HomeMy WebLinkAboutExhibit AAGREEMENT AND LEASE
BETWEEN
THE CITY OF MIAMI
AND
HRM OWNER, LLC
FOR THE LEASE OF CITY -OWNED PROPERTY
LOCATED AT
298 Southeast 2" Avenue
300 Southeast 2nd Avenue
330 Southeast 2nd Avenue
400 Southeast 2nd Avenue
Miami, Florida 33131
TABLE OF CONTENTS
PAGE
ARTICLE I INCORPORATION, EXHIBITS, & DEFINITIONS 2
1.1 Incorporation by Reference 2
1.2 Exhibits and Schedules 2
1.3 Definitions 2
ARTICLE II LEASE OF PROPERTY 24
2.1 Lease of Property 24
2.2 Conditions Precedent to Effectiveness of this Agreement 25
2.3 Purpose of Use and Occupancy 25
2.4 Suitability of Property 26
2.5 Limited Representations by City 26
2.6 Commencement Conditions Deadline 27
2.7 Commencement of Demolition 27
ARTICLE III TERM 28
3.1 Term and Lease Term 28
ARTICLE IV RENT & FINANCIAL RECORDS 28
4.1 No Rent Prior to Commencement Date 28
4.2 Construction Rent 29
4.3 Amount of Rent Commencing on Minimum Rent Commencement Date 29
4.4 Sales Tax 31
4.5 Security Deposit 31
4.6 One Time Payment to City 32
4.7 Developer's Financial Records 32
4.8 Reports by Developer 33
4.9 Right to Examine Financial Records 33
4.10 Late Payments 35
4.11 Refinance Fee; Transfer Fee 35
ARTICLE V CONSTRUCTION & IMPROVEMENTS 37
5.1 Developer's Obligation to Construct & Maintain Improvements 37
5.2 Development Rights and Phases 37
5.3 Conceptual Plan 38
5.4 Construction Plans 39
5.5 Development 41
TABLE OF CONTENTS
PAGE
5.6 Review 42
5.7 Payment and Performance Bond 43
5.8 Contractor's Insurance 43
5.9 Conveyance of Improvements 44
5.10 Property to Remain Free of Liens 45
5.11 Repair and Relocation of Utilities 45
5.12 Signage 45
5.13 Ombudsman 46
5.14 City's Rights as Sovereign 46
5.15 Limitation on Voluntary Zoning Changes 47
5.16 Community Benefits 47
ARTICLE VI CONDUCT OF BUSINESS BY DEVELOPER; CAPITAL EXPENSE
FUND 47
6.1 Conduct of Business 47
6.2 Capital Expense Fund 48
ARTICLE VII MAINTENANCE, REPAIR AND ALTERATION OF PROPERTY 49
7.1 Developer's Maintenance Obligations 49
7.2 Developer's Repair Obligation 49
7.3 Changes/Alterations 49
ARTICLE VIII INSURANCE AND INDEMNITY 50
8.1 Insurance on the Property 50
8.2 Delivery of Insurance Policies 50
8.3 Adjustment of Loss 51
8.4 Indemnification of City 51
8.5 Waiver of Subrogation 52
8.6 Survival 52
ARTICLE IX SERVICES AND UTILITIES 52
9.1 Developer to Provide and Pay for Utilities 52
9.2 City Not Liable for Failure of Utilities 53
ARTICLE X SUBLEASES, ASSIGNMENTS AND TRANSFERS 53
10.1 Right to Transfer Leasehold 53
10.2 Bifurcation of Leasehold Interest under this Agreement 56
10.3 Master Covenants for Integrated Project 59
TABLE OF CONTENTS
PAGE
10.4 Intentionally Omitted 61
10.5 Rights to Sublease and Non -Disturbance to Sublessees and/or Space Lessees 61
10.6 Estoppel Certificates from City 62
10.7 Waiver of City Lien 62
10.8 Information as to Owners 62
ARTICLE XI COMPLIANCE WITH LAWS 62
11.1 Compliance with Laws 62
11.2 Labor Peace Agreements 63
11.3 Intentionally Omitted 64
11.4 Contest by Developer 64
ARTICLE XII ENVIRONMENTAL LIABILITY 64
12.1 Definition of Terms 64
12.2 Developer's Environmental Covenant 65
12.3 Survival of Obligations 65
ARTICLE XIII DAMAGE OR DESTRUCTION OF PROPERTY 66
13.1 Definitions 66
13.2 Duty to Repair, Restore or Replace Property after Damage 66
13.3 Performance of Restoration Work 67
13.4 Gross Insurance Proceeds 67
13.5 Developer's Right to Terminate 67
13.6 Payment for Construction of Restoration Work 67
13.7 Collection of Insurance Proceeds 68
13.8 Unused Insurance Proceeds and Deposits 68
13.9 Dispute 68
ARTICLE XIV EMINENT DOMAIN 68
14.1 Taking All or Substantially All of the Property 68
14.2 Less Than Substantial Taking 69
14.3 Restoration Funds 70
14.4 Temporary Taking 70
14.5 Disputes 70
14.6 Condemnation of Fee Interest 71
ARTICLE XV PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS 71
15.1 Payment of Taxes and Impositions; Contest Rights 71
TABLE OF CONTENTS
PAGE
15.2 Installment Payments of Ad Valorem Taxes and Impositions 71
15.3 Payment in Lieu of Taxes 72
ARTICLE XVI DEFAULT 73
16.1 Developer Default 73
16.2 Failure to Cure Default of Developer 73
16.3 Lender Right to Cure Developer Default 74
16.4 Surrender of Property 77
16.5 Rights of City After Termination 77
16.6 No Waiver by City 77
16.7 Events of Default of City 78
16.8 Failure to Cure Default by City 78
16.9 No Waiver by Developer 79
ARTICLE XVII ACCESS 79
17.1 Right of Entry 79
17.2 Access Agreements 79
ARTICLE XVIII DAMAGE TO DEVELOPER'S PROPERTY 79
18.1 Loss and Damage 79
ARTICLE XIX HOLDING OVER & SUCCESSORS 80
19.1 Holding Over 80
19.2 Successors 80
ARTICLE XX EQUAL EMPLOYMENT OPPORTUNITIES 81
20.1 Equal Employment Opportunities 81
20.2 Community Small Business Enterprise 81
20.3 Non -Discrimination 81
ARTICLE XXI MISCELLANEOUS 82
21.1 Accord and Satisfaction 82
21.2 Public Records 82
21.3 Entire Agreement 83
21.4 Independent Parties 83
21.5 Notices 84
21.6 Captions and Section Numbers 85
21.7 Partial Invalidity 85
21.8 Estoppel Certificate 85
TABLE OF CONTENTS
PAGE
21.9 Waiver 86
21.10 Time is of the Essence 86
21.11 No Discrimination 86
21.12 Governing Law, Venue, & Attorney's Fees 86
21.13 Waiver of Counterclaims 86
21.14 Waiver of Jury Trial 87
21.15 Quiet Enjoyment 87
21.16 Surrender of Possession 87
21.17 Joint and Several Liability 87
21.18 Third Party Beneficiary 87
21.19 Radon 88
21.20 No Liability for Act of Other Party 88
21.21 Reserved 88
21.22 Brokers 88
21.23 Consents 88
21.24 Memorandum of Lease 89
21.25 City as City Only 89
21.26 Designation of City's Representative 89
21.27 Fee Mortgages 90
21.28 Access to Property 90
21.29 Successors and Assigns 91
21.30 Protest Payment 91
21.31 Counterparts 91
21.32 Provisions Not Merged With Deed 91
21.33 Limitation of Liability 91
21.34 Exculpations 92
21.35 Closing Process 92
21.36 Costs 92
21.37 City's Duty 92
21.38 Force Majeure 92
21.39 Review of Statements 93
ARTICLE XXII FINANCING AND RIGHTS OF LENDERS 93
22.1 Right to Mortgage Leasehold 93
TABLE OF CONTENTS
PAGE
22.2 Right to Pledge Equity Interests 95
22.3 Notice to City of Lender's Interest 96
22.4 Notices to Lender(s) 96
22.5 Termination of Leasehold Estate under this Agreement and New Lease 96
22.6 Termination of Subleasehold Estate under this Agreement and New Sublease 98
22.7 Other Subleases and Space Leases 100
22.8 No Subordination or Mortgaging of City's Fee Title 101
22.9 No Personal Liability 101
22.10 Priority of Multiple Security Interests 101
22.11 Further Assurances 102
ARTICLE XXIII DISPUTE RESOLUTION 102
23.1 Arbitration 102
23.2 Expert Resolution Process 103
23.3 Other Disputes 104
ARTICLE XXIV DEVELOPER'S INSPECTION AND TERMINATION RIGHTS 104
24.1 Inspection Period 104
ARTICLE XXV TERMINATION OF EXISTING LEASE 106
AGREEMENT AND LEASE
THIS AGREEMENT AND LEASE ("Agreement"), made this day of
, 2023, by and between the CITY OF MIAMI, a municipal corporation of the State
of Florida (together with its successors and/or assigns, as permitted hereunder, "City" or
"Landlord") having its offices at 3500 Pan American Drive, Miami, Florida 33133 and HRM
OWNER, LLC, a Delaware limited liability company (together with its successors and/or assigns,
as permitted hereunder "Developer" or "Tenant") having its principal offices at c/o Gencom, 2700
Tigertail Avenue, Miami, Florida 33133. Capitalized terms used in this Agreement (including
those used in the Recitals) shall have the definitions and meanings set forth in Section 1.3 and/or
as elsewhere defined herein.
RECITALS
WHEREAS, City is the owner in fee simple of certain real property located in the City of
Miami, Miami -Dade County, Florida consisting of approximately 186,555+/- square feet and
located generally for reference only at 298, 300, 330, and 400 Southeast 2nd Avenue in the City of
Miami, County of Miami -Dade County, Florida, and legally described on Exhibit A attached to
this Agreement.
WHEREAS, Developer currently leases a portion of the Property from City pursuant to
the Existing Lease; the remainder of the Property is the site of the JLK Center.
WHEREAS, the Parties desire for Developer to lease the entire Property, pursuant to a
new lease, which on the Commencement Date will replace the Existing Lease, for the purposes of
developing and operating hospitality, residential, retail, restaurant and food service, entertainment,
conference/exhibition, parking, and other uses at the Property.
WHEREAS, this Agreement was negotiated pursuant to the authority expressly conferred
by the City of Miami Charter, as amended on November 8, 2022 pursuant to a majority vote of
City of Miami voters (the "Charter Amendment"), general laws of the State of Florida, and the
City Commission Resolution No. , a copy of which is attached hereto as Schedule
RI, which authorized the execution and delivery of this Agreement.
WHEREAS, Developer is authorized to enter into this Agreement pursuant to the consent
attached hereto as Schedule R2.
WHEREAS, it is the mutual desire of the Parties that the Property be leased and demised
by City to Developer for the purposes set forth in this Agreement, subject to and upon the express
terms and conditions contained herein.
NOW THEREFORE, in consideration of the foregoing and of the rent, covenants, and
agreements hereinafter set forth, the Parties do hereby covenant and agree as follows:
1
1.1
ARTICLE I
INCORPORATION, EXHIBITS, & DEFINITIONS
Incorporation by Reference
The foregoing Recitals are true and correct and are hereby incorporated into this Agreement
by this reference as if set out in full in the body of this Agreement.
1.2 Exhibits and Schedules
Attached hereto and forming a part of this Agreement are the following Exhibits and
Schedules:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Schedule R1
Schedule R2
Legal Description of Property
Intentionally Omitted
Conceptual Plan
Minimum Initial Program
Contractor Insurance Requirements
Leasehold Insurance Requirements
Appraisal Process
Form of Memorandum of Lease
City Resolution
Developer Consent
Schedule 1.3(kkkkk) List of Prohibited Uses
Schedule 5.5
Schedule 5.9
Schedule 5.16
Schedule 10.2
Schedule 10.5
Schedule 21.35
Schedule 21.35a
Schedule 21.35b
1.3 Definitions
Milestone Dates
Hyatt Proprietary Materials
Community Benefits
Form of Bifurcated Lease
Form of Recognition and Non -Disturbance Agreement
Form of Affidavit
Form of Landlord Non -Disturbance Agreement (Hotel Services
Agreement)
Confirmation of Effective Date
Capitalized terms used in this Agreement (including those used in the Recitals) shall have
the definitions and meanings set forth in this Section 1.3 and/or as elsewhere defined herein
2
(whether before or after this Section). Any word contained in the text of this Agreement shall be
read as the singular or the plural and as the masculine, feminine or neuter gender as may be
applicable in the particular context. The terms "hereunder," "herein," "hereof," "hereto," and such
similar terms shall refer to the Lease in its entirety and not to individual sections or articles. The
terms "include" and "including" shall be construed to be followed by the words: "without
limitation."
(a) "Acceptable Developer" shall mean an entity or entities that is/are not a
Prohibited Person(s) as such term is defined herein possessing: (i) a minimum of ten (10) years
of experience in the operation of mixed -use commercial developments in urban locations in the
United States and, prior to Substantial Completion of the Minimum Initial Program, must be an
Acceptable Project Developer, (ii) a good reputation in the business community, and (iii)
adequate financial resources and personnel sufficient for the performance of Developer's
obligations under this Agreement with respect to the operation of the Project, as reasonably
determined by the City Manager. The requirements of an Acceptable Developer may be
satisfied by the proposed transferee or the Person or Persons that directly or indirectly Control(s)
the proposed transferee. The requirements of clause (i) of the first sentence of this definition
may be satisfied by retaining an Acceptable Operator or an Acceptable Project Developer (as
applicable). Hyatt Corporation or its affiliates and Gencom are each deemed to be Acceptable
Developers provided that the reputation, financial capacity, and experience of Hyatt
Corporation or its selected affiliate or Gencom or its selected affiliate has not diminished
beyond the minimum requirements for an Acceptable Developer as set forth above in this
paragraph.
(b) "Acceptable Operator" shall mean an entity or entities that is/are not a
Prohibited Person(s) as such term is defined herein possessing: (A) a minimum of ten (10)
years of experience either directly managing or operating or directly involved in the ownership
and day to day operation of no fewer than three (3) commercial properties with a use similar to
the use contemplated for the component(s) of the Property that said operator will manage and/or
operate (e.g., hospitality, multi -family, retail, restaurant component); (B) a good reputation in
the business community; and (C) adequate financial resources and personnel necessary for the
performance of all of the operator's obligations in a manner consistent with the quality,
reputation and economic viability of the business to be undertaken at the Property or the
applicable component thereof. Hyatt Corporation or its affiliates and Gencom are each deemed
to be Acceptable Operators. With respect to any hospitality use, residential use, serviced
apartments, multi -family use, restaurant use and food service uses, entertainment use, parking
use, and similar uses and uses ancillary thereto, Hyatt Corporation or its affiliates or another
First Class Hospitality Operator are deemed to be Acceptable Operators. An Affiliate of an
Acceptable Operator shall also be deemed an Acceptable Operator provided that such Affiliate
has reasonable access to the personnel and financial resources of the Acceptable Operator.
(c) "Acceptable Project Developer" shall mean an entity or entities possessing
a minimum of ten (10) years of experience in the development of mixed -use commercial
developments in urban locations in the United States. Hyatt Corporation or its Affiliates and
Gencom are each deemed to be Acceptable Project Developers.
3
(d) "Accommodation Pledge" shall mean a pledge delivered to a Leasehold
Mortgagee or Subleasehold Mortgagee as additional security for the loan secured by the related
Leasehold Mortgage or Subleasehold Mortgage, which pledge is of a direct and/or indirect
equity or other ownership interests in Developer or a Sublessee.
(e) "Additional Rent" shall mean any and all additional sums, charges, or
amounts of whatever nature to be paid by Developer to City in accordance with the terms of
this Agreement, whether or not such sums, charges or amounts are referred to as Additional
Rent.
(f) "Affiliate" or "Affiliated Person" shall mean, when used with reference to
a specified Person:
(i) any Person that, directly or indirectly, through one or more
intermediaries, Controls or is Controlled by or is under common Control with the specified Person;
(ii) any Person that, directly or indirectly, is the beneficial owner as such
term is defined under SEC Rule 13d-3 (herein a "Beneficial Owner") of ten percent (10%) or more
of any stock, partnership interest or members interest of, or other beneficial interest in, the
specified Person or Controls the specified Person;
(iii) any Person in which the specified Person is, directly or indirectly,
the Beneficial Owner of ten percent (10%) or more of any stock, partnership interest or members
interest of, or other beneficial interest in, such Person or Controls such Person; or
(iv) any Person in which any Beneficial Owner (as defined in clause (ii)
above) is, directly or indirectly, the beneficial owner of ten percent (10%) or more of any stock,
partnership interest or members interest of, or other beneficial interest in, such Person or Controls
such Person.
For the avoidance of doubt, Hyatt Corporation and Gencom are each an Affiliated Person with
respect to the original Tenant hereunder.
(g) "Applicable Law(s)" shall mean all Federal laws, Florida Statutes, Codes,
City of Miami and Miami -Dade County ordinances, regulations, orders, judgments, decrees and
injunctions that are applicable to the Property or the Parties from courts having jurisdiction over
the Property and Parties, rules, and requirements of Federal, State of Florida and local boards
and agencies with jurisdiction over the Property and Parties, now existing or hereafter enacted,
amended, adopted, foreseen and unforeseen, ordinary and extraordinary, which are applicable
to the Parties or the Property or any part of it, but only to the extent so applicable.
(h) "Assignment" refers to the complete or majority transfer of the rights and
obligations of Developer under the Lease to an unrelated third party, whereupon the third -party
assignee becomes Developer under the Lease and takes over all of the Property and the rent and
other obligations associated with the Lease, thereby assuming all of the prior tenant's rights and
obligations. Subleases and Space Leases of a portion of the Property shall not be deemed an
Assignment.
4
(i) "Assignee" refers to the unrelated third -party entity assuming all or a
majority of the rights and obligations of Developer or assignor or owner of the Leasehold Estate.
An unrelated third -party is any business entity who is neither an Affiliate nor Affiliated Person.
(j) "Assignor" refers to Developer that is assigning all or a majority of its rights
and obligations under this Agreement to a third -party entity.
10.2.1.
(k) "Bifurcated Lease" shall have the meaning ascribed to such term in Section
(1) "Bond" shall have the meaning ascribed to such term in Section 5.7.
(m) "Business Days" shall mean Monday through Friday, excluding legal
holidays in the City of Miami, Florida. Unless otherwise identified as Business Days, any
reference to days shall refer to calendar days.
Section 6.2.
Section 6.2.
(n) "Capital Applications" shall have the meaning ascribed to the term in
(o) "Capital Expense Fund" shall have the meaning ascribed to the term in
(p)
"CBA" means the Redevelopment Agreement, the Labor Peace Agreement
between Hyatt Corporation, as agent of Hyatt Equities L.L.C., and UNITE HERE Local 355
dated June 6, 2018, and that certain Appendix A Agreement by and between Hyatt Equities,
L.L.C. and UNITE HERE Local 355 dated March 15, 2021, each having been assigned to Hyatt
Corporation, as agent of Developer.
(q) "Certificate of Occupancy" shall mean a certificate of occupancy,
temporary certificate of occupancy, or similar approval authorizing the use and occupancy of
all or a portion of the Improvements.
(r) "City" shall mean the City of Miami, a municipal corporation of the State
of Florida.
(s) "City Approval Process" shall mean, with respect to any request by
Developer to City for approval of or consent to a particular item under this Agreement that
requires City' s approval or consent as landlord hereunder, that (a) City shall not unreasonably
withhold, condition or delay such approval or consent, (b) Developer's request shall include
any supporting documentation actually required for the City to assess the compliance of the
request with the requirements of this Agreement, (c) City shall grant or deny such request prior
to the deadline for such approval or denial set forth in this Agreement (provided, however, that
if the City provides Developer with written notice within ten (10) Business Days of the request
that Developer has not provided the City with any required documentation in accordance the
preceding provision (b), and such notice specifies with particularity what additional
documentation is actually required for the City to make its determination, then the City's
deadline to approve or deny the request shall be tolled until Developer provides the City with
the additional documentation actually required); (d) any denial shall specify the reasons for such
5
denial (which must be consistent with the terms of this Agreement) and, if applicable, any
proposed modifications that will render Developer's request acceptable; and (e) City's failure
to respond within such period shall toll any of Developer's deadlines for performance under
this Agreement for which the applicable consent or approval is required from the expiration of
the provided period until such time that pending response from City is received. In the event
City fails to respond within an additional ten (10) Business Days after receipt of a second notice
of the delay from Developer, City's failure shall be deemed to be an Event of Default under this
Agreement, and Developer shall have the right to exercise the rights and remedies set forth
under Sections 16.8(b) and (c) below without any additional notice to, or right to cure by, the
City required under Section 16.8 below (it being acknowledged and agreed that the ten (10)
Business Day cure period provided above is deemed to be sufficient for purposes hereof),
provided that such second notice provides explicit notice of such default in bold, all caps text
and is submitted to all City parties required by Section 21.5 of this Agreement through at least
two of the methods of delivery permitted by Section 21.5 of this Agreement (for example, both
Fedex and hand delivery to each of the City Attorney, City Manager, and DREAM Director).
For the avoidance of doubt, the City Approval Process shall not apply to any approvals or
consents to be made by the City in its regulatory capacity, including zoning and permitting
approvals.
(t) "City Manager" shall mean the Chief Administrative Officer of the City. In
day to day matters all decisions attributed to City in this Agreement may be made by the City
Manager, or his or her authorized designee as set forth in writing to Developer, unless otherwise
specified in writing to Developer or in this Agreement or otherwise required by Applicable
Laws.
(u) "City Commission" shall mean the local legislative body of the Executive
Mayor and City Commission. Notwithstanding anything to the contrary, the City Commission
has approved the Lease and its approval will be required to approve any material amendments
to the Lease, unless otherwise delegated to the City Manager within this Agreement.
(v) "Claims" shall have the meaning ascribed to such term in Section 8.4.
(w) "Clean Up" shall have the meaning ascribed to such term in Section 12.1.
(x) "Code" shall mean the Code of Ordinances of the City of Miami, Florida,
as amended from time to time.
(y) "Commencement Conditions" shall mean that (a) Developer has obtained
all applicable approvals and Permits from all applicable governmental authorities that are
required for the commencement of development and construction of the Minimum Initial
Program, subject only to reasonable conditions that are of a nature customarily imposed on
similar projects, (b) Developer has obtained from the City a waiver of the waterfront setback
requirements pursuant to Section 3(mm)(iii) of the City of Miami Charter, and (c) Financial
Close has occurred. For the avoidance of doubt, a master building permit for the construction
of the Minimum Initial Program shall not be required as part of the Commencement Conditions
so long as the Developer has obtained a demolition permit and other approvals and Permits
required to commence the development of the Minimum Initial Program.
6
(z) "Commencement Conditions Deadline" shall mean thirty (30) months
following the Effective Date, subject to Force Majeure, provided that Tenant, at its option, may
extend the Commencement Conditions Deadline for up to three (3) 6-month periods (each 6-
month period subject to Force Majeure) on written notice to Landlord and payment to Landlord
of $250,000 for the first 6-month extension period, $250,000 for the second 6-month extension
period, and $350,000 for the third 6-month extension period; provided, however, that Tenant
shall be entitled to the third extension period only in the event that Tenant has invested a
minimum of $20,000,000 in the hard and soft costs of redevelopment of the Property prior to
the expiration of the second extension period. Tenant shall provide verification of such
expenditures in a form reasonably acceptable to Landlord. All extension payments shall be
nonrefundable and shall not be credited towards Rent.
(aa) "Commencement Date" shall mean the date when the Commencement
Conditions have occurred.
(bb) "Commencement of Demolition" shall mean the commencement of the
actual physical demolition -related activities that are required to demolish the Existing
Improvements, including, for example, capping utilities and removal of asbestos.
(cc) "Conceptual Community Benefits" shall have the meaning set forth in
Section 5.16.
(dd) "Conceptual Plan" shall have the meaning ascribed to such term in Section
5.3.
(ee) "Condemnation Restoration" shall have the meaning ascribed to the term in
Section 14.2.2.
(ff) "Construction Loan" shall mean a loan or loans to finance the development
and construction of the Project or any portions thereof, including loans for pre -development and
demolition (which may also have components for working capital) and loans for the repair,
replacement, refurbishment, or maintenance of the Improvements.
(gg) "Construction Plans" shall have the meaning set forth in Section 5.4.1.
(hh) "Construction Rent" shall have the meaning ascribed to the term in Section
4.2.
(ii) "Construction Work" shall mean any and all construction work performed
by Developer, its contractors, subcontractors, agents or employees relating to or in connection
with this Agreement, excluding the demolition work, but including the Minimum Initial
Program and any work performed subsequent to the completion of the Improvements
constructed as part of the Minimum Initial Program.
(jj) "Control (and grammatical variations thereof)" shall mean, as applied to
any Person, the possession, directly or indirectly, of the power to direct or cause the direction
of the management and operation of such Person or the day-to-day management of such Person,
whether through the ownership of voting securities or other ownership interests, by contract or
7
otherwise; provided, however, that the retention of approval rights over major decisions shall
not, in and of itself, constitute "Control" for the purposes hereof.
(kk) "Convention Center Land" shall mean the real property upon which the JLK
Center is located and otherwise dedicated thereto. For the avoidance of doubt, the Convention
Center Land does not include the leased premises under the Existing Lease.
(11) "County" and "Miami -Dade County" shall mean Miami -Dade County, a
political subdivision of the State of Florida.
(mm) "CPP" shall mean the Consumer Price Index for All Urban Consumers (all
items index) for Miami -Fort Lauderdale -West Palm Beach as published by the United States
Bureau of Labor Statistics of the U.S. Department of Labor, (CPI-U) (Base: 1982-84 = 100),
or any most recently published successor index thereto, before seasonal adjustments. If the CPI
is converted to a different standard reference base or otherwise revised, then the determination
of adjustments provided for herein shall be made with the use of such conversion factor, formula
or table for converting the CPI as may be published by the Bureau of Labor Statistics or, if said
Bureau shall not publish the same, then with the use of such conversion factor, formula or table
as may be published by Prentice -Hall, Inc., or any other nationally recognized publisher of
similar statistical information. If the CPI ceases to be published, and there is no successor
thereto, then such other reasonably comparable index as City shall designate in its reasonable
discretion.
(nn) "CPI Annual Increase" shall mean, as of the date of determination, the
percentage increase, if any (but not decrease, if any) of the CPI for the calendar month that is
closest in time to the date of determination over the CPI for the calendar month that is one (1)
year prior to the calendar month that is closest in time to the date of determination.
(oo) "Date of Taking" shall mean the earlier of (1) the date on which actual
possession of all or Substantially All of the Property, or any part thereof, as the case may be, is
acquired by any lawful power or authority pursuant to the provisions of Applicable Law or (2)
the date on which title to all or Substantially All of the Property, or any part thereof, as the case
may be, has vested in any lawful power or authority pursuant to the provisions of Applicable
Law.
(pp) "Default Rate" shall mean interest at an annual rate equal to the lesser of (i)
an interest rate per annum equal to the Default Rate Base Rate plus five and one half percent
per annum (5.50%), or (ii) the maximum interest rate permitted by Applicable Law.
(qq) "Default Rate Base Rate" shall mean (a) the prime rate or equivalent "base"
or "reference" rate for corporate loans that is from time to time published in the Wall Street
Journal or (b) if such rate is no longer so published, then a reasonably equivalent rate published
by an authoritative third party as reasonably determined by the Developer and City Manager.
Notwithstanding anything to the contrary in this paragraph, the Default Rate Base Rate shall
never exceed the maximum interest rate permitted by Applicable Law.
5.16.
(rr) "Defined Community Benefits" shall have the meaning set forth in Section
8
(ss) "Demolition Letter of Credit" shall have the meaning ascribed to the term
in Section 5.7.
(tt)
Section 5.5.
"Demolition Extension Fee" shall have the meaning ascribed to the term in
(uu) "Depository" shall mean a Lender designated by Leasehold Mortgagee (or
if no Leasehold Mortgagee exists, as mutually agreed upon by City and Developer as well as:
(x) if a Subleasehold Mortgage is in place, the applicable Subleasehold Mortgagee and (y) if
any Mezzanine Financing is in place, each Mezzanine Financing Source). A Leasehold
Mortgagee that is a Lender may designate itself as Depository.
(vv) "Development Fee" shall mean any and all fees that are both paid by or on
behalf of Developer to Developer or its Affiliates for administrative services rendered in
connection with the development of the Property or any portion thereof.
(ww) "Effective Date" shall have the meaning ascribed to such term is Section
2.2.
(xx) "Eligibility Requirements" means, with respect to any Person, that such
Person (together with any Affiliates of such Person) has total real estate assets located in the
United States (in name or under management) in excess of $500,000,000 and (except with
respect to a pension advisory firm or similar fiduciary) either (x) capital/statutory surplus or
shareholder's equity of $250,000,000 or (y) market capitalization of at least $500,000,000 based
on assets located in the United States.
(yy) "Eligible Lender" means any Lender that, as of the date said Lender makes
or obtains an interest in the applicable loan, satisfies the following:
(a) a real estate investment trust, bank, saving and loan association, investment bank,
insurance company, trust company, commercial credit corporation, pension plan, pension
fund or pension advisory firm, mutual fund, government entity or plan, provided that any
such Person referred to in this clause (a) satisfies the Eligibility Requirements;
(b) an investment company, money management firm or "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933, as amended, or an
institutional "accredited investor" within the meaning of Regulation D under the Securities
Act of 1933, as amended, provided that any such entity referred to in this clause (b) satisfies
the Eligibility Requirements;
(c) an investment fund, limited liability company, limited partnership, general
partnership, corporation, trust or similar entity or investment vehicle where a Permitted
Fund Manager acts as general partner, managing member or, directly or indirectly, as a
fund manager, investment manager, asset manager, collateral manager or otherwise acts in
a similar management capacity and at least fifty percent (50%) of the equity interests in
such investment vehicle are owned, directly or indirectly, by one or more of the following:
a Person that is otherwise an Eligible Lender under the other clauses of this definition, an
institutional "accredited investor" within the meaning of Regulation D promulgated under
9
the Securities Act of 1933, as amended, and/or a "qualified institutional buyer" within the
meaning of Rule 144A promulgated under the Securities Exchange Act of 1934, as
amended, provided such institutional "accredited investors" or "qualified institutional
buyers" that are used to satisfy the fifty percent (50%) test set forth above in this clause (c)
satisfies the Eligibility Requirements;
(d) an institution substantially similar to any of the foregoing entities described in
clause (a), clause (b) or clause (c) of this definition that satisfies the Eligibility
Requirements; or
(e) any entity Controlled or managed by or under common Control or management
with any of the Persons described in the foregoing clauses (a), 02), tE), and/or �;
provided, however, that no Person shall be an "Eligible Lender" if at the time the
applicable Person obtains an interest in the applicable loan, such Person is a Prohibited Person.
To the extent any Mortgagee or Mezzanine Financing Source is made up of a lending syndicate
(as opposed to a single Lender), the applicable lending syndicate shall be considered an Eligible
Lender if, as of the applicable date of determination, not less than 51% of both the outstanding
balance and any remaining commitment is held by Lenders that individually satisfy the foregoing
"Eligible Lender" definition.
(zz) "Effective Revenue Percentage" shall have the meaning ascribed to the term
in Section 4.3.2.
(aaa) "Encumbrance" shall mean any imposition upon the Property or other lien,
charge or similar matters affecting that which could adversely affect clear and marketable title
of City.
(bbb) "Environmental Laws" shall have the meaning ascribed to such term in
Section 12.1.
(ccc) "Environmental Report" shall mean the Phase I Environmental Site
Assessment prepared for Developer by Langan Engineering and Environmental Services, Inc.
with respect to the Property dated March 10, 2022 under job number 300293300.
(ddd) "Event(s) of Default" shall have the meaning ascribed to such term in
Section 16.1 (as to Events of Default of Developer) and Section 16.7 (as to Events of Default
of City), as the context dictates.
(eee) "Evidence of Termination of Existing Lease" shall have the meaning
ascribed to the term in Article XXV.
(fff) "Existing Hotel" shall mean the hotel structure known as the Hyatt Regency
Miami located on the leased premises under the Existing Lease, prior to the new development
contemplated herein.
10
(ggg) "Existing Improvements" shall mean the buildings, structures and other
improvements and appurtenances existing upon the Land as of the Effective Date, including the
Existing Hotel and the JLK Center.
(hhh) "Existing Lease" shall mean that certain Lease and Agreement for
Development dated as of September 13, 1979, originally entered into by and between the City
of Miami, as City, and Miami Center Associates, Ltd. ("MCA"), as Developer, recorded in
Official Records Book 10830, Page 368, of the Public Records, relating to a certain portion of
the tract of land described in Exhibit A, as amended by a certain First Supplement to Lease and
Agreement for Development dated July 1, 1980, between the City and MCA, recorded in
Official Records Book 10830, Page 440, of the Public Records, and restated by a certain Lease
and Agreement for Development dated as of September 13, 1979, executed as of July 16, 1980,
between the City and MCA, and as further amended by (i) a certain Amendment #1 dated
September 11, 1986, between the City and MCA, (ii) a certain Amendment #2 to Lease
Agreement dated September 1, 1987, between the City and MCA, recorded in Official Records
Book 13652, Page 233, of the Public Records, (iii) a certain Amendment #3 dated as of
September 1, 1988, between the City and MCA, (iv) a certain Amendment #4 dated December
23, 1992, between the City and MCA, recorded in Official Records Book 15757, Page 4219, of
the Public Records, (v) certain Amendment #5 dated July 1, 1994, between the City and Aetna
Life Insurance Company, a Connecticut corporation ("Aetna"), recorded in Official Records
Book 16836, Page 3437, of the Public Records ("Amendment #5"); and, (vi) a certain
Amendment #6 dated July 30, 1997, but affective as of January 1, 1997, between the City and
Hyatt Equities, L.L.C. ("Assignor"), recorded in Official Records Book 17734, Page 1111, of
the Public Records ("Amendment #6") and as supplemented or otherwise affected by a certain
Operation and Maintenance Agreement dated December 12, 1984, between the City and MCA,
a certain Settlement Agreement dated as of July 1, 1994, between the City and Aetna, a certain
Lease Assumption Agreement dated July 1, 1994, between the City and Aetna, recorded in
Official Records Book 16836, Page 3474, of the Public Records, a certain Assignment and
Assumption Agreement dated July 28, 1997, between Aetna, as assignor, and Assignor, as
assignee, a certain Letter Agreement Re: Lease Agreement; Operation and Maintenance
Agreement dated November 14, 2008 between the City and Assignor, a certain Letter
Agreement Re: Replacement of Cooling Tower and Chillers dated November 16, 2011 between
the City and Assignor and a certain Reconciliation Agreement dated as of December 6, 2017
between the City and Assignor, all as assigned to Developer on December 17, 2021 pursuant to
an Assignment and Assumption Agreement.
(iii) "Fee" shall mean the Refinance Fee and/or Transfer Fee as the context
dictates.
(jjj) "Final Community Benefits Plan" shall have the meaning set forth in
Section 5.16.
(kk() "Financial Close" shall mean the procurement by Developer of debt and/or
equity financing in an amount sufficient to fund the full projected cost of developing,
constructing, and equipping the Minimum Initial Program or, upon the approval of the City
Manager, which shall not be unreasonably withheld, the procurement by Developer of debt
11
and/or equity financing in an amount sufficient to fund not less than 50% of the full projected
cost of developing, constructing, and equipping the Minimum Initial Program.
(111) "First Class Hospitality Operator" shall mean any company and product
type which, at the time of its engagement, enjoys a reputation in the hotel industry comparable
in standing to (or better than) that which is enjoyed (as of the Effective Date) by Hyatt
Corporation and its Hyatt Regency product type, as reasonably determined by the City Manager.
