recorded or shall record a notice as set forth in Section 713.10 of
the Florida Statutes. This Agreement itself shall not be recorded in the public records except at the option
of Owner.Furthermore,Occupants shall be required to obtain and provide to Owner final lien waivers from
all contractors, subcontractors, materialmen and suppliers which have filed or sent to Owner a"Notice to
Owner".
d. Construction Criteria Manual. Occupants will be responsible, in addition to compliance with
the P.M.U.D. and DDG's as set forth in Section 26 below, to conform its submission of Plans and other
construction documents,and to perform its construction including the physical build out of the space and of
the fagade,to the criteria and requirements set forth in the Occupants Design Criteria&Handbook,a copy
of which has been provided to Occupants. Statements and illustrations in the Occupants Criteria Manual
showing the layout of the Shopping Center and the Development are for reference and context only,and in
no way represent the actual final layout of either initially or at any future point in time.
4. Term. The "Term" of this Agreement shall commence on the Delivery Date and expire at midnight on
the Expiration Date. For purposes of this Agreement, the "Expiration Date" shall be the first to occur of: (i)
Occupants' actual vacation of the Premises,other than due to force majeure events;(ii)a date which Occupants shall
specify by written notification to Owner that it will cease occupying the Premises; or(iii) October 14,2025; unless
this Agreement shall be extended by written agreement of the Parties. Upon the determination of the actual Delivery
Date, Owner and Occupants shall each execute and deliver a "Notice of Agreement Term Dates" in the form
attached to this Agreement as Exhibit C.
5. Consideration;Use and Occupancy of Premises. The consideration for Occupants' use of the Premises
is the approval by City of the DDG and no rental payments shall be required hereunder, provided, however,
Occupants shall pay to Owner such amounts as this Agreement allows to be charged for expenses which are the
responsibility of Occupants ("Expense Charges"). Without limitation upon the foregoing, such Expense Charges
shall include but shall not be limited to,Owner's expenses incurred by reason of Occupants' failure to discharge any
Occupants Liens as set forth in Section 3(c), utility charges as set forth in Section 14, maintenance and repair
expenses as set forth in Section 15, expenses of enforcing Owner's default remedies as set forth in Section 19,
payment of insurance premiums as set forth in Section 21 if Owner shall be obliged to pay such insurance
premiums to maintain coverage, and such other expenses as actually may be incurred by Owner in connection with
this Agreement. These Expense Charges shall be due and payable upon thirty (30) days' notice given by Owner to
Occupants and are deemed additional consideration for the Occupants' use and occupancy of the Premises.
Occupants shall have the right to use and occupy the Premises,beginning on the Delivery Date and continuing until
the Expiration Date. The Premises will be used only for provision of the Services as set forth in the Service
Agreement(the"Permitted Use").Occupants will not:(i)do or permit to be done in or about the Premises,nor bring
to,keep or permit to be brought or kept in the Premises,anything which is prohibited by or will in any way conflict
with any law, statute, ordinance or governmental rule or regulation which is now in force or which may be enacted
or promulgated after the Date of Agreement; (ii) do or permit anything to be done in or about the Premises which
will in any way obstruct or interfere with the rights of tenants of the Shopping Center or injure or annoy them; (iii)
use or allow the Premises to be used for any improper, unlawful or objectionable purpose; (iv) cause, maintain or
permit any nuisance in,on or about the Premises or commit or allow to be committed any waste in,on or about the
Premises;or(v)subject the Premises to any use which would increase the existing rate of insurance on the Shopping
Center or any portion thereof or cause any cancellation of any insurance policy covering the Shopping Center or any
portion thereof.BSO acknowledges and agrees that all of BSO's rights to use and occupy the Premises are derived
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from the Service Agreement and are not independent of Owner's agreements with City set forth herein and that
BSO's use and occupancy of the Premises automatically shall terminate in the event the Service Agreement shall be
terminated.
6. Requirements of Law. At its sole cost and expense, Occupants will promptly comply with: (i)all laws,
statutes, ordinances and governmental rules, regulations or requirements now in force or in force after the
Commencement Date of the Agreement;(ii)the requirements of any board of fire underwriters or other similar body
constituted now or after the Commencement Date of the Agreement; (iii) any direction or occupancy certificate
issued pursuant to any law by any public officer or officers;and(iv)all Restrictions,insofar as(i)-(iv)above relate
to the condition,use or occupancy of the Premises, excluding requirements of structural changes or changes outside
the Premises unless related to: (a)Occupants' acts; (b) Occupants' business; (c)Occupants' use of the Premises; or
(d) improvements made by or for Occupants. Occupants agree to cooperate with Owner's obligations to comply
with utility disclosure regulations and the collection of data relating to utility consumption at the Premises.
7. Parking. Owner shall provide to City and BSO two (2) reserved parking spaces (the "Reserved
Parking Spaces")located on the first floor of the multi-story parking garage located to the east of the Premises (the
"Shared Parking Deck'),which may be used for BSO employees and members of the public visiting the Premises as
determined by City and BSO. Owner shall post signs identifying such Reserved Parking Spaces as City and BSO
shall direct. City and BSO shall have the right to install electric vehicle charging stations at City's and BSO's
expense, such vehicle charging stations to be wired to the electric meter serving the Premises. Owner shall be
responsible for maintaining, operating, securing, insuring, improving, altering and repairing the Shared Parking
Deck including, but not limited to, utility costs, fire safety costs, restriping, waterproofing, vertical transportation
system, repairs of a capital nature, repairs or alterations to comply with laws, governmental rules and regulations,
ordinances and codes and fixing potholes and cracks in the surface thereof.
8. Use of Common Areas of the Shopping Center. Subject to the provisions of this Agreement, the
Rules (as defined below), and the Declaration (as defined below) Occupants shall have the non-exclusive right to
use the driveways, sidewalks, and curbs and other improvement and amenities of the Shopping Center which are,
from time to time,made available by Owner and any other affiliated owners of portions of the Shopping Center for
the common use of the Occupants and tenants of the Shopping Center (collectively, the "Common Areas").
Occupants shall have no right to use of the Parking Areas contained in the Shopping Center,other than the Reserved
Parking Spaces. Owner shall cause the Common Areas to be maintained in good condition. Owner reserves the
exclusive right at any time to: (i)change,reduce or add to the Common Areas,and further, Owner reserves to itself
the exclusive right at any time to use the roof, foundation or exterior walls (other than Occupants' storefront) for
placing of signs or equipment, including utility equipment, or for purpose of additional construction; and (ii)
promulgate and enforce rules and regulations governing the use of the Common Areas and its parking areas (the
"Rules"). Occupants and its employees,contractors,agents,and licensees will be required to observe the Rules.
Owner shall retain absolute dominion and control over the Common Areas and shall operate and maintain
the Common Areas in such manner as Owner in its sole discretion, shall determine; provided however, such
exclusive right shall not operate to prohibit Occupants from its material benefit and enjoyment of the Premises for
the Permitted Use as defined in Section 5. Occupants acknowledge that without advance notice to Occupants and
without any liability to Occupants in any respect, Owner shall have the right to: (a) temporarily close any of the
Common Areas for maintenance, alteration, renovation or remodeling or improvement purposes; and (b) change,
alter, add to, temporarily close or otherwise affect the Reserved Parking Spaces, the Parking Facilities and the
Shared Parking Decks in such manner as Owner, in its sole discretion, deems appropriate including, without
limitation,the right to designate reserved spaces available only for use by one or more tenants,provided that,except
in emergency situations or situations beyond Owner's control, Owner shall provide alternative Parking Facilities
during such temporary conditions.Owner may exercise any or all of the foregoing rights without being deemed to be
guilty of an eviction, actual or constructive, or a disturbance or interruption of the business of Occupants or
Occupants'use or occupancy of the Premises.