(mmm) "Force Majeure" shall mean actual delays beyond the reasonable control of
a Party required to perform, such as (but not limited to) delays due to strikes; slowdowns;
lockouts; labor disputes; acts of God; floods; fires; unusually inclement weather conditions,
tropical storms, tornados, hurricanes, and other such events; sinkholes; casualty; any act, neglect
or failure to timely perform of or by one Party that causes the other Party to be delayed in the
performance of any of its obligations hereunder; war; enemy action; civil disturbance; acts of
terrorism; sabotage; restraint by court or public authority; governmental moratorium;
governmentally mandated shutdowns or work limitations (including shutdowns or limitations
relating to actual or potential archaeological resources); the declaration of a state of emergency
by governmental authority having jurisdiction; litigation or administrative challenges by third
parties to the Referendum or the results of the Referendum or the approval of this Agreement
by the City of Miami or the execution or performance of Developer or the procedures leading
to its execution; extraordinary inability to obtain labor or materials at reasonable prices
(including, without limitation, any delays caused by extraordinary supply -chain issues);
extraordinary delays in settling insurance claims; moratoriums or other delays relating to
Applicable Laws; extraordinary delays in obtaining governmental approvals or permits or
inspections beyond the reasonable control of Developer; governmentally -declared epidemics,
pandemics, quarantines; any occurrence which makes it illegal or impossible for Developer to
perform its applicable obligations under this Agreement; and/or delays due to site conditions
discovered during construction; and/or extraordinary delays due to unknown site conditions
discovered after the Commencement Date (e.g., indigenous peoples burial grounds or other
protected archeological conditions, environmental contamination, geothermal systems);
relocation of utilities, communications lines or cabling not subject to a recorded easement; the
requirement by governmental authority of off -site improvements; delay in delivery of the JLK
Center and Convention Center Land; in each case, including any material and adverse changes
in general economic or market conditions directly or indirectly resulting from the foregoing
conditions. Neither Party shall be entitled to claim Force Majeure for events caused, directly
or indirectly, by the claiming Party or by individuals or entities under its control. Force Majeure
is not intended to include any contract dispute between Developer and its contractors. A Force
Majeure event shall serve to extend any applicable deadline under this Agreement only to the
extent written notice thereof is provided to the other Party within ten (10) Business Days after
the party claiming delay has reasonably concluded that such event constitutes an event of Force
Majeure. For the avoidance of doubt, the mere occurrence of the one of the foregoing events
(such as a statewide declaration of emergency) shall not constitute an event of Force Majeure
except to the extent such event actually contributes to an delay in performance, and the notice
required by the preceding sentence shall include an explanation of how the claimed event of
Force Majeure has actually delayed or will actually delay performance.
12
(nnn) "Gambling" shall mean the act of playing or engaging in any game of cards,
keno, roulette, faro or other game of chance, at any place, by any device whatsoever, for money
or any other thing of value, including, without limitation, casinos and sports -betting (provided,
however, that Developer shall not be responsible to monitor or prohibit personal online sports -
betting or other gambling activity that is conducted by residents or patrons of the Project on
their personal smart phones, computers, or similar devices from which Developer derives no
Gambling revenue).
(000) "Gencom" shall mean Gencom Platform, LLC, a Delaware limited liability
company, or its affiliates.
(ppp) "Gross Insurance Proceeds" shall mean the actual amount of insurance
proceeds paid following an insured casualty to the Improvements.
(qqq) "Gross Revenues" "Gross Revenue" shall mean all revenue generated or
derived and received, directly or indirectly, by Developer as a result of this Agreement. Gross
Revenue shall include, but not be limited to, (a) income received for the occupancy of space
within the Improvements or any portion of the Property (including any parking space), (b) any
revenue realized in lieu of rents pursuant to claims asserted under any business interruption
insurance or rental insurance proceeds as described in Article XIII, and (c) revenue received
as a result of granting certain rights to a third party such as the granting of easements and/or the
right to install and/or use equipment in or on any part of the Property and/or Improvements,
such as advertising or directional signage and antennae. For purposes of calculating Gross
Revenue, items of revenue included in the definition of Gross Revenue hereunder shall be
included without duplication. Notwithstanding anything to the contrary contained herein, (i)
with respect to any portion of the Property leased to a Space Lessee, only the rent paid by such
Space Lessee to its landlord or sublessor under the Space Lease (but not Gross Revenue of such
subleased portions of the Property) shall be included in calculating Gross Revenue hereunder,
and (ii) if any portion of the Project is subleased to a Sublessee under a "master lease" pursuant
to which the Sublessee further subleases the Property to one or more sub -Sublessees or Space
Lessees, then the monies received by the Sublessee under such master lease shall be included
in Gross Revenue hereunder in lieu of Developer with respect to such subleased portion of the
Proj ect.
Gross Revenues with respect to hotel/hospitality use shall be determined in
accordance with the Uniform System. Gross Revenues for other uses shall be determined in
accordance with generally accepted accounting principles.
The following expenses and other items shall be deducted or excluded in
calculating Gross Revenue for all purposes of this Agreement:
(i) Security deposits (but interest earned by Developer on security
deposits to the extent not required to be paid to others shall be included in Gross Revenue);
(ii) Any insurance proceeds (except for any business interruption
insurance or rental insurance proceeds as hereinabove provided);
13
(iii) Any condemnation awards (except for an award from a temporary
taking pursuant to Article XIV herein);
(iv) Any proceeds of sale, refinancing, assignment, or sublease, or sub -
sublease of any Phase or Improvements or portion of Improvements or capital contributions or
equity payments, or any refunds of sales tax, income tax, real estate tax, personal property tax, or
other tax refunds, abatements or rebates;
(v) Ad valorem taxes on the Land and Improvements (including the
Leasehold Estate) and any Impositions, including without limitation ad valorem taxes on the
Improvements, sales or any other governmental charges on Rent or this Agreement, federal, state
or local excise, sales, use, occupancy, tourist taxes, "bed" taxes, governmental surcharges, parking
surcharges, or similar taxes or charges collected directly from Sublessees, Space Lessees, patrons,
guests, invitees, or otherwise;
(vi) Any tips or gratuities or service charges added to a customer's bill
and distributed as compensation to employees of any business operating on the Property;
(vii) Any credits, rebates or refunds made to customers, guests or patrons,
and any unrealized or foregone revenue as a result of promotions or complimentary services;
(viii) Any sums and credits received for lost, defective, or damaged
merchandise;
(ix) Any proceeds from the sale or other disposition of personal property
(such as inventory, furniture, fixtures and/or equipment) or capital assets not in the ordinary course
of business;
(x) Any interest income or income from late charges;
(xi) Bad debts owed by an outside third party and written off by
Developer, in accordance with sound accounting principles consistently applied, but such bad
debts shall be included when, and if, actually received by Developer in the future;
(xii) Amounts paid by Developer to cure defaults of Sublessees under
Subleases or Space Lessees to the extent such monies are reimbursed to Developer by such
Sublessees or Space Lessees;
(xiii) Credit or charge card commissions or similar charges;
(xiv) Except as provided above, Gross Revenue of any Sublessee, sub -
Sublessee, licensee, concessionaire renting or using space at the Project;
(xv) Parking charges or fees and service charges payable by patrons and
users of parking spaces and other facilities within the parking areas collected by or paid over to
any third -party manager or operator of parking facilities;
14
(xvi) Amounts received under Subleases, licenses, or concessions for
payment of real estate taxes, personal property taxes, "common area maintenance charges"
actually incurred, brokerage commissions, room commissions, rent concessions, tenant
improvement dollars, tenant improvement costs applied against base or other rent amounts
whenever applied, insurance premiums, utilities, or other reimbursements to a landlord or owner
for costs incurred or sums advanced by such landlord or owner;
(xvii) Monies collected for events that are done for charities to the extent
the amounts collected are paid to the charitable sponsor or not -for -profit organization;
(xviii) Sums received for use of laundry services provided to Developers,
Sublessees, or patrons, if any;
(xix) Monies or sums received by Developer for the purpose of providing
amenities, insurance coverage, security services, maintenance of common areas, equipment and
facilities and replacement, betterments and/or additions to Improvements, equipment and facilities
located on the Property and all reimbursements for such services, amenities and fees paid to
Developer on behalf of its Sublessees, Space Lessees, subtenants or any other entity and any and
all other expenses that may be construed to be pass -through expenses; i.e., expenses for goods and
services provided to subtenants, space tenants or Sublessees;
(xx) commissions or similar charges paid on room rentals;
(xxi) All deposits which are received as any type of guarantee, e.g. of
reservations, future purchase, certain performance, minimum revenues or other reasons such
amount will be refunded, deposited, or converted to Gross Revenue;
(xxii) Any other monies that are not in the nature of income or revenues
from operations in the ordinary course of business.
(rrr) "Hazardous Materials" shall have the meaning ascribed to such term is
Section 12.1.
(sss) "Hotel Services Agreement" shall mean that certain Hotel Services
Agreement between Developer and Hyatt Corporation dated December 17, 2021.
(ttt) "Hyatt" shall mean Hyatt Corporation or Hyatt Equities, L.L.C. or affiliates
of either of them.
(uuu) "Hyatt Proprietary Materials" shall have the meaning set forth on Schedule
5.9.
(vvv) "Impositions" shall mean all ad valorem taxes, special assessments, sales
taxes and other governmental charges and assessments levied or assessed with respect to the
Property and the activities thereon or therein.
(www) "Improvements" shall mean the Existing Improvements (prior to their
demolition), together with the buildings, parking areas, parking garages, above and below
15
surface improvements, utilities, utility lines and appurtenant equipment, vaults, infrastructure
and other improvements to be developed and constructed on, above or below the Property or a
portion thereof, and all fixtures located or to be located therein which are owned by Developer
(including any replacements, additions and substitutes thereof) as part of the Project on the
Property. If this Agreement terminates with respect to any portion of the Property, or any
portion is otherwise released from the terms and conditions of this Agreement, the term
"Improvements" shall exclude the improvements on the portion of the released Property.
(xxx) "Irrevocable Letter of Credit" shall mean an irrevocable commercial
standby letter of credit for the amount this Lease then requires for the applicable letter of credit,
provided that: (a) the form and substance of such letter of credit are reasonably satisfactory to
Landlord and Tenant; (b) such letter of credit is payable upon Landlord's presentation of the
original of such letter of credit together with a sight draft to the issuer, accompanied by
Landlord's signed statement that Landlord is entitled to draw on such letter of credit; (c) the
issuer is a member bank of the New York Clearing House Association; and (d) the issuer
maintains a branch in the State of Florida where such letter of credit may be presented for
payment. In addition to the foregoing, such letter of credit shall provide for its: (i) continuance
for at least one year from issuance; and (ii) to the extent reasonably obtainable by Tenant at no
additional cost, automatic extension for additional periods of one year from initial expiry date
and each subsequent expiry date, unless the issuer gives Landlord notice of its intention not to
renew such letter of credit not less than 60 days before such expiry date (a "Nonrenewal
Notice").
(yyy) "JLK Center" shall mean the James L. Knight Miami Convention Center
located generally at 400 Southeast 2nd Avenue, Miami, Florida 33131and the portion of the
Property dedicated to it, which constitutes all of the Property other than the Property leased
pursuant to the Existing Lease.
(zzz) "Land" shall mean the real property legally described on Exhibit A.
(aaaa) "Lease" shall mean this Agreement, and any addendums, exhibits, and
schedules thereto, and all amendments, replacements, supplements, addenda or renewals
thereof.
(bbbb) "Leasehold Estate" shall mean all of Developer's right and interest as
Developer in, to and under this Agreement, the Property and the Improvements, as applicable,
and all of Developer's rights and privileges arising under this Agreement.
(cccc) "Leasehold Mortgage" shall mean a mortgage or mortgages or other similar
security agreements constituting an encumbrance or lien upon Developer's Leasehold Estate,
or any part of it, and Developer's interest in the Improvements and such other personal property
of Developer directly or indirectly pledged as security pursuant to such mortgage, security
agreement, encumbrance or lien. The Leasehold Mortgage may never lien, pledge, hypothecate,
or otherwise encumber or subordinate the fee simple interest of City.
Mortgage.
(dddd) "Leasehold Mortgagee" shall mean a Lender holding a Leasehold
16
(eeee) "Lease Term" shall have the meaning ascribed to such term in Section 3.1.
(ffff) "Lease Year" shall mean each separate and consecutive period of twelve
(12) full calendar months beginning upon the first day of the first month following the
Commencement Date and upon each anniversary of such date thereafter. Developer may, upon
written notice to City, cause the Lease Year to be a calendar year. The first Lease Year shall
include any partial month at the beginning of the Lease Term, anything in this Agreement to
the contrary notwithstanding.
(gggg) "Lender" shall mean a Federal or State bank, savings bank, association,
savings and loan association, credit union, commercial bank, foreign banking institution, trust
company, family estate or foundation, insurance company (whether foreign or domestic),
pension fund, a real estate investment trust, an entity that qualifies as a "REMIC" under the
Internal Revenue Code of 1986, as amended, any trust or trustee in connection with any
securitization transaction (including, without limitation a "collateralized loan obligations"
transaction), any other public or private investment fund or entity; a brokerage or investment
banking organization; an employees' welfare, benefit, pension or retirement fund; an
institutional leasing company; an entity qualified to provide funding under the EB-5 program
pursuant to USCIS (United States Citizenship and Immigration Service) guidelines; any
governmental agency or entity insured by a governmental agency or similar institution
authorized to take mortgage loans in the State of Florida, in all events whether acting
individually or in a fiduciary or representative capacity (such as an agency capacity), or any
combination of Lenders. The term Lender also includes (x) a Person that is controlled by,
controls or is under common control with a Lender as described in this paragraph, (y) any Person
which is a party to a bond financing, as the initial purchaser or indenture trustee of a bond,
certificate, warrant or other evidence of indebtedness, or any fiduciary of such issuer, owner or
holder, or any provider of credit enhancement and/or liquidity support for such indebtedness,
and/or (z) any Person providing purchase money financing in connection with a sale,
assignment or transfer of this Agreement or any interest herein. References to Lender under
this Agreement shall mean an entity or entities meeting the above definition that is a Leasehold
Mortgagee or a Subleasehold Mortgagee or a Mezzanine Financing Source (or any combination
thereof).
(hhhh) "Liens and Encumbrances" shall mean any liens, Encumbrances,
mortgages, easements by third parties unrelated to Developer, lis pendens, or any other matters
affecting the title of the Property, or any part thereof, which would preclude or otherwise
materially affect Developer's quiet enjoyment of the Property. Liens and Encumbrances shall
not include mortgages or other liens or Encumbrances enforceable by and for the benefit of
Developer or its related entities.
(iiii) "Marine Agreements" shall mean any agreements for the use, operation, or
development of the Miami River submerged land adjoining the Land, seawall located on the
Land, or the Land, including the Restrictive Covenants recorded in Official Records Book
32276, Page 119 of the Public Records, the Florida Inland Navigation District Project
Agreement between City and the Florida Inland Navigation District dated October 31, 2017,
the Florida Inland Navigation District Project Agreement between City and the Florida Inland
Navigation District dated February 1, 2022, and the Sovereignty Submerged Land Lease
17
between City as Lessee and the Trustees of the Internal Improvements Trust Fund of the State
of Florida as Lessor (BOT File No. 130356716, PA No. 13-376956-001-002-EE).
(jjjj) "Master Association" shall have the meaning ascribed to the term in Section
10.3.1.
(kkkk) "Master Covenants" shall mean those certain covenants, conditions,
restrictions and easements for the Project to be prepared by or on behalf of Developer and
recorded in the Public Records, which, inter alia, will govern the relationship of the Phases of
the Project and/or portions of the Project leased pursuant to this Agreement and/or the
Bifurcated Leases; govern the use of certain components of the Property (which may include,
without limitation, walkways, promenades, driveways, parking facilities, park areas, project -
wide lighting and signage, and other shared components, areas and facilities) shared by some
or all of the Property leased pursuant to this Agreement and/or the Bifurcated Leases; establish
easements for access, pedestrian and vehicular ingress and egress, utilities, structural support,
encroachments, loading areas and other common property easements; address landscaping,
maintenance and repairs of shared facilities, and financial contributions by each Phase of the
Project and/or portions of the Project leased pursuant to this Agreement and any Bifurcated
Leases to cover the cost of the foregoing; and establish certain maintenance and use standards
with respect to the Property, as modified, amended, restated, supplemented and extended from
time to time.
(1111) "Memorandum of Lease" shall have the meaning ascribed to the term in
Section 21.24.
(mmmm) "Mezzanine Financing" shall mean a loan or equity investment
made by any Mezzanine Financing Source to provide financing or capital for the Project or any
portion thereof, which shall be subordinate to any Leasehold Mortgage (or, to the extent
applicable, Subleasehold Mortgage) and may be secured by, inter alia, a Mortgage and/or a
pledge of any direct or indirect equity or other ownership interests in Developer or a Sublessee
or structured as a preferred equity investment with "mezzanine style remedies", the exercise of
which would result in a change of control. For purposes of clarification, in no event shall an
Accommodation Pledge be treated as Mezzanine Financing for purposes hereunder.
(nnnn) "Mezzanine Financing Source" shall mean a Lender that has provided
Mezzanine Financing to a direct and/or indirect owner of interest in Developer or any Sublessee.
(0000) "Milestone Date(s)" shall have the meaning ascribed to such term is Section
5.5.
(pppp) "Minimum Initial Program" shall have the meaning ascribed to such term
in Section 5.3.
(qqqq) "Minimum Initial Program Extension Fee" shall have the meaning ascribed
to such term is Section 5.5.
(rrrr) "Minimum Rent" shall mean have the meaning ascribed to such term in
Section 4.3.1.
18
(ssss) "Minimum Rent Commencement Date" shall mean the earlier of (i) the date
of issuance of a temporary certificate of occupancy for the entire Minimum Initial Program and
(ii) the sixth Lease Year.
(tttt) "MIP Construction Loan" shall mean one or more Construction Loan(s)
from one or more Leasehold Mortgagee(s), Subleasehold Mortgagee(s), and/or Mezzanine
Financing Sources for the development and construction of the Minimum Initial Program (or
expanded program, in the event Developer elects to undertake more than the Minimum Initial
Program in connection with its initial construction).
(uuuu) "Mortgage" shall mean Leasehold Mortgage(s) or Subleasehold
Mortgage(s) (or both) as the context dictates.
(vvvv) "Mortgagee" or "Mortgagees" shall mean Leasehold Mortgagee(s) or
Subleasehold Mortgagee(s) (or both) as the context dictates.
(wwww) "Net Condemnation Award" shall mean the actual amount of the
award paid in connection with or arising from the acquisition or other taking of all or
Substantially All of the Property or any portion of the Property by any authority, less all
reasonable out-of-pocket expenses incurred by City, Developer or Leasehold Mortgagee in
connection with obtaining such award, including, without limitation, all reasonable attorneys'
fees and disbursements incurred in connection therewith.
(xxxx) "Optional Residential Tower" shall mean a residential tower, if any,
constructed by Developer in addition to the Required Residential Tower, as further described
as Tower 3 (or at Developer's option, as Tower 2) in Exhibit D, as such may be amended in
accordance with the terms of this Agreement. For the avoidance of doubt, the Optional
Residential Tower is not included in the Minimum Initial Program and may be included in the
Project at the option of Developer.
(yyyy) "Partial Taking" shall mean the taking of less than Substantially All of the
Property for any public or quasi -public purpose by any lawful power or authority by the exercise
of the right of condemnation or eminent domain or by agreement among City, Developer,
Leasehold Mortgagee and those authorized to exercise such right.
(zzzz) "Participation Rent" shall have the meaning ascribed to such term in Section
4.3.2.
(aaaaa) "Party" or "Parties" (whether or not by use of the capitalized term) shall
mean jointly or individually (as the context dictates) City and Developer.
(bbbbb) "Permit" shall mean any permit issued or to be issued by the
appropriate governmental agency and/or department, including applicable permits for
construction, demolition, installation, foundation, dredging, filling, the alteration or repair or
installation of sanitary plumbing, water supply, gas supply, electrical wiring or equipment,
elevator or hoist, HVAC, sidewalk, curbs, gutters, drainage structures, paving and the like.
19
(ccccc) "Permitted Fund Manager" means any Person (together with any Affiliates
of such Person) that on the date of determination is (i) a nationally -recognized manager of
investment funds investing in debt or equity interests relating to commercial real estate, (ii)
investing through a fund with committed capital of at least $250,000,000 and (iii) not a
Prohibited Person.
(ddddd) "Permitted Use" shall mean hospitality, multi -family,
conference/exhibition center, retail, restaurant, entertainment, co -working, parking and other
ancillary uses thereto, or any other lawful use other than a Prohibited Use.
(eeeee) "Person" shall mean (whether or not by use of the capitalized term) shall
mean any natural person, trust, firm, partnership, corporation, limited liability company, joint
venture, association or any other legal or business entity or investment enterprise.
(fffff) "Phase" and "Phases" shall have the meanings ascribed to such terms in
Section 5.2.
(ggggg) "Pre -Commencement Period" shall mean the period between the
Effective Date and the Commencement Date.
(hhhhh) "Pre -Minimum Initial Program Transfer" shall have the meaning
ascribed to such term in Section 10.1.
(11111) "Profit" shall mean:
(i) In the case of a Transfer that is the initial Transfer of the portion of
the Property and Improvements being transferred, an amount equal to the sum of (A) the gross
purchase price under the sales contract for the portion of the Property and Improvements being
transferred, less (B) Project Costs for such portion of the Property and Improvements that are the
subject of such Transfer, as reasonably determined by Developer and City Manager working
together in good faith, less (C) all Transaction Costs for the Transfer; and
(ii) In the case of any subsequent Transfer, an amount equal to the sum
of (A) the gross purchase price paid by the transferee for its acquisition of the portion of the
Property being acquired less (B) the Transaction Costs incurred by the transferor in connection
with such acquisition, less (C) the sum of the gross purchase price paid by the transferor in
connection with its acquisition of the Property being Transferred plus the Transaction Costs
incurred by the transferor in connection with the Transfer.
(jjjjj) "Prohibited Person" mean any Person who, as of the time when the
applicable transaction occurs or approval or consent of the City or the City Manager is
requested: that (i) has had any criminal felony convictions within the immediately preceding
ten (10) years; (ii) is named on any federal, state, county and municipal and/ or political
subdivision list of persons with whom that entity is prohibited from transacting business; (iii)
is on the Scrutinized Companies with Activities in Sudan List, the Scrutinized Companies with
Activities in the Iran Petroleum Energy Sector List, Scrutinized Companies that Boycott Israel
List, or is engaged in any business operations in Cuba or Syria, as those terms are used and
defined pursuant to Sections 287.135, 215.473, and 215.4725, Florida Statutes; (iv) is convicted
20
of a Public Entity Crime or has been placed in the Convicted Vendors List pursuant to Florida
Statute 287.133 or a similar law, rule or regulation; (v) holds any position in the City or on any
board, trust, agency or other entity created by the City's Charter or Code, or otherwise has a
conflict of interest pursuant to City Code Chapter 2, Article V, and Miami -Dade County Code
Section 2-11.1; (vi) has received formal notice of a material breach under any lease or other
written agreement with Landlord and such breach remains uncured; (vii) has been or remains
debarred by any federal, state, county, or City, any respective agency thereof, or any public
school district or special district within the immediately preceding ten (10) years; (viii) has been
subject to any voluntary or involuntary bankruptcies that have not been discharged or similar
proceedings or has had past, present or pending any bankruptcy, assignments for the benefit of
creditors, appointment of a receiver for a substantial portion of its assets, or similar actions,
each within the past seven (7) years on projects or businesses they have owned, operated, or
controlled a substantial interest (i.e., ownership of twenty percent (20%) or more of the entity
stock or shares); (ix) has been determined to be not responsible as defined by Sections 18-73
and 18-95 of the Code and by the laws of the State of Florida with respect to a contract
substantially similar in scope and/or type to this Agreement within the immediately preceding
ten (10) years; and (x) is prohibited by Applicable Law then in effect from doing business with
the City; provided, however, that if City transfers its interest as landlord under this Agreement
to a non -governmental entity, clauses (v) and (x) in this definition shall no longer apply.
(kkkkk) "Prohibited Use" shall mean the uses identified as Prohibited Uses
on Schedule 1.3(kkkkk).
(11111) "Project" shall mean the overall development of the Improvements on the
Land (inclusive of the Improvements included in the Minimum Initial Program), in one or more
Phases, as contemplated by this Agreement.
(mmmmm) "Project Costs" shall mean, collectively, all costs and expenses
actually incurred by Developer in connection with the development of the Property, including
without limitation (i) the development and construction of all Improvements on the Property,
whether in connection with the initial development and construction of the Improvements or
the subsequent repair, replacement, refurbishment or maintenance thereof, including without
limitation, all hard costs (including general conditions, general contractor fee, overhead,
insurance, bonds and contingencies), and all soft costs (including surveying, testing,
architectural, design, engineering, permitting, project/construction management fees, legal fees
and any other soft costs), including a proportionate share of the hard and soft costs for
infrastructure and other common areas or shared facilities that benefit the Improvements in
question, and also including a Development Fee (but excluding any portion of the Development
Fee that exceeds four percent (4%) of development costs), and (ii) all working capital, interest
expense, operating expenses and other carrying costs associated with the Property and
Improvements located thereon. For the avoidance of doubt, to the extent Project Costs are
allocated amongst portions of the Improvements, including in connection with any Bifurcated
Lease, the sum of all such allocations shall equal the total Project Costs for all Improvements.
(nnnnn) "Property" shall mean, collectively:
(i) The Land;
21
existing on the Land;
(ii) The Improvements and any other improvements now or hereafter
(iii) The airspace above the Land; and
(iv) The subsurface rights under the Land, sidewalks, Improvements,
streets, avenues, curbs and roadways comprising or abutting the Land, and all rights of ingress and
egress thereto.
(00000) "Public Records" shall mean the Public Records of Miami -Dade
County, Florida.
(ppppp) "Redevelopment Agreement" shall mean that certain
Redevelopment Agreement made by and between Hyatt Corporation, as agent of Hyatt Equities,
L.L.C. and UNITE HERE Local 355 executed on June 1, 2018 and assigned to Hyatt
Corporation as agent of Developer, as amended by that certain Amendment to the
Redevelopment Agreement dated August 2, 2022, and Second Amendment to the
Redevelopment Agreement dated May 8, 2023, and as otherwise amended from time to time.
(qqqqq) "Referendum" shall mean a general vote by the electorate of the City
of Miami at the general election of November 8, 2022 regarding the authorization of the City
Commission to approve this Agreement as has been referred to them by the City Commission
for a direct decision.
(rrrrr) "Refinance Fee" shall have the meaning ascribed to the term is Section
4.11.1.
(sssss) "Refinance Loan" shall mean shall mean any loan obtained by Developer
and secured by a Mortgage on the Property or any portion thereof, excluding (i) the proceeds of
any Construction Loan, (ii) the proceeds of any loan required to be escrowed or reserved or
otherwise not available for the use of the borrower, (iii) working capital loans, (iv) loans
extended from an Affiliate(s) of Developer, (v) a loan that refinances some or all of the MIP
Construction Loan, or (vi) a loan made to a transferee in connection with obtaining a Bifurcated
Lease.
(ttttt) "Rent" shall mean collectively, Construction Rent, Minimum Rent and
Participation Rent, and any other rents, costs and expenses expressly denominated as Additional
Rent.
(uuuuu) "Required Deposit Threshold" shall mean for purposes of Net
Condemnation Award, as applicable, the greater of (i) Five Million Dollars ($5,000,000),
adjusted by the CPI Annual Increase, or (ii) the amount established by the Leasehold Mortgagee
as the applicable threshold under which Developer may retain any Net Condemnation Award.
(vvvvv) "Required Hotel Tower" shall mean a tower with a minimum of 615
hotel rooms and otherwise meeting the hotel requirements of the Minimum Initial Program, and
as further described in Exhibit D, as such may be amended in accordance with the terms of this
Agreement.
22
(wwwww) "Required Residential Tower" shall mean a residential tower with a
minimum of 682 units and otherwise meeting the residential requirements of the Minimum
Initial Program, and as further described as Tower 2 (or at Developer's option, as Tower 3) in
Exhibit D, as such may be amended in accordance with the terms of this Agreement.
(xxxxx) "Security Deposit Letter of Credit" have the meaning ascribed to
such term in Section 4.5.
(yyyyy) "Space Lease" shall mean a lease (other than this Agreement or a
Bifurcated Lease), sublease, license or other agreement between Developer or a Sublessee and
a third party for the use or occupancy of space on or within the Property but expressly excluding
any Sublease. For the avoidance of doubt, residential leases shall be considered Space Leases.
(zzzzz) "Space Lessee" shall mean the tenant/Developer, subtenant/Sublessee, or
licensee, or their successors or assigns, under a Space Lease.
(aaaaaa) "Sublease" shall mean any instrument pursuant to which the entirety
of the Property or the entirety of any or more component(s) of the Property (i.e. a hospitality
component, a multi -family component, a retail component) is subleased or sub -subleased,
including a grant by Developer to a Sublessee for the right to operate or develop a specific
Phase(s) or component of the Project, but expressly excluding any Space Leases.
(bbbbbb) "Subleasehold Mortgage" shall mean a mortgage or mortgages or
other similar security agreements given to any Subleasehold Mortgagee encumbering the
subleasehold interest of a Sublessee under a Sublease, and shall be deemed to include any
mortgage or trust indenture under which any Sublease shall have been encumbered, as modified,
amended, restated, renewed and consolidated from time to time.
(cccccc) "Subleasehold Mortgagee" shall mean a Lender holding a
Subleasehold Mortgage.
(dddddd) "Sublessee" shall mean the entity to which a Sublease is granted or
its successors or assigns under any such Sublease.
(eeeeee) "Substantial Completion" shall mean the substantial completion of
the applicable Construction Work as evidenced by the delivery to Landlord of (i) a certificate
from Tenant's architect certifying that the applicable Construction Work has been substantially
completed in accordance with the applicable construction plans, subject to typical "punch -list"
items and (ii) a temporary Certificate of Occupancy (or completion, as applicable) or their
equivalent. Portions of the Improvements that are intended to be leased to third -parties and
built -out pursuant to the lease(s), may be delivered in "cold dark shell" condition and such
delivery shall not be deemed to cause Substantial Completion to not have occurred.
(ffffff) "Substantially All of the Property" shall mean such portion of the Property
as, when so taken, would leave, in Developer's good faith determination, a balance of the
Property that, due either to the area so taken or the location of the part so taken in relation to
the part not so taken, would not, under economic conditions, physical constraints, zoning laws,
building regulations and other legal requirements then existing, readily accommodate a new or
23
reconstructed building or buildings and other improvements of a type substantially comparable
to the Improvements existing at the Date of Taking. Developer shall notify City, on or about
the Date of Taking, in writing of its determination as to whether or not Substantially All of the
Property has been taken. If Developer does not determine that Substantially All of the Property
has been taken, then this Agreement shall not terminate and expire but shall continue in force
and effect, subject to the other provisions of Article XIV. If Developer determines that
Substantially All of the Property has been taken, then this Agreement shall terminate and expire
on the Date of Taking pursuant to Section 14.1.1.
(gggggg) "Total Taking" shall mean the taking of all or Substantially All of
the Property for any public or quasi -public purpose by any lawful power or authority by the
exercise of the right of condemnation or eminent domain or by agreement among City,
Developer, Leasehold Mortgagee and those authorized to exercise such right.
(hhhhhh) "Tract B" shall mean Tract B of Miami Convention Center
Amended, as recorded in Plat Book 119, Page 36, of the Public Records of Miami -Dade County,
Florida.
(111111) "Transaction Costs" shall mean any and all transaction costs associated with
a Refinance Loan or a Transfer (as the context requires), including without limitation brokerage
commissions (in connection with sales, leases, financings or otherwise), loan fees and costs
(including loan origination fees), loan/refinancing prepayment fees, premiums and/or yield
maintenance charges, defeasance fees and costs, title premiums and fees, due diligence costs,
attorneys' fees, consultant fees, transfer taxes, documentary stamp taxes, surtaxes, intangible
taxes and/or other transfer or mortgage taxes, and other ordinary and customary closing costs
paid by Developer and reserves and escrows required by any lender.
(jjjjjj) "Transfer Fee" shall have the meaning ascribed to the term is Section 4.11.2.
(kkkkkk) "Unanticipated Development Costs" shall have the meaning
ascribed to such term in Section 24.1.
(111111) "Uniform System" shall mean at any time, the then -current edition of the
"Uniform System of Accounts for the Lodging Industry", as adopted by the Hotel Lodging
Association of New York City, Inc., and the American Hotel & Lodging Association, as the
same may be modified, amended, supplemented or superseded by any subsequent editions or
revisions thereto.
ARTICLE II
LEASE OF PROPERTY
2.1 Lease of Property
City agrees, pursuant to this Agreement, and does hereby lease, let and demise to
Developer, its successors and assigns, and Developer hereby leases from City the Property, subject
to the following terms and conditions, to have and to hold the said lands, tenements and
hereditaments, with all of the rights, privileges, and appurtenances belonging or pertaining
24
thereunto unto Developer for the Lease Term, unless this Agreement shall be sooner terminated in
a manner hereinafter provided. Developer shall have and hold, exclusively, the development rights
pertaining to the Property, subject to the terms, conditions, covenants, and procedures set forth
herein.
During the Lease Term, Developer shall have all rights, privileges, easements and
appurtenances, if any, benefiting the Property in, over and upon adjoining and adjacent public and
private land, highways, roads and streets reasonably required for ingress or egress to or from the
Property by Developer, its agents, servants, employees, contractors, customers and invitees and all
others related to Developer's use and occupancy of the Property. Notwithstanding any language
in this Agreement to the contrary, City is the fee simple owner of the Property, and this Agreement
shall in no way convey any title or other rights to the Property to Developer except as specified
herein. Developer may not mortgage, pledge, transfer, hypothecate, or otherwise encumber City's
fee simple ownership interest in the Property in any way, or in any way pledge any rights held by
the fee simple owner; provided, however Developer may mortgage, pledge or otherwise encumber
its Leasehold Estate (excluding City's fee simple ownership interest) pursuant to the provisions of
Article XXII. City agrees that it will not impair or knowingly permit any party to impair any
reasonable access to or use of the leased Property during the Lease Term.
2.2 Conditions Precedent to Effectiveness of this Agreement
This Agreement shall not become effective unless and until (i) the City Commission shall
have approved the execution of this Agreement, (ii) the Referendum shall have been approved by
a majority vote of the City of Miami voters, and (iii) this Agreement has been executed and
delivered by City and Developer. The date on which this Agreement becomes effective as
provided herein is referred to as the "Effective Date" and, upon the Effective Date, this Agreement
shall be a binding contract and agreement between City and Developer. During the Pre -
Commencement Period, City and Developer shall not be deemed principal and agent, landlord and
tenant, sublandlord and subtenant, or parties to a partnership, joint venture or association of any
kind by virtue of this Agreement. Accordingly, this Agreement creates (i) a contract between the
Parties governing their respective rights and obligations during the Pre -Commencement Period,
and (ii) a lease between the Parties (as landlord and tenant) automatically effective as of the
Commencement Date through the end of the Lease Term pursuant to the terms hereof.
2.3 Purpose of Use and Occupancy
During the Lease Term, the Property may be used for the Permitted Uses in accordance
with the terms and conditions of this Agreement. The Parties recognize and acknowledge that the
manner in which the Property and Improvements are developed, used and operated are matters of
importance to City during City's ownership of fee title to the Land. Accordingly, Developer agrees
that, during the Lease Term, Developer will use best efforts, subject to reasonable market
conditions and the terms of this Agreement, to create and operate on the Property a mixed -use
residential and commercial development with a quality of character and operation consistent with
that of similar, comparable projects and uses in City of Miami, Florida.
25
2.4 Suitability of Property
Developer acknowledges that, except as expressly set forth in Section 2.5 or elsewhere in
this Agreement, neither City nor any of City's officers, representatives, or employees has made
any representation or warranty with respect to the Property, or with respect to the suitability or
fitness of the Property for the conduct of Developer's operations or for any other purpose, except
as set forth in this Agreement. Subject to the provisions of Article XXIV, the execution and
delivery of this Agreement by Developer shall establish that Developer accepts the condition of
the Property "AS IS" as of the date of such execution and delivery as of the Effective Date, subject
to the representations set forth in Section 2.5 herein or elsewhere in this Agreement and the express
provisions of this Agreement.
Prior to the Commencement Date (i) City, at its sole cost and expense, shall maintain and
manage the Convention Center Land and JLK Center in a manner consistent with City's practices
during the three year period prior to the Effective Date, provided that City shall not lease or rent
space or enter into any lease, license, or agreements for occupancy of the Convention Center Land,
JLK Center or Improvements thereon or any portion thereof or otherwise create any rights of
occupancy or possession in the Convention Center Land or Improvements prior to the
Commencement Date that would extend beyond the Commencement Date, whether through a new
lease or agreement or the modification or amendment of any existing lease or agreement (including
use or event agreements for the JLK Center); (ii) City shall not enter into any security,
maintenance, pest control, trash removal, equipment leases and any other service contracts (or any
modifications or amendments to existing service contracts) with respect to or affecting the
Convention Center Land or Improvements thereon or any portion thereof that would remain in
effect following the Commencement Date and all service contracts of any kind or nature relating
to the Convention Center Land or Improvements thereon or any portion thereof shall be terminated
by City on or before the Commencement Date; (iii) City shall not encumber title to the Property
or any improvements thereon (or any portion thereof) with any mortgages, liens, charges,
easements, restrictions, covenants or other encumbrances of any kind or nature whatsoever (or
allow same to be so encumbered), and (iv) City shall not rezone the Property (unless at the request
of Developer) or transfer any development rights pertaining to the Property to any other party or
property.
Prior to the Commencement Date, City at its sole expense, shall terminate all Marine
Agreements. City shall not enter into any new Marine Agreements that by their terms do not
terminate prior to the Commencement Date or are not terminable by City at no expense to
Developer prior to the Commencement Date.
2.5 Limited Representations by City
City makes the following representations, covenants and warranties which shall survive
the execution of this Agreement and the taking of possession of the Property by Developer:
(a) That City has taken all requisite actions to make this Agreement binding upon City,
and City has good right, title and authority to convey and transfer all rights and benefits which are
the subject matter of this Agreement. Absent emergency action, or other Municipal Home Rule
Action required by the public health, safety and general welfare, City covenants with Developer
26
that it will not, during the Lease Term and any option period hereof, conferred and validly
exercised, knowingly permit an imposition upon the Property not otherwise approved or requested
by Developer. The obligation of City set forth in the preceding sentence is not intended to limit
the ability of City, acting in its governmental capacity, to exercise its police and regulatory powers
with respect to the Property and any activities within the Property.
(b) That no party, other than Developer, shall on the Commencement Date be in or
have any right to possession of the Property (other than the occupancy of the JLK Center by City
and its licensees and invitees for up to sixty days following the Commencement Date). To the
knowledge of City, the Property is free and clear of any violations by City of Applicable Laws.
(c) There is no existing or, to City's knowledge, pending or threatened litigation, suit,
action, or proceeding before any court or administrative agency affecting City or the Property or
City's fee estate that would, if adversely determined, materially adversely affect City's right and
power to enter into this Agreement, the Property, this Agreement, the Leasehold Estate, or
Developer's ability to develop and operate the Property in accordance with this Agreement.
(d) City has not conveyed or transferred any development rights or air rights with
respect to the Property to any third party other than the rights transferred to the lessee under the
Existing Lease in connection with the development of the Existing Hotel.
(e) City has no knowledge of Hazardous Materials at the Property in violation of
Environmental Laws. To the knowledge of City, there has been no change in the environmental
condition of the Property or Improvements thereon since the date of the Environmental Report.
(f) City has no knowledge of any contracts, leases, management agreements, leasing
agreements, occupancy agreements, use agreements, or other agreements of any kind or nature
affecting the Property or Improvements to which City or its affiliate is a party other than this
Agreement that will be binding upon Developer or the Property following the Commencement
Date, with the exception of any agreements related to the use and occupancy of the JLK Center,
each of which will have expired or been terminated no later than sixty days following the
Commencement Date. No party has an option to purchase or lease the Property or similar
preferential right other than Developer pursuant to this Agreement.
2.6 Commencement Conditions Deadline
In the event the Commencement Conditions have not occurred by the Commencement
Conditions Deadline (as the same may have been extended as provided in this Agreement) and
subject to Force Majeure, either Party may terminate this Agreement on 30 days' written notice to
the other Party delivered at any time prior to Tenant's satisfaction of the Commencement
Conditions.
2.7 Commencement of Demolition
Tenant agrees that Commencement of Demolition shall begin no later than 120 days after
City vacates the JLK Center, subject to Force Majeure.
27
ARTICLE III
TERM
3.1 Term and Lease Term
The term of this Agreement shall commence on the Effective Date and continue throughout
the entire Pre -Commencement Period and end on the last date of the Lease Term. The term of the
Leasehold Estate under this Agreement shall be a period of ninety-nine (99) years, commencing
on the Commencement Date and ending on the date that is ninety-nine (99) years thereafter (the
"Lease Term"). City and Developer agree that, despite the Effective Date of this Agreement, the
Lease Term shall not commence and Developer shall not have any right to occupy or possess any
portion of the Property (other than pursuant to the Existing Lease) until the occurrence of the
Commencement Date.
3.1.1 If Developer exercises its right to bifurcate the leasehold estate under this
Agreement pursuant to the terms of Section 10.2, the expiration of the term of each Bifurcated
Lease shall coincide with the Lease Term, such that each Bifurcated Lease shall commence on the
commencement date thereof and end on the last day of the Lease Term set forth in Section 3.1.
3.1.2 Developer grants City a license to occupy the JLK Center and Convention
Center Land for the sole purpose of unwinding operations and removing its personal property for
the period beginning on the Commencement Date and extending for a period not to exceed sixty
(60) days following the Commencement Date. City shall deliver possession of the JLK Center
and Convention Center Land, all in the condition required by this Agreement and free and clear of
all leases, occupancies, rights to use or occupy, contracts, and obligations, no later than sixty (60)
days following the Commencement Date, at which time Developer may take possession thereof.
City will give Developer not less than ten (10) Business Days prior written notice of the date of
delivery of the JLK Center and Convention Center Land to Developer.
ARTICLE IV
RENT & FINANCIAL RECORDS
4.1 No Rent Prior to Commencement Date
For the avoidance of doubt, no Rent shall be due prior to the Commencement Date under
this Agreement. Developer and City acknowledge that during the period prior to the
Commencement Date, the Existing Lease remains in place and Developer shall continue to pay
City rent pursuant to the Existing Lease (i.e., Minimum Rent) in an amount equal to the "Minimum
Rent" (as such term is defined in Section 2(d) of Amendment #5 to the Existing Lease) and a
portion of annual gross sales as set forth in Section 3(a) of Amendment #6 to the Existing Lease,
payable as and when set forth in the Existing Lease for the applicable rental period and prorated
for any partial rental period and no additional rent is due or payable. For clarification, the term
"Minimum Rent" as used in the Existing Lease has a different definition from the term as defined
herein Section 4.3.1 and as used in this Agreement.
28
4.2 Construction Rent
During the period commencing on the later of the Commencement Date and the date that
City delivers possession of the JLK Center and Convention Center Land as required by this
Agreement and continuing to the Minimum Rent Commencement Date, Developer shall pay to
City as Construction Rent (adjusted pro rata for any partial year prior to the Minimum Rent
Commencement Date), as follows:
4.2.1 Commencing with the first Lease Year, Developer shall pay City
Construction Rent in an amount equal to $1,000,000.
4.2.2 Commencing with the second Lease Year, Developer shall pay City
Construction Rent in an amount equal to $1,250,000.
4.2.3 Commencing with the third Lease Year, Developer shall pay City
Construction Rent in an amount equal to $1,500,000.
4.2.4 Commencing with the fourth Lease Year, Developer shall pay City
Construction Rent in an amount equal to $1,750,000.
4.2.5 Commencing with the fifth Lease Year, Developer shall pay City
Construction Rent in an amount equal to $2,000,000.
4.3 Amount of Rent Commencing on Minimum Rent Commencement Date
Commencing on the Minimum Rent Commencement Date and continuing through the
Lease Term, Developer shall pay City Minimum Rent and Participation Rent as follows (and
Construction Rent shall not be due or payable):
4.3.1 Minimum Rent. Commencing on the Minimum Rent Commencement
Date, annual Minimum Rent shall be an amount equal to $2,500,000 ("Minimum Rent"), payable
monthly in consecutive level payments, in advance, on or before the tenth (loth) day of each
calendar month. On the fifth anniversary of the Minimum Rent Commencement Date, the
Minimum Rent shall be adjusted to an amount equal to the sum of (i) $2,500,000, plus (ii) the
product obtained by multiplying (a) $2,500,000, and (b) the percentage increase (but not decrease,
if any) in CPI from the Minimum Rent Commencement Date to the fifth anniversary date,
provided, however, that the percentage increase shall not be less than 7.7% or more than 21.7%.
On the sixth anniversary of the Minimum Rent Commencement Date, and each annual anniversary
thereafter through the Lease Term, the Minimum Rent shall be adjusted to an amount equal to the
sum of (i) the Minimum Rent for the prior Lease Year, plus (ii) the product obtained by multiplying
(a) the Minimum Rent for the prior Lease Year, and (b) CPI Annual Increase; provided, however,
the percentage increase shall not be less than 1.5% or more than 4.0%.
4.3.2 Participation Rent
In addition to Minimum Rent, commencing on the Minimum Rent Commencement Date,
Developer shall pay to City an annual percentage rent in an amount equal to the positive difference,
if any, between (a) two and one-half percent (2.5%) of annual Gross Revenue ("Effective Revenue
29
Percentage"), and (b) the amount of Minimum Rent per annum paid in accordance with Section
4.3.1 ("Participation Rent"), provided, however, that the amount of the Participation Rent is
premised upon Tenant's development of the Property generally in accordance with the Conceptual
Plan, and if Tenant only develops the Property generally in accordance with the Minimum Initial
Program, the Effective Revenue Percentage for the purpose of calculating Participation Rent shall
be increased to three percent (3.0%). In the event that the scale of the development of the Property
falls between the Conceptual Plan and the Minimum Initial Program, the Effective Revenue
Percentage shall be determined based on the actual gross floor area ("GFA") of the development
as follows:
Actual GFA of Development on
Premises
Effective Revenue Percentage
3,107,581 - 3,372,560 square feet
2.5%
2,842,601 - 3,107,580 square feet
2.6%
2,577,621 - 2,842,600 square feet
2.7%
2,312,641 - 2,577,620 square feet
2.8%
2,047,661 - 2,312,640 square feet
2.9%
2,047,660 square feet or less
3.0%
Participation Rent shall be paid to City in one lump sum within one hundred twenty (120)
days after the end of each Lease Year that Participation Rent is due. Developer shall deliver to
City an audited statement setting forth the Gross Revenues during the applicable Participation Rent
period ("Annual Participation Rent Statement and Annual Gross Revenue Report") prepared by a
national public accounting company or other accounting company approved by the City Manager
in a form reasonably acceptable to the City Manager, and Developer shall pay to City the amount
of Participation Rent due and payable, if any, to City pursuant to the terms of this Agreement.
Each Annual Participation Rent Statement shall be signed and certified to be complete and correct
by an officer of Developer, to its knowledge. Such statement shall show the annual Gross
Revenues and an itemization of any exclusions or deductions for the current Lease Year.
4.3.3 Manner of Payment
Developer shall:
(a) pursuant to the terms of this Agreement, pay City (x) the monthly Minimum Rent
and (y) the annual Participation Rent pursuant to wire instructions to be provided by City, and
(b) within one hundred twenty (120) days after the end of each Lease Year, deliver the
Annual Participation Rent Statement and Annual Gross Revenue Report for the preceding Lease
30
Year to the City of Miami, Department of Real Estate and Asset Management at the address noted
below:
City of Miami
Depailinent of Real Estate and Asset Management
Attention: Lease Manager
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
4.3.4 Fair Market Value
As required by Applicable Laws, City has determined that the Minimum Rent and the
Participation Rent constitute fair market value for the Leasehold Estate. City has made such
determination based upon appraisals of the proposed project performed by two (2) State -certified
general appraisers hired by City.
4.4 Sales Tax
Developer shall be liable for the prevailing State of Florida sales, use or similar tax imposed
on the amount of Rent (less any applicable credits or reductions permitted by Applicable Law)
paid to City under this Agreement, in the absence of an exemption or other reduction by the State
of Florida. This sales and use tax shall be payable to City when Rent is due, and in turn, City will
remit the same, less any authorized handling deductions, if any, to the State. Nothing herein
contained shall require Developer to pay municipal, state or federal income taxes assessed against
City, or corporate excess profits taxes, or gross receipts taxes or franchise taxes imposed upon
City. Upon the request of Developer, City, at Developer's cost, shall execute any applications or
similar documents, as the owner of the Land, to the extent required for Developer to apply for and
receive any sales tax exemptions provided under any Applicable Laws, and without prejudice to
City's ability to dispute any such applications in accordance with Applicable Laws. Nothing
contained herein shall require the City to pay any taxes, penalty, fees, imposition or any assessment
based on the use of the Property by the Developer.
4.5 Security Deposit
Tenant shall deposit an Irrevocable Letter of Credit with Landlord in the amount of
$1,000,000.00 (the "Security Deposit Letter of Credit") within ten (10) days following the
Commencement Date as security for the faithful performance and observance by Tenant of the
terms, provisions, covenants and conditions of the Lease. It is agreed that in the event Tenant
defaults in the performance of any of the terms, provisions, covenants and conditions of the Lease,
including, the payment of Rent, subject to any applicable grace or cure periods, Landlord shall
have the right but shall not be required to, from time to time without prejudice to any other remedy
Landlord may have on account thereof, to present the Security Deposit Letter of Credit for payment
and the retain the proceeds as security in the event of an occurrence as stated above, to use, apply
or retain the whole or any part of the proceeds to the extent required for the payment of any Rent
or any other sum as to which Tenant is in default. In addition, if any of the following occurs, then
Landlord may draw upon the Security Deposit Letter of Credit (a) the issuer delivers a Nonrenewal
Notice and Tenant fails to deliver a replacement Security Deposit Letter of Credit within 20 days
31
after Tenant receives notice of the Nonrenewal Notice (for purposes of which, the Parties shall
reasonably cooperate to facilitate the simultaneous exchange of the old letter of credit for the new
letter of credit). Tenant shall within ten (10) Business Days replenish any funds so used, applied
or retained by Landlord. The Security Deposit Letter of Credit shall be returned to Tenant within
thirty (30) days after the date fixed as the end of the term of the Lease, delivery of possession of
the demised premises to Landlord in the condition required by the Lease, and the payment of all
obligations set forth in the Lease. In the event of a sale of the Property, Landlord shall have the
right to transfer the security to the vendee and Landlord shall thereupon be released by Tenant
from all liability for the return of such security; and Tenant agrees to look solely to the new
Landlord for the return of said security; and it is agreed that the provisions hereof shall apply to
every transfer or assignment made of the security to a new Landlord. Simultaneous with the
increase of the Minimum Rent amount on the fifth anniversary of the Minimum Rent
Commencement Date and on each annual anniversary thereafter through the Lease Term, the
Security Deposit Letter of Credit shall be increased such that the Security Deposit Letter of Credit
will be an amount equal to forty percent (40%) of the annual Minimum Rent then in effect.
4.6 One Time Payment to City. No later than sixty (60) days following the Minimum
Rent Commencement Date, Tenant shall pay Landlord a one-time sum of $25,000,000 (the
"Affordable Housing Payment"), to be used by Landlord, in its sole discretion, to support
affordable housing and other community initiatives in the City of Miami. For the avoidance of
doubt, the Affordable Housing Payment is only due and payable in the event that a temporary
Certificate of Occupancy has been obtained for the Required Hotel Tower or the Required
Residential Tower, whichever occurs first. The Affordable Housing Payment, when made, is
nonrefundable to Developer.
4.7 Developer's Financial Records
Developer is a special purpose entity formed for the express purpose of being Developer
under this Agreement and performing its obligations hereunder. Developer will establish one or
more bank accounts through which deposits of Gross Revenues generated from such operations
will be made. The bank in which such deposits are made shall be based in the United States or
shall have a large local presence. The said deposits of Gross Revenues will not be comingled with
those from any other operations of Developer outside of the Property or any other affiliated
organizations. In addition and/or alternatively, Developer will use an accounting system that will
separately provide for a detailed accounting of Gross Revenues. The detailed accounting shall not
be commingled with Developer's other operations unrelated to the Property; and, should comply
with applicable federal income tax returns and state sales and use tax returns. Accordingly,
Developer shall prepare (or cause to be prepared) and keep full and complete financial records and
source documents in accordance with sound accounting principles consistently applied and
generally accepted in the United States, of the Gross Revenues, whether for cash, credit or
otherwise, of each separate department at any time operated in the Property.
The financial records and source documents to be kept by Developer for Developer's
business operations at the Property shall include, but shall not be limited to true copies of:
(1) records of inventories and receipts of merchandise; (2) all financial profit and loss statements;
(3) variance reports; (4) arrearage reports; (5) balance sheets; (6) financial journals and sales
summary records; (7) general ledgers; (8) daily dated cash register tapes; (9) daily dated cash
32
register summary tapes ("z tapes"); (10) sales slips which are numbered or otherwise accounted
for by an electronic method, including those for mail or telephone orders; daily sales and/or point
of sale (POS) reports; (11) financial statements; (12) bank statements; (13) records of daily bank
deposits from transactions at or from the Property; (14) duplicate validated bank deposit slips; (15)
purchase invoices; (16) inventory and receiving records; (17) pricing schedules or other materials
showing price markups; (18) state and local sales tax reports; (19) settlement statements of
transactions with subtenants, concessionaires, and Developers; and any and all records that may
be reasonably examined or required by an independent accountant in performing an audit of gross
income and expenses or which may be reasonably requested by City.
To the extent reasonably available to Developer, pertinent original sales records shall
include, without limitation: (i) sales reports of back office systems fed from point of sale terminals,
(ii) cash register tapes, including tapes from temporary registers, if any, (iii) serially pre -numbered
sales slips, (iv) the original records of all mail, internet and telephone orders at and to the Property,
if any, (v) settlement report sheets of transactions with any person conducting business on the
Property, if any, (vi) original records indicating that merchandise returned by customers was
purchased at the Property by such customers, (vii) memorandum receipts or other records of
merchandise taken out on approval, (viii) detailed original records of any exclusions or deductions
from Gross Revenues, (ix) sales tax records, and (x) such other sales records, if any, which would
normally and reasonably be examined by an independent accountant pursuant to accepted auditing
standards in performing an audit of gross income and expenses.
Developer shall, at all times during the Lease Term maintain the financial records for each
Lease Year that it is required to maintain pursuant to this Section for a period of not less than seven
(7) years after the applicable Lease Year.
4.8 Reports by Developer
Within thirty (30) days following the last day of each month of each Lease Year, Developer
shall furnish to City a monthly statement itemizing any and all reportable Gross Revenues
generated in the preceding calendar month ("Monthly Gross Revenue Report") in a form
reasonably acceptable to the City Manager. The Monthly Gross Revenue Report shall be signed
and certified to be complete and correct by an officer of Developer, to its knowledge.
Within one hundred twenty (120) days after the end of each Lease Year for which
Participation Rent is due, Developer shall also furnish to City the Annual Participation Rent
Statement and Annual Gross Revenue Report specified in Section 4.3.2 above, showing in
reasonable detail the amount of such Gross Revenues made by Developer from the Property during
the preceding Lease Year. Any intentional misstatement of Gross Revenues made by Developer
in any written report required to be delivered under this Agreement will constitute a default under
this Agreement requiring Developer to pay interest on any shortfall in payment at the Default Rate
from the date the shortfall was due and payable.
4.9 Right to Examine Financial Records
Commencing with the Lease Year that Participation Rent is due and payable, City may, at
City's expense, during normal business hours and upon ten (10) Business Days prior written notice
33
to Developer, inspect, take extracts from and make copies of Developer's books and records
pertaining to the Property for the purpose of verifying any statement of Gross Revenue submitted
to City as required by this Agreement. City also may, at its option and at its sole expense, conduct
or cause to be conducted an audit (by a reputable, independent certified public accountant who
shall not be compensated on a contingency fee or commission basis) to verify the Gross Revenue
received by Developer from the operation of the Property for any Lease Year or to verify any
payments or rents under this Agreement. To the fullest extent permitted by law, City shall protect
from disclosure any records that are designated by Developer as confidential and/or proprietary or
otherwise exempt from public disclosure ("Developer' s Confidential Records"). City shall use its
good -faith, diligent efforts to provide timely written notice to Developer of any public records
request seeking any of Developer's Confidential Records that may be within City's custody,
possession or control, to permit Developer the opportunity to (a) confirm that the requested records
are exempt from disclosure, and the statutory basis for such exemption, or, (b) at Developer' s sole
option, withdraw the applicable claim of confidentiality in whole or in part and permit the City to
disclose all or portions of the records. In the event that Developer agrees to the release of a portion
of any of Developer's Confidential Records, Developer may provide City with a redacted version
of the requested records that protects the portions that remain subject to a statutory exemption from
disclosure and may be released to the requesting party. If City's audit shall disclose that an amount
is due to City in excess of the amount Developer had previously or should have paid to City for
such Lease Year, then, unless disputed by Developer, such amount shall be paid by Developer
within thirty (30) days after receipt by Developer of a written notice from City setting forth the
amount due and the calculations used in making the determination. If the amount due City under
the preceding sentence exceeds the amount Developer had previously or should have paid to City
for such Lease Year by more than five percent (5%), or if the audit discloses fraud or intentional
misrepresentation by Developer, unless disputed by Developer, the cost of such audit shall be at
Developer's expense and Developer shall also pay interest on the additional amount due at the
Default Rate. If City's audit shall disclose that City has been overpaid for such Lease Year, City
shall credit such overpayment to the next payment or payments of Rent required to be paid by
Developer under the terms of this Agreement until fully credited. Developer's books and records
regarding the Property shall be maintained in Miami -Dade County, Florida, or such other location
approved by City in writing. City's right to inspect and audit Developer's books and records under
this Section shall continue for a period of seven (7) years after submittal of any statement or report
of Gross Revenue by Developer pursuant to this Agreement, after which time City shall not have
the right to audit such statement or report; provided, however, that with respect to the sale or
conveyance of any portion of the Property to an unaffiliated third party, the City's right to audit
such statement or report relating to such portion of the Property shall terminate one (1) year
following the date of such sale or conveyance. All Bifurcated Leases shall include the auditing
requirements consistent with this provision. City and Developer shall in good faith, acting
reasonably, attempt to resolve any dispute with respect to Developer's statement of Gross Revenue
and City's audit within a period of thirty (30) days of one Party notifying the other of such dispute
prior to pursuing resolution through legal proceedings. The rights and obligation of the Parties
under this Section as to any Phase shall survive the termination of this Agreement, whether as a
result bifurcation or otherwise, with respect to such Phase as set forth above. Developer shall
cause its employees, representatives and agents to comply with all audit requirements set forth
herein.
34
4.10 Late Payments.
In the event that any payment of Minimum Rent or Participation Rent due to City shall
remain unpaid for a period of twenty (20) days beyond the applicable due date, interest at the
Default Rate shall accrue against the delinquent payment(s) from the original due date until City
receives payment. In addition to the rights and remedies provided for herein, City shall also have
all rights and remedies afforded by law for enforcement and collection of Rent and any interest at
the Default Rate which are not inconsistent with the limitations or remedies contained in this
Agreement. All Rent and other payments due to City under this Agreement shall be paid to City
at the address specified herein for notice to City.
4.11 Refinance Fee; Transfer Fee
4.11.1 Refinance Fee. Subject to the provisions of this Section 4.11, no later than
thirty (30) days following the closing of a Refinance Loan and Developer's actual receipt of the
proceeds of such Refinance Loan, Developer shall pay (or cause to be paid) to City a fee (the
"Refinance Fee") equal to the lesser of:
(a) two percent (2%) of the proceeds of the Refinance Loan actually
received by Developer and shall not include Transaction Costs or payment of outstanding
principal, interest, and other fees and charges payable under the loan being refinanced;
and
(b) the Minimum Rent then payable to City for the portion of the
Property subject to the Refinance Loan, as allocated to such portion of the Property pursuant to
Section 10.2.3 of this Agreement.
4.11.2 Transfer Fee. Subject to the provisions of this Section 4.11, no later than
thirty (30) days following the closing of a Transfer as evidenced by the execution and delivery of
an assignment of this Agreement or a Bifurcated Lease or a deed of conveyance of title (as
applicable), Developer shall pay (or cause to be paid) to City a fee (the "Transfer Fee") that is an
amount equal to one (1%) of the Profit for the portion of the Property and Improvements being
transferred.
As used in this Section 4.11, "Transfer" shall mean the sale or assignment by Developer of
any portion of the Property and any Improvements located thereon by an assignment of
Developer's rights under this Agreement or through a Bifurcated Lease; provided that a Transfer
does not include any sale or assignment by Developer (i) to an Affiliate (except to the extent that
Developer actually realizes a Profit in connection with such sale or assignment and not, for
example, an unrealized gain or other form of Profit that exists only on paper as a result of
applicable accounting, tax, or similar procedures), (ii) to Hyatt or its affiliates or to Gencom or its
affiliates, or (iii) to a condemning authority in connection with eminent domain proceedings
(including deed or assignment in lieu of foreclosure).
Notwithstanding the foregoing, no Transfer Fee shall be due with respect to any Transfers
of one or more portions of the Project to a transferee pursuant to any sale or assignment or
Bifurcated Lease made prior to the date that is two years following the issuance of the permanent
35
Certificate(s) of Occupancy for all of the Minimum Initial Program except to the extent that the
Developer realizes a Profit relative to the Projects Costs for the entire Project. By way of example,
if the Project Costs for the entire Project equal $100, and the Developer Transfers the components
of the Project prior to the date that is two years after issuance of the Certificate(s) of Occupancy
for a total consideration of $99, then no Transfer Fee shall be due for such Transfers, even if the
proceeds received by Developer for any one component of the Project exceeds the Project Costs
for that component.
4.11.3 Supporting Documentation. In connection with the payment of any Fee
under this Agreement, Developer shall provide City with reasonable back-up documentation,
including closing statements, paid invoices, receipts and similar materials evidencing the Project
Costs and Transaction Costs, preferred returns and other required distributions under any
organizational or other governing documents, and required reserves and other restrictions on use
of funds applicable to a Refinance Loan, supporting the calculation of the amount of such Fee.
4.11.4 Conveyances Not Subject to Fee. Notwithstanding any provision in this
Agreement to the contrary, no Fee shall be due or payable by Developer for or with respect to any
Transfer or refinancing affecting the Property or any leasehold interest therein that does not include
Improvements for which construction has been completed and a Certificate of Occupancy has been
issued by City. Accordingly, the sale, assignment or other transfer, or any refinancing, of any
leasehold interest in the Property or any Improvements thereon under this Agreement or a
Bifurcated Lease, shall not trigger or impose any obligation to pay the Fee or any portion thereof
unless and until all of the required conditions to the Fee set forth in the first sentence of this Section
have been satisfied. Further, no Fee shall be due or payable in connection with a Transfer made
to a Holder (as defined below) pursuant to or in connection with a bankruptcy, insolvency, general
receivership or similar proceeding.
4.11.5 Mortgagee Exemption. This Agreement and City's right to receive a Fee
hereunder shall not apply to (i) any sale, assignment, Refinance Loan, or other Transfer that results
from (or, in connection with a Refinance Loan, is made in connection with) a foreclosure, a deed
or assignment in lieu of foreclosure or the exercise of any other remedies under any mortgage(s)
or pledges encumbering the Property or any fee or leasehold interest therein or any part thereof or
interest in Developer, together with any extensions, modifications, amendments or replacements
thereof, whether such sale, assignment or other Transfer is to the holder of such mortgage, pledge
or the note secured thereby, its designee or nominee or a purchaser at a foreclosure sale (such
holder, designee, nominee, or purchaser, a "Holder"), (ii) any sale, assignment, or other Transfer
by a Holder (or any Affiliate of a Holder) or (iii) any Refinance Loan for the benefit of any Holder
(or any Affiliate of a Holder) or any purchaser or transferee of an interest held by any Holder (or
any Affiliate of any Holder).
36
ARTICLE V
CONSTRUCTION & IMPROVEMENTS
5.1 Developer's Obligation to Construct & Maintain Improvements
Developer shall, at its own cost and expense, design, construct, install, equip, and maintain
the Improvements on the Property from time to time in accordance with the terms and conditions
set forth below.
5.2 Development Rights and Phases
Except as otherwise expressly set forth in this Agreement, Developer shall have the right
to develop and construct the Improvements comprising the Project on the Property in one or more
Phases or components, as determined by Developer, in its sole discretion, provided that such
development is consistent with the Minimum Initial Program and complies with the requirements
of this Agreement, including the Milestone Dates. For purposes of this Agreement, each phase of
the Project is referred to individually as a "Phase" and, if more than one, collectively, as the
"Phases". Notwithstanding the fact that any Phase or component may be identified on any plans
for the Project, each Phase or component (other than the components included in the Minimum
Initial Program) may be constructed and developed independently of the other Phases or
components and in any sequence. In addition, notwithstanding anything to the contrary contained
in this Agreement, each Phase or component may be constructed and developed pursuant to this
Agreement, a Bifurcated Lease, one or more Subleases or through a combination thereof. If this
Agreement terminates with respect to any Phase or component of the Project, or any Phase or
component is otherwise released from the terms and conditions of this Agreement for any reason
(as a result of a bifurcation or otherwise), then, from and after the date the applicable component
or Phase or component is released or removed from this Agreement, Developer shall have no
further rights or obligations with respect to such component or Phase (with respect to the payment
of Rent, payment of Impositions, construction, maintenance or repair, payment of Fees, or
otherwise) hereunder, except as otherwise expressly provided herein. The following provisions
shall apply to Developer's development of the Property:
5.2.1 Development of Land. In connection with the Project and each Phase or
component thereof, the Parties agree City will grant and join in any plat, Permit or other
application, applications for governmental or other financing sources or incentives, temporary and
permanent easements, restrictive covenants, covenants in lieu of unity of title, easement vacations,
master covenants (including the Master Covenants), or modifications and such other documents,
including estoppel certificates and recognition and non -disturbance agreements as provided in this
Agreement, as may be necessary or desirable for Developer to develop, finance, and use the
Property in accordance with this Agreement, provided that such grant and joinder by City shall be
at no cost to City other than its costs of internal review, and also provided that the location and
terms of any such easements or restrictive covenants and related documents shall be reasonably
acceptable to the City Manager, which acceptance shall not be unreasonably withheld or delayed.
City agrees to use good faith efforts to review and approve (or disapprove with an explanation for
such disapproval) any such requests within twenty (20) Business Days of such request from
Developer in accordance with the City Approval Process (except in the event that City
37
Commission approval is required under Applicable Laws for such approval, in which event City
shall use its reasonable diligent efforts to expedite the approval process as soon as reasonably
practicable in an effort to assist Developer in achieving its development and construction
milestones for the Project). Further, subject to the approval of any Leasehold Mortgagee,
Developer may encumber the Leasehold Estate by easements, restrictions, covenants, declarations,
covenants in lieu of unity of title, owners associations, and similar encumbrances as it desires
without the consent of City, provided that written notice is given to the City.
5.2.2 Dedications. City acknowledges that the value of the Property will be
substantially increased by the development of the Project. Accordingly, City shall not
unreasonably withhold, condition, or delay its consent to dedications of portions of the Property
(including dedications for right-of-way) that are required by any governmental authority in
connection with its approval of the Project and Improvements.
5.2.3 Adjustment of Property. Developer shall have the right from time to time,
following completion of construction of any Improvements located within the air rights or
subsurface rights portion of the Property, to adjust and replace the description of such portions of
the Property with actual legal descriptions of the Improvements prepared by a Florida licensed
surveyor, which legal descriptions may include airspace or subsurface areas outside the actual
location of Improvements, inter alia, to simplify the preparation of such legal descriptions given
potential variations in the size and features of the Improvements, to accommodate potential settling
of the Improvements, and to accommodate construction variations resulting from restoration and
reconstruction after casualty. Developer shall have the right from time to time to record notice in
the Public Records, of the actual location and legal description of such Improvements upon final
determination thereof in accordance with this paragraph. Prior to recording, Developer shall
provide a copy of each proposed notice to City for comment (which must be reasonable) as to
form, and City shall have a period of thirty (30) days within which to provide such comments.
Notwithstanding any language to the contrary contained herein, the above -referenced adjustments
authorized under this Section 5.2.3 shall not in any way affect the existing rights and obligations
of the Parties as provided in this Agreement and shall not expand the leasehold interest beyond
that created by this Agreement.
5.3 Conceptual Plan
City approves Developer's plan for the redevelopment of the Property as set forth on
Exhibit C (as the same may be modified from time to time, the "Conceptual Plan"). The Parties
acknowledge that Developer may modify the Conceptual Plan from time to time during the term,
of this Agreement with City's written approval, not to be unreasonably withheld, conditioned, or
delayed. Unless otherwise approved in writing by City, the initial redevelopment of the Property
following demolition of the Existing Improvements must be generally consistent with the
Conceptual Plan (as to the Improvements that are constructed as part of the Minimum Initial
Program) and substantially in compliance with the Minimum Initial Program set forth on Exhibit
D (as modified from time to time in accordance with this Agreement, the "Minimum Initial
Program"). The following standards and procedures shall apply to City's approval of any changes
to the Conceptual Plan throughout the Lease Term:
38
5.3.1 Changes required by regulatory authorities. For any changes to the
Conceptual Plan (or revision to construction plans that is inconsistent with the Minimum Initial
Program and/or the Conceptual Plan) that is required by any regulatory authority of jurisdiction,
including City, the County, the Miami -Dade County Division of Environmental Resources
Management, the Miami -Dade County Water and Sewer Department, the Miami River
Commission, and the State of Florida, City's approval (in its proprietary capacity) shall be limited
to confirming, through the City Manager or his/her designee, that the change was required by the
regulatory authority. Developer shall be required to provide City with documentation from the
applicable authority evidencing the required change. City, acting in its capacity as Landlord only
and not in its regulatory capacity, shall have ten (10) Business Days from the receipt of the
documentation to either (a) agree that the change was required by the regulatory authority or (b)
request additional documentation evidencing the veracity of the request, in each case, in
accordance with the City Approval Process.
5.3.2 Non -material changes not required by regulatory authorities. The City
Manager may, in his or her reasonable discretion, approve non -material changes to the Conceptual
Plan. For purposes of this Section 5.3.2, non -material changes are those that, as reasonably
determined by the City Manager (1) do not materially increase or decrease the density or intensity
of the Project and/or (2) do not materially change the design of the Project. Notwithstanding the
foregoing, the City Manager may not withhold his or her approval of any changes that comply
with each of the following requirements and otherwise comply with this Agreement:
a. The change does not decrease net rentable square footage of the
Improvements by more than two percent (2%).
b. The change does not increase or decrease the following
development parameters by more than five percent (5%): number of stories, building height,
number of units, number of rooms, number of parking spaces, lot coverage, and floor -area ratio.
c. The change results in substantially similar architectural expressions,
location of ingress -egress points, setbacks, and orientation of buildings.
Moreover, the City Manager may also not withhold his or her consent to a change to the
Conceptual Plan that eliminates the Optional Residential Tower, eliminates the sky bridge (as
such as depicted on the Conceptual Plan), or redesignates the Optional Residential Tower as the
Required Residential Tower, provided that the Conceptual Plan, as amended, continues to
comply with the Minimum Initial Program.
5.4 Construction Plans
5.4.1 Submission
Developer shall, at Developer's sole cost and expense, submit to City for City's
approval (not to be unreasonably withheld, delayed, or conditioned and subject to the limited scope
of City's approval rights as set forth in Section 5.4.2 below) its Construction Plans (defined below)
for the construction of the Improvements for each Phase or component of the Project at least two
(2) months prior to Developer's anticipated start of construction for the applicable Phase or
component. City's approval shall be in its capacity as City and owner of the Property and not in
39
its capacity as a municipality or other governmental body and shall be limited to determination of
consistency with the requirements of this Agreement, including the Conceptual Plan. The plans
so submitted (which may be in the nature of "dry -run submittal plans") shall include substantially
final and complete plans and specifications, drawings, calculations and data setting forth in detail
the Construction Work Developer proposes to perform, along with the manner of and critical path
timeline for performing the same ("Construction Plans"). The final Construction Plans shall bear
the seal of Developer's architect or engineer. The Construction Plans shall be in sufficient detail
for a contractor to perform the work shown thereon and shall separately identify each item of work
and shall describe, in commercially acceptable detail, the systems, improvements, fixtures and
equipment to be installed by Developer. Developer shall submit such additional data, detail and/or
information as City may reasonably request in order to properly review Developer's Construction
Plans to the extent permitted hereby.
In the event that City disapproves Developer's Construction Plans (which
disapproval is subject to the limited scope of City's review and approval rights as set forth in
Section 5.4.2 below), City must do so in writing delivered to Developer within thirty (30) days of
City's receipt of such plans and such other information reasonably requested by City in connection
therewith. City's notice shall include, without limitation, a reasonable explanation of the reason(s)
for City's objection(s) to allow Developer to modify accordingly. Developer shall, within thirty
(30) days of receipt of such notice, or such longer period of time as City shall determine, in writing,
is reasonable in light of the requested modifications, modify the Construction Plans in accordance
with the reasons set forth in City's disapproval notice. City shall be required to approve or
disapprove by written notice to Developer any resubmitted Construction Plans within thirty (30)
days of its receipt of same in accordance with the City Approval Process (so long as any
disapproval notice contains the same detail as required above). The Parties shall reasonably
cooperate to resolve any disagreement regarding the Construction Plans.
In addition to the foregoing, Developer, at is option, may submit drafts of its
Construction Plans to City for review at the approximately 50% design level and approximately
75% design level for City review as to compliance with the Conceptual Plan and, if applicable, the
Minimum Initial Program and the items listed in Section 5.4.2. In such event, City shall promptly
review the submitted drafts for compliance and advise Developer of any objections it has to the
submitted plans within thirty (30) days following receipt of the drafts.
5.4.2 Construction Plans Approval
Following City's receipt of Developer's Construction Plans, City, in its proprietary
capacity, shall give its written approval thereto or shall request revisions or modifications thereto
in accordance with Section 5.4.1 above. City may refuse to grant approval only if, in its reasonable
opinion, any of the proposed Construction Work as set forth in the Construction Plans:
(a) is unsafe, unsound, hazardous or improper for the use and occupancy for
which it is designed; or
(b) is designed for use for purposes other than those authorized under this
Agreement; or
40
(c) is inconsistent in any material respect with the approved Conceptual Plan
as modified pursuant to this Agreement from time to time or, if applicable, the Minimum Initial
Program; or
(d) does not comply with any Applicable Laws (excluding any pending permits,
variances, approvals or consents being sought by Developer in connection with the work); or
(e) is otherwise inconsistent in any material respect with the terms of this
Agreement.