9. Condition of Premises. Occupants accept each of the Premises, the Shopping Center and Common
Areas in their "as is" and"where-is" condition.Except as may be set expressly forth in this Agreement, Owner has
made no representations concerning the Premises, the zoning of the Shopping Center, the Common Areas, the
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Shopping Center, or the ability of Occupants to operate the Permitted Use. Except as expressly provided in this
Agreement, including Exhibit B-1, Owner has no obligation to perform any alterations or improvements to the
Shopping Center or the Premises. Occupants shall not conduct any activity within the Premises or the Common
Areas which would be considered a nuisance or the source or cause of any objectionable odors,sounds or vibrations.
Occupants shall keep the Premises free of rodents,vermin,insects and other pests and provide regular extermination
services when necessary.Occupants shall not commit or suffer to be committed any waste upon the Premises.
10. Utilities. Prior to the Delivery Date, Occupants shall arrange (in their names) and pay for all gas, water,
sewer, telephone and other utility services for the Premises (the "Utilities"). Occupants shall pay for all Utilities
consumed or used at the Leased Premises as and when due. If Occupants receive any of the Utilities through a
shared meter (the "Shared Service") then: (i) Occupants will pay to Owner Occupants' proportionate share (as
reasonably determined by Owner)of the total meter charges for Shared Service; and(ii)Owner shall have the right,
at any time, to require Occupants to pay as an Expense Charge, 1/12th of Owner's estimate of the Shared Service
charge(which may be adjusted from time to time).The actual Shared Service charge will be reconciled at the end of
each calendar year based on the actual charges for the Shared Service.If the estimated payments made by Occupants
during the previous calendar year are more or less than the actual charges for the Shared Charges,then appropriate
adjustments will be made with: (a)Occupants paying any underpayment to Owner and appropriate adjustments shall
be made; or(b)Owner will promptly refund such overpayment to Occupants. The delivery by Owner to Occupants
of bills and submeter records for any such Shared Service shall be conclusive for purposes of determining the
amount(s) due by Occupants. In the event the Premises are serviced by a Shared Service, Owner shall have the
right, but not the obligation, to: (1) install, at Occupants' costs, a separate submeter serving the Premises to
separately meter Occupants' consumption, and (2) hire a third party to read such submeters and bill Occupants
directly(and Occupants shall pay such third party, as and when billed)all charges for utility consumption based on
the submeters along with a reasonable administrative fee for same. Owner shall have the right to service the
Shopping Center (and to require Occupants to obtain its services from the provider) with solar generated or other
renewable forms of electricity at cost competitive rates. Occupants agree to cooperate with Owner's obligations to
comply with utility disclosure regulations and the collection of data relating to utility consumption at the Premises.
11. Maintenance and Repairs by Occupants. Occupants shall repair, maintain, replace and perform any
required alterations or improvements to the following: (i) the Premises, including all restrooms located within the
Premises; (ii) Occupants' signs, personal property, fixtures and equipment; (iii)the electrical, plumbing, sewerage,
water,gas lines and equipment exclusively servicing the Premises(whether inside or outside the Premises); (iv)the
heating, ventilating and air conditioning system ("HVAC')exclusively serving the Premises; (v)the storefront of
the Premises,including the plate glass,windows,doors,hardware,trim or closure devices at the Premises; and(vi)
the fire sprinkler systems exclusively servicing the Premises. The foregoing obligations of Occupants includes the
responsibility to keep all of the foregoing in a good and safe condition and in compliance with all governmental
laws, codes, ordinances and regulations, including,but not limited to those related to the accessibility requirements
and laws and requirements pertaining thereto(collectively,the"Laws").If the need arises due to Occupants' use of
the Premises or Occupants' Work(as defined in Section 3(b))to make or install any improvements or alterations to
other portions of the Shopping Center (a "Required Repair"), Owner may, at Occupants' cost, either require
Occupants to make the Required Repair,or elect itself to make the Required Repair. Occupants shall cooperate with
any efforts by Owner to comply with Laws.Occupants shall maintain a service contract for seasonal maintenance of
the HVAC with a licensed HVAC contractor, and, upon request, provide a copy of same to Owner.All garbage,
waste and refuse will be regularly removed by Occupants at Occupants' expense. Should Owner have(or initiate)a
uniform HVAC maintenance program or a trash removal program, Occupants agrees, at Occupants' expense, to
participate in the program(s) and use Owner's designated contractor, provided its price is competitive with other
licensed contractors in the region. Occupants shall, at its cost,remove from the sidewalks and Common Areas any
rubbish or debris due to its activities on the sidewalks adjacent to the Premises.
The roof, foundation, exterior of the perimeter demising walls, and load bearing structural columns and
beams of the Premises will be maintained by Owner unless the need for the repairs arises out of an act or omission
of Occupants, or its licensees, employees, contractors, agents or anyone else claiming by, through or under
Occupants(the"Occupant Parties")(such as roof penetrations performed by or on behalf of Occupants or any of the
Occupant Parties),in which case Owner may either require Occupants to make the repairs,or elect itself to make the
repairs at Occupants' cost. All installations, maintenance and repairs, whether performed by Owner or Occupants,
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which involve penetrations of the roof, foundation, demising walls and load bearing structural columns and beams
of the Premises shall be performed by contractors approved by Owner.
On the Expiration Date, Occupants shall remove their property and fixtures and surrender the Premises in
good condition and repair excluding reasonable wear, tear, and damage from casualties which Occupants are not
required under this Agreement to restore. Any personal property not removed shall be deemed abandoned by
Occupants and shall become the property of Owner. Owner and its agents may enter the Premises at any reasonable
time to: (a) make any repairs, alterations, or improvements, including the installation, maintenance, repair,
upgrading or removal of pipes, wires and other conduits serving other Occupants spaces or other parts of the
Shopping Center;(b)permit persons designated by Owner to inspect the Premises;and(c)perform other actions or
rights by Owner under this Agreement;provided,however,that such activities do not raise any danger to persons or
property(such as the release of a prisoner from the holding cell or interference with police service communications).
12. Owner's Right to Maintain or Repair. If Occupants fail to maintain the Premises or if Owner agrees
to allow Occupants to repair,restore or replace any damage or injury as provided in Section 11 and Occupants fail
within five (5) days following notice to Occupants, to commence to maintain or to repair, restore or replace any
damage to the Premises caused by Occupants or its Agents and diligently pursue to completion such maintenance or
repair,restoration or replacement, Owner may, at its option, cause all required maintenance or repairs, restorations
or replacements to be made and Occupants shall pay Owner pursuant to Section 11.
13. Maintenance and Repair by Owner. Owner will maintain, repair and restore to Shopping Center
Specifications: (i)the Common Area(including lobbies,stairs, elevators,corridors,restrooms located outside of the
Premises, walkways, driveways, grounds and Parking Facilities, including the Reserved Parking Spaces); (ii) the
mechanical, plumbing, electrical and HVAC (as hereinafter defined) equipment serving the Shopping Center; and
(iii)the structure of the Shopping Center(including roof,exterior walls, foundation,windows and Shopping Center
standard lighting). The cost of such maintenance and repairs to the Shopping Center, the Common Area and said
equipment shall be paid by Owner;provided,however, Occupants shall bear the full cost,plus ten percent(10%)of
such cost for Owner's overhead, of any maintenance, repair or restoration necessitated by the acts or omissions of
Occupants or its Agents. Occupants waive all rights to make repairs at the expense of Owner or to deduct the cost of
such repairs from any payment owed to Owner under this Agreement.