City's review process of the Construction Plans set forth herein shall be in addition
to any permitting process required by the City of Miami and other regulatory agencies.
Notwithstanding the foregoing, any change to the Construction Plans that is
required by any regulatory authority of jurisdiction, including City of Miami, the County, the
Miami -Dade County Division of Environmental Resources Management, the Miami -Dade County
Water and Sewer Department, the Miami River Commission, and the State of Florida, shall only
require City's approval to the extent of confirming, through the City Manager or his/her designee,
that the change was required by the regulatory authority. Developer shall be required to provide
City with documentation from the applicable authority evidencing the required change. City shall
have ten (10) Business Days from the receipt of the documentation to either (a) agree that the
change was required by the regulatory authority or (b) request additional documentation
evidencing the veracity of the request, in each case, in accordance with the City Approval Process;
provided, however, that the City may, prior to the expiration of such deadline, extend such deadline
by up to an additional 20 Business Days by providing written notice to Developer, and Developer' s
deadlines under this Agreement shall be tolled for the duration of such extension. Further,
Developer may make non -material revisions to the Construction Plans and revisions necessary due
to unknown site conditions without City's approval.
5.4.3 Developer Solely Responsible
Developer agrees to be solely responsible for any plans and specifications used by
it and for any loss or damages resulting from the use thereof, notwithstanding that the same have
been approved by City and notwithstanding the incorporation therein of City recommendations or
requirements. In no event shall approval by City of any plans, whether the Conceptual Plan,
Construction Plans, or otherwise, impose any liability on City to Developer or any other person
for any errors or defects contained in such plans or for the failure of the Improvements or work
provided for such plans to comply with any requirements, any such liability to be that of Developer
and/or the professionals who prepared such plans.
5.5 Development
Developer shall use commercially reasonable efforts and shall comply with the
milestone dates (the "Milestone Dates") set forth on Schedule 5.5 with respect to Commencement
of Demolition of the Existing Improvements, completion of demolition of the Existing
Improvements, commencement of construction of the Minimum Initial Program, and Substantial
Completion of the Minimum Initial Program, in each case, subject to Force Majeure, delays caused
by City in its proprietary capacity, and the rights of Lenders and their assigns. From and after
41
commencement of construction of any Improvements (including the Minimum Initial Program
and, if applicable, Tower 3 or any additional Improvements), Developer shall, subject to Force
Majeure, pursue construction of such Improvements with commercially reasonable diligence and
continuity through completion.
Developer shall have the option to extend, on a monthly basis, the applicable
Milestone Date for the demolition of the Existing Improvements set forth on Schedule 5.5, by a
total of up to twelve (12) additional months by delivering written notice to City at least thirty (30)
days prior to the applicable Milestone Date and paying to the City an extension fee in the amount
of $15,000 per month for the first six (6) months and $30,000 per month thereafter (the
"Demolition Extension Fee") within five (5) Business Days after the expiration of the Milestone
Date (as such may have been previously extended pursuant to this paragraph or otherwise in
accordance with this Agreement, including by Force Majeure, delays caused by City in its
proprietary capacity, and the rights of Lenders and their assigns).
Developer shall also have the option to extend, on a monthly basis, the applicable
Milestone Date for the completion of the Minimum Initial Program, as set forth on Schedule 5.5,
by a total of up to twenty four (24) additional months by delivering written notice to City at least
thirty (30) days prior to the applicable Milestone Date and paying to the City an extension fee in
the amount of $75,000 per month for the first six (6) months and $225,000 per month thereafter
(the "Minimum Initial Program Extension Fee") within five (5) Business Days after the expiration
of the Milestone Date (as such may have been previously extended pursuant to this paragraph or
otherwise in accordance with this Agreement, including by Force Majeure, delays caused by City
in its proprietary capacity, and the rights of Lenders and their assigns).
Developer shall give the City written notice as to its election to extend either the
Milestone Date for demolition of the Existing Improvements or the Milestone Date for completion
of the Minimum Initial Program. For the avoidance of doubt, any failure of Developer to comply
with the Milestone Dates, as such may be extended in accordance with this Section or otherwise
pursuant to this Agreement, shall be subject to the provisions of Section 16.1(ii) of this Agreement.
5.6 Review
Upon reasonable prior notice to Developer, City shall have the right, through its duly
designated representatives, to inspect the Construction Work and the plans and specifications
thereof, at any and all times during normal business hours during the progress thereof and from
time to time, in its discretion, to confirm compliance with the Conceptual Plans and, if applicable,
the Minimum Initial Program. Notwithstanding the foregoing, no such inspection or testing shall
unreasonably interfere with the Construction Work or the use or operation of the Property by
Developer or its occupants. Developer shall provide City upon request with all available
correspondence with governmental authority and relevant material in Developer's possession or
control associated with the permitting process for the Property, including any available studies and
reports produced for the Property. Any on -site inspection by City of the Construction Work shall
be in the company of an authorized representative of Developer.
42
5.7 Payment and Performance Bond
Prior to the commencement of any construction of any work that is subject to Section
255.05, Florida Statutes (including the demolition of the Existing Improvements), Developer shall,
at Developer's and/or Developer's contractor's sole cost and expense furnish City with a payment
and performance bond in substantially the form prescribed by Section 255.05, Florida Statutes (the
"Bond") with respect to that component of construction. Any contract with a general contractor
or subcontractor directly entered into by Developer that is subject to Section 255.05, Florida
Statutes must contain this Bond requirement.
The Bond shall be issued by a bonding company approved by City, which approval shall
not be unreasonably withheld, conditioned or delayed, in an amount equal to one hundred percent
(100%) of the costs to complete construction of the applicable Improvements (or applicable portion
or component thereof) naming City as the owner/obligee, and Developer or Developer's general
contractor, as the principal guaranteeing the payment and performance of Developer's obligations
with respect to any and all Construction Work of the applicable Improvements, free of construction
or other liens. The Bond shall be conditioned upon the applicable contractor's performance of the
construction work in the time and manner prescribed in the contract and promptly making
payments under the claimant's contract.
The Bond shall be reduced in amount as the Construction Work proceeds (based upon
percentage of completion) as certified by Developer's architect and reasonably approved by the
City. The Bond may be terminated at such time as the construction and installation of the
applicable Improvements (or applicable portion or Phase thereof) are completed as evidenced by
issuance of a temporary or final Certificate of Occupancy, or other equivalent approval, and
reasonably satisfactory evidence thereof is provided by Developer to the City Manager, including
certification by Developer's architect that all requirements of the Bond have been satisfied. The
form of the Bond shall be approved by the City Manager or the Risk Manager as his or her designee
and by the City Attorney as to legal form, which approval shall not be unreasonably withheld,
conditioned or delayed.
Notwithstanding the foregoing, Developer, at its option, may commence actual demolition
of the Existing Improvements upon the provision of a Bond securing only such demolition work
by providing City with an Irrevocable Letter of Credit in the amount of One Million Dollars
($1,000,000.00), the sole draw condition of which shall be Developer's failure to provide a Bond
to City in the full amount of the cost of the Minimum Initial Program within twelve (12) months
from the date of delivery to City of the Bond for the demolition of the Existing Improvements (the
"Demolition Letter of Credit"). City shall return the Demolition Letter of Credit to Developer in
the event Developer timely submits the Bond for the Minimum Initial Program (i.e., within the
twelve (12) month period). For the avoidance of doubt, the forfeiture of the Demolition Letter of
Credit pursuant to this paragraph shall not relieve Tenant of its obligation to provide a Bond prior
to the commencement of the construction of the Minimum Initial Program.
5.8 Contractor's Insurance
Developer shall require every contractor it retains to perform any construction work
pertaining to the Improvements to furnish certificates of insurance, including Builder's Risk
43
insurance, if applicable, in accordance with Exhibit E attached hereto. Copies of such certificates
shall be furnished to the City of Miami Risk Manager, 444 SW 2nd Avenue 9th Floor, Miami, FL
33130. City will be named as an additional insured on such policies.
5.9 Conveyance of Improvements
All Improvements and all material and equipment provided by Developer or on its behalf
which are incorporated into or become a part of the Project shall, upon being added thereto or
incorporated therein, and the Project itself, be and remain the property of Developer, unless
otherwise specifically excepted in this Agreement, but subject to the same (not including personal
property of Developer, Sublessees or Space Lessees) becoming the property of City at the
expiration or termination of this Agreement, as provided below.
Developer, in consideration of the granting of this Agreement, shall upon termination or
expiration of this Agreement, quitclaim unto City, free and clear of all liens, Developer's right,
title, and interest in and to all Improvements owned by Developer, including refrigerators, stoves,
freezers, hood systems, grills, dishwashers, sinks, kitchen work stations and light fixtures that
cannot be removed without causing significant damage to the Improvements. Notwithstanding
anything to the contrary, the personal property of Developer and its subtenants, licensees and
concessionaries shall not be conveyed to City at the end of the Lease Term unless purchased by
City as provided below.
In addition to the Improvements to be conveyed to City as referenced above, Developer
shall further grant to City the right to purchase from Developer, all, or such portion elected by
City, of Developer's tangible personal property and equipment added to or installed at the Property
by Developer during the Lease Term, including all furnishings, and equipment at fair market value
determined by an appraisal, provided that City provides written notice to Developer at least forty-
five (45) days prior to the expiration or termination of the Lease Term of the items it desires to
purchase. City agrees to take any property and/or Improvements from Developer in accordance
herewith in its "AS IS" "WHERE IS" condition as of the expiration or termination of this
Agreement, and without any Developer representation or warranty, express or implied or of any
kind whatsoever, including without limitation, its merchantability or fitness for a particular
purpose.
Prior to the expiration of the Lease Term, Tenant shall provide Landlord with a report,
prepared by a certified engineer, confirming the compliance of the Improvements with applicable
building code requirements and, if applicable, the cost to repair the Improvements as is reasonably
necessary to comply with such requirements. In the event that the Improvements do not meet
applicable building code requirements and the estimated cost to repair the Improvements as is
reasonably necessary to cause them to comply with such requirements is greater than sixty-seven
percent (67%) of the appraised value of the Improvements, Landlord shall have the option to
require Tenant to demolish the then -existing Improvements.
Notwithstanding anything to the contrary contained in this Agreement, under no
circumstances shall Developer or its operator or manager be required to convey or deliver to City
any Hyatt Proprietary Materials.
44
Nothing in this Section 5.9 shall be construed to limit Developer's obligations to maintain
and repair the Improvements as required by this Agreement.
5.10 Property to Remain Free of Liens
Developer shall have no power or right to and shall not in any way encumber City's fee
simple interest in the Property. Other than those caused by City or otherwise permitted by this
Agreement, if any Liens and Encumbrances (which, for the avoidance of doubt, does not include
Leasehold Mortgages or Accommodation Pledges) shall at any time be filed against the Property
and relate to work or other matters pertaining to Developer, the work performed by Developer, or
otherwise in relation to the authority granted to Developer pursuant to this Agreement, during the
Lease Term, then Developer shall, upon acquiring knowledge of such lien or encumbrance,
promptly take and diligently pursue a cause of action to have the same discharged or to contest in
good faith the amount or validity thereof and if unsuccessful in such contest, to have the same
discharged or transferred to bond. If Developer fails to discharge, contest or bond the lien within
sixty (60) days from the date Developer obtains knowledge of same, then City, in addition to any
other right or remedy that it may have, may take such action as may be reasonably necessary to
protect its fee simple interest, and Developer shall be responsible for any and all reasonable
verifiable costs incurred by City in connection with such action, including all reasonable paralegal
or title company fees, costs and expenses. Each party shall bear their own attorney's fees and
costs.
5.11 Repair and Relocation of Utilities
Developer shall maintain and repair, and Developer shall have the right to replace, relocate,
and remove, as necessary, utility facilities within the Property required for the development and
construction of each Phase or component of the Project, or for the operation of the Property and
all existing and future Improvements. City, at Developer's cost, agrees to cooperate with
Developer in relocating existing utility lines and facilities on or adjacent to the Property which
need to be relocated to develop or improve the Project, including reasonable use of existing
easements benefiting the Land and adjoining rights of way to the Land, and the location and
stubbing of utility connections leading to the Property. Such relocation of existing utilities shall
be at the sole expense of Developer.
5.12 Signage
City hereby agrees that, to the extent permitted by law, Developer shall have the exclusive
right, during the Lease Term, without City's consent, to place, erect, maintain and operate, or
cause, allow and control the placement, erection, maintenance and operation of any signs or
advertisements below, in or on or above the Property so long as such signage is not reasonably
foreseeable, in City's reasonable discretion, to negatively impact City's reputation or disparage
the City. Developer shall be responsible for obtaining any and all Permits and licenses which may
be required from time to time by any governmental authority for such signs and advertisements,
and City agrees to execute any consents reasonably necessary or required by any governmental
authority as part of Developer's application for such Permits or licenses. Developer shall have the
right to remove any signs which, from time to time, may have become obsolete, unfit for use or
which are no longer useful, necessary or profitable in the conduct of Developer's business, or in
45
the occupancy and enjoyment of the Property by Developer, or any Sublessees or Space Lessees.
As used in this Section, "sign(s)" shall be deemed to include any display of characters, letters,
illustrations, logos or any ornamentation designed or used as an advertisement or to indicate
direction, irrespective of whether the same be temporary or permanent, electrical, illuminated,
stationary or otherwise. Developer shall be entitled but not required to rent or collect a fee for the
display or erection of signs and advertisements; provided, however that such rent or fees, if any,
shall be a part of Gross Revenue for purposes of this Agreement. Developer shall have the right
and privilege of designating name(s) by which the buildings, the Project or any Phase thereof shall
be known to the general public. Developer has the right to name the Project and any component
or building therein. In either case, the designated name of the Project, Phase, or component shall
not, in City' s reasonable discretion negatively impact City' s reputation or disparage City. In the
event City, in its reasonable discretion, does believe that any such name negatively impacts City's
reputation or disparages City, City must so notify Developer within ten (10) Business Days of
having been advised of the name or names in question in accordance with the City Approval
Process.
5.13 Ombudsman
Recognizing the public and private benefits provided by the Project, City shall appoint an
internal representative who is experienced and qualified to (i) report directly to the City Manager,
and (ii) have authority to coordinate, expedite and respond for the City on behalf of the City
Manager through the final permitting process (the "Ombudsman") to expedite the development of
each Phase or component of the Project as soon as reasonably practicable in an effort to assist
Developer in achieving its development and construction milestones for the Project. Among other
things, the Ombudsman shall (i) lead and set schedules for the internal City review process with
respect to Construction Plans, (ii) expedite and help deliver expedited construction inspection
approvals (including building and fire department approvals), (iii) monitor and inspect the
development and construction process on City's behalf, (iv) maintain a continuous line of
communication with Developer and meet with Developer and Developer's designated
representatives on regular basis with respect to the design, entitlement, permitting, and approval
process, (v) otherwise represent and assist the City in coordinating the City's roles and responses
and approvals.
5.14 City's Rights as Sovereign
Notwithstanding any provision of this Agreement and the City's status as City under this
Agreement, it is understood that City retains all of its sovereign prerogatives and rights as a
municipal corporation under Florida laws (but not in regard to its status as City in its capacity as
landlord and the performance of its contractual duties hereunder) and shall in no way be estopped
from withholding or refusing to issue any approvals of applications for building or zoning; from
exercising its planning or regulatory duties and authority; and from requiring development under
present or future Applicable Laws of whatever nature applicable to the design, construction and
development of the Buildings and Improvements provided for in this Agreement. For the
avoidance of doubt, this Agreement shall not impose any obligation upon the City in its regulatory
capacity and any approvals provided by City in accordance with this Agreement shall be in City's
proprietary capacity as landlord only.
46
5.15 Limitation on Voluntary Zoning Changes
Developer shall not petition Miami -Dade County to include any portion of the Land or
Project in the RTZ zoning district under the jurisdiction of Miami -Dade County or to otherwise
voluntarily seek the transfer of zoning jurisdiction for the Land or the Project to Miami -Dade
County; provided, however, that the foregoing restriction shall not apply in the event that the City
of Miami and Miami -Dade County enter into an interlocal agreement authorizing the County' s
exercise of zoning jurisdiction with respect to the Land or Project, or that the City of Miami
otherwise expressly consents to such exercise of jurisdiction.
5.16 Community Benefits
Developer shall provide the community benefits set forth in Schedule 5.16, including the
community benefits set forth with particularity in Part A of Schedule 5.16 (the "Defined
Community Benefits") and the conceptual community benefits set forth in Part B of Schedule 5.16
(the "Conceptual Community Benefits"), in each case in accordance with the Final Community
Benefits Plan approved by the City Manager in accordance with this Section 5.16. For the
avoidance of doubt, (A) any obligations or benefits contained in Schedule 5.16 that are also
contained elsewhere in this Agreement (such as the payment of the Affordable Housing Payment)
shall be required to be satisfied only once, and (B) Developer shall not be required to provide any
of the community benefits prior to the Commencement Date. Prior to the Commencement Date,
the City and Developer shall cooperate in good faith to further define the scope of the Conceptual
Community Benefits in a community benefits plan approved by the City Manager (the "Final
Community Benefits Plan"). The City Manager shall approve the Final Community Benefits Plan
provided that such plan (a) incorporates all of the Defined Community Benefits and (b)
incorporates all of the items included in the Conceptual Community Benefits and will require total
Developer contributions or expenditures, based on the final proposed scope of work for the
Conceptual Community Benefits, that equal at least ninety percent (90%) of the total estimated
contributions and expenditures as set forth in Part B of Schedule 5.16. The City Manager may, in
his or her reasonable discretion, approve a Final Community Benefits Plan that adds or removes
items from the Conceptual Community Benefits provided that such plan requires total Developer
contributions or expenditures that equal at least one hundred percent (100%) of the total estimated
contributions and expenditures as set forth in Part B of Schedule 5.16. After the Commencement
Date, the City Manager, in his or her reasonable discretion, may approve amendments to the Final
Community Benefits Plan provided that any such amendment does not materially decrease the
total value of the community benefits to be provided to the City and does not materially change,
in any respect, the Defined Community Benefits and is at all times in compliance with the Charter
Amendment.
ARTICLE VI
CONDUCT OF BUSINESS BY DEVELOPER; CAPITAL EXPENSE FUND
6.1 Conduct of Business
At all times during the Lease Term, Developer shall manage the Property with due
diligence and efficiency, in Developer's sole discretion, subject to the limitations set forth in this
47
Agreement, and in a manner prudent and in accord with the current first-class conditions consistent
with similar first-class businesses located in the City with similar Improvements. City hereby
agrees that, subject to any express limitations imposed by the terms of this Agreement, Developer
shall be free to perform and exercise its rights under Developer and shall have exclusive control
and authority to develop, direct, operate, lease and manage the Property, including with respect to
the Project and all Phases thereof, and the rental or sale of the buildings and Improvements.
Without limiting the foregoing, Developer is hereby granted the exclusive right to bifurcate the
Leasehold Estate as contemplated in Article X and to enter into any Sublease, Space Lease, license
or similar grant for any part or all of the buildings and/or Improvements. Nothing contained herein
shall limit or restrict Developer's right to limit access to or close all or any portion of the Property
on a temporary basis (i) when necessary to perform repairs or address events of Force Majeure,
(ii) to address appropriate security measures, (iii) in the case of an emergency, or (iv) for other
reasonable closures that are necessary in Developer's reasonable judgment.
6.2 Capital Expense Fund
Beginning with the first Lease Year that commences five (5) years after receipt of a
Certificates of Occupancy for the Required Hotel Tower and/or the Required Residential Tower
and continuing through out the Lease Term, Developer shall set aside each Lease Year into one or
more separate reserve accounts in Developer's name that are maintained in one or more federally
insured financial institutions selected by Developer, an amount equal to two percent (2.0%) of the
Gross Revenues received by Developer that were derived from hotel use during the immediately
prior Lease Year ("Hotel Cap Ex Fund") and one percent (1.0%) of the Gross Revenues received
by Developer that were derived from uses at the Property other than hotel use and parking use
during the immediately prior Lease Year ("Other Uses Cap Ex Fund," and together with the Hotel
Cap Ex Fund, the "Cap Ex Fund"). The Cap Ex Fund shall be used by Developer from time to
time as Developer reasonably determines and applied towards repairs, improvements and/or
upgrades to the Property and other uses that are classified as "capital expenditures" under the
Uniform System or generally accepted accounting principles, including mechanical and structural
purchases, upgrades, improvements, as reasonably determined by Developer in order to keep the
Project and Improvements in the condition required by this Agreement ("Capital Applications"),
provided that funds in the Hotel Cap Ex Fund shall only be applied to Capital Applications related
or benefitting the hotel components of the Project and funds in the Other Uses Cap Ex Fund shall
only be applied to Capital Applications related to or benefitting the Project component or use from
which the funds were obtained (e.g., multi -family use, restaurant use). With respect to each
component of the Property, Developer' s obligation to make deposits into the Cap Ex Fund shall
be satisfied during any period that, and for so long as and to the extent Developer is required to
deposit funds to cover capital expenditures related to the applicable component(s) into one or more
reserve accounts pursuant to the requirements of any Leasehold Mortgage, Subleasehold Mortgage
and/or any Mezzanine Financing Source or pursuant to any operating agreement or management
agreement with respect to the Property or pursuant to the Master Covenants provided that such
deposited funds, reserve accounts, and requirements are generally consistent with the requirements
set forth in this Section 6.2. Commencing with the sixth Lease Year and continuing each Lease
Year thereafter, Developer shall use at least 20% of the funds deposited in the Cap Ex Fund during
the previous Lease Year for Capital Applications in accordance with this Section; provided,
however, that Developer may request the City Manager's written approval of a lesser expenditure
in any Lease Year, and such approval may not be unreasonably withheld, conditioned, or delayed
48
so long as such reduction is consistent with Applicable Law. Developer shall maintain financial
accounting and "scope of work" records together with any corresponding documentation of
amounts placed in and amounts used from the Cap Ex Fund, which shall be subject to review by
City, in the manner specified above in Sections 4.8 and 4.9 of this Agreement.
ARTICLE VII
MAINTENANCE, REPAIR AND ALTERATION OF PROPERTY
7.1 Developer's Maintenance Obligations
Commencing on the Commencement Date, Developer, at its sole cost and expense, agrees
to continuously maintain the Improvements in the Property, including all operating equipment,
utility services (to the extent within Developer's reasonable control), and connections within the
Property. Developer, at its sole cost and expense, agrees to keep the Property and the
Improvements in good, safe, code compliant and sanitary condition and repair throughout the
Lease Term, ordinary wear and tear and casualty excepted. Developer shall be responsible for
periodic painting of the interior and exterior of the Property and decorating the interior of the
Property, maintaining its equipment, fixtures, furnishings, and other personal property in good
condition and repair, in Developer's reasonable business judgement and ordinary wear and tear
excepted. All maintenance shall be at Developer's sole cost and expense and will be subject to
general inspection by City (subject to and in accordance with the terms and conditions of this
Agreement). Notwithstanding the foregoing, prior to Commencement of Demolition of the
Existing Improvements, Developer is only required to maintain the Existing Improvements in
condition and repair that is substantially similar to their condition as of the date of execution of
this Agreement, subject to ordinary wear and tear and casualty. Nothing in this Section shall be
construed to interfere with Developer's right to demolish the Existing Improvements as set forth
in this Agreement.
7.2 Developer's Repair Obligation
Subject to the provisions of this Agreement regarding casualty damage, condemnation,
ordinary wear and tear, redevelopment of the Property, and construction, reconstruction, and
restoration of improvements, except as otherwise provided for in this Agreement, Developer, at
Developer's sole cost and expense, at all times during the Lease Term, shall make all repairs to all
Improvements that are necessary in Developer's reasonable business judgement, including, all
heating, ventilating and air-conditioning equipment and any other repair or replacement to the
Improvements.
7.3 Changes/Alterations
Developer shall have the right at any time and from time to time during the Lease Term, at
its sole cost and expense, to renovate, expand, rebuild, alter and/or reconstruct the buildings and
Improvements, provided that no such renovations, alterations, rebuilding, or reconstruction shall
cause the Property to not comply with the Minimum Initial Program without the consent of
Landlord, which consent may be granted or withheld in the City's sole discretion. Notwithstanding
the foregoing, in the event of reconstruction (other than reconstruction that is required due to
49
casualty) for which the budgeted cost of the reconstruction exceeds fifty percent (50%) of the
replacement cost of the Improvements, Landlord's consent (which consent shall not be
unreasonably withheld, conditioned, or delayed) is required prior to undertaking the
reconstruction. In connection with any such renovations, alterations, rebuilding, or reconstruction,
Developer shall obtain all approvals, Permits and authorizations required under Applicable Laws.
No approval by the City Manager of any changes or alterations of the Improvements shall
relieve Developer of any obligation it may have under Applicable Law to file any required
documents with any department of the City or any other governmental authority having
jurisdiction; or to obtain any building or other permit or approval required by Applicable Law in
connection with such change or alteration. Developer acknowledges that any approval given by
the City or its officials pursuant to this Section or otherwise in connection with this Agreement
shall not constitute an opinion or agreement by the City that the changes or alterations are in
compliance with any Applicable Laws.
ARTICLE VIII
INSURANCE AND INDEMNITY
8.1 Insurance on the Property
In connection herewith, Developer shall obtain and maintain or cause to be obtained and
maintained in full force and effect throughout the Lease Term, the insurance coverage set forth in
Exhibit F. Furthermore, Developer shall cause all Developer's contractors in connection with any
Construction Work on the Property to obtain and maintain throughout the Construction Work the
insurance coverage set forth in Exhibit E. If required by Applicable Laws from time to time for
work conducted on or use of municipal properties, Developer shall obtain and maintain or cause
to the obtained and maintained throughout or during the Lease Term, as applicable, such types and
amounts of payment, performance, maintenance, or restoration bond(s) as shall be reasonably
required to be reviewed and approved by the City's Risk Management Depaitalent.
Commencing on the tenth anniversary of the Commencement Date and thereafter not more
than once every ten years, the City's Risk Manager shall have the right to make reasonable
revisions to the insurance requirements from time to time, provided same are consistent with the
insurance required of comparable City -owned property. Reasonable revisions shall be defined as
a newly identified direct exposure to City, but the insurance designed to cover this newly
discovered exposure must be commercially available and available at a reasonable cost based on
the direct exposure to City for loss.
8.2 Delivery of Insurance Policies
All liability, statutory workers compensation and property policies, if applicable, shall be
retained by Developer. Except as otherwise specifically provided, all other policies of insurance
required to be furnished by this Agreement shall be held by and be payable jointly to City and
Developer with the proceeds to be distributed in accordance with the terms of this Agreement.
Insurance company certificates evidencing the existence of all of these policies of insurance shall
be delivered to City. All policies of insurance required by this Agreement shall provide that they
50
shall not be amended or canceled on less than ten (10) days prior written notice to City for non-
payment and no less than thirty (30) days prior written notice for other reasons, and all insured
beneficiaries of the policies shall contain waiver of subrogation rights endorsements, as required
below, to the extent commercially available. City shall have no obligation to pay premiums, make
contributions to the insuring company or any other person, or to satisfy any deductible. On or
before the Commencement Date and not less than thirty (30) days prior to the expiration date of
any policy required to be carried pursuant to this Section, Developer shall deliver to City the
applicable respective policies, or insurance company certificates evidencing all policies of
insurance and renewals required to be furnished. Receipt of any documentation of insurance by
City or by any of its representatives that indicates less coverage than required does not constitute
a waiver of Developer's obligation to fulfill the insurance requirements herein. City shall appear
listed as an additional insured on all applicable liability policies and all Leasehold Mortgagees
shall be listed as additional insureds. Property policies shall name City as loss payee as its interest
may appear and each Leasehold Mortgagee under a standard noncontributing mortgagee clause.
All insurance policies required by this Agreement shall be primary and non-contributory and
should include all corresponding endorsements in connection with this Agreement, and as required
by the City in its governmental capacity pursuant to Applicable Law. Notwithstanding anything
to the contrary in this Section 8.2, all proceeds of property insurance policies shall be paid and
applied as this Agreement provides.
8.3 Adjustment of Loss
Subject to the requirements of any Leasehold Mortgagee, any Gross Insurance Proceeds
recovered on account of any damage or destruction by any casualty shall be made available for the
payment of the cost of the reconstruction, replacement or repairs. All of the Gross Insurance
Proceeds plus the amount of any deductible applicable to said damage or destruction shall be
deposited by the insurance company or by Developer (in the case of the deductible) with the
Depository, with instructions, that subject to the requirements of the Leasehold Mortgagee, the
funds shall be disbursed to Developer, with notice thereof to City, as the work of the
reconstruction, replacement or repairs progresses upon certificates of the architect or engineer
supervising the work that the disbursements then requested, plus all previous disbursements made
from such Gross Insurance Proceeds, plus the amount of any deductible, do not exceed the cost of
the work already completed and paid for, and that the balance in the Depository is sufficient to pay
for the reasonably estimated cost of completing the required work. If the amount of the Gross
Insurance Proceeds is less than the cost of the required work, then Developer shall pay the excess
cost; and if the amount of the Gross Insurance Proceeds is greater than the cost of the required
work, then the excess shall be paid to and belong to Developer, subject to the requirements of the
Leasehold Mortgagee.
8.4 Indemnification of City
Subject to the terms of Section 8.5, Developer shall indemnify, defend and hold harmless
City and its officers, employees, agents and instrumentalities from any and all liability, losses or
damages, including reasonable attorneys' fees and costs of defense, which City or its officers,
employees, agents or instrumentalities may incur as a result of any claims, demands, suits, causes
of actions or proceedings ("Claims") arising out of, relating to or resulting from the performance
of this Agreement by Developer or its employees, agents, officers, partners, members, principals
51
or contractors; provided, however, that this indemnity shall not extend to or cover any Claims
arising solely out of the negligence or willful misconduct of City or its officers, employees,
authorized agents or instrumentalities or any liability of City to third parties existing prior to the
Commencement Date. Developer shall pay all Claims in connection with any matters indemnified
hereunder, and shall investigate and defend all claims, suits or actions of any kind or nature in the
name of City, where applicable, with respect to such matters, including appellate proceedings, and
shall pay all costs, judgments, and attorney's fees which may issue thereon. Subject to the terms
of Section 8.5, Developer expressly understands and agrees that any insurance protection required
by this Agreement or otherwise provided by Developer shall in no way limit the responsibility to
indemnify, keep and save harmless and defend City or its officers, employees, agents and
instrumentalities as herein provided.
8.5 Waiver of Subrogation
Developer waives all rights to recover against City for any damages arising from any cause
covered by any insurance required to be carried by Developer, or any insurance actually carried
by Developer. Developer shall cause its insurer(s) to issue appropriate waiver of subrogation rights
endorsements to all policies of insurance carried in connection with the Property, or any part
thereof. City waives all rights to recover against Developer, its employees, agents, officers,
partners, members, principals or contractors, for any Claims arising from any cause covered by
property insurance (irrespective of whether the insurance is carried by Developer or City). City
shall cause its insurer(s) to issue appropriate waiver of subrogation rights endorsements in favor
of Developer to all such policies of insurance carried by City in connection with the Property. Any
self-insurance program of City shall be deemed to include a full waiver of subrogation consistent
with this Section.
8.6 Survival
The provisions of Sections 8.4 and 8.5 shall survive the expiration or termination of this
Agreement.
ARTICLE IX
SERVICES AND UTILITIES
9.1 Developer to Provide and Pay for Utilities
Developer shall pay, or cause to be paid, all charges for gas, electricity, light, heat, water
and power, for telephone, protective and other communication services, and for all other public or
private utility services, which shall be used, rendered or supplied upon or in connection with the
Property and any Improvements, if any, or any part of it, at any time during the Lease Term, and
Developer shall comply in all material respects with all contracts relating to any such services and
will do all other commercially reasonably things required for the maintenance and continuance of
all services as are necessary for the maintenance and operation of the Property and the
Improvements as required under this Agreement. Developer shall, at its sole expense, procure any
and all necessary permits, licenses or other authorization required for the lawful installation and
52
maintenance upon the Property of wires, pipes, conduits, tubes and other equipment and appliances
for use in supplying any such utilities, services or substitutes to the Property.
9.2 City Not Liable for Failure of Utilities
City shall not be liable for any failure of water supply, sewer, gas or electric current, or for
any injury or damage to any person or to the Property caused by or resulting from water, gas or
electricity which may leak or flow from the water or gas mains on to any part of the Property or
the Improvements unless directly caused by any grossly negligent or willful, action or inaction of
City. City shall not be required to make any alteration to any service or utility system of the
Property on behalf of Developer. City shall not be liable for temporary failure of services, and any
such temporary failure shall not be deemed to constitute actual or constructive eviction, nor entitle
Developer to any abatement or diminution in rent payable under this Agreement, unless directly
caused by any grossly negligent or willful action or inaction of City.
City shall not knowingly make or allow to be made after the Effective Date any changes in
any utility service or availability of capacity to, through, under or above the Property that would
result in a materially disruptive effect on the use or operation of the Property by Developer and its
customers, including fiber optics, telephone, electricity, water, storm and sanitary sewer, gas, heat,
ventilation and air conditioning, without the prior written consent of Developer, which shall not
be unreasonably withheld, conditioned or denied; further, provided, that the written consent of
Developer shall not be required for minor, routine and customary, maintenance, repair,
improvement and upgrades made by the utility provider to the utilities it furnishes.
ARTICLE X
SUBLEASES, ASSIGNMENTS AND TRANSFERS
10.1 Right to Transfer Leasehold. Except as otherwise provided in this Article X,
prior to Substantial Completion of the Minimum Initial Program, Developer shall not sell, assign
or transfer this Agreement in its entirety, any portion thereof, or all of the interest of Developer as
tenant hereunder, or the right of Developer to develop the Project or any portion thereof pursuant
to this Agreement, to any Person that is not an Affiliated Person (herein, a "Pre -Minimum Initial
Program Transfer"), without first procuring the prior written consent of the City Manager, which
consent shall not be unreasonably withheld, conditioned or delayed. Following Substantial
Completion of the Minimum Initial Program and provided no Event of Default of Developer then
exists under this Agreement, Developer may freely sell, assign or transfer this Agreement (in
whole or in part) or any interest of Developer hereunder without restriction (except as otherwise
expressly provided in this Section 10.1) to an Acceptable Developer, upon notice to City and
without the consent of City. In addition, at any time and from time to time, whether before or after
the Substantial Completion of the Minimum Initial Program, and provided no Event of Default of
Developer then exists under this Agreement, Developer may freely sell, assign or transfer this
Agreement (in whole or in part) or any interest of Developer hereunder to any Affiliated Person
without restriction (except as otherwise expressly provided in this Section 10.1), upon notice to
City and without the consent of City. As used in this Section, the term "transfer" shall include the
transfer of the direct or indirect ownership interests in Developer if such transfer (individually or
in the aggregate) results in a transfer of more than ninety percent (90%) of the beneficial ownership
53
of Developer and a change in Control of Developer. Transfers for estate planning purposes of
direct or indirect ownership interests in Developer shall not require the consent of City. The
following provisions shall apply to transfers hereunder:
10.1.1 If Developer desires to make a Pre -Minimum Initial Program Transfer,
Developer shall, in each instance, give written notice to the City Manager not less than forty-five
(45) days prior to the effective date of the proposed Pre -Minimum Initial Program Transfer, which
notice shall (i) specify the nature of the proposed Pre -Minimum Initial Program Transfer and the
proposed date thereof, (ii) identify the proposed transferee, (iii) include a copy of the proposed
assignment and assumption agreement, which shall be in a commercially reasonable form, and (iv)
include any other documents or financial information as the City Manager may reasonably require
to evaluate the proposed transferee. Based on the standards and criteria set forth in this Section
10.1, the City Manager shall grant or deny consent to the Pre -Minimum Initial Program Transfer
no later than forty-five (45) days following City Manager's receipt of Developer's notice and all
documentation reasonably required in connection therewith in accordance with the City Approval
Process. If the City Manager denies consent to Developer's request for any Pre -Minimum Initial
Program Transfer, the City Manager must have a reasonable basis to do so and shall state the
specific reasons for such disapproval in the notice of denial. Developer acknowledges and agrees
that the conditions and requirements for City Manager's consent to a Pre -Minimum Initial Program
Transfer provided herein are reasonable. City acknowledges and agrees that it shall not be
reasonable for the City Manager to deny consent to a Pre -Minimum Initial Program Transfer to
any transferee who is an Acceptable Project Developer. If the City Attorney determines that City
Commission approval is required for any Pre -Minimum Initial Program Transfer under any
Applicable Laws, then such approval shall be required hereunder in lieu of the consent of the City
Manager, the City Manager shall use due diligence to present the request for the Pre -Minimum
Initial Program Transfer to the City Commission as soon as reasonably practicable and the time
for performance by City hereunder shall be extended to provide such time as is necessary for the
presentation to, and approval by, the City Commission. Any attempted Pre -Minimum Initial
Program Transfer of this Agreement without the consent of the City Manager (or approval of the
City Commission, if required) shall be void and of no force or effect and shall not confer any
interest or estate in the purported transferee and will additionally be an Event of Default by
Developer under this Agreement.
10.1.2 If consent to a transfer is not required under this Section (e.g., transfers to
Affiliated Persons or following Substantial Completion of the Minimum Initial Program of the
Project), Developer shall notify City in writing of such transfer (for informational purposes only)
and provide City with copies of any executed transfer documents within thirty (30) days after the
date of transfer.
10.1.3 Notwithstanding anything to the contrary contained in this Section 10.1, no
transferee of Developer's interest in this Agreement shall be a Prohibited Person. Prior to
Substantial Completion of the Minimum Initial Program, any proposed transferee must be an
Acceptable Project Developer, or shall engage an Acceptable Project Developer to perform the
obligations of Developer hereunder.
10.1.4 The original Developer or then applicable transferor (as the case may be)
shall be released of and from all obligations under this Agreement accruing after the effective date
54
of such transfer, but only as to the portion of the Property so transferred, provided that, in the case
of a Pre -Minimum Initial Program Transfer, the City Manager has consented to (or, if required,
City Commission has approved) such transfer as hereinabove provided. Such release shall be
automatic and without the need for an instrument of release; however, City shall execute and
deliver a written release if requested by Developer promptly following such request. City shall
also execute any other assignment and/or transfer documents as may be reasonably requested by
Developer to confirm City's consent to and/or acknowledgement of any transfer hereunder,
provided that the terms of such documents comply with the requirements hereof.
10.1.5 Any transfer of all or any part of Developer's interest in this Agreement and
the Property shall be made expressly subject to the terms, covenants and conditions of this
Agreement, and such assignee or transferee shall expressly assume all of the obligations of
Developer under this Agreement applicable to that portion of the Property being sold, assigned or
transferred, and agree to be subject to all conditions and restrictions to which Developer is subject,
but only for matters accruing while such assignee or transferee holds, and only related to, the sold,
assigned or transferred interest. However, nothing in this subsection or elsewhere in this
Agreement shall abrogate City's right to payment of all Minimum Rent and other amounts due
City which accrued prior to the effective date of such transfer.
10.1.6 In connection with any transfer, Developer shall notify City in writing of
the name and address of the transferee and the post office address of the place to which all notices
required by this Agreement are to be sent.
10.1.7 Each transferee of Developer (and all succeeding and successor transferees)
shall succeed to all rights and obligations of Developer under this Agreement with respect to the
portion of the Property so transferred, including the right to mortgage, and further assign, sublease
or transfer; subject, however, to all duties and obligations of Developer with respect to such portion
of the Property, and to the terms of the document of assignment or transfer (including the
Bifurcated Lease, if applicable), in and pertaining to the then remaining Lease Term.
10.1.8 This Section 10.1 shall not apply to the following, all of which shall be
governed by Article XXII hereof (and not this Article X): (x) any sale, assignment or transfer that
results from a foreclosure, a deed or assignment in lieu of foreclosure or the exercise of any other
remedies under any Leasehold Mortgage, Accommodation Pledge, Subleasehold Mortgage or any
Mezzanine Financing or (y) the first subsequent sale, assignment or transfer to an entity that does
not qualify as an Affiliated Person following one of the events contemplated by the foregoing
clause (x).
10.1.9 In addition, at any time and from time to time, whether before or after the
Substantial Completion of the Minimum Initial Program, and notwithstanding anything to the
contrary contained in this Agreement, Developer may freely sell, assign or transfer this Agreement
(in whole or in part) to Hyatt or Gencom without restriction and sales, assignments, or transfers of
direct or indirect interest in Developer between and among the direct and indirect owners of
Developer may be made without restriction, in each case, upon written notice to the City but
without the consent of City.
10.1.10 Intentionally Omitted.
55
10.2 Bifurcation of Leasehold Interest under this Agreement. Subject to the terms
and conditions of this Section 10.2, and provided that no uncured Event of Default of Developer
exists, Developer, at Developer's option, may effectuate a bifurcation or bifurcations of the
Leasehold Estate in this Agreement from time to time to facilitate the capitalization, financing,
development and operation of the various components of the Project. Accordingly, if Developer
desires to bifurcate its Leasehold Estate under this Agreement, Developer shall so notify City of
such election pursuant to Section 10.2.1 and the following provisions shall apply:
10.2.1 Developer, City and the transferee (in the event there is a transferee), shall
promptly (and, in any event within sixty (60) days following Developer's request) enter into,
execute and deliver (i) a bifurcation and partial termination of the Leasehold Estate under this
Agreement in substantially the form attached hereto as Schedule 10.2, and (ii) a new lease with
the transferee with respect to the bifurcated component of the Project (each a "Bifurcated Lease")
in substantially the same form of this Agreement, but modified to delete Article XXIV, and to
allocate the rent -restricted multifamily units required by Schedule 5.16 of this Agreement to a
particular Bifurcated Lease, and as otherwise necessary to reflect that the Bifurcated Lease covers
and affects the bifurcated component only. For the avoidance of doubt, and notwithstanding
anything in this Agreement to the contrary, Bifurcated Leases shall be permitted only to the extent
that (a) each Bifurcated Lease is materially in the same form as this Agreement and (b) the
Bifurcated Leases incorporate, either individually or collectively, all requirements set forth in this
Agreement, unless otherwise approved by the City Commission. The form of each Bifurcated
Lease shall be subject to the review and approval of the City Attorney for compliance with this
Agreement.
10.2.2 Any such transferee of the bifurcated component of the Project pursuant to
this Section 10.2 shall be obligated to comply with the terms and provisions of the Bifurcated
Lease and shall be subject to the remedies and rights available to City under the Bifurcated Lease
in the event such transferee fails to perform its obligations thereunder.
10.2.3 Each Bifurcated Lease shall specify the allocation of the Minimum Rent,
Participation Rent, and any other payments under this Agreement to be paid to City thereunder,
provided that (i) the sum of the Minimum Rent allocated under all Bifurcated Leases and this
Agreement shall equal the total Minimum Rent required by this Agreement (as if this Agreement
had not been bifurcated), (ii) the Minimum Rent shall be allocated between this Agreement and
each Bifurcated Lease proportionately based on the square footage of the Improvements; provided,
however, that for purposes of this calculation, the square footage of any Improvements utilized for
hotel uses shall be multiplied by 2.5, as demonstrated in the example in the following sentence,
and (iii) Participation Rent under a Bifurcated Lease shall be reduced by the amount of Minimum
Rent per annum paid under such Bifurcated Lease (in the same manner as Minimum Rent reduces
Participation Rent under this Agreement). By way of example, in the event that this Agreement is
bifurcated into a total of five Bifurcated Leases, each of which contains Improvements equaling
600,000 square feet, and one of which is dedicated to hotel uses, then 38.46 percent of the
Minimum Rent will be allocated to the Bifurcated Lease for the hotel uses (600,000 square feet
multiplied by 2.5 equals 1,500,000 square feet, divided by a total square footage, as adjusted, of
3,900,000), and 15.385 percent of the Minimum Rent will be allocated to each of the other four
Bifurcated Leases (600,000 square feet divided by a total square footage, as adjusted, of
3,900,000).
56
10.2.4 For each Bifurcated Lease, City shall be entitled to receive all Minimum
Rent and all Participation Rent due and owing under such Bifurcated Lease.
10.2.5 The Minimum Rent due and payable by Developer under this Agreement
shall be adjusted and reduced, on a dollar for dollar basis, by the aggregate amount of Minimum
Rent due and payable under the Bifurcated Leases, respectively. The bifurcation documents
executed by the Parties pursuant to Section 10.2.1 shall amend this Agreement to confirm such
adjustment and reduction in Minimum Rent.
10.2.6 Notwithstanding anything contained in this Agreement, upon the execution
of a Bifurcated Lease:
(a) Neither Developer nor City shall be obligated to perform any
obligation under this Agreement to the extent such obligation pertains to, or is to be performed
on, any the portion of the Property leased pursuant to such Bifurcated Lease (and such portion
of the Property shall no longer be part of the Property leased under this Agreement), and
Developer and City shall be automatically released from any and all such obligations under this
Agreement (including any obligation to (x) pay any rent allocated to such Bifurcated Lease and
(y) maintain insurance or reserves for such portion of the Property);
(b) No action or omission of, or default by, a tenant (or anyone acting
by, through or under a tenant) under a Bifurcated Lease, including any failure to develop the
applicable component of the Project, shall in any event constitute or give rise to a default, or
any liability of Developer under this Agreement or deprive Developer of any of its rights under
this Agreement, including without limitation the right to develop the remainder of the Project
on the balance of the Property in accordance with this Agreement; and
(c) Neither Developer nor any assignee or successor thereof shall in any
event be prohibited from developing any portion of the Project (or be in default hereunder, or
have any liability), as a result of any failure of any tenant (or anyone acting by, through or under
a tenant) under any Bifurcated Lease to develop the applicable component of the Project or
comply with any obligation under its Bifurcated Lease.
Each Bifurcated Lease shall include provisions similar to the above confirming that (1) the
tenant under such Bifurcated Lease shall not be obligated to perform any obligation under this
Agreement or any other Bifurcated Lease, and (2) no action or omission of, or default by,
Developer under this Agreement or any other tenant under any other Bifurcated Lease, shall
constitute a default under such Bifurcated Lease; it being the intention of the Parties that this
Agreement and each Bifurcated Lease shall not be cross -defaulted in any way.
10.2.7 Each tenant under a Bifurcated Lease shall have the right to (i) further assign
the Bifurcated Lease, and (ii) enter into subleases, licenses, concession agreements, management
agreements, operating agreements and other arrangements for the purpose of implementing any
use, operation or activity permitted under this Agreement, in accordance with the terms thereof.
10.2.8 No more than five Bifurcated Leases shall be permitted (inclusive of this
Agreement), unless approved by the City Manager, and no more than eight Bifurcated Leases shall
be permitted (inclusive of this Agreement), unless approved by the City Commission. For the
57
avoidance of doubt, no Bifurcated Lease may be further bifurcated to the extent that there are
greater than five (5) ground leases between City, as landlord, and a tenant, unless approved by the
City Manager. For the avoidance of doubt, Space Leases are not considered to be Bifurcated
Leases, and a Sublease shall count towards the foregoing limit of five (5) ground leases only to the
extent that such Sublease is a functional equivalent of a Bifurcated Lease and transfers ownership
of a major Project component.
10.2.9 No bifurcation of this Agreement shall be permitted without the prior
approval of the City Commission unless Substantial Completion of the Minimum Initial Program
has occurred; provided that City, upon Developer's request, shall consider prospective transferees
for a Bifurcated Lease (i.e., transfers that would occur only after Substantial Completion of the
Minimum Initial Program) prior to Substantial Completion of the Minimum Initial Program, to the
extent City's approval is required and the applicable tenant under the Bifurcated Lease is an
Acceptable Developer.
10.2.10 The transfer of a Bifurcated Lease to an entity other than the initial
Developer named in this Agreement shall be subject to the assignment provisions of Section 10.1
of this Agreement. Additionally, the transferee, if any, for a Bifurcated Lease must not be a
Prohibited Person.
10.2.11 Each Bifurcated Lease shall provide any mortgagee of the leasehold
or any subleasehold interest demised pursuant to any Bifurcated Lease (or any related sublease
thereunder) and any provider of related mezzanine financing or debt -like preferred equity with the
same protections as are available to a Leasehold Mortgagee, Subleasehold Mortgagee, and/or
Mezzanine Financing Source hereunder.
10.2.12 If Tenant, in its reasonable discretion, determines that in connection
with any such bifurcation one or more modifications of this Agreement and the form of the
applicable Bifurcated Lease are required based on the manner in which the development is
subdivided and operational realities related to the same (including, without limitation, any
necessary allocation of the commitments relating to community benefits set forth in Section 5.16),
then provided said modifications do not have and are not reasonably foreseen to have a material
adverse impact on the planned development or the aggregate financial or other obligations in favor
of the City hereunder, and are in compliance with the Charter Amendment (taken together with
each Bifurcated Lease), Tenant shall be permitted to undertake any such modifications (it being
acknowledged that no such modification of this Agreement or any Bifurcated Lease shall be
permitted without the consent of any Lender with a mortgage or pledge secured by a direct or
indirect interest in the applicable Leasehold Estate).
10.2.13 No bifurcation of the Lease shall be permitted until the Master
Covenants have been recorded in the Public Records. This Agreement, all Bifurcated Leases, all
Subleases, Space Leases contemplated and authorized by this Agreement shall be subject to the
Master Covenants.
10.2.14 An amendment to the Memorandum of Lease shall be recorded in
the Public Records removing the premises under the Bifurcated Lease from the legal description
of the Property in the Memorandum of Lease.
58
10.2.15 In the event that a bifurcation of the Lease in accordance with this
Section 10.2 results in a change in Tenant for any Bifurcated Lease, the assignment provisions of
Section 10.1 shall apply.
10.3 Master Covenants for Integrated Project. Although the Property may be leased
pursuant to this Agreement and/or one or more Bifurcated Leases, the Project shall be an integrated
mixed -use development, to be used for the Permitted Uses pursuant to the terms of this Agreement
and/or the Bifurcated Leases (as applicable). To promote the integrated and mixed -use nature of
the Project, and to ensure that the common or shared components of the overall Project are
maintained and benefit the Phases and other portions of the Project intended to be served thereby,
the Project may be subject to and benefited by the Master Covenants as follows:
10.3.1 The Project may include certain common or shared components (such as,
without limitation, walkways, promenades, driveways, parking facilities, park areas, project -wide
lighting and signage, utilities, drainage facilities, and other shared components, areas and facilities)
located on more than one Phase or portion of the Project. Pursuant to the Master Covenants, such
common or shared components, areas and facilities will be (i) available for use by each Phase and
other portions of the Property intended to be served thereby, and (ii) will be administered by a
master association, property owner's association and/or other entity created for such purpose as
more particularly provided in the Master Covenants (such entity, a "Master Association").
10.3.2 City agrees to recognize and not disturb the rights of Developer, any tenant
under a Bifurcated Lease, any transferee of this Agreement (and its or their respective Sublessees
and other subtenants (including Space Lessees), licensees, employees, customers, guests, invitees
and/or other permitted users) to the common or shared components, areas or facilities under the
Master Covenants irrespective of whether this Agreement or any Bifurcated Lease controlling such
components, areas or facilities may have terminated or expired. City agrees from time to time,
promptly upon request of Developer, any tenant under a Bifurcated Lease and/or any such
transferee, to enter into an agreement in recordable form confirming such recognition and non -
disturbance agreement, which agreement shall be on such other customary and reasonable terms
as may be mutually acceptable to the parties. In addition, in the event this Agreement or any
Bifurcated Lease is terminated with respect to any portion of the Project that is encumbered by the
Master Covenants, such portion of the Project shall continue to be burdened by and enjoy the
benefits of the common or shared components, areas or facilities under the Master Covenants,
subject to the terms and conditions thereof (including without limitation the continuing obligation
to pay assessments for the privilege of using such components and facilities). Any subsequent
lease(s) or other agreements of any kind or nature whatsoever affecting the common or shared
components, areas and facilities encumbered by the Master Covenants shall be subject to the terms,
conditions and provisions of the Master Covenants.
10.3.3 The Master Covenants may be recorded against and encumber all or any
portion of the Project at any time during the Lease Term.
10.3.4 The form and substance of the Master Covenants shall be prepared by
Developer and subject to the prior written approval of the City, which shall not be unreasonably
withheld, conditioned or delayed. The City shall approve or disapprove the form of the Master
Covenants in writing within ninety (90) days following City's receipt of the initial draft of the
59
Master Covenants (or thirty (30) days following any revised draft, as applicable) in accordance
with the City Approval Process. City shall provide specific reasons in writing to Developer for
any disapproval of the Master Covenants simultaneously with any written notice of disapproval
given by City hereunder. Amendments to the Master Covenants which are material and which, if
same were in the original Master Covenants, would have required City approval, shall be subject
to the same approval process as the original Master Covenants. Upon its approval of the Master
Covenants, City shall sign a consent thereto in recordable form. The Parties shall use
commercially reasonable efforts to finalize the form of the Master Covenants within a period of
sixty (60) days following the initial draft.
10.3.5 The governing documents of the Master Association shall require that it
maintain a reserve holding not less than six months' operating expenses with respect to the shared
elements and a reasonable capital expenditures reserve and shall at all times comply with all
Applicable Law. The Master Covenants shall provide that (i) the Master Association shall have
customary assessment rights and lien and enforcement rights, and (ii) the Master Association will
retain a qualified property manager, whose responsibilities will include coordinating with
Landlord in connection with Landlord's day-to-day administration of this Agreement and any
Bifurcated Leases and Landlord's inspection of the Property in connection therewith. The Master
Covenants will further provide that: (i) all assessment liens shall be subordinate to any Mortgage,
(ii) each Lender with respect to any component of the Project encumbered by the Master Covenants
shall be entitled to customary notice and cure rights (including, without limitation, (x) non -
monetary cure periods that extend while any such Lender is pursuing a foreclosure or
deed/assignment-in-lieu thereof and (y) post -foreclosure waiver of non -monetary defaults which
are not susceptible of cure), (iii) each component shall be granted all necessary access and
ingress/egress easement rights as well as easement rights with respect to parking allocations as are
necessary for property operation and zoning compliance of each component, (iv) to the extent the
various components are integrated, each owner (or the Master Association) shall be required to
maintain all-risk property insurance in a manner consistent with then -current standards of the
CMBS lending market, (v) in connection with any material casualty relating to any component of
the Project that provides structural support, parking rights, or access rights or which is integrated
with other components of the Project in a manner such that failure to restore the applicable
component would be reasonable likely to have a material adverse impact on the value or utility of
other components of the Project, proceeds will be deposited with a trustee or depository satisfying
then current CMBS ratings criteria and will be applied to restoration of the applicable component,
and (vi) mechanisms for assessments shall be fair and non-discriminatory.
60
10.4 Intentionally Omitted.
10.5 Rights to Sublease and Non -Disturbance to Sublessees and/or Space Lessees.
Developer shall have the right to enter into and/or consent to a Sublease or Space Lease without
any approval or consent of City; however, notwithstanding any other provisions of this Agreement,
no Sublease or Space Lease shall relieve Developer of any obligations under the terms of this
Agreement. City agrees to grant recognition and non -disturbance agreements for Space Lessees
or Sublessees which provide that, in the event of a termination of this Agreement which applies to
the portion of the Property covered by such Space Lessee's or Sublessee's Space Lease or Sublease
(as applicable), such Space Lessee or Sublessee will not be disturbed and will be allowed to
continue peacefully in possession under the terms and conditions of its Space Lease or Sublease,
provided that the following conditions are met:
10.5.1 with respect to any Space Lease, such Space Lease is on market terms;
10.5.2 with respect to any Sublease, such Sublease shall include an equitable
allocation of Minimum Rent, Participation Rent under such Sublease shall be consistent with the
requirements of this Agreement relative to Gross Revenue generated from the subleased premises,
and the rights and obligations of the sublessor and Sublessee under the Sublease shall be consistent
with the other terms and conditions of this Agreement or the Bifurcated Lease applicable to the
subleased premises;
10.5.3 the Space Lessee or Sublessee shall not be in default of the terms and
conditions of its Space Lease or Sublease (as applicable) beyond applicable notice and cure
periods; and
10.5.4 the Space Lessee or Sublessee shall agree to attorn to City;
10.5.5 no Space Lease or Sublease shall be entered into with any Person for a
Prohibited Use; and
10.5.6 The Space Lessee or Sublessee is not a Prohibited Person
Developer shall provide written notice to City specifying the name and address of any
Sublessee or Space Lessee that requires a recognition and non -disturbance agreement under this
Section, which notice shall include a copy of the applicable Sublease or Space Lease. City agrees
that it will grant such assurances to such Space Lessees or Sublessees so long as they remain in
compliance with the terms of their Space Leases or Subleases, and provided further that any such
Space Leases or Subleases do not extend beyond the expiration of the Lease Term. To effectuate
the intent of this Section, City agrees to enter into recognition and non -disturbance agreements in
the form attached hereto as Schedule 10.5, Developer and the Sublessee or Space Lessee (as
applicable), within thirty (30) days following written request, pursuant to which City will agree to
recognize the applicable Sublease or Space Lease as a direct lease between City and such Space
Lessees or Sublessees. Any and all Subleases of the Property may include lender protection
provisions consistent with the provisions of this Agreement that benefit Lenders, including without
limitation Article XXII and XVI hereof, and all such provisions shall be recognized by City.
Notwithstanding anything to the contrary contained in this Article, Developer may enter into leases
of residential apai anent units without restriction and without consent of City.
61
10.6 Estoppel Certificates from City.
Upon request of Developer or any Lender, or any tenant under a Bifurcated Lease, City
agrees to give such requesting party an estoppel certificate in accordance with Section 21.8 herein.
10.7 Waiver of City Lien.
In order to enable Developer and its Sublessees and Space Lessees to secure financing for
the purchase of fixtures, equipment and/or any other item of personal property of any kind now or
hereafter located on or in the Property, whether by security agreement and financing statement,
mortgage or other form of security instrument, City hereby waives and will from time to time,
upon request, execute and deliver an acknowledgment that it has waived its "landlord's" or other
statutory or common law or contractual liens securing payment of rent or performance of
Developer's other covenants under this Agreement as to such fixtures, equipment, or other items
of personal property (and does not have rights to a lien against such property).
10.8 Information as to Owners
If applicable, Developer shall from time to time throughout the Lease Term, as City shall
reasonably request, furnish City with a complete statement, certified by an appropriate and
authorized officer of Developer, setting forth (to the extent known) the full names and addresses
of material holders of ownership interests in Developer, and the extent of their holdings, and in the
event any other parties have a material beneficial ownership interest, their full names and addresses
and the extent of such interest as determined or indicated by the records of Developer.
Notwithstanding the foregoing, the information required by this Section shall not be required to be
furnished with respect to the holders of an ownership interest of any owner whose interests are
publicly traded. As used in this Section 10.8, the term "material" shall mean ownership of not less
than a ten percent (10%) interest in Developer.
ARTICLE XI
COMPLIANCE WITH LAWS
11.1 Compliance with Laws
Developer shall, at Developer's sole cost and expense, comply with all Applicable Laws,
and all applicable permitting and regulatory requirements, rules, regulations, codes, ordinances,
and written policies now in force, or which may hereafter be in force, pertaining to Developer or
its use of the Property in all material respects provided the Applicable Laws apply to similar
properties in the City as the Property generally and are not adopted specifically to apply to the
Property or similar leaseholds as the leasehold interest under this Agreement, and shall faithfully
observe in the use of the Property or in the performance of any alterations (including the
construction of any Improvements) all Applicable Laws now in force or which may hereafter be
in force.
62
11.2 Labor Peace Agreements
Developer shall require that a Labor Peace Agreement be executed by Hyatt Corporation
or any other hotel operator and any contractor retained to perform Hotel Operations (defined
below) provided that the Labor Peace Agreement shall apply only to the employees of Hyatt or
any hotel operator and said contractors employed in the following job classifications or their
equivalents no matter how denominated: all regular full time and regular part time housekeeping,
food and beverage, and laundry employees (including room cleaners, housepersons, bell and door
persons, kitchen employees, servers, bussers, bartenders, cashiers, hosts, banquet employees,
laundry workers), but excluding all residential, retail, parking, entertainment, conference or
exhibition center, recreational, audio visual, front desk, maintenance, secretarial, office clerical,
and sales employees, and all supervisors and guards as defined in the National Labor Relations
Act ("Unit Employees"). In the event, the duties of Unit Employees are to be performed by
employees of a Sublessee, then Developer shall require any such Sublessee to also execute a Labor
Peace Agreement. For purposes of this Section 11.2, "Hotel Operations" shall mean customary
services provided at any hotel and spaces within or for the exclusive or primary use of such
hotel(s). For avoidance of doubt and without limiting the generality of the foregoing, the Labor
Peace Agreement shall not apply to any residences nor any employees of any homeowner' s
association, any conference or exhibition center and any entertainment venue.
The Labor Peace Agreement must be a valid agreement that includes a No -Strike Pledge
prohibiting the labor organization and its members from engaging in any picketing, work
stoppages, boycotts, or any other economic interference with the hospitality operation for as long
as City determines that its revenues are at material risk from a potential labor dispute. The Labor
Peace Agreement shall cover all hospitality operations (other than development, construction,
alteration or repair of the Property) that are conducted by Developers or tenants or under
management agreements, where the contract amount is reasonably expected to be in excess of
$120,000. The Labor Peace Agreement shall not include any provision that would require or
compel an employee to be a member of any labor organization.
A contracting party may be relieved of this obligation if: (a) the labor organization places
conditions upon its No -Strike Pledge that the City Commission finds, after notice and public
hearing, to be arbitrary or capricious; or (b) the City Manager makes a written finding containing
the reasons for supporting the conclusion that a labor peace agreement should not be required as it
would not be practicable or is not advantageous to the City, which finding must be approved by
the City Commission, after notice and public hearing. Developer shall comply with this provision
to the extent not prohibited by law or any other provision within this or any other governing
agreement.
Notwithstanding the foregoing, City acknowledges that the CBA and the Redevelopment
Agreement are deemed to satisfy the obligations of Developer under this Section 11.2.
63
11.3 Intentionally Omitted.
11.4 Contest by Developer
Developer shall have the right, after prior written notice to City, to contest the validity or
application of any Applicable Law by appropriate legal proceedings diligently conducted in good
faith, in the name of Developer without cost or expense to City, except as may be required in City's
capacity as a party adverse to Developer in such contest. If counsel is required, the same shall be
selected and paid by Developer, except to the extent that City is an adverse party to Developer, in
which case Developer shall have no obligation to pay for City's counsel. City hereby agrees to
execute and deliver any necessary papers, affidavits, forms or other such documents necessary for
Developer to confirm or acquire status to contest the validity or application of any Applicable
Laws, which instrument shall be subject to the reasonable approval of counsel for City, which
approval shall not be unreasonably withheld or delayed. City shall not be required to join in any
such contest unless its joinder is required for a contest to be valid.
ARTICLE XII
ENVIRONMENTAL LIABILITY
12.1 Definition of Terms
For purposes of this Article XII the following terms shall have the meaning attributed to
them herein:
1. "Hazardous Materials" shall mean any toxic or hazardous substance, material, or
waste, and any other contaminant, pollutant or constituent thereof, whether liquid, solid, semi-
solid, sludge and/or gaseous, including without limitation, chemicals, compounds, pesticides,
petroleum products including crude oil and any fraction thereof, asbestos containing materials or
other similar substances or materials which are regulated or controlled by, under, or pursuant to
any federal, state or local statutes, laws, ordinances, codes, rules, regulations, orders or decrees
including all Applicable Laws.
2. "Environmental Laws" shall include all applicable laws, rules and ordinances,
existing now or in the future during the Lease Term, as amended, modified, supplemented,
superseded or replaced at any time during the Lease Term, that govern or relate to: the existence,
cleanup and/or remedy of contamination of property; the protection of the environment from
spilled, deposited or otherwise emplaced contamination; the control of hazardous or toxic
substances or wastes; the use, generation, discharge, transportation, treatment, removal or
recovery of Hazardous Materials; or otherwise regulating the impact of human activities on the
environment.
3. "Costs" shall mean all costs incurred in connection with correcting any violations
of any Environmental Laws and/or in connection with the clean-up of contamination on the
Property.
64
4. "Clean Up" shall mean any remediation and/or disposal of Hazardous Materials at
or from the Property which is ordered by any federal, state, or local environmental regulatory
agency with jurisdiction over the Property.
12.2 Developer's Environmental Covenant
Developer shall not cause or permit any Hazardous Materials to be brought upon, treated,
stored, disposed of, discharged, released, produced, manufactured, generated, refined, or used
upon, about or beneath the Property or any portion thereof by Developer, its agents, employees,
contractors, Sublessees, licensees, or invitees except as may be customarily used and required to
construct the improvements or to conduct Developer's business or as may be used in compliance
with Environmental Laws. Developer shall not permit any activities on the Property that violate
Environmental Laws. If Developer should breach this covenant, Developer shall take (or cause
the responsible party to take) all actions reasonably necessary to comply with all Environmental
Laws and shall, at Developer's sole cost and expense, perform (or cause the performance of) any
and all Clean Up. Developer's obligation under this Section shall survive the expiration or earlier
termination of this Agreement for a period of two (2) years.
Developer's obligations under this Article shall not include the handling or remediation of,
or any responsibility for, or other Clean Up of, any adverse environmental condition existing on,
under or about, or emanating from, the JLK Center, prior to the Commencement Date (irrespective
of whether such condition is discovered before or after the Commencement Date) except to the
extent Developer's negligence contributes to the release of such Hazardous Materials. Developer's
obligations under this Article shall also not include the handling or remediation of, or any
responsibility for, or other Clean Up of, any adverse environmental condition at the Property
caused solely by the gross negligence or willful misconduct of City or anyone acting by, through
or under it. City covenants and agrees that City shall be responsible for any Claims against
Developer under any Environmental Laws arising out of or relating to City's ownership or use or
the condition of the JLK Center at any time prior to the Commencement Date or any Hazardous
Materials that were present on, under or about, or released from, the JLK Center at any time prior
to the Commencement Date, or otherwise caused solely by the gross negligence or willful
misconduct of City or anyone acting by, through or under it.
12.3 Survival of Obligations
The respective rights and obligations of City and Developer under this Article XII shall
survive the expiration or termination of this Agreement for a period of two (2) years.
65
ARTICLE XIII
DAMAGE OR DESTRUCTION OF PROPERTY
13.1 Definitions
For the purposes of this Article XIII, the following words shall have the meanings
attributed to them in this Section 13.1:
(a) "Completely Destroyed" shall mean any destruction of the Property that is not a
Partial Destruction.
(b) "Partial Destruction" shall mean any damage to the Property which damage can
reasonably be repaired, restored or replaced within eighteen (18) months from the date on which
the damage occurred.
13.2 Duty to Repair, Restore or Replace Property after Damage
In the event of damage by fire or otherwise of the Property including any machinery,
fixtures or equipment which are a part of the Property, the Parties agree as follows:
In the event of Partial Destruction of the Property, within sixty (60) calendar days after the
later of (i) the damage (subject to reasonable delay and/or Force Maj eure), (ii) receipt by Developer
of the necessary building permits to rebuild the Improvements and (iii) receipt of the Gross
Insurance Proceeds, Developer shall use the Gross Insurance Proceeds available, together with
Developer's own funds (if the Gross Insurance Proceeds are insufficient) to commence and
diligently pursue to completion within twenty-four months from the date after commencement of
the construction of the Improvements (subject to reasonable extension due to Force Majeure or
delays by City in the repair, restoration, or replacement of the damaged or destroyed portion of the
Property as required in order for Developer to commence the restoration of the Improvements or
the type and scope of required repair), the repair, restoration or replacement of the damaged or
destroyed portion of the Improvements ("Restoration Work"), and this Agreement shall remain in
full force and effect, with no abatement in Rent except as set forth in the next sentence. After the
occurrence of a casualty which prevents the normal operation of more than twenty-five percent
(25%) of the leasable space on the Property, all Minimum Rent shall be deferred until (i) the date
Developer receives the proceeds from its rent or business interruption insurance, or (ii) one (1)
year after the occurrence of the casualty, whichever shall first occur, at which time all such deferred
Minimum Rent shall be due and payable. If the casualty occurs during the last five (5) years of
the Lease Term, Developer shall have the right to terminate this Agreement (but subject to the
rights of Leasehold Mortgagees) without penalty as of the date Developer delivers possession of
the Property to City.
In the event the Property is Completely Destroyed at any time during Lease Term,
Developer, in its sole discretion (but subject to the rights of Leasehold Mortgagees), shall have the
option to select whether to terminate this Agreement within one hundred eighty (180) days of the
damage by delivering written notice to City of its intention to terminate, at which time Developer
shall deliver possession of the Property to City as if it was the natural expiration of the Lease Term
and both Parties shall be released from all obligations under this Agreement except those that
66
expressly survive termination. Rent shall be prorated as of the date of Developer's evacuation. In
the event Developer shall determine not to terminate this Agreement, then at Developer's sole cost
and expense (together with Gross Insurance Proceeds available for that purpose), Developer shall
commence and diligently pursue to completion the Restoration Work, in accordance with the
provisions of Section 13.3 below, and Developer shall complete the Restoration Work within three
(3) years (subject to reasonable extension due to Force Majeure or delays by City in the repair,
restoration, or replacement of the damaged or destroyed portion of the Property as required in order
for Developer to commence the restoration of the Improvements) from later of: (i) the date the
damage occurred, or (ii) receipt of the necessary building permits to reconstruct the Improvements
to substantially similar condition existing immediately prior to the casualty and (iii) receipt of
Gross Insurance Proceeds, and this Agreement shall remain in full force and effect, with no
abatement in Rent. If all Improvements cannot be restored due to no fault of Developer (i.e.,
change in law, inability to obtain necessary governmental permits or approvals), the Minimum
Rent shall be equitably abated on a going -forward basis based on fair market value of the restored
Improvements.
13.3 Performance of Restoration Work
In the event Developer undertakes any Restoration Work in accordance with the provisions
of this Article, such Restoration Work by Developer shall be substantially the same as possible to
the condition that existed immediately prior to the damage or better than such condition, and shall
be performed in accordance with the provisions of Article V applicable to the construction of any
Improvements. City hereby acknowledges and agrees that Developer's obligations hereunder and
the time periods set forth above are subject to Force Majeure, and reasonable extensions based on
the severity of the damage.
13.4 Gross Insurance Proceeds
Any Gross Insurance Proceeds paid for damage or destruction of the Property that are
received by any Party shall be deposited into the Depository for distribution in accordance with
this Article.
13.5 Developer's Right to Terminate
If Developer elects to exercise the option given under Subsection 13.2, to terminate this
Agreement, then any and all Gross Insurance Proceeds paid for damage or destruction of the
Property shall be applied as follows:
First toward payment of the cost to remove debris in accordance with Applicable Laws;
Second to the respective Parties, assuming a termination of the Lease as of the date of the
casualty, taking into account City's interest in the Improvements at the end of the Lease Term.
13.6 Payment for Construction of Restoration Work
Except as otherwise provided for in this Article XIII, all Gross Insurance Proceeds shall
be applied by the Parties to the payment of the cost of the Restoration Work to restore the entire
67
Property, together with any soft costs related thereto, and Developer shall make any additional
deposits into the Depository, if applicable.
13.7 Collection of Insurance Proceeds
City shall in no event be responsible for the non -collection of any insurance proceeds under
this Agreement but only for insurance money that shall come into its hands.
13.8 Unused Insurance Proceeds and Deposits
After the payment for all Restoration Work costs, including without limitation soft costs
related thereto, if any Gross Insurance Proceeds or sums deposited in the Depository in connection
with the Restoration Work remain in the Depository until completion of the Restoration Work, as
provided in Section 8.3, and if Developer shall not then be in default under this Agreement in
respect of any matter or thing of which notice of default has been served on Developer, then such
remaining funds shall be applied first towards any payable but delinquent Rent, and the remaining
balance promptly paid to Developer.
13.9 Dispute
Any dispute between City and Developer with respect to the application of this Article
shall be resolved by arbitration pursuant to Article XXIII
ARTICLE XIV
EMINENT DOMAIN
14.1 Taking All or Substantially All of the Property
14.1.1 Termination of Lease for Substantial Taking. If all or Substantially All
of the Property is taken (excluding a taking of the fee interest in the Property if, after such taking,
Developer' s rights under this Agreement are not affected and no rights of the Leasehold Mortgagee
are affected) for any public or quasi -public purpose by any lawful power or authority by the
exercise of the right of condemnation or eminent domain or by agreement among City, Developer,
Leasehold Mortgagee and those authorized to exercise such right, this Agreement shall terminate
on the Date of Taking and the Rent and/or Impositions payable by Developer hereunder shall be
apportioned and paid to the Date of Taking.
14.1.2 Disbursement of Award. If all or Substantially All of the Property is taken
or condemned as provided in Section 14.1.1, the Net Condemnation Award paid or payable to
City, Developer or any lender or mortgagee claiming through either of them in connection with
such taking or condemnation shall be paid as follows: (1) there shall first be paid to City an amount
equal to the Net Condemnation Award multiplied by a fraction, the numerator of which is the
appraised value of the Land immediately prior to such condemnation, and the denominator of
which is the appraised value of the Property immediately prior to such condemnation; (2) there
shall next be paid to the Leasehold Mortgagee so much of the Net Condemnation Award as shall
equal the unpaid principal indebtedness secured by the Leasehold Mortgage with interest thereon
at the rate specified therein to the date of payment (including any prepayment fees thereon and any
68
so-called "yield maintenance" or "make -whole" amounts or other sums intended to assure to the
Leasehold Mortgagee a certain rate of return under the loan secured by the Leasehold Mortgage,
if any, as well as any costs payable by Developer in connection with such Leasehold Mortgage
pursuant to any "swap" or other interest rate protection or hedging mechanism) or as otherwise set
forth in the Leasehold Mortgage and related mortgage loan documents; and (3) the remaining Net
Condemnation Award shall be disbursed to Developer. The appraised values referred to in Section
14.1.2 shall be determined using the appraisal process outlined in Exhibit G attached hereto and
incorporated herein by this reference.