14. Indemnification of Owner. Occupants,jointly and severally, shall defend, indemnify and hold Owner
(along with the Owner Related Parties(as defined in Section 17 below)and any fee owner of the Shopping Center)
harmless from all losses, claims, liabilities, injuries, expenses (including reasonable legal fees), lawsuits and
damages: (i) claimed to have been caused by or resulted from any act, omission or negligence of Occupants or
Occupant Parties(as defined in Section 11)no matter where occurring; (ii)occurring in the Premises except to the
extent caused by Owner's gross negligence or willful misconduct; (iii) arising out of any liens placed against
Owner's interest,the Premises, or the Shopping Center resulting from the Occupants' Work or any act or omission
of Occupants or the Occupants Parties (an"Occupant Lien'); (iv) arising out of the use, storage or disposal by any
of the Occupants' Parties of Hazardous Materials; and(v)arising out of any breach or default by Occupants.Neither
Owner nor the Owner Related Parties shall be liable for any injury or any loss or damage to or interference with any
equipment, fixtures,or other personal property or the business operations of Occupants or anyone in the Premises
occasioned by:(a)the act or omission of persons occupying other premises in the Shopping Center;or(b)any defect
(latent or otherwise) in any Shopping Center or the equipment, machinery, or utilities; or (c) any breakage or
leakage of the roof,walls, floor,pipes, sewerage or other equipment;or(d)any backing up, seepage or overflow of
water or sewage; or (e) flood, rain, or other elements or Force Majeure Events. In no event shall Owner or any
Owner Related Parties be liable for loss of business,punitive or consequential damages. Without limitation upon the
foregoing, to the extent Occupants are entitled to the protection of sovereign immunity under Florida law and are
dismissed from any such claim, Occupants' obligation to defend and indemnify Owner and any Owner Party shall
nonetheless remain in full force and effect..
15. Waiver and Release. Occupants, as a material part of the consideration to Owner for this Agreement,
by this Section 15, waive and release all claims against Owner, and its Agents with respect to all matters for which
Owner has disclaimed liability pursuant to the provisions of this Agreement. Except for any damage or injury to
person or property on the Premises which is solely caused by the gross negligence or willful misconduct of Owner,
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Occupants covenants and agrees that Owner and its Agents will not at any time or to any extent whatsoever be
liable, responsible or in any way accountable for any loss, injury, death or damage (including consequential
damages)to persons,property or Occupants' business occasioned by any acts or omissions of any other Occupants,
Occupants or visitor of the Shopping Center,or from any cause,either ordinary or extraordinary,beyond the control
of Owner.
16. Force Maieure. The parties acknowledge and recognize that the State of Florida is subject to hurricanes,
floods, insurance moratoria and other circumstances over which neither party has control, including the declaration
of emergency governmental orders due to national security situations,pandemics and other public health and safety
dangers that result in government orders restricting Shopping Center operations, terrorist activity, nuclear
contamination, contamination due to Hazardous Materials and similar events which restrict usual and customary
business ("Emergency Declarations"). The parties agree that in the event either party is prevented from performing
its obligations under this Agreement (other than the payment of Expense Charges) by reason of: (i) an Emergency
Declaration applicable to the Municipality or the Shopping Center; (ii)the issuance of a flood watch,flood warning,
hurricane watch or hurricane warning by applicable governmental authority(a"Weather Event"); or(iii)any other
event or condition,not under the control of either party which prevents that party from performing their obligations
hereunder in a timely and diligent manner (together with Weather Events and Emergency Declarations, "Force
Maieure Events");then,both parties' obligations to perform under this Agreement shall be suspended until a period
of five(5)business days following the termination or alleviation of such Force Majeure Event;provided,however,
if the duration of any such Force Majeure Event shall exceed sixty (60) calendar days, as of the sixty-first (61 st)
calendar day following the occurrence of the Force Majeure Event, either party shall have the right to exercise its
rights under this Agreement upon ten(10)calendar days'notice to the other party as if the Force Majeure Event had
not occurred.
17. Insurance. Occupants shall maintain through Preferred Governmental Insurance Trust(or any subsequent
insurer providing substantially identical insurance to Occupants) and excess loss carriers: (i)property insurance for
all of Occupants' personal property and improvements (including, without limitation, any Occupants' Work); and
(ii) Comprehensive General Liability insurance (including bodily injury and property damage) insuring Occupants
and Owner with minimum coverage of One Million Dollars ($1,000,000) combined single limit. In the event
Occupants shall receive a notice of cancellation, non-payment of premiums or non-renewal as to any required
insurance coverage, Occupants shall notify Owner within two (2) business days after Occupant's receipt of such
notice of cancellation, non-payment of premiums or non-renewal. Prior to the Delivery Date, and thereafter when
each policy is renewed or replaced, Occupants must provide Owner with certificates or copies of the declaration
page evidencing the insurance coverages required by this Agreement. Owner and Occupants hereby each release the
other for property damage to the extent of the insurance it is required to carry under this Agreement. At such time as
Occupants shall provide Owner with: (i) Preferred Governmental Insurance Trust's endorsement waiving
subrogation claims against Owner; or(ii) a separate policy of insurance insuring Owner against all loss or damage,
including costs of defense,occasioned by any subrogation claim asserted against Owner by Preferred Governmental
Insurance Trust or such subsequent insurer("Subrogation Coverage");then Owner shall provide Occupants with an
endorsement to Owner's insurance coverage waiving subrogation rights against Occupants and, thereafter for so
long as such Subrogation Coverage remains in place, Owner and Occupants each shall be deemed to have released
the other and all other persons claiming by, through or under it from and against all claims asserted by way of
subrogation. In the event Occupants' Subrogation Coverage shall lapse, Owner's waiver of subrogation claims
simultaneously shall be terminated,notwithstanding any endorsements issued by Owner's insurer to the contrary. To
avoid any doubt or confusion, Owner's agreement to enter into this Agreement without a present waiver of
subrogation clause is expressly conditioned upon Occupants' assurance that neither they nor their insurer shall assert
sovereign immunity as a defense against any subrogation claim brought by Owner or its insurer.
During any period Occupants are constructing any Occupants' Work, Occupants' contractor must maintain
the following insurance: (a) Comprehensive General Liability insurance including Blanket Contractual Liability
with minimum amount of Three Million Dollars($3,000,000)Combined Single Limit for bodily injury and property
damage; (b)Workers Compensation and Occupational Disease insurance with statutory limits and form as required
by the state where the Premises is located; and (c) Employer's Liability with a limit of not less than One Million
Dollars($1,000,000)for all damage. The Contractor's)insurance must:(1)be primary and not secondary coverages;
(2) be issued by a nationally known insurance company having a "Best Rating" of A-VIII or better; (3) name
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Owner, its lender(if any) or any other party designated by Owner as additional insureds(collectively,the"Owner
Related Parties");and(4)be for a term of not less than one(1)year.