14.2 Less Than Substantial Taking
14.2.1 Taking of Less than Substantially All of the Property. If less than
Substantially All of the Property is taken for any public or quasi -public purpose by any lawful
power or authority by the exercise of the right of condemnation or eminent domain or by agreement
among City, Developer, the Leasehold Mortgagee and the entity authorized to exercise such right,
whether prior to or after the completion of the initial construction of the Project, this Agreement
shall continue for the remainder of the Lease Term (subject to Section 14.2.2 below) without
diminution of any of Developer' s obligations hereunder, but with a fair and equitable abatement
of Rent.
14.2.2 Obligation to Restore the Property. If less than Substantially All of the
Property is taken as provided in Section 14.2.1, whether prior to or after the completion of the
initial construction of the Project, Developer shall, in accordance with the provisions of this Article
XIV and Article V of this Agreement (and the provisions of which shall be deemed to apply to all
Construction Work necessary to complete the Condemnation Restoration, to the extent the same
are not inconsistent with the terms hereof), restore the remaining portion of the Property, to the
extent feasible, to the condition thereof as it existed immediately before such taking (a
"Condemnation Restoration"), regardless of whether the Net Condemnation Award shall be
sufficient therefor.
14.2.3 Disbursement. If less than Substantially All of the Property is taken as
provided in Section 14.2.1, the Net Condemnation Award payable to City, Developer and any
lender or mortgagee claiming through either of them shall be paid as follows: (1) first to the cost
of the Condemnation Restoration; (2) second to City for payment of any amounts due and payable
hereunder which are in default; (3) third to the Leasehold Mortgagee for any amounts due and
payable under the Leasehold Mortgage which are in default; (4) fourth to the Leasehold Mortgagee
to the extent required by its Leasehold Mortgage as a result of the less than Substantially All of
the Property being taken.
14.2.4 Commencement of Construction Work. Subject to Force Majeure and/or
delays caused by City, as applicable, and each in accordance with this Agreement, Developer shall
commence the Construction Work in connection with a Condemnation Restoration within ninety
(90) days after receipt of the Net Condemnation Award and all applicable approvals and Permits
arising from the taking which caused the need for such Condemnation Restoration and shall
diligently pursue the completion of such Condemnation Restoration.
69
14.3 Restoration Funds.
14.3.1 Access to Funds. If in connection with a taking the Net Condemnation
Award is in excess of the Required Deposit Threshold, then the entire Net Condemnation Award
shall be deposited in the Depository. Except as may otherwise be required by the Leasehold
Mortgagee, if the Net Condemnation Award is less than the Required Deposit Threshold, then such
Net Condemnation Award shall be paid to Developer to be applied as provided herein. Provided
Developer is conducting the Condemnation Restoration in accordance with this Agreement, the
Net Condemnation Award shall be paid out from time to time as the Condemnation Restoration
progresses, upon the written request of Developer, which request shall be accompanied by the
following: (i) A certificate signed by Developer and the architect or engineer in charge of the
Condemnation Restoration, reasonably satisfactory to City, dated not more than thirty (30) days
prior to such request, setting forth (a) that the sum then requested either has been paid by Developer
or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons
who have rendered services or furnished materials for the work specified, and stating that no part
of such expenditures has been or is being made the basis of any previous or then pending request
for the withdrawal of the Net Condemnation Award, (b) a brief description of the services and
materials, (c) that the cost, as estimated by the persons signing such certificate, of the work
required to complete the Condemnation Restoration does not exceed the amount of the remaining
Net Condemnation Award, plus any amount deposited by Developer to defray the expenses of the
Condemnation Restoration; (ii) lien waivers, title company reports or such other evidence,
reasonably satisfactory to City, to the effect that there has not been filed with respect to the
Property, any vendor's, mechanic's, laborer's, materialman's or other lien which has not been
discharged of record, except such as will be discharged by payment of the amount then requested;
and, (iii) Such other documentation regarding the Condemnation Restoration as City or the
Leasehold Mortgagee shall reasonably require.
14.3.2 Cost of Restoration. Developer shall, prior to the commencement of the
Condemnation Restoration, furnish to City an estimate of the total cost of the Condemnation
Restoration certified by the architect or engineer in charge of the Condemnation Restoration. If
such cost estimate or any subsequent estimate provided pursuant to shall show that the cost of
completing the Condemnation Restoration is in excess of the amount of the Net Condemnation
Award then available, Developer shall promptly deposit with the holder of the Net Condemnation
Award an amount equal to such excess. The amount so deposited shall be included in the Net
Condemnation Award for all purposes of this Article XIV.
14.4 Temporary Taking. If the temporary use of the whole or any portion of the
Property is taken for a public or quasi -public purpose by a lawful power or authority by the exercise
of the right of condemnation or eminent domain or by agreement between Developer and those
authorized to exercise such right, Developer shall be entitled to receive the entire amount of any
award made for such taking (whether paid by way of damages, rent or otherwise), subject to the
rights of any Lender, unless the period of governmental occupancy extends beyond the termination
of the Lease Term, in which case the award shall be apportioned between Developer and City, in
their respective capacities under this Agreement, as of the date of such termination.
14.5 Disputes. Any dispute as to the allocation of the condemnation award shall be
resolved strictly in accordance with this Article through an apportionment hearing within the
70
condemnation proceeding, failing which the Parties shall resolve the dispute in arbitration pursuant
to Article XXIII.
14.6 Condemnation of Fee Interest. City hereby covenants and agrees with Developer
that (i) it will not agree to any Total Taking or Partial Taking by any party without the consent of
Developer, which may be withheld (X) in Developer's sole discretion with respect to either a Total
Taking or any Partial Taking that includes any portion of the Improvements or is reasonably likely
to have a material adverse effect on access to or the operations, utility, or value of the
Improvements or Leasehold Estate or (Y) in Developer' s reasonable discretion with respect to any
other Partial Taking, (ii) it will use commercially reasonable efforts to contest such Total Taking
or Partial Taking, and (iii) it will, as part of its defense against a Total Taking or Partial Taking,
avail itself of the defense, if available, that one entity with condemnation powers cannot condemn
the property of another entity with similar powers. If, notwithstanding the foregoing efforts by
City, City is unable to prevent or preclude any Total Taking or Partial Taking, then City will
cooperate with Developer and in good faith and with reasonable diligence to minimize the effect
of the taking on Developer's ability to develop, construct, reconstruct, restore, repair or rebuild the
Improvements or any Phase or component of the Project as contemplated in this Agreement.
ARTICLE XV
PAYMENT OF TAXES, ASSESSMENTS AND OTHER IMPOSITIONS
15.1 Payment of Taxes and Impositions; Contest Rights
From and after the Commencement Date, Developer shall pay all ad valorem and similar
taxes, surcharges, levies, charges, assessments, and impositions levied against the Property before
any fine, penalty, interest or costs are added for non-payment. All such ad valorem and similar
taxes, governmental levies, charges, impositions and assessments shall be payable by Developer
directly to the taxing authority prior to delinquency (without penalty) of such taxes. For the
avoidance of doubt, Developer shall be responsible for all Impositions levied by any taxing
authority in relation to any amounts paid by Developer to the City pursuant to this Agreement,
including Rent, Refinance Fees, and Transfer Fees.
Developer shall have the right, at its own cost and expense, to contest the validity or amount
of real estate taxes or other taxes levied against the Property as permitted by Applicable Law,
either in its own name or in the name of City with City's reasonable cooperation, at no cost to City.
Developer shall be entitled to any and all resultant refund, rebate or reduction and such amount(s)
shall neither be deemed to be part of the Gross Revenues for the applicable Lease Year to the
extent such rebate, refund or reduction was an expense of Developer, nor included in the
calculation thereof once the final decision regarding the real estate tax or other tax levied has been
made and not appealed or once all appeals are concluded in Developer's favor.
15.2 Installment Payments of Ad Valorem Taxes and Impositions
Developer agrees that the Property or any interest thereon may be subject to ad valorem
taxation. Developer, at its option, may enroll in the Miami -Dade County Ad Valorem Tax
Payment Plan.
71
If by law, any ad valorem taxes or other Impositions are payable or may, at the option of
the taxpayer, be paid in installments (whether or not interest shall accrue on the unpaid balance of
the Imposition), Developer may pay the same (and any accrued interest on the unpaid balance of
the Imposition), in installments before any fine, penalty, interest or cost is added for the
nonpayment of any installment and interest. Any Imposition relating to a fiscal period of the taxing
authority, a part of which period is included before the Commencement Date and part of which is
included after the Commencement Date shall be adjusted as between City and Developer as of the
commencement of the Lease Term, so that Developer shall pay that portion of the Imposition
attributable to that part of the fiscal period included in the Lease Term, and City shall pay the
remainder, if applicable. Any Imposition relating to a fiscal period of the taxing authority, a part
of which period is included within the Lease Term and a part of which is included in a period of
time after Lease Term shall be adjusted as between City and Developer as of the termination of
the Lease Term, so that Developer shall pay that proportion of the Imposition attributable to that
part of the fiscal period included in the Lease Term, and City shall pay the remainder, if applicable.
15.3 Payment in Lieu of Taxes
Developer and City contemplate that the Property will be subject to the imposition of ad
valorem real estate taxes during the Lease Term. In the event that the Property or any portion
thereof becomes exempt from ad valorem real estate taxes during any tax year(s) during the Lease
Term, Developer shall pay City an annual payment in lieu of taxes ("PILOT"), as set forth below,
for each tax year that the Property or portion thereof are deemed exempt. The amount of the
PILOT shall be determined by multiplying (a) the assessed value of the Property for the tax year
in question, as determined by the Miami -Dade County Property Appraiser, by (b) the applicable
City millages for the tax year in question and shall be reduced by any portion of the taxes allocated
to the City pursuant to any remainder assessed on the Property, it being the intent of the Parties
that the City receive a combination of PILOT fees and ad valorem taxes actually paid and allocated
to the City equal to the amount of ad valorem taxes that would be payable to the City if no portion
of Property were exempt. For purposes of the PILOT, the applicable City millages shall include
the duly adopted City millage, City debt -service millage, and any other millages duly adopted by
the City and applicable to the Property. For purposes of the PILOT, the applicable City millages
shall specifically exclude any School millages, regional millages, Countywide millages, or other
millages not adopted by and ultimately payable to the City. In the event that only a portion of the
Property is deemed exempt and the remainder of the Property remain taxable, the PILOT shall be
reduced by the amount of ad valorem taxes payable to the City for that tax year, such that
Developer shall never be required to pay more to the City than the amount of ad valorem taxes that
would be payable to the City if the Property were not exempt. The PILOT shall be due and payable
to the City on the same date that ad valorem real estate tax payments are due to the Miami -Dade
County Tax Collector, and the amount of the PILOT shall be subject to the same discounts for
early payment that are available to other taxpayers in the City. Furthermore, in the event that the
PILOT is deemed by the Florida Department of Revenue or any other applicable taxing authority,
to be subject to sales tax, Developer shall be responsible for payment of the sales tax due with
respect to the PILOT. For the avoidance of doubt, nothing in this Agreement limits Developer's
ability to avail itself of any applicable procedure to challenge the amount of the Miami -Dade
County Property Appraiser's annual assessment of the Property.
72
ARTICLE XVI
DEFAULT
16.1 Developer Default
The following acts shall be considered events of default of Developer (herein deemed
"Events of Default of Developer"):
(i) Developer fails to pay on time any Minimum Rent, Participation Rent, or other
monies due and payable to City under this Agreement when and as the same shall become due and
payable, and such default shall continue for a period of thirty (30) days after written notice thereof
from City to Developer, with copies thereof to each Lender who shall have notified City of its name,
address and interest prior to such notice; or
(ii) Developer fails to keep, observe and/or perform any of the other terms contained
in this Agreement that are the responsibility of Developer, including Developer's failure to
complete demolition of the Existing Improvements by the applicable Milestone Date set forth on
Schedule 5.5, Developer's failure to commence construction of the Minimum Initial Program and
Developer's failure to substantially complete the Minimum Initial Program by the applicable
Milestone Date set forth on Schedule 5.5 (as each may be extended by Developer in accordance
with Section 5.5 of this Agreement) or any other failure by Developer to comply with a material
covenant of this Agreement, in each case, subject to, as applicable, Force Majeure, delays caused
by City in its proprietary capacity, and the rights of Lenders and their assigns, but excepting the
obligation to pay Rent or other monies due City, and such default shall continue for a period of
ninety (90) days after written notice thereof from City to Developer setting forth with reasonable
specificity the nature of the alleged breach, with copies thereof to each Lender who shall have
notified City of its name, address and interest prior to such notice; or in the case of such default or
contingency which cannot with due diligence and in good faith be cured within ninety (90) days,
Developer fails within said ninety (90) day period to proceed promptly and with due diligence and
in good faith to pursue curing said default.
16.2 Failure to Cure Default of Developer.
(a) If an Event of Default of Developer shall occur, City, at any time after the
periods set forth in Section 16.1(i) or (ii) and provided Developer has failed to cure such Event of
Default of Developer within such applicable period, subject to Force Majeure with respect to
Section 16.1(ii), shall give written notice to Developer and to any Lender who has notified City in
accordance with Section 22.3, specifying such Event(s) of Default of Developer and stating that
this Agreement and the term hereby demised shall expire and terminate on the date specified in
such notice, which shall be at least thirty (30) days after the giving of such notice, during which
time Developer and/or any Lender shall have the right to cure such default. Upon the date specified
in such notice, if the Event of Default has not been cured, then, subject, however, to the provisions
of Section 22.3, Section 22.5, and Section 22.6 herein, this Agreement and the term hereof and all
rights of Developer under this Agreement, shall expire and terminate.
73
(b) If an Event of Default of Developer shall occur and the rights of Lenders
shall not have been exercised as provided within this Agreement, then City, at any time after the
periods for exercise of rights as set forth under Section 16.1, 16.2 and 16.3 herein, shall have the
following rights and remedies which are cumulative:
(i) to restrain, by injunction, the commission of or attempt or threatened
commission of an Event of Default and to obtain a decree specifically compelling performance of
any such term or provision of this Agreement; and
(ii) to sue Developer for all damages (as limited by Section 21.34), costs
and expenses arising from Developer's failure to cure an Event of Default hereunder that is
susceptible of cure and to recover all such damages, costs and expenses; and
(iii) to terminate any and all obligations that City may have under this
Agreement, in which event City shall be released and relieved from any and all liability under this
Agreement; and
(iv) to take possession of the Property, retain the Security Deposit, retain
the Affordable Housing Payment paid to the City prior to the date on which the City terminates this
Agreement, and recover from Developer, if applicable, any portion of the Affordable Housing
Payment that had become due as of the date of the Event of Default, but had not been paid by
Developer prior to the date it was due.
(c) Notwithstanding anything to the contrary contained in this Agreement,
Developer shall have the right to cure any Event of Default of Developer at any time prior to the
issuance of a final order or judgment granting City possession of the Property (subject to any
pending appeal brought within the applicable appeals period), so long as Developer pays to City
any applicable interest due on previously unpaid sums at the Default Rate for the period of time
from the date due until the date paid in full and all reasonable court costs and attorneys' fees.
Further, the Parties agree that City shall not be entitled to accelerate any Rent due under this
Agreement on account of an Event of Default of Developer.
(d) Although the provisions of this Section shall be self -operative, in the event
this Agreement is terminated in accordance with this Section, Developer agrees to execute and
deliver to Landlord a termination of the Memorandum of Lease within ten (10) Business Days
following the request.
16.3 Lender Right to Cure Developer Default. For so long as any Mortgage
encumbers any interest in the Property, or, as applicable, a Mezzanine Financing Source holds an
equity interest (directly or indirectly), or is secured by a pledge of ownership interests, in
Developer or a Sublessee:
(a) Notwithstanding the time allowed for Developer to cure an Event of Default
under Section 16.2(a), each Mortgagee and Mezzanine Financing Source shall have the right, but
not the obligation, for an additional period of thirty (30) days following the expiration of
Developer's cure periods under Section 16.2(a), to cure any monetary or non -monetary Event of
Default of Developer, but if such non -monetary Event of Default cannot be cured within such 30-
day period, then Lender shall have up to ninety (90) days to cure, provided that it has commenced
74
such cure within the initial thirty (30) day period and thereafter pursues such cure with
commercially reasonable diligence, subject to further extension of such cure periods as provided
in clauses (b) and (c) below.
(b) Notwithstanding the provisions of this Agreement to the contrary, no Event
of Default of Developer will be deemed to exist as to a Mortgagee (and City shall not be permitted
to terminate this Agreement due to an Event of Default of Developer) as long as such Mortgagee,
in good faith, either promptly (i) commences to cure such Event of Default and prosecute the same
to completion in accordance with Section 16.3(a) above, or (ii) if the nature of any non -monetary
Event of Default is such that possession of or title to the Property is reasonably necessary to cure
the Event of Default, or the Event of Default is of the type that cannot commercially reasonably
be cured by Mortgagee (e.g., Developer bankruptcy), takes all necessary steps to foreclose on its
Mortgage or any Accommodation Pledge and prosecutes such action in good faith and with
reasonable diligence, subject to any stays, moratoriums or injunctions applicable thereto, and as
promptly as practicable after obtaining possession or title (whether through foreclosure, a deed -in -
lieu of foreclosure, a sale related to a bankruptcy or receivership proceeding or otherwise), as
reasonably necessary, commences promptly to cure such Event of Default and prosecutes the same
to completion in good faith and with reasonable diligence; provided, however, that during the
period in which such action is being taken, all of the other obligations of Developer under this
Agreement, to the extent they are susceptible of being performed by Mortgagee (e.g., the payment
of Rent), are being duly performed. Upon a foreclosure or deed or transfer in lieu thereof of a
Leasehold Mortgage or an Accommodation Pledge or any other assignment of this Agreement in
connection with any similar exercise of remedies pursuant to a Leasehold Mortgage or
Accommodation Pledge, (i) any Events of Default that cannot commercially reasonably be cured
(as determined by the applicable transferee and the City Manager in good faith) by the applicable
transferee shall be permanently waived, (ii) in no event shall any interest, penalties and late fees
or charges due to City as a result of or arising out of any Events of Default occurring prior to the
date of the applicable transfer be deemed an obligation of the successor (or reconstituted)
Developer under this Agreement (other than any such interest, penalties, and/or late fees
contemplated by Section 16.3(d) below and without prejudice to the City's right to collect such
fees from the prior Developer (or, in the case of a reconstitution of the Developer due to foreclosure
of an equity pledge, the prior constituent owner of Developer that served as pledgor)), (iii) the
Milestone Dates shall be extended (without any obligation to pay any fee or similar charge in
connection therewith) to an applicable set of dates as the applicable transferee and the City
Manager shall determine in good faith are feasible to achieve based on a totality of the
circumstances as of the applicable date of determination and, if at any time the applicable
Leasehold Mortgagee (or nominee thereof), Tenant (as reconstituted following a transfer of the
pledged interests pursuant to any Accommodation Pledge) or other transferee of title to Tenant' s
interest pursuant to this Agreement informs the City Manager that it intends to transfer its interest
under this Agreement to a third party, said extended Milestone Dates (as well as any other
obligation hereunder to perform and/or complete the Minimum Initial Program) will also be tolled
on a day-by-day basis for so long as the applicable party is utilizing good faith efforts to seek a
third -party purchaser for and consummate a sale of said interest, and (iv) any plans, specifications,
construction contracts or other items which have been submitted in connection with the Minimum
Initial Program may be modified, supplemented, and/or replaced in the sole but good faith
discretion of the applicable Leasehold Mortgagee (or nominee thereof), Tenant (as reconstituted
following a transfer of the pledged interests pursuant to any Accommodation Pledge) or other
75
transferee of title to Tenant's interest pursuant to this Agreement following any such transfer
(provided such modifications, supplements, and/or replacements are all in compliance with the
Minimum Initial Program and the Charter Amendment).
(c) Notwithstanding the provisions of this
Agreement to the contrary, no Event of Default of Developer will be deemed to exist as to a secured
Mezzanine Financing Source (and City shall not be permitted to terminate this Agreement due to
an Event of Default of Developer) as long as such Mezzanine Financing Source, in good faith,
either promptly (i) commences to cure such Event of Default and prosecute the same to completion
in accordance with Section 16.3(a) above, or (ii) if the nature of any non -monetary Event of Default
is such that possession of or title to the ownership interests in Developer is reasonably necessary
to cure the Event of Default or if the Event of Default is of the type that cannot commercially
reasonably be cured by the Mezzanine Financing Source (e.g., Developer bankruptcy), takes all
reasonable steps necessary to foreclose the pledge of such ownership interests and prosecutes such
action in good faith and with reasonable diligence, subject to any stays, moratoriums or injunctions
applicable thereto, and as promptly as practicable after obtaining such possession or title (whether
through foreclosure, an assignment -in -lieu of foreclosure, a transfer related to a bankruptcy or
receivership proceeding or otherwise), as reasonably necessary, commences promptly to cure such
Event of Default and prosecutes the same to completion in good faith and with reasonable
diligence; provided, however, that during the period in which such action is being taken, all of the
other obligations of Developer under this Agreement, to the extent they are susceptible of being
performed by the Mezzanine Financing Source (e.g., the payment of Rent), are being duly
performed. Upon a foreclosure or assignment or transfer in lieu thereof of a pledge or any other
assignment of this Agreement in connection with any similar exercise of remedies pursuant to a
pledge securing a Mezzanine Financing, (i) any Events of Default that cannot commercially
reasonably be cured (as determined by the Tenant (as reconstituted following a transfer of the
pledged interests pursuant to any pledge securing the Mezzanine Financing) and the City Manager
in good faith) by the applicable Tenant (as reconstituted following a transfer of the pledged
interests pursuant to any pledge securing the Mezzanine Financing) shall be permanently waived,
(ii) in no event shall any interest, penalties and late fees or charges due to City as a result of or
arising out of any Events of Default occurring prior to the date of the applicable transfer be deemed
an obligation of the reconstituted Developer under this Agreement (other than any such interest,
penalties, and/or late fees contemplated by Section 16.3(d) below and without prejudice to the
City's right to collect such fees from the prior constituent owner of Developer that pledged its
interest to secure the applicable Mezzanine Financing), (iii) the Milestone Dates shall be extended
(without any obligation to pay any fee or similar charge in connection therewith) to an applicable
set of dates that the Tenant (as reconstituted following a transfer of the pledged interests pursuant
to any pledge securing the Mezzanine Financing) and the City Manager shall determine in good
faith are feasible to achieve based on a totality of the circumstances as of the applicable date of
determination and, if at any time the applicable Mezzanine Financing Source (or nominee thereof),
Tenant (as reconstituted following a transfer of the pledged interests pursuant to any pledge) or
other transferee of title to Tenant' s interest pursuant to this Agreement informs the City that it
intends to transfer its interest under this Agreement to a third party, said extended Milestone Dates
(as well as any other obligation hereunder to perform and/or complete the Minimum Initial
Program) will also be tolled on a day-by-day basis for so long as the applicable party is utilizing
good faith efforts to seek a purchaser for and consummate a sale of said interest, and (iv) any plans,
specifications, construction contracts or other items which have been submitted in connection with
76
the Minimum Initial Program may be modified, supplemented, and/or replaced in the sole but good
faith discretion of the applicable Mezzanine Financing Source (or nominee thereof), Tenant (as
reconstituted following a transfer of the pledged interests pursuant to any pledge) or other
transferee of title to the pledged interest pursuant to this Agreement following any such transfer
(provided such modifications, supplements, and/or replacements are all in compliance with the
Minimum Initial Program and the Charter Amendment).
(d) Any penalties, interest and late payment fees or charges due to City pursuant
to this Agreement as a result of any Event of Default of Developer shall not commence to accrue
and be due from any Mortgagee or Mezzanine Financing Source (but City may pursue Developer
for any such fees or charges) until the expiration of the applicable cure, grace or other periods
provided to the Mortgagee or Mezzanine Financing Source to cure such Events of Defaults in this
Article and Article XXII.
16.4 Surrender of Property. Upon any expiration or termination of the Lease Term in
accordance with the terms and conditions of this Agreement, Developer and all Sublessees and
Space Lessees shall quit and peacefully surrender the Property to City, except as provided under
any non -disturbance agreement provided by City to any Sublessee or Space Lessees.
16.5 Rights of City After Termination and Holdover. City shall in no way be
responsible or liable for any failure to relet the Property or any part thereof, or for any failure to
collect any rent due for any such reletting, provided that City acts reasonably and in good faith to
mitigate its damages.
16.6 No Waiver by City. No failure by City to insist upon the strict performance of any
of the terms of this Agreement or to exercise any right or remedy consequent upon a breach thereof,
and no acceptance by City of full or partial Rent during the continuance of any such breach, shall
constitute a waiver of any such breach or of any of the terms of this Agreement. None of the terms
of this Agreement to be kept, observed or performed by Developer, and no breach thereof, shall
be waived, altered or modified except by a written instrument executed by City. No waiver of any
breach shall affect or alter this Agreement, but each of the terms of this Agreement shall continue
in full force and effect with respect to any other then existing or subsequent breach thereof. No
waiver of any default of Developer hereunder shall be implied from any omission by City to take
any action on account of such default, and no express waiver shall affect any default other than the
default specified in the express waiver and then only for the time and to the extent therein stated.
One or more waivers by City shall not be construed as a waiver of a subsequent breach of the same
covenant, term or conditions.
77
16.7 Events of Default of City. The provisions of this Section 16.7 shall apply if any
of the following "Events of Default of City" shall happen: if City fails to keep, observe and/or
perform any of the duties or obligations imposed upon City pursuant to the terms of this Agreement
and such default shall continue for a period of ninety (90) days after written notice thereof from
Developer to City setting forth with reasonable specificity the nature of the alleged breach; or, in
the case of any such default or contingency which cannot, with due diligence and in good faith, be
cured within ninety (90) days, City fails within said ninety (90) day period to proceed promptly
after such notice and with due diligence and in good faith to diligently pursue the cure of said
Event of Default.
16.8 Failure to Cure Default by City. If an Event of Default of City shall occur,
Developer, at any time after the period set forth in Section 16.7 shall have the following rights and
remedies which are cumulative:
(a) If an Event of Default by City shall occur, Developer, at any time after the
period set forth in Section 16.7 and provided City has failed to cure such Event of Default within
such applicable cure period, shall give written notice to City specifying such Event(s) of Default
by City and providing notice to City of Developer's intention to cure such default for the account
of City by a date specified in such notice, which shall be at least thirty (30) days after the giving
of such notice, as well as state the anticipated amount to cure. Upon the date specified in such
notice, if the Event of Default has not been cured, then Developer shall have the right at any time
thereafter (but in no event shall be obligated) to cure such default for the account of City, and City
shall promptly reimburse Developer for any amount paid and any expense or contractual liability
so incurred within thirty (30) days after written demand, subject to the right of the City to dispute,
by filing a lawsuit or otherwise in accordance with this Agreement, the existence of the Event of
Default and amounts subject to reimbursement. In the event City fails to timely reimburse
Developer hereunder, Developer may offset any amounts rightfully due it against future Rent
payments. In the event City default is of the nature of an emergency, is a threat to any life or
presents any safety issues or materially impairs Developer or any other Person from operating its
business on or within the Property (or any portion thereof), Developer may immediately
commence the cure referenced above upon written notice to City and City shall reimburse
Developer for the expense incurred in connection therewith as provided above.
(b) Developer shall be entitled to sue City for all damages (as limited by Section
21.33 Limitation of Liability), costs and expenses arising from City's failure to cure an Event of
Default hereunder that is susceptible of cure and to recover all such damages, costs and expenses,
excluding attorneys' fees and costs. Notwithstanding the foregoing, Developer shall not be entitled
to file a lawsuit against City unless Developer has first provided City with at least 20 days' prior
written notice of its intent to do so with reference to the Event of Default that is the subject of the
potential claim.
(c) Developer shall be entitled to exercise any and all equitable remedies
against City, including without limitation the right to restrain, by injunction, the commission of or
attempt or threatened commission of an Event of Default of City and/or to obtain a decree
specifically compelling performance of any such term or provision of this Agreement.
78
16.9 No Waiver by Developer. Failure by Developer to insist upon the strict
performance of any of the terms of this Agreement or to exercise any right or remedy upon a breach
thereof, shall not constitute a waiver of any such breach or of any of the terms of this Agreement.
None of the terms of this Agreement to be kept, observed or performed by City, and no breach
thereof, shall be waived, altered or modified except by written instrument executed by Developer.
No waiver of any default of City hereunder shall be implied from any omission by Developer to
take any action on account of such default if such default persists or is repeated, and no express
waiver shall affect any default other than the default specified in the express waiver and then only
for the time and to the extent therein stated. One or more waivers by Developer shall not be
construed as a waiver of a subsequent breach of the same covenant, term or condition.
ARTICLE XVII
ACCESS
17.1 Right of Entry
City and its authorized representatives, upon reasonable advance notice and in the presence
of a representative of Developer (provided that such notice and the presence of a representative of
Developer are not required in event of an emergency), shall have the right to enter the Property at
reasonable times during normal business hours for the purpose of inspecting the same to insure
itself of compliance with the provisions of this Agreement. Nothing herein contained, however,
shall be deemed or construed to impose upon City any obligation, responsibility or liability
whatsoever, for the care, maintenance or repair of the Property or any part thereof, however City
shall not unreasonably interfere with Developer's or any Sublessee's, licensee's or
concessionaire's business operation or the construction work authorized in accordance with this
Agreement.
17.2 Access Agreements
City, in its exercise of the right of entry granted to it in Section 17.1 herein, shall (a) not
unreasonably disturb the occupancy of Developer, Sublessees or Space Lessees nor disturb their
business activities; and (b) with respect to any hotel, residential, office and/or other Sublessee or
Space Lessee, shall comply with all Applicable Laws governing or applicable to City with respect
to such uses and Property.
ARTICLE XVIII
DAMAGE TO DEVELOPER'S PROPERTY
18.1 Loss and Damage
Unless caused by a negligent act or omission of City or City's officers, employees, or
agents, City shall not be responsible for any damage to or loss of any property of Developer
(including without limitation appliances, equipment, machinery, stock, inventory, fixtures,
furniture, improvements, displays, decorations, carpeting and painting), or of others located on the
Property, by theft or otherwise. Unless caused by willful misconduct or negligence of City or
City's officers, employees, or agents, City shall not be liable for any injury or damage to persons
79
or Property resulting from fire, smoke, explosion, falling plaster, steam, gas, electricity, water,
rain, or leaks from any part of the Property or from the pipes, appliances or plumbing works or
from the roof, street or subsurface or from any other place by dampness or by any other cause of
whatsoever nature. Except as expressly set forth in this Agreement, City shall not be liable for any
patent or latent defect in the Property. All property of Developer kept or stored on the Property
shall be so kept or stored at the risk of Developer only and Developer shall hold City harmless
from any and all claims arising out of damage to same, including subrogation claims by
Developer's insurance carriers, unless caused by willful misconduct or gross negligence of City.
ARTICLE XIX
HOLDING OVER & SUCCESSORS
19.1 Holding Over
At the expiration of the Lease Term, or any earlier termination of this Agreement,
Developer shall yield and provide immediate possession of the Property and the Improvements to
Landlord. In the event Developer remains in possession of the Property after the expiration of the
Lease Term, then in addition to such other rights and remedies as City may have, Developer, at
the option of City, shall be deemed to be occupying the Property as a Developer at sufferance at a
monthly rental equal to one and a half (1.5) times the monthly Rent of the preceding Lease Year
(including Participation Rent, payable during the last month of the Lease Term hereof). In
addition, Developer agrees to pay monthly: (a) one -twelfth (1/12) of the taxes for the Property
based upon the total taxes payable for the Lease Year immediately prior to the Lease Year in which
the expiration occurs; (b) cost of insurance for which Developer would have been responsible if
this Agreement had been renewed on the same terms contained herein; (c) all sales taxes assessed
against such increased rent, and (d) any and all Additional Rent otherwise payable by Developer
hereunder. Such tenancy shall be subject to all the other conditions, provisions and obligations of
this Agreement. Developer's obligation to pay any Rents or sums provided in this Agreement
shall survive the expiration or earlier termination of this Agreement. Such payment shall not,
however, be deemed to grant further possessory rights to Tenant.
19.2 Successors
All rights and liabilities herein given to, or imposed upon, the respective Parties hereto
shall extend to and bind the several respective heirs, executors, administrators, successors, and the
assigns of the said Parties; and if there shall be more than one Developer, they shall be bound
jointly and severally by the terms, covenants and agreements herein. Nothing contained in this
Agreement shall in any manner restrict City's right to assign this Agreement in the event of a sale
of its interest in the Property, except as otherwise expressly provided for in this Agreement, and,
in the event City sells its interest in the Property and the purchaser assumes City's obligations and
covenants, City shall thereupon be relieved of all further obligations hereunder.
80
ARTICLE XX
EQUAL EMPLOYMENT OPPORTUNITIES
20.1 Equal Employment Opportunities
Developer agrees that during the Lease Term; it will (a) not intentionally discriminate
against any employee or applicant for employment because of race, creed, color, place of birth,
religion, national origin, sex, age, marital status, veteran and disability status and will take
definitive action to assure that applicants are employed and that employees are treated during
employment without regard to race, creed, color, place of birth, religion, national origin, sex, age,
marital status, veteran and disability status; (b) post in conspicuous places, available to employees
and applicants for employment, notices, the form of which is to be provided by City, setting forth
provisions for this nondiscrimination clause; (c) include in all solicitations or advertisements for
employees placed by or on behalf of Developer shall state that all qualified applicants will receive
consideration for employment without regard to race, creed color or national origin; and (d) to
send to each labor union or representative of workers with which the construction contractor has a
collective bargaining agreement or other contract or understanding a notice, the form of which is
to be provided by City, advising the union or representative of Developer's commitment and
posting copies of the notice in a conspicuous places available to employees and applicants for
employment.
20.2 Community Small Business Enterprise
Developer shall use commercially reasonable efforts to work towards achieving
Community Small Business Enterprise ("CSBE") goals, employing the requirements of the CBSE
set forth in the City of Miami Procurement Ordinance, codified in Chapter 18, Article III of the
Code, as a model; and shall try to attain, but not mandate, a plan for its achievement, which will
strive to provide equal opportunity in hiring and promoting for Miami -Dade County certified
CSBE companies, the disabled and veterans. Such plan shall include a set of positive measures
taken to insure utilization of CSBE companies when practicable and nondiscrimination in the work
place as it relates to hiring, firing, training and promotion. For the avoidance of doubt, this Section
20.2 sets forth an aspirational goal, and not a requirement, and Developer shall not be required to
comply with Section 18-89(e) of the Code, or with any particular laws, regulations, or procedures
related to the CSBE program, including the submission of packages or reports to the Miami -Dade
County Small Business Division.
20.3 Non -Discrimination
Developer represents and warrants to City that it will comply with §18-188, §18-189 and
§18-190 of the Code incorporated herein. Developer hereby represents and warrants that it shall
not engage in discriminatory practices and shall not discriminate in connection with Developer's
use of the Property on account of race, national origin, ancestry, color, sex, religion, age, handicap,
familial status, marital status or sexual orientation. Further, should Developer introduce or have
existing membership rules for patrons at the Property, that it will comply with the non-
discrimination provisions incorporated within §18-188, §18-189, §18-190, and §18-191 of the
Code as incorporated herein by reference; moreover, should Developer lease or sublease any
81
portion of the Property to any private clubs and organizations, such agreements shall comply with
§2-778 of the Code.
ARTICLE XXI
NIISCELLANEOUS
21.1 Accord and Satisfaction
No payment by Developer or receipt by City of a lesser amount than the Rent or other
amount due as specified herein shall be deemed in satisfaction of any such amounts owed; nor
shall any endorsement or statement on any check remitting partial payment or any letter
accompanying any partial payment be deemed an accord and satisfaction of Developer's debt.
City may accept such check or payment without prejudice to City's right to recover the balance of
such Rent or pursue any other remedy provided herein or by law.
21.2 Public Records
Developer shall comply with Section 119.0701, Florida Statutes, including without
limitation: (1) keep and maintain public records that ordinarily and necessarily would be required
by City to perform this service; (2) provide the public with access to public records on the same
terms and conditions as City would at the cost provided by Chapter 119, Florida Statutes, or as
otherwise provided by law; (3) ensure that public records that are exempt or confidential and
exempt from disclosure are not disclosed except as authorized by law; (4) meet all requirements
for retaining public records and transfer, at no cost, to City all public records in its possession upon
termination of this Agreement and destroy any duplicate public records that are exempt or
confidential and exempt from disclosure requirements; and, (5) provide all electronically stored
public records to City in a format compatible with City's information technology systems.
Notwithstanding the foregoing, Developer may withhold and/or mark certain business records,
trade secrets and other proprietary information as confidential and any such information shall be
excluded from public records disclosure to the fullest extent permitted by Applicable Law.
IF THE DEVELOPER HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE DEVELOPER'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS BY PHONE AT (305) 416-1883; BY EMAIL AT
PUBLICRECORDS@MIAMIGOV.COM; OR IN PERSON AT 444 SW 2ND AVENUE, 9TH
FLOOR, MIAMI, FL 33130.
82
21.3 Entire Agreement
This Agreement and the Exhibits and Schedules attached hereto and forming a part thereof
as if fully set forth herein constitute all of the covenants, promises, agreements, conditions and
understandings between City and Developer concerning the Property and there are no covenants,
promises, conditions or understandings, either oral or written, between them other than those set
forth herein. No course of prior dealings between the Parties or their officer's employees, agents
or affiliates shall be relevant or admissible to supplement, explain or vary any of the terms of this
Agreement. Acceptance of, or acquiescence in, a course of performance rendered under this or
any prior agreement between the Parties or their affiliates shall not be relevant or admissible to
determine the meaning of any of the terms of this Agreement. Except as herein otherwise provided,
no subsequent alteration, termination, change or addition to this Agreement shall be binding upon
City or Developer unless reduced to writing and signed by the Parties. Any amendments to this
Agreement must be approved with the same formalities as were used in its execution; provided,
however, that the City Manager or the City Manager's designee may execute (without further
approval by the City Commission) (i) non -material (i.e. non -substantial) amendments of the Lease
and amendments extending the time for performance of any obligation of Developer by no more
than twelve (12) months on behalf of City in the exercise of his professional discretion and (ii)
other amendments pursuant to Section 22.11. This Agreement has been negotiated "at arm's
length" by and between City and Developer, each having the opportunity to be represented by legal
counsel of its choice and to negotiate the form and substance of this Agreement, and therefore, in
construing the provisions of this Agreement neither Party will be deemed disproportionately
responsible for draftsmanship.
21.4 Independent Parties
It is understood and agreed by the Parties hereto that this Agreement does not create a
fiduciary or other relationship between the Parties, other than as City and Developer or contracting
parties, as applicable. City and Developer are and shall be independent contracting parties and
nothing in this Agreement is intended to make either Party a general or special agent, joint venturer,
partner or employee of the other for any purpose.
83
21.5 Notices
Any notice, demand, or request by the Parties or by a Leasehold Mortgagee, Sublessee,
Subleasehold Mortgagee or Mezzanine Financing Source required or permitted pursuant to this
Agreement must be served by certified mail return receipt requested, nationally recognized
overnight courier service, or by hand delivery, addressed to City or Developer at the following
addresses (or such other address as any Party may designate to the other Party in writing from time
to time):
If to City at:
City Manager
City of Miami
444 SW 2nd Avenue, l Oth Floor
Miami, Florida 33130
Email:
With copies to:
City of Miami City Attorney
Office of City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
Email:
City of Miami
Director, Department of Real Estate
and Asset Management
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
Email:
If to Developer at:
c/o Gencom
2700 Tigertail Avenue
Miami, Florida 33133
Attn: Julie Levitt, General Counsel
and Karim Alibhai, CEO
Email: jlevitt@gencomgrp.com and
kalibhai@gencomgrp.com
With copies to:
Hyatt Equities, L.L.C.
c/o Hyatt Corporation
150 North Riverside Plaza
Chicago, Illinois 60606
Attn: General Counsel
Email:
office.of.general.counsel@hyatt.com
and
Bilzin Sumberg Baena Price &
Axelrod LLP
1450 Brickell Avenue, 23rd Floor
Miami, Florida 33131-3456
Attn: Javier Avino, Esq.
Email: javino@bilzin.com
The Leasehold Mortgagee, Sublessee, Subleasehold Mortgagee or Mezzanine Financing
Source shall be deemed to have been properly served or given notice if such notice is in writing
addressed to such party at the address furnished pursuant to the provisions of Section 10.5 and
Section 22.3. All notices given hereunder shall be effective and deemed to have been given upon
receipt by the party to which written notice is being given, said receipt being deemed to have
occurred upon hand delivery or posting, or upon such date as the postal authorities shall show the
notice to have been delivered, refused, or undeliverable, is evidenced by the return receipt or proof
of deliver. If there shall be more than one Developer, any notice required or permitted by the terms
of this Agreement may be given by or to any one thereof, and shall have the same force and effect
84
as if given to all thereof. If City or Developer at any time during the term hereof changes its office
address as herein stated, such Party will promptly give notice of same in writing to the other Party
(which notice of change of address may be by email) and any then -existing Leasehold Mortgage,
Sublessee, Subleasehold Mortgagee and Mezzanine Financing Source. Notices required hereunder
may be given by the Parties' respective attorneys.
21.6 Captions and Section Numbers
The captions, section numbers, and article numbers appearing in this Agreement are
inserted only for convenience and in no way define, limit, construe, or describe the scope or intent
of such sections or articles of this Agreement nor in any way affect this Agreement.
21.7 Partial Invalidity
If any term, covenant or condition of this Agreement or the application thereof to any
person or circumstances shall, to any extent, be deemed invalid or unenforceable by a Court with
jurisdiction, the remainder of this Agreement shall not be affected thereby and each term, covenant
or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by
law. In the event the invalidity of such provision materially alters the agreed -upon material
business terms between the Parties, the Parties shall negotiate in good faith to amend this
Agreement as necessary to reflect the original intent of the Parties.
21.8 Estoppel Certificate
Each party agrees that it will, at any time and from time to time, within twenty (20)
Business Days following written notice by the requesting party (which may be City, Developer,
or a Leasehold Mortgagee, Sublessee, Subleasehold Mortgagee or Mezzanine Financing Source)
specifying that it is given pursuant to this Section, execute, acknowledge and deliver to the
requesting party a statement in writing certifying that this Agreement is unmodified and in full
force and effect (or if there have been modifications, that the same is in full force and effect and
stating the modifications), confirming the Commencement Conditions have been satisfied and the
Commencement Date, and confirming the date to which the Minimum Rent, Participation Rent
and any other payments due hereunder from Developer (including the Affordable Housing
Payment) have been paid in advance, if any, and stating whether or not there are defenses or offsets
known and/or currently claimed by the certifying party and whether or not to the knowledge of the
certifying party, the requesting party is in default in performance of any, covenant, agreement or
condition contained in this Agreement, and if so, specifying each such default of which certifying
party has knowledge, and such other matters as the requesting party may reasonably request. It is
intended that any such statement delivered pursuant to this Section 21.8 may be relied upon by any
prospective assignee, transferee or purchaser of Developer's interest in this Agreement, any
prospective Sublessee or any Leasehold Mortgagee, Subleasehold Mortgagee, Mezzanine
Financing Source or any assignee thereof, but reliance on such certificate may not extend to any
default of Developer as to which City shall have had no actual knowledge. Notwithstanding any
language contained in this Agreement to the contrary, in the event that an audit has not been
conducted in accordance with Section 4.9 within the year prior to the subject estoppel request, the
City shall have the right to note in the applicable estoppel that it reserves all audit rights set forth
in Section 4.9 hereof.
85
It is agreed that nothing contained in the provisions of this Section shall constitute waiver
by requesting party of any default existing as of the date of such notice and, unless expressly
consented to in writing by requesting party and, certifying party shall still remain liable for the
same. There will be a two hundred fifty dollar ($250.00) regulatory fee per Section 166.221,
Florida Statutes for each request made of City for each estoppel certificate requested in accordance
herewith, payment in full shall be made at the time of the request. No estoppel certificate shall be
issued without payment of such fee.
21.9 Waiver
Failure on the part of either Party to complain of any action or non -action on the part of the
other, no matter how long the same may continue, shall never be deemed to be a waiver by such
Party of any of its rights hereunder. Further, it is covenanted and agreed that no waiver at any time
of any of the provisions hereof by either Party shall be construed as a waiver of any of the other
provisions hereof, and that a waiver at any time of any of the provisions hereof shall not be
construed as a waiver at any subsequent time of the same provisions. The consent or approval to
or of any action by either Party requiring such consent or approval shall not be deemed to waive
or render unnecessary such consent or approval to or of any subsequent similar act by such Party.
21.10 Time is of the Essence
Time is of the essence with respect to the performance of every provision of this Agreement
in which time of performance is a factor.
21.11 No Discrimination
It is intended that the Property shall be operated in a manner whereby all customers,
employees, Developers and invitees of Developer shall have the opportunity to obtain all the
goods, services, accommodations, advantages, facilities and privileges of the Property without
discrimination because of race, creed, color, sex, age, national origin, ancestry, handicap or
disability of any kind. To that end, Developer shall not discriminate in the conduct and operation
of its business in the Property against any person or group of persons because of the race, creed,
color, sex, age, national origin, ancestry, handicap or disability of such person or group of persons.
21.12 Governing Law, Venue, & Attorney's Fees
It is the intent of the Parties hereto that all questions with respect to the construction of the
Lease and the rights and the liabilities of the Parties hereto shall be determined in accordance with
the laws of Florida without regard to principles of conflicts of laws. Additionally, all disputes civil
action or legal proceeding arising out of or relating to this Agreement shall be brought in the courts
of record in Miami -Dade County. Each party shall bear its own attorney's fees in any disputes or
civil actions between them arising out of this Agreement.
21.13 Waiver of Counterclaims
Developer shall not impose any permissive counterclaim(s) for damages in a summary
proceeding or other action based on termination or holdover, it being the intent of the Parties hereto
that Developer be strictly limited in such instances to bringing a separate action in the court of
86
appropriate jurisdiction, however, Developer may assert any compulsory counterclaims in such
action. The foregoing waiver is a material inducement to City making, executing and delivering
this Agreement and Developer's waiver of its right to counterclaim in any summary proceeding or
other action based on termination or holdover is done so knowingly, intelligently and voluntarily.
21.14 Waiver of Jury Trial
To the extent allowed by Applicable Law, City and Developer hereby waive trial by jury
in any action, proceeding or counterclaim brought by either of the Parties hereto against the other
on, or in respect of, any matter whatsoever arising out of or in any way connected with this
Agreement, the relationship of City and Developer hereunder, and/or Developer's use or
occupancy of the Property.
21.15 Quiet Enjoyment
Subject to the terms of this Agreement, upon the observance by Developer hereunder of all
the terms, provisions, covenants and conditions imposed upon Developer, City covenants to
Developer that Developer shall peaceably and quietly hold, occupy and enjoy the Property for the
Lease Term without any interruption, disturbance or hindrance by City, its successors and assigns,
or by persons claiming by, through or under City for the Property leased herein, or by persons with
title superior to City, its successors and assigns.
21.16 Surrender of Possession
Upon the expiration or earlier termination of the Lease pursuant to the provisions hereof,
Developer shall deliver to City possession of the Property in good repair and condition, reasonable
wear and tear, casualty and condemnation excepted, and subject to all Applicable Laws in
accordance with the terms of Section 5.9 of this Agreement.
21.17 Joint and Several Liability
If two or more individuals, corporations, partnerships or other business associations (or
any combination of two or more thereof) shall sign this Agreement as Developer or City, or, by
virtue of a transfer of either Party's interests herein, assume the rights and obligations of Developer
or City hereunder, the liability of each such individuals, corporations, partnerships or other
business associations (or any combination of two or more thereof) to perform all obligations
hereunder shall be deemed to be joint and several, and all notices, payments and agreements given
or made by, with, or to any one of such individuals, corporations, partnerships or other business
associations shall be deemed as having been given to all of them.
21.18 Third Party Beneficiary
Except as expressly set forth in this Agreement, nothing contained in this Agreement shall
be construed so as to confer upon any other party the rights of third party beneficiary.
87
21.19 Radon
Radon is a naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels
of Radon that exceed Federal and State guidelines have been found in buildings in Florida.
Additional information regarding Radon and Radon testing may be obtained from your county
public health unit.
21.20 No Liability for Act of Other Party
Developer shall not sign any contract or application for any license or permit or do anything
that may result in liability to City for any indebtedness or obligation of Developer, unless expressly
provided herein or approved in writing by City. Except as expressly authorized in writing or
agreed to herein, neither City nor Developer shall make any express or implied agreement,
warranties, guarantees or representations or incur any debt, or represent that their relationship is
other than City and Developer, for the management and operation of the Property; neither City nor
Developer shall be obligated by or have any liability under any agreements or representations made
by the other that are not expressly authorized in writing. City reserves the right, at its sole option,
to refuse an agreement for any Federal, State or local grants and loans when the acceptance of
same by either City or Developer may impose a hardship upon City or include obligations which
extend beyond the Lease Term.
21.21 Reserved
21.22 Brokers
City and Developer each represents that it has not dealt with any broker or salesperson in
connection with the negotiation or execution of this Agreement or any other person or entity who
would create any liability for the payment of a commission, finder's fee or other remuneration
other than CBRE ("Broker") who was retained by City. Developer has prior to the Effective Date
paid City the sum of $700,000.00 toward the brokerage expenses of City in connection with this
Agreement. City shall pay to Broker any commission due with respect to this Agreement pursuant
to a separate agreement between City and Broker.
21.23 Consents
Wherever in this Agreement the consent or approval of one Party is required for an act of
the other Party, unless otherwise specified, such consent or approval shall not be unreasonably
withheld, delayed or conditioned. The Parties agree that each of the terms, covenants and
conditions hereof agreed to be observed or performed by each party shall constitute concurrent
conditions of exchange. Any consent or approval by City hereunder shall be in its capacity as
landlord and owner of the Property and not in its capacity as a municipality or governmental entity.
Whenever in this Agreement the consent or approval of City is required, such consent or approval
shall be made by the City Manager or City Manager's designee (on behalf of City Commission as
applicable). Notwithstanding anything contained in this Agreement to the contrary, in the event
City transfers its interest as landlord under this Agreement to a non -governmental entity, such
transferee, by accepting the interest of landlord under this Agreement, agrees that it shall not
unreasonably or arbitrarily withhold, condition or delay its consent or approval to any request for
88
consent or approval required under this Agreement, whether or not a different standard is provided
for such approval or consent under this Agreement.
21.24 Memorandum of Lease
Upon the occurrence of the Commencement Date, at the request of either Party to the other,
each of the Parties agree to execute, deliver and record in the Public Records a Memorandum of
Lease in substantially the form attached hereto as Exhibit H (the "Memorandum of Lease"). If
the Parties amend this Agreement, then the Parties shall simultaneously execute, acknowledge,
deliver duplicate originals of an amendment to such Memorandum of Lease as appropriate and
submit same for recording. Neither City nor Developer shall modify or terminate the
Memorandum of Lease without the consent of the Leasehold Mortgagee. Upon the written request
of a Leasehold Mortgagee, City and Developer will revise the Memorandum of Lease to include
or include reference to specific Lease provisions requested by the Leasehold Mortgagee and record
the revised Memorandum of Lease in the public records of such county.
21.25 City as City Only
Nothing in this Agreement shall impose any obligations or requirements on the City of
Miami acting in its regulatory capacity. The obligations of City set forth in this Agreement are
not intended to limit or otherwise affect the ability of City, acting in its governmental capacity, to
exercise its police powers and regulatory responsibilities with respect to the Property and any
activities within the Property.
21.26 Designation of City's Representative
The City Manager or the City Manager's designee shall have the power, authority and right,
on behalf of City, in its capacity as landlord hereunder, and without any further resolution or action
of the Commission, to:
(i) review and approve documents, applications, lease assignments and requests
required or allowed by Developer to be submitted to City pursuant to Article V and elsewhere in
this Agreement, including without limitation the Master Covenants, dedications of right-of-way,
and sovereignty submerged lands lease agreements and applications therefor (if City' s execution is
required);
(ii) consent to actions, events, and undertakings by Developer for which consent
is required by City;
(iii) make appointments of individuals or entities required to be appointed or
designated by City in this Agreement;
(iv) execute the Confirmation of Effective Date, grant extensions of any
deadlines, execute non -disturbance agreements, execute estoppel statements and certificates, and
execute other instruments as provided elsewhere in this Agreement (whether in connection with
this Agreement, any Bifurcated Lease, any Sublease, any Space Lease, the Master Covenants, any
Mortgage, any Mezzanine Financing, or otherwise);
89
(v) consent to (or join in) and execute any amendment or modification of the
Master Covenants;
(vi) execute on behalf of City any and all consents, covenants, agreements,
easements, applications or other documents, needed to comply with applicable regulatory
procedures and secure permits or other approvals needed to accomplish the construction of any and
all improvements in and refurbishments of the Property, including a covenant in lieu of unity of
title and related easement and operating agreement;
(vii) execute any and all documents on behalf of City necessary or convenient to
the foregoing approvals, consents, appointments and agreements;
(viii) execute on behalf of City any Bifurcated Leases and any other agreements
or instruments necessary to effectuate the bifurcation of the leasehold interest in this Agreement as
contemplated herein without the need for City Commission approval;
(ix) execute amendments of the nature set forth in Section 22.11;
(x) grant any other consents or approvals where City Manager is give such
authority in this Agreement; and
(xi) execute the Evidence of Termination of Existing Lease as set forth in
Article XXV.
The City Manager or City Manager's designee may exercise the authority granted in this
Section, provided that such exercise of authority shall be at no cost to City other than its cost to
review the proposed amendments, agreements, documents and other instruments or materials, and
shall not impose additional obligations or liabilities or potential obligations or liabilities on City
beyond those set forth in this Agreement.
21.27 Fee Mortgages. This Agreement, including all amendments, renewals and
extensions thereto or thereof, and the Leasehold Estate and all Leasehold Mortgages, including all
amendments, renewals, and extensions thereto or thereof and any new lease entered into pursuant
to Section 22.5, shall be prior and superior to all encumbrances and mortgages encumbering the
Land and City's fee estate, including all extensions, renewals, replacements, modifications and
consolidations thereof, and to all advances thereunder ("Fee Mortgage") and the rights of all
holders of a Fee Mortgage. City shall not enter into any Fee Mortgage that violates the previous
sentence. Developer shall not be obligated to provide any documentation to the holder of a Fee
Mortgage that in any way prejudices Developer's rights under this Agreement, in Developer's sole
but commercially reasonably exercised discretion. Developer shall not subordinate this
Agreement to any Fee Mortgage without the prior written consent of any Leasehold Mortgagee,
which consent may be granted or withheld by the Leasehold Mortgagee in its sole discretion. Any
inconsistency between any Fee Mortgage and this Agreement shall be resolved in favor of this
Agreement. Leasehold Mortgagees shall be deemed a third party beneficiary of this Section 21.27.
21.28 Access to Property. Prior to the Commencement Date, Developer shall have
reasonable access to the Property during business hours in order to conduct tests, make plans and
for other purposes consistent with Developer's performance under the Lease. Developer shall use
90
commercially reasonable efforts not to disturb any occupants or tenants at the ILK Center during
such entry. Developer is in full possession of the Existing Hotel and shall continue to have full
possession thereof prior to the Commencement Date in accordance with and subject to the terms
of the Existing Lease.
21.29 Successors and Assigns. The terms herein contained shall bind and inure to the
benefit of City, its successors and assigns, and Developer, its successors and assigns (including
Leasehold Mortgagees, Sublessees, and Space Lessees as appropriate and applicable), except as
may be otherwise provided herein.
21.30 Protest Payment. If at any time a good faith dispute shall arise as to any amount
or sum of money to be paid by Developer to City under the provisions of this Agreement, in
addition to the rights set forth herein, Developer shall have the right to make payment "under
protest" and such payment shall not be regarded as a voluntary payment, and there shall survive
the right on the part of Developer to seek the recovery of such sum, and if it should be adjudged
that there was no legal obligation on Developer to pay such sum or any part thereof, Developer
shall be entitled to recover such sum or so much thereof as it was not legally required to pay under
the provisions of this Agreement; and if at any time a dispute shall arise between the Parties as to
any work to be performed by either of them under the provisions of this Agreement, the party
against whom the obligation to perform the work is asserted may perform such work and pay the
cost thereof "under protest" and the performance of such work shall in no event be regarded as a
voluntary performance and there shall survive the right upon the part of said Developer and/or City
to seek the recovery of the cost of such work, and if it shall be adjudged that there was no legal
obligation on the part of said Developer and/or City to perform the same or any part thereof, said
Developer and/or City shall be entitled to recover the cost of such work or the cost of so much
thereof as Developer or City was not legally required to perform under the provisions of this
Agreement.
21.31 Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall constitute an original but all of which, when taken together, shall constitute one and
the same agreement.
21.32 Provisions Not Merged With Deed. None of the provisions of this Agreement,
nor the separate estates of Developer and City, are intended to or shall, in any event, be merged,
including by reason of any transfer, whether by operation or law or otherwise, (i) transferring
Developer's Leasehold Estate in the Property or its interest in the Project or any part thereof from
Developer to City, or (ii) transferring title to the Property or any part thereof from City to
Developer, and any such transfer shall not be deemed to affect or impair the provisions and
covenants of this Agreement. No such merger of estates shall occur unless and until all parties
having any interest in this Agreement, the Leasehold Estate created hereby, or the Project (or
portion thereof), including all applicable Leasehold Mortgagees, shall join in the execution of a
written instrument effecting such merger.
21.33 Limitation of Liability. City shall not be liable to Developer for any incidental,
consequential, special or punitive losses or damages whatsoever arising from any acts or omissions
of City hereunder. Developer shall not be liable to City for any incidental, consequential, special
91
or punitive losses or damages whatsoever arising from any acts or omissions of Developer
hereunder.
21.34 Exculpations. It is the intent and agreement of the Parties hereto that only the
Parties as entities shall be responsible in any way for their respective obligations hereunder, except
as otherwise expressly provided herein. In that regard, no officer, director, partner, trustee,
representative, investor, official, representative, employee, agent, or attorney of any of the Parties
to this Agreement shall be personally liable for the performance of any obligation hereunder or for
any other claim made hereunder or in any way in connection with this Agreement, or any other
matters contemplated herein, and any and all such personal liability, either at common law or in
equity or by constitution or statute or other Applicable Laws are expressly waived and released as
a condition of, and as a consideration for, the execution of this Agreement. Developer's liability
pursuant to this Agreement is limited to its interest in the Leasehold Estate.
21.35 Closing Process. On each of the Effective Date and the Commencement Date, City
shall deliver to Developer an Affidavit in the form and content of Schedule 21.35 attached hereto.
On the Effective Date, City will deliver to Developer a fully -executed Landlord Non -Disturbance
Agreement in the form and content of Schedule 21.35a with respect to the Hotel Services
Agreement, which shall be recorded in the Public Records. On the Effective Date, each of City
and Developer shall execute and deliver a Confirmation of Effective Date in the form of Schedule
21.35b attached hereto. On the Commencement Date (i) Developer and City shall each execute
and deliver the Evidence of Termination of Existing Lease, which shall be recorded in the Public
Records, and (ii) Developer and City shall each execute and deliver the Memorandum of Lease,
which shall be recorded in the Public Records.
21.36 Costs. Tenant is responsible for the expense of the due diligence it elects to
undertake, the cost of title commitments and premiums for title policies it obtains, and the cost of
recording the Memorandum of Lease and the Evidence of Termination of Existing Lease. Each
Party shall bear its own attorneys' fees.
21.37 City's Duty. During the Lease Term, City will discharge any and all obligations
incurred by City which give rise to any liens on the Property, it being understood and agreed that
City shall have the right to withhold any payment so long as it is in good faith disputing liability
therefor or the amount thereof, provided such contest of liability or amount operates as a stay of
all sale, entry, foreclosure, or other collection proceedings in regard to such obligations, and such
action does not subject Developer to any expense or liability.
21.38 Force Majeure. Whenever a period of time is prescribed in this Agreement for the
taking of any action by Developer, except as to any payment or rent or additional rent due City
under the terms of this Lease, Developer shall not be liable or responsible for, and there shall be
excluded from the computation of such period of time, any delays due to Force Majeure.
Notwithstanding the foregoing, the maximum amount of Force Majeure delay that Developer may
claim with respect to matters occurring prior to the Commencement Date is thirty-six (36) months,
in the aggregate; with respect to matters occurring on or after the Commencement Date, there is
no limit on the amount of Force Majeure delay that Developer may claim.
92
21.39 Review of Statements. All charges due from Developer to City for which
Developer must be billed by City must be billed within twelve (12) months following the
expiration of the calendar year in which the charge is incurred by City (except for Impositions
under appeal which must be billed within six (6) months after the final, non -appealable
adjudication of such appeal) or City will have waived its right to reimbursement which may have
been established in any paragraph to this Agreement unless such under payment was discovered
in an audit performed pursuant to Section 4.9.
ARTICLE XXII
FINANCING AND RIGHTS OF LENDERS
22.1 Right to Mortgage Leasehold. Developer and each Sublessee shall have the right
from time to time to mortgage and otherwise encumber their leasehold rights under this
Agreement, any Sublease and the Leasehold Estate, in whole or in part (with respect to the Property
or any Phase or any part thereof), by a Leasehold Mortgage or Subleasehold Mortgage or
Mortgages to any Mortgagee, provided, however, that in connection with any Leasehold Mortgage
or Subleasehold Mortgage which is recorded prior to Substantial Completion of the Minimum
Initial Program, unless otherwise consented to by the City Manager (which consent shall not be
unreasonably withheld, conditioned, and/or delayed), the applicable Mortgagee shall be an Eligible
Lender. Further, Developer, each Sublessee and the direct and indirect owners of equity interests
in Developer and each Sublessee, shall have the right from time to time, and without the prior
consent of City, to pledge and otherwise encumber any of its respective direct or indirect equity or
ownership interests (whether stock, partnership interest, beneficial interest in a trust, membership
interest or other interest of an ownership or equity nature) (herein, "equity interests" or "ownership
interests") to secure an Accommodation Pledge in favor of any Leasehold Mortgagee or
Subleasehold Mortgagee, provided, however, that in connection with any Accommodation Pledge
that is delivered prior to Substantial Completion of the Minimum Initial Program, the applicable
Mortgagee shall be an Eligible Lender. Any such Mortgages and/or Accommodation Pledges shall
be expressly subject to the terms, covenants and conditions of this Agreement (and the applicable
Sublease, if applicable), and the right, title and interest of City herein and in the fee estate in the
Property, but subject at all times to the rights granted in this Article XXII and elsewhere in this
Agreement to Mortgagees. The granting of a Mortgage or Mortgages or any Accommodation
Pledge against all or part of the Leasehold Estate, any subleasehold estate, and/or any direct or
indirect interests in Developer or any Sublessee in the Property shall not operate to make the
Mortgagee(s) thereunder liable for performance of any of the covenants or obligations of
Developer or Sublessee under this Agreement or a Sublease, except in the case of a Mortgagee
who owns or is in possession and control of all or a portion of the Property, and then only for the
applicable portion of the Property, and during its period of ownership or possession and control,
but City shall always have the right to enforce the leasehold obligations against such portion of the
Property, including such obligations accruing prior to such period of ownership or possession and
control, subject to the terms hereof, except, in each instance, as otherwise provided herein or in
any subordination and recognition agreement between City and such Mortgagee. The amount of
any such Mortgage may be increased whether by an additional mortgage and agreement
consolidating the liens of such Mortgages or by amendment to the existing Mortgage, and any such
Mortgage may be amended, restated, replaced, extended, increased, decreased, refinanced,
consolidated or renewed from time to time, all without the consent of City, provided, however, no
93
such action may occur prior to Substantial Completion of the Minimum Initial Program without
consent of the City Manager (not to be unreasonable withheld, conditioned, and/or delayed) if the
applicable action shall cause any Mortgagee to no longer be an Eligible Lender hereunder. Such
Mortgage(s) shall, inter alia, contain a provision for an assignment of any rents, revenues, monies
or other payments due to Developer or Sublessee as a landlord and a provision therein that the
Mortgagee(s) in any action to foreclose a Mortgage shall be entitled to the appointment of a
receiver (provided that in no event shall any such assignment of rents or any receivership diminish
the amounts paid or payable to the City pursuant to this Agreement). Any transfer (a) resulting
from the foreclosure of a Mortgage or any conveyance, assignment or other transfer in lieu of
foreclosure of a Mortgage or other appropriate proceedings in the nature thereof, (b) made to the
purchaser at foreclosure of a Mortgage or to the grantee of a conveyance, assignment or transfer
in lieu of foreclosure of a Mortgage (including Mortgagee, any nominee of Mortgagee or a third
party buyer), or (c) made by Mortgagee or its nominee to a third party following the enforcement
by Mortgagee of its Mortgage, shall not require the consent of City and shall not constitute a breach
of any provision or a default under this Agreement, provided that: (i) in no event shall the
applicable transferee be a Prohibited Person, (ii) if such transfer shall occur prior to Substantial
Completion of the Minimum Initial Program and the applicable transferee does not satisfy the
definition of Acceptable Developer hereunder, such transferee shall enter into a development
agreement, construction management agreement or similar agreement with an Acceptable Project
Developer within ninety (90) days of the applicable transfer (which ninety (90) days may be
extended for an additional period not to exceed an additional ninety (90) days if the applicable
transferee is utilizing good faith and diligent efforts to engage an Acceptable Project Developer)
and (iii) if such transfer shall occur after Substantial Completion of the Minimum Initial Program
and the applicable transferee does not satisfy the definition of Acceptable Developer hereunder,
such transferee shall engage one or more Acceptable Operators to manage the property within
ninety (90) days of the applicable transfer. Any transfer of any direct or indirect ownership interest
in Developer or any Sublessee (including, without limitation, any such transfer which results in a
change of control) in connection with the foreclosure by any Leasehold Mortgagee, Subleasehold
Mortgagee or any successor, assign, nominee or designee of any such party of an Accommodation
Pledge or other appropriate proceedings in the nature thereof, or any transfer made to the purchaser
at a foreclosure of such ownership interests, or any conveyance, assignment or transfer in lieu of
such foreclosure, or any change of control or other transfer of any direct or indirect ownership
interest in Developer or such Sublessee to the Leasehold Mortgage or Subleasehold Mortgage or
any nominee or designee thereof resulting from the exercise by the Leasehold Mortgagee or
Subleasehold Mortgagee of any other rights or remedies under any Accommodation Pledge shall
not require the consent of City and shall not constitute a breach of any provision or a default under
this Agreement, provided that: (i) in no event shall such transferee be a Prohibited Person, (ii) if
such transfer shall occur prior to Substantial Completion of the Minimum Initial Program and,
after giving effect to such transfer, the Developer or Sublessee does not satisfy the definition of
Acceptable Developer hereunder, such Developer or Sublessee shall enter into a development
agreement, construction management agreement or similar agreement with an Acceptable Project
Developer within ninety (90) days of the applicable transfer (which ninety (90) days may be
extended for an additional period not to exceed an additional ninety (90) days if the Developer or
Sublessee (as applicable) is utilizing good faith and diligent efforts to engage an Acceptable
Project Developer) and (iii) if such transfer shall occur after Substantial Completion of the
Minimum Initial Program and, after giving effect to such transfer, the Developer or Sublessee does
94
not satisfy the definition of Acceptable Developer hereunder, such Developer or Sublessee shall
engage one or more Acceptable Operators to manage the property within ninety (90) days of the
applicable transfer.
22.2 Right to Pledge Equity Interests. Developer, each Sublessee and the direct and
indirect owners of equity interests in Developer and each Sublessee, shall have the right from time
to time, and without the prior written consent of City, to pledge and otherwise encumber any of its
respective direct or indirect equity or ownership interests (whether stock, partnership interest,
beneficial interest in a trust, membership interest or other interest of an ownership or equity nature)
(herein, "equity interests" or "ownership interests") to secure a loan made by a Mezzanine
Financing Source, provided, however, that in connection with any such loan made prior to
Substantial Completion of the Minimum Initial Program, unless otherwise consented to by the City
Manager (which consent shall not be unreasonably withheld, conditioned, and/or delayed), the
applicable Mezzanine Financing Source shall be an Eligible Lender. The granting of such pledge
or other security shall not operate to make the Mezzanine Financing Source thereunder liable for
performance of any of the covenants or obligations of Developer or such Sublessee under this
Agreement or a Sublease. The amount of any such Mezzanine Financing may be increased, and
such Mezzanine Financing may be modified, amended, restated, replaced, extended, increased,
decreased, refinanced, consolidated or renewed from time to time, all without the consent of City,
provided, however, no such action may occur prior to Substantial Completion of the Minimum
Initial Program without consent of the City Manager (not to be unreasonable withheld,
conditioned, and/or delayed) if the applicable action shall cause the Mezzanine Financing Source
to longer be an Eligible Lender hereunder. Any transfer of any direct or indirect ownership interest
in Developer or any Sublessee from the foreclosure by any Mezzanine Financing Source of a
pledge of ownership interests in Developer or such Sublessee or other appropriate proceedings in
the nature thereof, or any transfer made to the purchaser at a foreclosure of such pledge of
ownership interests, or any conveyance, assignment or transfer in lieu of such
foreclosure (including any transfer to the Mezzanine Financing Source, any nominee of Mezzanine
Financing Source or a third party buyer), or any change of control or other transfer of any direct
or indirect ownership interest in Developer or such Sublessee to the Mezzanine Financing Source
or its nominee resulting from the exercise by the Mezzanine Financing Source of any other rights
or remedies under any Mezzanine Financing documents, including without limitation any pledge
or other security agreements or any partnership agreement, operating agreement or other
organizational documents, shall not require consent of the City and shall not constitute a breach of
any provision or a default under this Agreement provided that: (i) after giving effect to the
applicable transfer, in no event shall the Developer or Sublessee (as applicable) be a Prohibited
Person, (ii) if such transfer shall occur prior to Substantial Completion of the Minimum Initial
Program and, after giving effect to such transfer, the Developer or Sublessee does not satisfy the
definition of Acceptable Developer hereunder, such Developer or Sublessee shall enter into a
development agreement, construction management agreement or similar agreement with an
Acceptable Project Developer within ninety (90) days of the applicable transfer (which ninety (90)
days may be extended for an additional period not to exceed an additional ninety (90) days if the
Developer or Sublessee (as applicable) is utilizing good faith and diligent efforts to engage an
Acceptable Project Developer) and (iii) if such transfer shall occur after Substantial Completion
of the Minimum Initial Program and, after giving effect to such transfer, the Developer or
Sublessee does not satisfy the definition of Acceptable Developer hereunder, such Developer or
95
Sublessee shall engage one or more Acceptable Operators to manage the property within ninety
(90) days of the applicable transfer.
22.3 Notice to City of Lender's Interest. Written notice of each Mortgage shall be
delivered to City specifying the name and address of the Mortgagee to which notices shall be sent
and City shall be furnished a copy of each such recorded Mortgage. City shall also receive notice
of the name and address of any Mezzanine Financing Source who desires notice and the benefit of
the rights of Mezzanine Financing Sources under this Agreement. For the benefit of any
Mortgagee and/or Mezzanine Financing Source entitled to notice as hereinafter provided in this
Article XXII, City agrees, subject to all the terms of this Agreement, without the consent of such
Mortgagee and/or Mezzanine Financing Source, not to effectuate, accept or consent to a surrender,
cancellation or termination of this Agreement, or enter into any amendment or modification to this
Agreement, at any time (a) with respect to a Mortgage, during any period that such Mortgage shall
remain a lien on Developer's Leasehold Estate or a Sublessee's subleasehold estate (as applicable),
and (b) with respect to Mezzanine Financing, during any period that the Mezzanine Financing
Source holds an equity interest (directly or indirectly), or is secured by a pledge of ownership
interests, in Developer or any Sublessee (as applicable). No Mortgagee or Mezzanine Financing
Source shall be bound by any amendment or modification of this Agreement made without its prior
written consent as hereinabove provided, and no sale or transfer of City's fee simple interest in the
Land or any portion thereof to Developer shall terminate this Agreement by merger or otherwise
so long as the lien of any Mortgage, any Accommodation Pledge or any pledge securing Mezzanine
Financing remains undischarged. City also agrees to abide by any subsequent written notice from
Developer or any Sublessee and any Mortgagee and/or Mezzanine Financing Source jointly
notifying City that such Mortgagee's or Mezzanine Financing Source's consent is also required to
effectuate any other modification, change, waiver, consent, approval or other matter relative to this
Agreement. Developer shall, within ten (10) Business Days after any request from the City,
provide the City with an update of the names and addresses of the Lenders entitled to the Lender
protections set forth in this Article XXII and Article XVI of this Agreement based on Developer's
then current records.
22.4 Notices to Lender(s). No notice of default under Section 16.1 or notice of failure
to cure a default under Section 16.2(a) shall be deemed to have been given by City to Developer
unless and until a copy has been given to each Leasehold Mortgagee, Subleasehold Mortgagee and
Mezzanine Financing Source who shall have notified City of its respective interests pursuant to
Section 22.3. City agrees to accept performance and compliance by any such Lender of and with
any of the terms of this Agreement with the same force and effect as though kept, observed or
performed by Developer, provided such act or performance is timely under Section 22.5, Section
16.2 or Section 16.3. Nothing contained herein shall be construed as imposing any obligation upon
any such Lender to so perform or comply on behalf of Developer prior to such Lender acquiring
Tenant' s interest in this Agreement pursuant to a foreclosure, a deed or assignment in lieu of
foreclosure or the exercise of any other remedies under any Leasehold Mortgage.