18. Destruction of Premises; Eminent Domain. If due to a fire, casualty or eminent domain either: (i) the
Premises; or(ii) a substantial portion of the Shopping Center; is materially damaged or rendered untenantable then
Owner shall have the option,within ninety(90) days after the date of casualty or notice of the eminent domain, on
written notice to Occupants, to terminate the Agreement, in which case the Agreement shall end on the date
specified in Owner's notice. If the Agreement is not terminated by Owner, then to the extent possible: (i) Owner
shall restore the remainder of the Premises to substantially the condition it was in on the Delivery Date; and (ii)
Occupants shall promptly restore any Occupants' Work as well as all of its furniture, fixtures, equipment and
personal property so as to be able to recommence provision of the Services from the Premises in substantially the
same manner as immediately prior to the casualty or taking. If the Agreement is terminated as a result of eminent
domain,Occupants: (a)shall not be entitled to any part of Owner's award or damages;and(b)may assert their own
claim for damages from the condemning authority as long as it does not reduce the Owner's award or damages.
Notwithstanding the foregoing, City covenants and agrees that it shall not exercise the power of eminent domain to
acquire the Premises or any other part of the Shopping Center for the purpose of providing the Services.
19. Default. A"Default" by Occupants shall be deemed to have occurred when Occupants fail to: (i)
remove or discharge any Occupants Liens within thirty(30)calendar days after written notice of the Occupants Lien
(failing which, in addition to all other rights and remedies hereunder, Owner may bond or otherwise remove the
Occupants Lien and collect all fees, costs and expenses incurred from Occupants as a condition to Occupants'
continued occupancy of the Premises); (ii) pay any Expense Charges within thirty (30) calendar days after written
notice from Owner that such Expense Charges have been incurred; or(iii)perform or observe any other obligation
of Occupants under this Agreement within thirty (30) calendar days after receipt of written notice from Owner.
Upon an Occupants' Default, Owner shall have all rights and remedies available at law or equity, which shall be
non-exclusive and include but not be limited to: (a) a right to cure an Occupants' Default at Occupants' cost; (b)
terminate this Agreement without terminating any liability of Occupants; (c) file an eviction proceeding to remove
Occupants from the Premises,(d)stand by and do nothing,continuing this Agreement in full force and effect,during
which Owner may enforce all rights and remedies under this Agreement, including the right to recover all charges
due hereunder and such other charges become due; or (e) recover from Occupants all damages, fees, costs and
expenses incurred by Owner as a result of the Occupants Default, including but not limited to any broker costs and
any costs of reletting. Owner's exercise of any of the foregoing remedies shall not be deemed to be a default under
the DDG. Owner shall not be deemed to have terminated this Agreement or to have accepted any surrender by
Occupants unless Owner notifies Occupants in writing that it has done so. Occupants are responsible for any pre-
litigation attorney's fees, costs and expenses Owner incurs enforcing the Agreement. In any litigation concerning
this Agreement,the non-prevailing party must pay the reasonable attorneys' fees,costs and expenses incurred by the
prevailing party. Occupants may not assert any setoff in any legal action brought by Owner. Occupants expressly
waive any notice related to an Occupants' Default except for what is expressly required by this Agreement section.
In addition to the foregoing remedies, if the Occupants fail to perform or observe any of their obligations, Owner
reserves the right (without the need to provide any prior notice to Occupants) to perform or cure the Occupants'
obligation(and if necessary enter upon the Premises at any time)on behalf of Occupants, in which case,the fees,
costs and expenses incurred by Owner will be considered an Expense Charge which Occupants will be obligated to
pay to Owner upon demand.
20. Subordination. This Agreement is subject and subordinate to all matters of record which now or hereafter
encumber the Shopping Center or Owner's interests in the Shopping Center (the "Encumbrances"). This clause
shall be self-operative and no further instrument of subordination shall be required, but if requested by Owner,
Occupants will execute instruments acknowledging the subordination. If Owner transfers(by sale or foreclosure or
deed in lieu of foreclosure, or by virtue of termination of any underlying Agreement) its interest in this Agreement
or the Shopping Center, Occupants shall, if requested, attom to such transferee and execute instruments
acknowledging the attornment. Subject to Encumbrances and the terms of this Agreement, Owner covenants that,
absent a Occupants Default, Occupants' peaceful and quiet enjoyment of the Premises shall not be disturbed by
Owner or anyone properly claiming through Owner.
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21. Assienment and Sublettiniz. Occupants shall not, directly or indirectly, without the prior written
consent of Owner,which may be withheld in Owner's reasonable discretion: (i)assign this Agreement,(ii)sublet all
or a part of the Premises, or (iii) pledge, mortgage or hypothecate the Premises, this Agreement, or any interest
herein (any of the foregoing, a"Transfer"). Before engaging in any Transfer, Occupants must provide Owner with
thirty (30) days prior written notice of the proposed Transfer together with all of the documents and information
related to the Transfer, including the experience and financial capabilities (including financial statements) of the
parties to the Transfer(the "Proposed Transferee") in a form and content reasonably acceptable to Owner. Owner
may request additional information and will charge Occupants a fee to compensate Owner for the costs in reviewing
the Transfer request, which is currently Two Thousand Five Hundred Dollars ($2,500) per request. In any
assignment to a party other than a party providing Services substantially identical to the Services set forth in the
Service Agreement, the Proposed Transferee must enter into a new lease on Owner's then-current form of lease,
which provides for market rate rent, payment of common area maintenance charges and the posting of a security
deposit and last month's rent as then is being charged by Owner for space within the Shopping Center.In any sublet
of a portion of the Premises, the Proposed Transferee shall execute and deliver to Owner written acknowledgment
that its use of the sublet portion of the Premises is derived solely from Occupants' rights under this Agreement and
that the Proposed Transferee shall comply with and observe all terms and conditions set forth in this Agreement.
Unless Owner provides written notice that it approves the Transfer request,within thirty (30) after its receipt of all
the information required by this Article, Owner will be deemed to have denied its consent to the Transfer. Consent
by Owner to one or more Transfers shall not: (i) operate as a waiver of Owner's rights as to any subsequent
Transfers; or(ii)release the Occupants engaged in the Transfer from any obligations, liabilities or covenants under
this Agreement. Among other considerations, Owner shall have the right to withhold consent to a Transfer if the
amounts received by Owner pursuant to this Agreement would fail to qualify as "rents from real property" within
the meaning of Section 856(d) of the Internal Revenue Code of 1986, as amended (the "Code"), or any similar or
successor provision thereto or which would cause any other income of Owner to fail to qualify as income described
in Section 856(c) (2) of the Code. Notwithstanding any Transfer, unless specifically approved by Owner, the
Premises shall continue to be used only for the Permitted Use and Occupants shall not be released from any
obligations, liabilities or covenants under this Agreement. It will not be considered unreasonable if Owner, as a
condition to its consent to a Transfer, requires the Proposed Transferee to provide to Owner adequate assurance of
the financial ability of the Proposed Transferee to perform the obligations of the Occupants under this Agreement,
which may include, but are not limited to, Owner requiring a guarantee by an individual or entity acceptable to
Owner or by Proposed Transferee depositing with Owner a Security Deposit at the time of the Transfer. Any such
Transfer occurring without Owner's prior written consent shall be deemed a Default hereunder and shall be null and
void and of no effect.
22. Shoppine Center Redevelopment. Owner reserves the right(but is not obligated)to redevelop all or any
part of the Shopping Center(the"Redevelopment"). If Owner proceeds with a Redevelopment,the configuration of
the Shopping Center(including its Shopping Centers and Common Areas)shown on the Site Plan may be modified
due to changes in the number, dimensions,or locations of Shopping Centers,parking areas,drives,exits,entrances,
walks and other Common Areas of the Shopping Center. Occupants acknowledge and consent to the foregoing.
Owner is permitted to undertake any Redevelopment work at any time and, without any calendar year construction
blackout periods, construction limitations or Shopping Center restrictions. The Occupants further acknowledge that
Redevelopment activities and work may disrupt the normal business activities of the Shopping Center and agrees to
accept the Premises subject to any inconvenience. If a Redevelopment affects the fagade of the portion of the
Shopping Center in which the Premises is located, upon Owner's request, Occupants shall remove their exterior
signage and fabricate and install, at its cost a temporary sign or banner as directed by Owner and reasonably
satisfactory to Occupants. Occupants will remove the temporary signage when directed by Owner and reinstall its
permanent signage permitted by this Agreement.
In connection with such Redevelopment, Owner may, upon no less than six (6) months' notice, require
Occupants to relocate from the Leased Premises into replacement Premises (the "New Premises") which are
constructed in accordance with the original Owner's Work(or as such Owner's Work may be modified as agreed by
the Parties) and the original Occupants' Work, (or as such Occupants' Work may be modified as agreed by the
Parties) which shall be completed to Occupants' reasonable satisfaction at Owner's expense. The New Premises
shall be located at such other location in the Development as shall be reasonably acceptable to Occupants, taking
into account all applicable laws,public access and proximity to major streets and intersections.Occupants will move
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its operations, fixtures, equipment and signs to the New Premises within sixty(60)calendar days after notice from
Owner that the New Premises are ready for occupancy. Owner shall reimburse Occupants for the reasonable and
actual costs incurred by Occupants in connection with moving Occupants' furniture, equipment, supplies and other
personal property to the New Premises within thirty (30) days after Occupants have: (i) relocated to the New
Premises, (ii) reopened the Permitted Use in the New Premises, and (iii) provided Owner with copies of the paid
invoices for the costs. The New Premises will become the Leased Premises for purposes of this Agreement and the
provisions of this Agreement shall apply to the New Premises from and after the date Occupants have relocated to
the New Premises. If Occupants have installed equipment which controls traffic lights adjacent to the Premises,
Owner also shall pay for the relocation and reinstallation of such equipment.
23. No Owner Liability. Neither Owner nor its Agents,whether disclosed or undisclosed, shall have any
personal liability under any provision of this Agreement. If Owner defaults in the performance of any of its
obligations hereunder or otherwise, Occupants shall look solely to Owner's equity, interest and rights in the
Shopping Center for satisfaction of Occupants' remedies on account thereof. Owner or any successor owner shall
have the right to transfer and assign to a third party, in whole or part,all of its rights and obligations hereunder and
in the Shopping Center and Land,and in such event,all liabilities and obligations on the part of the original Owner,
or such successor owner, under this Agreement occurring thereafter shall terminate as of the day of such sale, and
thereupon all such liabilities and obligations shall be binding on the new owner. Occupants agree to attorn to such
new owner. Any successor to Owner's interest shall not be bound by any amendment or modification of this
Agreement made without the consent of such Mortgagee.
24. Notices. Notices must be in writing and sent by certified mail return receipt requested, or by a nationally
recognized overnight courier service to City,BSO or Owner as follows:
To City and BSO To Owner
City of Dania Beach,Florida Dania Live 1748 H LLC,
100 West Dania Beach Boulevard c/o Kimco Realty Corporation
Dania Beach,Florida 33004 1 Oakwood Boulevard#70
Attention:City Manager Hollywood,Florida 33020
Attention: Dania Pointe Property Manager
Broward Sheriff's Office
2601 West Broward Boulevard
Fort Lauderdale,Florida 33312
Attention: Sheriff
Notices shall be effective on the earlier of:(i)the date received;or(ii)the date delivery is refused. Notices given by
Owner may be given by Owner, its agent or attorney in any manner permitted by applicable law. In addition to the
aforementioned notice methods,Owner may provide notice to Occupants by posting at the Premises or by means of
hand delivery to any of Occupants' registered agents, officers, members, employees or other agents at either the
address indicated above,the registered agent address,the last known address of Occupants,or at the Premises. All
notices personally delivered or sent by a nationally recognized overnight delivery service shall be deemed effective
when actually delivered as documented in a delivery receipt or when delivery is rejected. All notices sent by
certified or registered nail, return receipt requested, shall be deemed effective five (5) days after having been
deposited in the United States mail. NOTWITHSTANDING ANY COURSE OF DEALING BETWEEN THE
PARTIES OR OTHERWISE, the parties agree that electronic communications, including email and texting, are
insufficiently reliable to constitute notice under this Agreement.
25. State Mandated Radon Notice. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a Shopping Center in sufficient quantities,may present health risks to persons who are exposed to it
over time. Levels of radon that exceed federal and state guidelines have been found in Shopping Centers in Florida.
Additional information regarding radon and radon testing may be obtained from your county public health unit.
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26. P.M.U.D.and Declaration. The Shopping Center is subject to a special zoning ordinance (the
"P.M.U.D.") (including the DDG established thereunder) and DECLARATION OF COVENANTS,
RESTRICTIONS AND EASEMENTS FOR DANIA POINTE described below which will control many aspects of
the entire Development. This Agreement is and shall be in all respects subordinate to the P.M.U.D. and the
Declaration,as same may be amended by Owner from time to time in Owner's sole and absolute discretion.
(A) The P.M.U.D is a special zoning ordinance which governs the entire Development. Occupants shall
not, at any time, seek a variance from the P.M.U.D. without Owner's written approval which may be withheld in
Owner's sole and absolute discretion. The P.M.U.D. defines Owner's rights only, and does not represent, nor
should it be interpreted as,a broad grant of discretion to Occupants in its performance under the Agreement, nor as
any indication of what Owner will or will not approve with respect to design, height, signage, construction or any
other matter. Notwithstanding anything else contained elsewhere in this Agreement to the contrary, all matters
which must be submitted to the City for approval must first be approved by Owner. Owner may, in its sole and
absolute discretion, reject matters approvable by or under the P.M.U.D. if to do so is in the best interests of the
overall Development. Owner may seek to amend the P.M.U.D.from time to time,and all such amendments shall be
thereafter binding upon Occupants' future construction, alteration or improvement of the Premises, but shall not
affect existing improvements.
(B) Owner has prepared, executed and recorded, and also supplemented, a one-party declaration for the
Development (collectively the "Declaration"). This Declaration is recorded against the entire property of the
Development and governs the land,even if subsequently sold to third-parties,along with the P.M.U.D. In the event
there is a conflict in the provisions regarding Owner's rights and obligations hereunder and those of Owner as
"Owner"or"Developer"under the Declaration,or if there is a conflict in the provisions regarding Occupants' rights
and obligations hereunder and those of Occupants as "Owner" under the Declaration, in either case, as between
Owner and Occupants,the provisions of the Declaration shall govern and control. Occupants acknowledge that they
have received a copy of the Declaration and are aware of its contents as of the Effective Date. The Declaration may
be modified or amended from time to time according to its terms, without consent of Occupants, and the
Declaration, as amended, shall continue to control over the provisions of the Agreement, provided that no such
amendment or modification after the Effective Date shall be made that would materially adversely impact
Occupants' use of the Premises, access to the Premises from other parts of the Development, or visibility of the
Premises without Occupants' consent.
27. Wells. The Development shall contain a number of injection wells ("Wells')necessary to handle surface
and subsurface water throughout the Development including the Premises. Occupants shall not, in any way,during
the entire term of the Agreement, interfere with, alter,relocate or block any Well or piping system connected to the
Well that exists on or is serving the Premises or the Common Areas. All work on the Wells shall be performed and
maintained by the Owner or the Declarant, at Owner or Declarant's expense (except for repair of damage done by
Occupants, its employees, contractors, agents, representatives, residents, and invitees,which shall be performed by
Owner or Declarant at Occupants' expense). In the event, over time, the Wells currently on or near the Premises
suffer a reduction in capacity, Owner shall determine an appropriate location for placement of additional Well(s)to
replace that capacity.New Wells shall be at Owner's sole cost and expense unless necessitated by the negligence or
misconduct of Occupants,its employees,contractors,agents,representatives,residents,and invitees.
28. Securi . Occupants acknowledges that Owner shall have the right, in its sole discretion, to maintain a
security program governing any portion or all of the Development, including the Common Areas and any Shared
Parking Deck, as defined below, including the use of video surveillance and\or live security personnel. To the
extent Occupants elect to supplement this program by providing for security specifically for the Premises,
Occupants shall coordinate its security program with that being run by the Owner for other portions of the
Development. Owner shall,in its sole and absolute discretion,have the right to begin,amend, increase,decrease or
even terminate any security program it has in place from time to time, and makes no representation as to the extent
security coverage will be provided to the Premises at any time. Occupants acknowledge and agree that in the event
Occupants require access to Owner's video surveillance, Occupants shall be required to obtain court warrants for
such video surveillance in the same manner as if this Agreement was not in effect.
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29. Development Work. (A) Occupants acknowledges that Owner is in the process of developing the
Shopping Center, and the various uses and phases of the Development, and may, from time to time in the future
engage in development or redevelopment work. In the event Owner undertakes such a redevelopment, or further
development,and to the extent the development is ongoing now, Occupants acknowledge that the development and
redevelopment process may disrupt the normal business activities of the Shopping Center. Occupants agree to
accept the Premises subject to any inconvenience,disturbance or impact any such redevelopment may have upon
the Premises and Occupants'operations.
(B) As used herein,the term"Approvals" shall mean all permits, approvals,variances, licenses and other
determinations required under the provisions of applicable federal, state, county and local municipal laws,
ordinances, regulations and administrative rulings to redevelop the Shopping Center, including any tax increment
financing approvals ("TIF"), if applicable. As the Development is developed, or in the event Owner undertakes
further development or a future redevelopment, Occupants acknowledges that Exhibit A-2 attached to the
Agreement may not remain as shown and Owner may relocate, increase, reduce or otherwise change the number,
dimensions,or locations of Shopping Centers,parking areas(including the Reserved Parking Spaces),drives, exits,
entrances, walks and other Common Areas of the Shopping Center or the Development, or the location of the
Premises,as may be necessary,whether in order to obtain the Approvals in a timely manner,or in the event changes
to the layout of the Shopping Center need to be made to accommodate the development, future development or
redevelopment of the Shopping Center or Development in general, or the development or redevelopment of other
Occupants' spaces at the Shopping Center or Development,without any calendar year construction blackout periods,
construction limitations or Shopping Center restrictions.
30. Hazardous Materials. Occupants shall not bring or permit to remain on the Premises or the Shopping
Center,or allow any of Occupants' Parties to bring or permit to remain on the Premises or the Shopping Center,any
asbestos, petroleum or petroleum products,used oil, explosives,toxic materials or substances defined as hazardous
wastes,hazardous materials or hazardous substances under any federal, state or local law or regulation("Hazardous
Materials'), except for routine office and janitorial supplies used on the Premises and stored in the usual and
customary manner and quantities, and in compliance with all applicable environmental laws and regulations.
Occupants shall not install or operate any underground storage tanks within the Premises or the Shopping Center.
Occupants' violation of the foregoing prohibitions shall constitute a material breach and default hereunder and
Occupants shall indemnify, protect, hold harmless and defend (by counsel acceptable to Owner) Owner, and all
Owner Parties and each of their respective successors and assigns, from and against any and all claims, damages,
penalties,fines,liabilities and cost(including reasonable attorneys' fees and court costs)caused by or arising out of:
(i) a violation of the foregoing prohibition; or (ii) the presence or release of any Hazardous Materials on, from,
under or about the Premises, the Shopping Center or other properties as the direct or indirect result of Occupants'
occupancy of the Premises. Occupants, at their sole cost and expense, shall clean up,remove,remediate and repair
any soil or groundwater contamination or other damage or contamination in conformance with the requirements of
applicable law caused by the presence or any release of any Hazardous Materials in, on, from, under or about the
Premises during the term of this Agreement. Neither the written consent of Owner to the presence of the Hazardous
Materials,nor Occupants' compliance with all laws applicable to such Hazardous Materials,shall relieve Occupants
of its indemnification obligation under this Agreement.Occupants immediately shall give Owner written notice: (i)
of any suspected breach of this section; (ii) upon learning of the presence or any release of any Hazardous
Materials; or(iii)upon receiving any notices from governmental agencies or other parties pertaining to Hazardous
Materials which may affect the Premises. Owner shall have the right from time to time, but not the obligation,to
enter upon the Premises to conduct such inspections and undertake such sampling and testing activities as Owner
deems necessary or desirable to determine whether Occupants are in compliance with this provision. The
obligations of Occupants hereunder shall survive the expiration or earlier termination, for any reason, of this
Agreement.
31. Mold. The parties acknowledge that mold is a naturally occurring substance in many Shopping Centers
in Florida and that there are concerns about the effect of certain molds on health, even if there is no scientific
evidence supporting those fears. As used herein: (i) "Mold" means mold, mildew, fungus or other potentially
dangerous organisms in amounts sufficient to create a health risk to humans; and(ii)a"Mold Condition"means the
presence or suspected presence of Mold or any condition(s) that reasonably can be expected to give rise to or
indicate the presence of Mold,including observed or suspected instances of water damage or intrusion,the presence
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of wet or damp wood, cellular wallboard, floor coverings or other materials, inappropriate climate control,
discoloration of walls, ceilings or floors, complaints of respiratory ailment or eye irritation by residents, employees
or any tenants or invitees in the Shopping Center,or any notice from a governmental agency of complaints regarding
the indoor air quality at the Shopping Center.Occupants acknowledge that to discourage the infestation of mold,it is
necessary for Owner to provide appropriate climate control within the Premises, and Occupants agree not to block
or cover any of the HVAC ducts within the Premises. Occupants agree to promptly report to Owner: (i) any
evidence of a water leak or excessive moisture in the Premises; and(ii)any evidence of Mold or a Mold Condition
that cannot be removed by simply applying a common household cleaner and wiping the area. Occupants hereby:(a)
assume the risks associated with Mold or a Mold Condition; (b)waive any claim or cause of action against Owner
arising out of the existence of Mold or a Mold Condition in the Premises or the Shopping Center;and(c)release the
Owner from any and all liabilities resulting from same. Occupants further agree that Occupants shall be responsible
for, and indemnify Owner and its Owner Parties from and against, any damage to the Premises and any other
portions of the Shopping Center, as well as injury to the Occupants and Occupants' Parties, or any other person,
and all claims of whatever nature against Owner or Owner's Parties resulting from Occupants' failure to comply
with the terms of this Section 31.
32. ADA Compliance. Notwithstanding any other statement in this Agreement, the following
provisions shall govern the parties' compliance with the Americans With Disabilities Act of 1990,as amended from
time to time,Public Law 101-336;42 U.S.C. "12101,et seq.(the"ADA"):
a. Owner shall deliver the Premises to Occupants, including all Owner's Work described in Exhibit
B_l,in compliance with the ADA.
b. To the extent governmentally required, Occupants shall be responsible for compliance, at their
sole expense,with Titles I and III of the ADA with respect to the Premises.
C. Occupants shall indemnify, defend and hold harmless Owner and its Owner Parties from all fines,
suits, procedures, penalties, claims, liability, losses, expenses and actions of every kind, and all
costs associated therewith (including, without limitation, reasonable attorneys' and consultants'
fees)arising out of or in any way connected with Occupants' failure to comply with Titles I and III
of the ADA as required above.
33. Estoppel Certificates. Occupants shall, without charge, at any time and from time to time,
within five (5) days after request therefor by Owner, the holder of any mortgage encumbering the Premises, any
purchaser of all or any portion of the Shopping Center or any other interested person, execute, acknowledge and
deliver to such requesting party a written estoppel certificate certifying, as of the date of such estoppel certificate,
the following: (i)that this Agreement is unmodified and in full force and effect(or if modified,that the Agreement
is in full force and effect as modified and setting forth such modifications); (ii)that the Term has commenced(and
setting forth the Delivery Date and Expiration Date); (iii)that Occupants presently are occupying the Premises; (iv)
the amounts of any charges hereunder currently due and payable by Occupants; (v)that the Owner's Work required
by the Agreement to have been made by Owner have been made to the satisfaction of Occupants; (vi)that there are
no existing set-offs,charges,liens,claims or defenses against the enforcement of any right hereunder(or,if alleged,
specifying the same in detail); (vii)that Occupants have no knowledge of any then uncured default by Owner of its
obligations under this Agreement(or, if Occupants have such knowledge, specifying the same in detail); (viii)that
Occupants are not in default; (ix)that the address to which notices to Occupants should be sent is as set forth in the
Agreement(or,if not, specifying the correct address); and(x)any other certifications requested by Owner.The form
of this Estoppel Certificate is attached to this Agreement as Exhibit D. Occupants constitute and appoint Owner as
Occupants' true and lawful attorney-in-fact ("Attorney-in-Fact'), and in the Occupants' name, place and stead, to
make, execute, sign, acknowledge, and file said estoppel certificates in the event that Occupants shall fail to
complete and deliver such requested estoppel certificates in the allotted time above. The foregoing power of
attorney is irrevocable and is coupled with an interest. Occupants shall be bound by any representations made by the
Attorney-in-Fact acting in good faith pursuant to this power of attorney, and Occupants hereby waive any and all
defenses which may be available to contest, negate or disaffirm the action of the Attorney-in-Fact taken in good
faith under this power of attorney.
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34. Waiver of Jury Trial. OWNER AND OCCUPANTS KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY LAWSUIT
BROUGHT BY OWNER TO RECOVER POSSESSION OF THE PREMISES FOLLOWING OWNER'S
TERMINATION OF THIS AGREEMENT OR THE RIGHT OF OCCUPANTS TO POSSESSION OF THE
PREMISES PURSUANT TO THE TERMS OF THIS AGREEMENT AND ON ANY CLAIM FOR
CHARGES WHICH OWNER MAY JOIN IN ITS LAWSUIT TO RECOVER POSSESSION.
35. Invalidity of Particular Provisions. If any provisions of this Agreement or the application thereof
to any person or circumstances shall to any extent be invalid or unenforceable,the remainder of this Agreement,or
the application of such provision to persons or circumstances other than those to which it is invalid or unenforceable,
shall not be affected thereby, and each provision of this Agreement shall be valid and be enforced to the full extent
permitted by law.
36. Gender and Number. All terms and words used in this Agreement,regardless of the number or gender
in which they are used,shall be deemed to include any other number or gender as the context may require.
37. Benefit and Burden. Subject to the provisions of Article 33 and except as otherwise expressly
provided,the provisions of this Agreement shall be binding upon,and shall inure to the benefit of,the parties hereto
and each of their respective representatives, heirs, successors and assigns. Owner may freely and fully assign its
interest hereunder.
38. Attorneys'Fees and Costs. If,as a result of any default of Occupants in their performance of any of
the provisions of this Agreement,Owner uses the services of an attorney,whether at the pre-trial,trial and appellate
levels, in order to secure compliance with such provisions or recover damages therefor, or to terminate this
Agreement or evict Occupants, whether or not a lawsuit is commenced by Owner for such purpose(s), Occupants
shall reimburse Owner upon demand for any and all attorneys' fees and expenses so incurred by Owner,which fees
and expenses shall constitute an Expense Charge hereunder.
39. Governing Law and Venue This Agreement is governed by the laws of the State of Florida.Venue
to determine any controversy or litigation regarding this Agreement shall be the Circuit Court of the Seventeenth
Judicial Circuit, in and for Broward County, Florida, and both parties confer exclusive jurisdiction on that Court.
City hereby designates the City Attorney as its agent for service of process.BSO hereby designates the Sheriff as its
agent for service of process.
40. Time of the Essence. Time is of the essence as to Occupants'obligations contained in this Agreement.
41. Headings. Captions and headings are for convenience of reference only.
42. Entire Agreement. This Agreement (which includes the Exhibits attached hereto) contains and
embodies the entire agreement of the parties hereto, and no representations, inducements or agreements, oral or
otherwise, between the parties not contained in this Agreement shall be of any force or effect. This Agreement
(other than the Rules and Regulations, which may be changed from time to time as provided herein) may not be
modified, changed or terminated in whole or in part in any manner other than by an agreement in writing duly
signed by Owner and Occupants.
(Signatures of the Parties Begin on Page 15)
Occupancy Agreement Page 14
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IN WITNESS WHEREOF,the parties hereto have executed this Agreement under their respective hands
as of the day and year first above written.
WITNESSES TO OWNER: OWNER:
DANIA LIVE 1748 II,LLC,
a Delaware limited liability company
By: Dania Live JV,LLC,a Delaware limited liability
company,its sole member
By: Kim Dania Manager, LLC, a Delaware limited
liability company,its manager
By: Kimco PL Retail, Inc., a Delaware corporation,
its sole member
By:
Name:
Title:
Date:
Occupancy Agreement Page 15
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ATTEST: CITY OF DANIA BEACH,FLORIDA:
By:
Tom Schneider,City Clerk Lori Lewellen,Mayor
Date:
(CITY SEAL): CITY:
By:
Name: Ana M.Garcia
Title: City Manager
Date:
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
Thomas Ansbro,City Attorney
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WITNESSES TO BSO: BROWARD SHERIFF'S OFFICE:
By:
Gregory Tony,Sheriff of Broward County,Florida
Date:
APPROVED AS TO FORM AND LEGAL
SUFFICIENCY,SUBJECT TO EXECUTION
BY THE PARTIES:
Terrence Lynch,General Counsel
Occupancy Agreement Page 17
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EXHIBIT A-1
Floor Plan
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Occupancy Agreement Page 18
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EXHIBIT A-2
Site Plan
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Occupancy Agreement Page 19
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EXHIBIT B-1
Owner's Work
[To be agreed upon prior to execution]
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EXHIBIT B-2
Occupants'Work
[To be agreed upon prior to execution]
Occupancy Agreement Page 21
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EXHIBIT"13-3"
INDEMNITY AGREEMENT
NAME OF CONTRACTOR:
ADDRESS OF CONTRACTOR:
TELEPHONE NUMBER OF CONTRACTOR:
EMAIL ADDRESS OF CONTRACTOR:
TAXPAYER IDENTIFICATION NUMBER OF CONTRACTOR:
CONTRACTOR LICENSE:
This INDEMNITY AGREEMENT ("Agreement") pertains to work to be performed at the Dania Pointe
Shopping Center, Phase II,which is located in Dania Beach, Florida, herein referred to as"Shopping Center" (Site
)by the Contractor identified above(herein referred to as"Contractor"). This Agreement is appended to
and constitutes a part of that contract (the "Construction Contract") between Contractor and the City of Dania
Beach, Florida and the Broward Sheriff's Office (herein together referred to as "Occupants"), which Construction
Contract is dated , for work to be done at the Shopping Center beginning approximately
and to completed approximately by . Contractor
acknowledges that Occupants contractually are obligated to obtain this Agreement under an Occupancy Agreement
for their premises at the Shopping Center ("Premises'). Contractor has entered into this Agreement to induce
Occupants to retain Contractor to perform certain work at the Premises.
Contractor hereby agrees to INDEMNIFY, SAVE&HOLD HARMLESS Occupants and to INDEMNIFY,
SAVE &HOLD HARMLESS,Dania Live 1748 II LLC, a Delaware limited liability company and Kimco Realty
Corporation, (hereinafter collectively referred to as "Owner"), its respective agents and employees, assigns, and
architects of and from all liabilities, claims, losses, damages, injury, causes of actions and suits of whatever nature
for personal injury, including death, and for property damage, arising out of or alleged to arise out of, or any
conditions of, the work performed under this Construction Contract, whether by Contractor or by any
sub-contractor, and whether any claim, cause of action, or suit is asserted against Owner or its agents and
employees, assigns, and architects, or Contractor, severally, jointly, or jointly and severally. Contractor hereby
agrees to INDEMNIFY, SAVE&HOLD HARMLESS Owner, its agents and employees, assigns, and architects of
and from any and all costs of any nature, including without limitation investigation, adjustment, attorney's fees,
expert's fees,court costs,administrative costs,and other items of expense arising out of any claim,cause of action or
suit of the kind and nature herein set forth.
Neither Contractor nor any sub-contractor shall file any mechanic's, materialmen's, or other liens either
against the Premises or the Shopping Center from any work, labor, services or materials supplied or performed by
Contractor or by any sub-contractor. Contractor hereby agrees to INDEMNIFY, SAVE & HOLD HARMLESS
Owner, its agents and employees, assigns, and architects of and from any and all costs of any nature, including
without limitation investigation,adjustment,attorney's fees,expert's fees,court costs,administrative costs,and other
items of expense arising out of any mechanic's, materialmen's, or other liens filed against the either against the
Premises or the Shopping Center by Contractor or by any sub-contractor.
Contractor hereby agrees that it will obtain Comprehensive General Liability insurance including Blanket
Contractual Liability with minimum amount of$3,000,000.00 Combined Single Limit for bodily injury and property
damage. Additionally, Contractor must also obtain Workers Compensation and Occupational Disease insurance
with statutory limits and form as required by the State in which the work is to be performed, and Employer's
Liability with a limit of not less than$1,000,000.00 for all damage.
Certificates for all insurance will be submitted to Owner before commencement of any work. The
Certificates must indicate that the "HOLD HARMLESS AGREEMENT" contractual indemnity as set forth in this
agreement is insured. Owner must be named as an additional insured and the policy must provide that no less than
15 days' advance written notice will be given to both the party to whom such Certificates are issued and the
additional insured in the event of cancellation of the policies or a reduction in the limits of liabilities set forth above.
Occupancy Agreement Page 22
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At Owner's request, Contractor will immediately furnish Owner with a true and complete copy of any insurance
policy Owner wants to renew. No invoices for payments will be honored unless such Certificates of Insurance (or
the policy, if requested) had been filed timely with Owner at 500 North Broadway, Suite 201, Jericho,New York
11753.
Contractor acknowledges that Owner did not retain Contractor to perform any work at the Shopping Center
and agrees that Contractor will not look to Owner for any compensation whatsoever for any work it performs at the
Shopping Center.
IN WITNESS HEREOF,this Contractor has executed this Agreement as of this day of ,2020
CONTRACTOR:
By:
Name:
Title:
Occupancy Agreement Page 23
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EXHIBIT C
NOTICE OF AGREEMENT TERM DATES
This Notice of Agreement Term Dates(this"Notice")is executed this of July 2020 at Dania Beach,
Florida by and between Dania Live 1748 II LLC,a Delaware limited liability company(the"Owner"),the City of
Dania Beach, Florida, a Florida municipal corporation existing pursuant to Florida Statutes Chapter 165 (the
"Ciff") and the Broward Sheriffs Office ("BSO" and ,together with the City, the "Occupants"). The Occupants
and the Owner shall be referred to as the"Parties"and each a
The Parties entered into an Occupancy Agreement for premises located at the Dania Point Shopping
Center,Phase II,dated ,2020(the"Agreement").
Article 4 of the Agreement provides for execution of this Notice upon determination of the Delivery Date
of the Premises.
The parties hereby confirm that Owner delivered the Premises to Occupants and Occupants accepted
possession of the Premises on .12020.
The Expiration Date of the Occupancy Agreement is October 14, 2025. The Expiration Date subsequently
may be extended by agreement of Owner and Occupants.
IN WITNESS WHEREOF,the parties hereto have executed this Notice under their respective hands as of
the day and year first above written.
WITNESSES TO OWNER: OWNER:
DANIA LIVE 17481I,LLC,
a Delaware limited liability company
By: Dania Live JV,LLC,a Delaware limited liability
company,its sole member
By: Kim Dania Manager, LLC, a Delaware limited
liability company,its manager
By: Kimco PL Retail, Inc., a Delaware corporation,
its sole member
By:
Name:
Title:
Date:
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ATTEST: CITY OF DANIA BEACH,FLORIDA:
By:
Tom Schneider,City Clerk Lori Lewellen,Mayor
Date
(CITY SEAL): CITY:
By:
Name: Ana M.Garcia
Title: City Manager
Date:
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WITNESSES TO BSO: BROWARD SHERIFF'S OFFICE:
By:
Gregory Tony,Sheriff of Broward County,Florida
Date:
APPROVED AS TO FORM AND LEGAL
SUFFICIENCY,SUBJECT TO EXECUTION
BY THE PARTIES:
Terrence Lynch,General Counsel
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EXHIBIT D
ESTOPPEL LETTER
[Name of Addressee]
[Address of Addressee]
RE: Premises at Dania Pointe Shopping Center, Phase II, Space 0-102, 140 South Compass Way,
Dania Beach,Florida(the"Premises")
Ladies and Gentlemen:
I am the [tale] of Dania Beach, Florida(the"City"). I am empowered to
confirm the following on behalf of the City and the Broward Sheriff's Office (the "BSO"), as of the date of this
Estoppel Letter:
43. The City and the BSO are the"Occupants"under that Occupancy Agreement between Dania Live 1748 II,
LLC (the "Owner") and the City and BSO dated 2020 (the "Occupancy Agreement').
Occupants accepted possession of the Premises on , 2020. There have been no
subsequent changes or amendments to the Occupancy Agreement, except the
following:
44. The Occupants currently are in possession of the Premises pursuant to the terms of the Occupancy
Agreement.
45. The Occupancy Agreement does not provide for the payment of rent or the posting of a security deposit.
46. The Occupancy Agreement provides for the payment of expenses ("Expense Charges"). All such Expense
Charges have been paid in full or have been unpaid for no more than thirty-five (35) calendar days and
Occupants claim no offsets against such Expense Charges.
47. There are no known defaults by the Owner or by the Occupants under the Occupancy Agreement.
48. The Expiration Date of the Occupancy Agreement is October 25,2025.
I hereby so certify.
DATED this day of 2020.
City of Dania Beach,Florida
By:
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