22.5 Termination of Leasehold Estate under this Agreement and New Lease.
22.5.1 In addition to any rights any Lender may have by virtue of Article XVI
herein, if this Agreement shall terminate prior to the expiration of the Lease Term for any reason
whatsoever (whether pursuant to the terms of this Agreement or otherwise) or shall be rejected or
96
disaffirmed in a bankruptcy or insolvency proceeding, City shall give written notification thereof
to each Leasehold Mortgagee and Mezzanine Financing Source which has provided Mezzanine
Financing secured by an interest in Developer, and City shall, upon written request of the
applicable Lender (with City to follow the request of any Leasehold Mortgagee prior to Mezzanine
Financing Sources) to City given within sixty (60) days following such termination or rejection or
disaffirmation, enter into a new lease of the Property with the Leasehold Mortgagee (or its
nominee) or the Mezzanine Financing Source (or its nominee), as tenant, for the remainder of the
Lease Term, on the same terms and conditions, and with the same priority over any encumbrances
created at any time by City, its successors and assigns, which Developer has or had by virtue of
this Agreement. City's obligation to enter into such new lease of the Property with Leasehold
Mortgagee or any Mezzanine Financing Source shall be conditioned upon, on the date the new
lease is executed, (i) City receiving payment of all Rent due hereunder through the date of such
new lease, (ii) all other monetary defaults hereunder having been cured (excluding (x) any
obligation to pay any late payment fees accrued in accordance with Section 4.10 hereof (other than
any late fees or similar penalties references in Section 16.3(d)) and (y) any obligation to make
deposits into the Cap Ex Fund accruing prior to the date of the applicable new lease), (iii) all non -
monetary defaults susceptible to cure having been cured or Leasehold Mortgagee or the Mezzanine
Financing Source, as applicable, as tenant, proceeding promptly with such cure and pursuing such
cure to completion with reasonable diligence, and (iv) City receiving all reasonable expenses, costs
and fees, including attorneys' fees, incurred by City in the preparation of such new lease. Such
new lease shall have priority over encumbrances created by City any time after the Effective Date
by virtue of the notice created by this Agreement to any transferee of City or any person receiving
an encumbrance from City, which priority shall be self -operative and shall not require any future
act by City. Any new lease hereunder shall contain the same clauses subject to which the demise
of the Property hereunder is made, and shall be at the Rent and other payments for the Property or
more due to City and upon all of the terms as are herein contained.
22.5.2 Nothing herein contained shall be deemed to impose any obligation on the
part of City to deliver physical possession of the Property to the Leasehold Mortgagee (or its
nominee) or the Mezzanine Financing Source (or its nominee) until the new lease has been
executed by all pertinent parties. City agrees, however, that City will, at the request, cost and
expense of the Leasehold Mortgagee or Mezzanine Financing Source (as applicable), cooperate in
the prosecution of judicial proceedings to evict the then defaulting Developer or any other
occupants of the Property once the new lease has been executed by all pertinent parties.
22.5.3 If, upon the termination of this Agreement, Developer, but for such
termination, would have been entitled to receive any credit or other amount pursuant to the
provisions of this Agreement, then City agrees that the same shall be paid to the tenant under a
new lease, in the same manner and to the same extent as it would have been paid or applied the
same to or for the benefit of Developer as if this Agreement had not terminated; subject however
to City's right to offset any damages accrued as a result of said termination.
22.5.4 Nothing contained in this Agreement shall require any Leasehold
Mortgagee (or its nominee) or any Mezzanine Financing Source (or its nominee), as a condition
to its exercise of its right to enter into a new lease, to cure any default of Developer not
commercially reasonably susceptible of being cured by such parties, in order to comply with the
provisions of this Section 22.5 and in such event no default shall be deemed to occur or be ongoing
97
under the new lease in connection with any such breach which is not susceptible of cure. The new
lease contemplated pursuant to this Section 22.5 shall be modified such that: (w) the Milestone
Dates shall be extended (without imposition of any extension fee or similar charge) to an applicable
set of dates that the Leasehold Mortgagee (or nominee thereof) or Mezzanine Financing Source
(or nominee thereof), as applicable, and the City Manager shall determine in good faith are feasible
to achieve based on a totality of the circumstances as of the applicable date of determination and,
if at any time the applicable Leasehold Mortgagee (or nominee thereof) or Mezzanine Financing
Source (or nominee thereof) informs the City that it intends to transfer its interest under the new
lease to a third party, said extended Milestone Dates (as well as any other obligation hereunder to
perform and/or complete the Minimum Initial Program) will also be tolled on a day-by-day basis
for so long as the applicable party is utilizing good faith efforts to seek a purchaser for and
consummate a sale of said interest, (x) any plans, specifications, construction contracts or other
items which have been submitted in connection with the Minimum Initial Program may be
modified, supplemented, and/or replaced in the sole but good faith discretion of the applicable
Leasehold Mortgagee (or nominee thereof) or Mezzanine Financing Source (or nominee thereof)
provided such modifications, supplements, and/or replacements are all in compliance with the
Minimum Initial Program, the Charter Amendment, and otherwise not in violation of this
Agreement (y) the initial transfer of the applicable Tenant' s interest under said new lease to a
Person that does not qualify as an Affiliated Person shall not require any consent on the part of the
City provided that (i) in no event shall such transferee be a Prohibited Person, (ii) if such transfer
shall occur prior to Substantial Completion of the Minimum Initial Program and, after giving effect
to such transfer, the Developer does not satisfy the definition of Acceptable Developer hereunder,
such Developer shall enter into a development agreement, construction management agreement or
similar agreement with an Acceptable Project Developer within ninety (90) days of the applicable
transfer (which ninety (90) days may be extended for an additional period not to exceed an
additional ninety (90) days if the Developer is utilizing good faith and diligent efforts to engage
an Acceptable Project Developer) and (iii) if such transfer shall occur after Substantial Completion
of the Minimum Initial Program and, after giving effect to such transfer, the Developer does not
satisfy the definition of Acceptable Developer hereunder, such Developer shall engage one or more
Acceptable Operators to manage the property within ninety (90) days of the applicable transfer
and (z) no Fees shall be payable in connection with said new lease, any assignment by the
applicable Leasehold Mortgagee (or nominee thereof) or Mezzanine Financing Source (or nominee
thereof) of the new lease by either such party (or any Affiliate thereof), or any Refinance Loan
sought by any such party (or any Affiliate thereof) or any transferee of the new lease from any
such Leasehold Mortgagee or Mezzanine Financing Source (or any nominee or Affiliate of any
such party).
22.5.5 The provisions of this Section 22.5 shall survive any termination of this
Agreement.
22.6 Termination of Subleasehold Estate under this Agreement and New Sublease.
22.6.1 If any Sublease shall terminate prior to the expiration of its term, this
Agreement has also terminated and City has received written notice of the termination of such
Sublease and City has received written notice of any such Subleasehold Mortgagee and Mezzanine
Financing Source that has provided Mezzanine Financing which is secured by an interest in a
Sublessee, City shall give written notification thereof to any such Subleasehold Mortgagee and
98
Mezzanine Financing Source that provided Mezzanine Financing to the beneficial owner(s) of said
Sublessee under such Sublease (even if such Subleasehold Mortgagee and/or Mezzanine Financing
Source failed to timely exercise its cure rights for a default under such Sublease), and City shall,
upon written request of the applicable Lender (with City to follow the request of the Subleasehold
Mortgagee prior to such Mezzanine Financing Sources) to City given within sixty (60) days
following such termination, enter into a new lease or sublease of the subleased portion of the
Property (herein, the "Subleased Premises") with such Subleasehold Mortgagee (or its nominee)
or Sublessee (as owned or controlled by such Mezzanine Financing Source), as Sublessee, for the
remainder of the term of such Sublease, on the same terms and conditions as set forth in such
Sublease (with appropriate modifications to reflect that the lease is a direct lease rather than a
sublease, if applicable). City's obligation to enter into such new lease or sublease of the Subleased
Premises with Subleasehold Mortgagee or Mezzanine Financing Source shall be conditioned upon
on the date the new lease or Sublease is executed, (i) City receiving payment of all Rent due
hereunder which is allocated to the applicable Subleased Premises through the date of such new
lease, (ii) all other monetary defaults hereunder which are allocated to the applicable Subleased
Premises having been cured (excluding: (x) any obligation to pay any late payment fees accrued
in accordance with Section 4.10 hereof (other than any late fees or similar penalties references in
Section 16.3(d)) and (y) any obligation to make deposits into the Cap Ex Fund accruing prior to
the date of the applicable new lease), (iii) all non -monetary defaults susceptible to cure and which
are allocated to the applicable Subleased Premises having been cured or the Subleasehold
Mortgagee or the Mezzanine Financing Source, as applicable, as tenant, proceeding promptly with
such cure and pursuing such cure to completion with reasonable diligence, and (iv) City receiving
all reasonable expenses, costs and fees, including attorneys' fees, incurred by City in the
preparation of such new lease. Such new lease shall have priority over encumbrances created by
City by virtue of the notice created by this Agreement to any transferee of City or any person
receiving an encumbrance from City, which priority shall be self -operative and shall not require
any future act by City. Any new lease or sublease(s) hereunder shall contain the same clauses
subject to which the demise under the Sublease is made, and shall be at the rent and other payments
for the Subleased Premises and upon the terms as are therein contained (except as otherwise
expressly provided herein).
22.6.2 Nothing contained in this Agreement shall be deemed to impose any
obligation on the part of City to deliver physical possession of the Subleased Premises to the
Subleasehold Mortgagee (or its nominee) or Mezzanine Financing Source (or its nominee) until
the new lease or sublease has been executed by all pertinent parties. City agrees, however, that
City will, at the request, cost and expense of the Subleasehold Mortgagee or Mezzanine Financing
Source, cooperate in the prosecution of judicial proceedings to evict the then defaulting Sublessee
or any other occupants of the Subleased Premises.
22.6.3 Nothing contained in this Agreement shall require any Subleasehold
Mortgagee (or its nominee) or any Mezzanine Financing Source (or its nominee), as a condition
to its exercise of its right to enter into a new lease, to cure any default of a Sublessee not
commercially reasonably susceptible of being cured by such parties, in order to comply with the
provisions of this Section 22.6 and in such event no default shall be deemed to occur or be ongoing
under the new lease in connection with any such breach which is not susceptible of cure. The new
lease or sublease contemplated pursuant to this Section 22.6 shall be modified such that: (w) the
Milestone Dates shall be extended (without imposition of any extension fee or similar charge) to
99
an applicable set of dates that the Subleasehold Mortgagee (or nominee thereof) or Mezzanine
Financing Source (or nominee thereof), as applicable, and the City Manager shall determine in
good faith are feasible to achieve based on a totality of the circumstances as of the applicable date
of determination and, if at any time the applicable Subleasehold Mortgagee (or nominee thereof)
or Mezzanine Financing Source (or nominee thereof) informs the City that it intends to transfer its
interest under the new lease to a third party, said extended Milestone Dates (as well as any other
obligation hereunder to perform and/or complete the Minimum Initial Program) will also be tolled
on a day-by-day basis for so long as the applicable party is utilizing good faith efforts to seek a
purchaser for and consummate a sale of said interest, (x) any plans, specifications, construction
contracts or other items which have been submitted in connection with the Minimum Initial
Program may be modified, supplemented, and/or replaced in the sole but good faith discretion of
the applicable Subleasehold Mortgagee (or nominee thereof) or Mezzanine Financing Source (or
nominee thereof) provided such modifications, supplements, and/or replacements are all in
compliance with the Minimum Initial Program as well as the Charter Amendment, (y) the initial
transfer of the applicable tenant's or subtenant's interest under said new lease or sublease to a
Person that does not qualify as an Affiliated Person shall not require any consent on the part of the
City provided that (i) in no event shall such transferee be a Prohibited Person, (ii) if such transfer
shall occur prior to Substantial Completion of the Minimum Initial Program and, after giving effect
to such transfer, the Developer does not satisfy the definition of Acceptable Developer hereunder,
such Developer shall enter into a development agreement, construction management agreement or
similar agreement with an Acceptable Project Developer within ninety (90) days of the applicable
transfer (which ninety (90) days may be extended for an additional period not to exceed an
additional ninety (90) days if the Developer is utilizing good faith and diligent efforts to engage
an Acceptable Project Developer) and (iii) if such transfer shall occur after Substantial Completion
of the Minimum Initial Program and, after giving effect to such transfer, the Developer does not
satisfy the definition of Acceptable Developer hereunder, such Developer shall engage one or more
Acceptable Operators to manage the Subleased Premises within ninety (90) days of the applicable
transfer and (z) no Fees shall be payable in connection with said new lease or sublease, any
assignment by the applicable Subleasehold Mortgagee (or nominee thereof) or Mezzanine
Financing Source (or nominee thereof) of the new lease or sublease by either such party (or any
Affiliate thereof), or any Refinance Loan sought by any such party (or any Affiliate thereof) or
any transferee of the new lease from any such Subleasehold Mortgagee or Mezzanine Financing
Source (or any nominee or Affiliate of any such party).
22.6.4 The provisions of this Section 22.6 shall survive any termination of this
Agreement and any applicable Sublease.
22.7 Other Subleases and Space Leases. Upon the execution and delivery of a new
lease or sublease pursuant to Section 22.5 and Section 22.6, all Subleases or Space Leases which
theretofore may have been assigned to City or have reverted to City upon termination of this
Agreement or Sublease or have been entered into by City pursuant to such Sections, shall be
assigned and transferred, without recourse against City, by City to the tenant or Sublessees under
any such new lease or sublease (as appropriate). Between the date of termination of this
Agreement and the date of execution and delivery of the new lease or sublease, if any Lender shall
have requested such new lease or sublease as provided for in Section 22.5 and Section 22.6, City
will not cancel or modify any Sublease or Space Lease (subleased or sub -subleased under this
Agreement or a Sublease, as applicable) or accept any cancellation, termination or surrender
100
thereof (unless such termination shall be effective as a matter of law on the termination of this
Agreement) without the consent of Lender, except for default as permitted thereunder.
22.8 No Subordination or Mortgaging of City's Fee Title and Collection of Rent.
There shall be no subordination of City's fee simple interest in the Land and collection of rent to
the lien of any Mortgage financing nor shall City be required to join in such mortgage financing.
No Mortgagee or other Lender may impose any lien upon City's fee simple interest in the Land.
22.9 No Personal Liability. Notwithstanding anything to the contrary in this
Agreement, no Lender or any Person acting for, on behalf of or at the direction of any Lender shall
have any personal liability under this Agreement or any Sublease (or a new lease or sublease),
even if such Person exercises any Lender's cure rights, except to the extent that such Person
assumes in writing any of Developer's obligations under this Agreement or a new lease or any
Sublessee's obligations under a Sublease or new lease or sublease.
22.10 Priority of Multiple Security Interests. If more than one Lender of a particular
type (Leasehold Mortgagees or Subleasehold Mortgagees, and as to Subleasehold Mortgagees, as
to a particular encumbered Sublease) desires to exercise any mortgagee protection under this
Agreement, then the party against whom such mortgagee protection is to be exercised shall be
required to recognize either: (a) the Lender that desires to exercise such mortgagee protection and
whose Mortgage is most senior (as against other Mortgages of like type); or (b) such other Lender
of a particular type (all Leasehold Mortgagees or all Subleasehold Mortgagees, as applicable), who
all of the Lenders of such type have designated (in writing) to be the Lender to exercise such
mortgagee protection. Priority of Mortgages shall be conclusively evidenced by (in order of
precedence of application): (i) written agreement (or joint written instructions) by all Lenders of
a particular type (Leasehold Mortgagees or Subleasehold Mortgagees, as applicable); or (ii) a
report or certificate of a title insurance company licensed to do business in the State of Florida.
City shall not be obligated to determine the relative priorities of any Mortgages. For any
mortgagee protection that by its nature or under this Agreement only one Leasehold Mortgagee or
Subleasehold Mortgagee can exercise (such as the right to a new lease or sublease), pending the
determination of priority, any time period that applies to Leasehold Mortgagees' or Subleasehold
Mortgagees' (as applicable) exercise of such mortgagee protection shall be tolled.
Notwithstanding the foregoing, (x) unless expressly acknowledged and agreed by the Leasehold
Mortgagee in a written agreement (or written instructions), all Leasehold Mortgages and related
Accommodation Pledges shall be prior and superior to all Subleasehold Mortgages and pledges
securing any Mezzanine Financing and Leasehold Mortgagee's rights to exercise any mortgagee
protection under this Agreement (including the rights under this Article )0II) shall be prior and
superior to the rights of any Subleasehold Mortgagees, Mezzanine Financing Sources and
Sublessees to exercise same, (y) unless expressly acknowledged and agreed by the Mezzanine
Financing Source in a written agreement (or written instructions), all Mezzanine Financing secured
by an interest in Developer shall be prior and superior to all Subleasehold Mortgages and any
Mezzanine Financing secured by an interest in any Sublessee and the Mezzanine Financing Source
rights to exercise any mortgagee protection under this Agreement (including the rights under this
Article )0II) shall be prior and superior to the rights of any Subleasehold Mortgagees or
Mezzanine Financing Source providing Mezzanine Financing with respect to an interest in a
Sublessee, and (z) unless expressly acknowledged and agreed by the Subleasehold Mortgagee in
a written agreement (or written instructions), all Subleasehold Mortgages shall be prior and
101
superior to all Mezzanine Financing secured by an interest in a Sublessee and Subleasehold
Mortgagee' s rights to exercise any mortgagee protection under this Agreement (including the
rights under this Article XXII) shall be prior and superior to the rights of any such Mezzanine
Financing Source providing Mezzanine Financing secured by an interest in any Sublessee. Finally,
all rights and benefits afforded to a Mezzanine Financing Source under this Agreement shall also
be afforded to any other junior Mezzanine Financing Sources who are not holding the first lien on
the membership interests in Developer or a Sublessee, provided that all of the rights of such
Mezzanine Financing Sources shall be subject to and subordinate to the holders of more senior
Mezzanine Financing. Priority of Mezzanine Financing shall be conclusively evidenced by (in
order of precedence of application): (x) written agreement (or joint written instructions) by all
Mezzanine Financing Sources; or (y) an appropriate financing statement search under Article 9 of
the Uniform Commercial Code (or any successor thereto) or other reasonable evidence of priority
for such financing in the State of Florida. City shall not be responsible for establishing the priority
of the Mezzanine Financing.
22.11 Further Assurances. Upon written request from Developer or any actual or
potential Lender that satisfies the requirements of Sections 22.1 or 22.2 hereof (as applicable),
which written request (to the extent made for the benefit of a potential Lender) shall describe in
reasonable detail the Lender and the financing proposed to be made by such Lender, City shall
promptly certify (for the benefit of the applicable Lender) that said Lender is entitled to the benefit
of and may exercise all of the protections afforded to a Leasehold Mortgagee, Subleasehold
Mortgagee and/or Mezzanine Financing Source (as applicable) as set forth in this Agreement.
Further the City agrees it shall amend this Agreement and/or provide other assurances as any
current or prospective Lender reasonably requests, provided such amendment does not adversely
affect City in any material respect, including reduction of any payment due City or increase of any
liability or obligation of City.
ARTICLE XXIII
DISPUTE RESOLUTION
23.1 Arbitration. Any dispute between City and Developer relating to whether a
condition or event constitutes an event of Force Majeure or which otherwise is expressly stated to
be resolved in arbitration pursuant to the terms of this Agreement, shall be referred to and
exclusively and finally settled by binding arbitration, conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (or similar successor rules
thereto), and shall not be subject to judicial review. The place of arbitration shall be Miami,
Florida. In the event that any Party calls for a determination in arbitration pursuant to the terms of
this Agreement, the Parties shall have a period of ten (10) Business Days from the date of such
request to mutually agree on one arbitrator who, at a minimum, must have at least fifteen (15)
years of recent professional experience as to the subject matter in question, including significant
experience in development projects and related litigation in Miami -Dade County, Florida. If the
Parties fail to agree, each Party shall have an additional ten (10) Business Days to select its
preferred arbitrator who must be an individual meeting the same minimum qualifications set forth
above, and the two (2) arbitrators selected shall select a third arbitrator to be the arbitrator to
resolve the dispute in question, failing which the arbitrator shall be an individual meeting the same
minimum qualifications set forth above designated by the American Arbitration Association in
102
Miami -Dade County, Florida. If any Party fails to make its respective selection of an arbitrator
within the additional 10-day period provided for above, then the remaining party's selection shall
be the arbitrator. The arbitrator shall decide the issues submitted to him/her in accordance with
(a) the language, commercial purpose and restrictions contained in this Agreement (including
exhibits hereto, if any) and (b) what is just and equitable under the circumstances, provided that
all substantive issues shall be determined under the laws of the State of Florida. With respect to
any arbitration proceeding hereunder, the following provisions shall apply: (i) the Parties shall
cooperate with one another in the production and discovery of requested documents, and in the
submission and presentation of arguments to the arbitrator at the earliest practicable date; (ii) the
arbitrator conducting any arbitration shall be bound by the provisions of this Agreement and shall
not have the power to add to, subtract from or otherwise modify such provisions; and (iii) each
party shall be responsible for its own costs and expenses incurred in the arbitration, including
attorneys' fees, but the costs of the presiding arbitrator and the arbitration itself shall be shared
equally by the Parties. Arbitration of any dispute hereunder shall be conducted on an expedited
basis under the "Expedited Procedures" of the Commercial Arbitration Rules to the fullest extent
possible.
23.2 Expert Resolution Process. Any disputes between City and Developer regarding
the matters described in Sections 4.11 and 10.2, under this Agreement (individually, an "ERP
Dispute" and collectively, the "ERP Disputes"), shall be resolved in accordance with the
provisions of this Section 23.2 below.
(i) The Party desiring that the Expert resolve any ERP Dispute (the "Initiating
Party") shall give notice in accordance with the provisions of this Agreement to the other Party (the
"Recipient Party") that it desires to initiate the proceedings described in this Section 23.2. The
Initiating Party and the Recipient Party shall agree on the Expert as set forth in subsection (vi)
below.
(ii) Within thirty (30) days after the selection of the Expert, the Initiating Party
and the Recipient Party shall submit their ERP Dispute to the Expert for determination. The Expert
shall discuss the ERP Dispute in detail with the Initiating Party and the Recipient Party and
otherwise undertake such investigation and study such materials as the Expert believes reasonably
necessary to make an informed decision. Examination of witnesses by the Initiating Party and the
Recipient Party and by the Expert shall be permitted in the discretion of the Expert.
(iii) A written transcript of the proceeding shall be made and furnished to the
Parties. The Expert shall determine any ERP Dispute, controversy or claim under this Agreement
in accordance with the terms hereof and shall take into account any appropriate trade usage
applicable to the transactions contemplated by this Agreement. The Expert shall state the reasons
upon which its decision is based in writing. The decision of the Expert shall be issued promptly
but in no event later than thirty (30) days after the Parties have submitted their final statements and
proofs to the Expert. Each Party shall have the right to bring an action in any court of competent
jurisdiction to enforce the Expert's award.
(iv) The Expert may grant any remedy or relief within the scope of this
Agreement and the applicable provisions hereof and under Applicable Law. In the absence of fraud,
gross misconduct or an error in law appearing on the face of the order or award issued by the Expert,
103
the written decision of the Expert shall be final and binding on the Parties. The Parties intend that
the decision by the Expert shall be binding for all purposes and that no right of appeal shall exist.
(v) The Parties voluntarily and knowingly waive any right to pursue any ERP
Disputes involving the Parties in any forum or through any process or proceeding other than the
process and procedures set forth in Section 23.2. The foregoing process shall be the exclusive
method available for resolution of ERP Disputes hereunder that cannot otherwise be resolved.
(vi) For purposes of this Agreement, "Expert" shall mean an independent
nationally recognized consulting firm or individual having at least ten (10) years recent professional
experience as to the subject matter in question, who is qualified to resolve the issue in question and
who is appointed in each instance by agreement of the Parties. In the event either Party calls for an
Expert determination pursuant to the terms hereof, the Parties shall have thirty (30) days from the
date of such request to mutually agree on one (1) recognized consulting firm or individual with
relevant experience as the Expert and, if they fail to agree, each Party shall have an additional
ten (10) days to each select one (1) recognized consulting firm or individual with relevant
development experience as the Expert and within ten (10) days of such respective selections, the
two (2) respective firms and/or individuals so selected by each of the Parties hereto shall select
another such recognized consulting firm or individual to be the Expert. If either Party hereto fails
to make its respective selection of a firm or individual within the ten (10) day period provided for
above, then the other Parry's selection shall be the Expert. In addition, if the two respective firms
and/or individuals so selected shall fail to select a third recognized consulting firm or individual to
be the Expert, then the Expert shall be appointed by the American Arbitration Association in
Miami -Dade County, Florida.
23.3 Other Disputes. Except to the extent this Agreement expressly provides that
certain matters are to be resolved by arbitration or another form of dispute resolution, and except
as the Parties may otherwise mutually agree, disputes between the Parties under this Agreement
shall be resolved by litigation.
ARTICLE XXIV
DEVELOPER'S INSPECTION AND TERNHNATION RIGHTS
24.1 Inspection Period. During the Pre -Commencement Period, Developer, its
employees, agents, consultants and representatives, shall be entitled, at Developer's sole cost and
expense, to investigate and evaluate the Property. Such right of investigation shall include the
right to enter the Property, and perform any studies, tests or inspections of the Property as
Developer may deem necessary or appropriate, including without limitation assessments of soil
and subsurface conditions, archeological condition, utility services, geotechnical reports, and
environmental audits (including Phase I, Phase II and any other audit recommended by
Developer's environmental consultant), title review, reports and commitments, and surveys of the
Property, provided that the nature and scope of any intrusive testing is subject to prior written
approval by City, not to be unreasonably withheld, conditioned, or delayed. City agrees to
cooperate reasonably with any such investigations, tests, samplings, analyses, inspections, studies
or meetings made by or at Developer's direction during the Pre -Commencement Period and
Developer shall provide City with copies of all such matters. If the results of Developer's
104
inspections reflect site conditions or title or survey conditions that are material and that were not
disclosed in writing to Developer or actually known by Developer prior to the date Developer
executes this Agreement ("Site Conditions"), then the following provisions shall apply:
(i) If, as a result of such Site Conditions, Developer in its reasonable opinion
is not able to develop the Minimum Initial Program on the Property or any portion thereof as
contemplated in this Agreement, then Developer shall have the right, in its sole discretion, to
terminate this Agreement and its obligations hereunder as to the Property by giving written notice
to City prior to the end of the Commencement Date, which notice shall describe in reasonable detail
any site conditions that prevent Developer from developing the Property, and in such event, this
Agreement shall terminate as of the date City receives such notice of termination. In such event,
Developer shall provide to City copies of any reports, studies, tests, and other materials which
Developer obtained in connection with its review of the Property. Developer shall be deemed to
have waived its right to terminate this Agreement pursuant to this Section 24.1(i) if Developer does
not notify City of such termination during the Pre -Commencement Period; and
(ii) If the results of Developer's inspections reflect site conditions that would
require Developer (1) to remediate the Property or any portion thereof (such as, by way of example
and not limitation, remediation of any environmental condition) to develop and use the Property
as contemplated in this Agreement, (2) to increase the scope of development work or redesign the
Project or any portion thereof to address such site conditions (such as, by way of example and not
limitation, the discovery of underground conditions or facilities that require relocation and/or
cannot be relocated), and/or (3) to incur any other unforeseen cost or suffer any other delays or
adverse impacts relative to the Project or any Phase thereof, and the cost of such remediation or
increased scope of work, or the additional cost of the Project as a result of such redesign and/or
other unanticipated costs or unforeseen conditions (herein, collectively, the "Unanticipated
Development Costs") exceed $15,000,000 in the aggregate, Developer shall so notify City of the
estimated amount of the Unanticipated Development Costs and City and Developer shall negotiate
in good faith, acting reasonably, appropriate adjustments to the terms of this Agreement (such as,
by way of example and not limitation, additional credits against Rent, contributions by City to
such unanticipated development costs, extensions to the commencement of Rent, and/or other
adjustments to the economic terms of this Agreement) mutually acceptable to the Parties. If the
Parties are unable to achieve a mutually acceptable agreement in writing with respect to such
Unanticipated Development Costs within sixty (60) days following Developer's initial notice of
such costs hereunder, then Developer shall have the right, in its sole discretion, (x) to terminate
this Agreement and its obligations hereunder as to the Property by giving written notice to City
within fifteen (15) days following the end of such 60-day period, and in such event, the provisions
of Section 24.1(i) with respect to such termination shall apply, or (y) to incur the Unanticipated
Development Costs at Developer's sole cost and expense and proceed with the transaction
contemplated by this Agreement under the terms and conditions set forth herein. Unanticipated
Development Costs shall include reasonable hard and soft costs (including without limitation the
cost of remediation plans and/or any redesign of any Improvements) and may be verified through
reasonable documentation evidencing payment of same, which evidence may include without
limitation evidence of paid draw requests, consultant, architect and/or contractor affidavits or
certificates, paid invoices and receipts, and any other customary evidence of payment (or a
combination thereof).
105
(iii) No matters disclosed in the Environmental Report shall be considered in
determining the amount of Unanticipated Development Cost that Developer will incur with respect
to the development of the Property. For purposes of this Section 24.1, Developer shall be deemed
to have knowledge of matters disclosed in the Environmental Report.
(iv) Developer shall indemnify, defend and hold City harmless from and against
any and all damages, mechanics' liens, liabilities and losses to the extent caused by Developer's
entry onto the Property or any inspections performed by Developer thereon during the Pre -
Commencement Period, but expressly excluding any damages, liabilities or losses arising out of
latent defects, the displacement or disturbance of hazardous materials not placed on the Property
by Developer or the discovery of pre-existing conditions. While performing any inspections on
the Property, Developer shall maintain insurance coverage in accordance with Section I of Exhibit
E. If Developer terminates this Agreement, Developer shall promptly repair any damage caused
by Developer's inspections and restore the Property to its pre -inspection condition, provided that
Developer shall have no obligation to repair or restore any latent or pre-existing condition or any
hazardous materials not placed on the Property by Developer. The indemnity described in this
paragraph shall survive any termination or expiration of this Agreement.
ARTICLE XXV
TERMINATION OF EXISTING LEASE
Under no circumstances shall the leasehold estate under the Existing Lease and the
Leasehold Estate under this Agreement merge. Upon the Commencement Date, the Existing Lease
shall be deemed terminated and of no further force and effect whereupon City and Developer shall
have no further rights, obligations, or liabilities thereunder except for those that are expressly
stated to survive termination of the Existing Lease. The Parties agree to execute and deliver
evidence of such termination in recordable form (the "Evidence of Termination of Existing Lease")
on the Commencement Date. The Evidence of Termination of Existing Lease shall be in form and
content sufficient to cause Developer's title insurance company to remove the Existing Lease as
an exception to Developer's title insurance policy. Rents under the Existing Lease shall be
prorated as of the Commencement Date and Developer shall receive a credit against Construction
Rent for any sums due Developer as a result of the proration.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
106
IN WITNESS WHEREOF, City and Developer have executed this Agreement, or have
caused the same to be executed, as of the date and year first above written.
CITY:
CITY OF MIAMI, a municipal corporation
of the State of Florida
By:
Name: Arthur Noriega
City Manager
ATTEST:
By:
Name: Todd B. Hannon
City Clerk
APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM &
REQUIREMENTS: CORRECTNESS:
By: By:
Name: Ann -Marie Sharpe Name: Victoria Mendez
Risk Management Director City Attorney
[SIGNATURE PAGE TO LEASE AGREEMENT]
Page 107
Signed in the presence of the following DEVELOPER:
witnesses:
Name:
Name:
HRM OWNER, LLC, a Delaware limited
liability company
By:
Name:
Title:
[SIGNATURE PAGE TO LEASE AGREEMENT]
Page 108
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Tracts B and C, Miami Convention Center Amended, as recorded in Plat Book 119, Page 36, of
the Public Records of Miami -Dade County, Florida less and except that portion deeded to the State
of Florida Depai intent of Transportation in Official Records Book 15470, Page 3544 of the Public
Records of Miami -Dade County, Florida.
109
EXHIBIT B
INTENTIONALLY ONIITTED
110
Area Use Matrix
EXHIBIT C
CONCEPTUAL PLAN
Total GFA
Keys
Units
NLA
PODIUM
Hotel +Serviced Apartment Lobby
Residential Lobbies
Hotel Restaurant + Lobby Bar
Hotel Pool Bar
Riverfront Retail
Caworking
Parking
Event (Meeting, Pre -function, BOH)
9,100 SF
9,700 SF
188,000 SF
440 SEATS
107 SEATS
12,216 SF
16,960 SF
1,096 SPACES
90,000 SF
PODIUM TOTAL
754,780 SF
TOWER 1- HOTEL + SERVICED APARTMENTS
Hyatt Regency Room Floors
Serviced Apartments
464,520 SF
361,200 SF
615 KEYS
264 KEYS
267,600 SF
TOWER 1 TOTAL
825,720 SF
879 KEYS
TOWER 2 - MARKET RATE APARTMENTS
Residential
669,760 SF
640 UNITS 523,260 SF
SKYBRIDGE
15,300 SF
10,700 SF
TOWER 3- UPSCALE + LUXURY APARTMENTS
Upscale Residential
Luxury Residential
803,300 SF
346,250 SF
570 UNITS
234 UNITS
615,600 SF
270,000 SF
SITE TOTAL
3,415,110 SF
879 KEYS 1,444 UNITS
Hotel GSF
Hotel NSF
Total Residential NLA (Tower 2 + Tower 3)
Total Service Apt NLA
Total Riverfront Retail NLA
Total Skybridge NLA
Total Coworking NLA
Total Parking Count
825,720 SF
599,820 SF
1,408,860 SF
267,600 SF
12,216 SF
10,700 SF
16,960 SF
1,096 SPACES
AROU►TECTON►CA
February 8, 2023
111
AROUITECTONICA
^^^^''~~^'~"^^,"`~^~'~^',^`'''~^'''^~~~~'~~,^~^~^'^~'^"^^,-^~~''
11.1,6113,
I - I
112
EXHIBIT D
MINIMUM INITIAL PROGRAM
MIAMI RIVERBRIDGE MINIMUM DEVELOPMENT PLAN
HRM Owner, LLC
May 22nd, 2023
Area Use Matrix Total GFA Keys Units
PODIUM
Hotel + Serviced Apartment Lobby
Residential Lobbies
Hotel Amenities
Riverfront Retail
Commercial above Riverwalk
Parking
Meeting Space
188,000 SF
Per Code
PODIUM TOTAL 563,180 SF
HOSPITAL ITY TOWER - HOTEL + SERVICED APARTMENTS
Hyatt Regency Room Floors
Additional Hospitality Keys
486,060 SF 615 KEYS
338,400 SF TBD
TOWER TOTAL 824,480 SF
APARTMENT TOWER
Residential
660,000 SF 682 UNITS
DEVELOPMENT TOTAL
2,047,660 SF 615 KEYS 682 UNITS
113
EXHIBIT E
INSURANCE REQUIREMENTS FOR CONSTRUCTION HRM PROJECT
OCIP/CCIP PROGRAM
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $2,000,000
General Aggregate Limit $4,000,000
Products/Completed Operations $2,000,000
Personal and Advertising Injury $2,000,000
B. Endorsements Required
CITY OF MIAMI, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES LISTED AS AN ADDITIONAL INSURED
Contingent and Contractual Liability
Explosion, Collapse and Underground Hazard
Primary Insurance Clause Endorsement
Extended Completed Operations Endorsement proving 10 years
coverage extension following project completion, including City as
additional insured
Independent and Sub -Contractors enrolled in program
Including Crane and Rigging Liability, as applicable
Contractor's Pollution Included
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $1,000,000
B. Endorsements Required
CITY OF MIAMI, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES LISTED AS AN ADDIITONAL INSURED
Including Crane and Rigging Liability, as applicable
114
III. Worker's Compensation Limits of Liability (Part A): Statutory, per State of
Florida
A. Limits of Liability (Part B)
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee.
$1,000,000 for bodily injury caused by disease, policy limit.
Waiver of subrogation
IV. Umbrella Policy
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $50,000,000
Aggregate $50,000,000
CITY OF MIAMI, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES LISTED AS AN ADDITIONAL INSURED
V. Excess Liability
Each Occurrence
Policy Aggregate
$50,000,000
$50,000,000
CITY OF MIAMI, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES LISTED AS AN ADDITIONAL INSURED
Extended Completed Operations Endorsement proving 10 years
Coverage extension following project completion, including City as
additional insured if claims made, retro date applies prior to contract
inception.
VI. Professional Liability/Errors & Omissions
Any licensed design professional work such as that provided by architects,
engineers, construction consultants, etc., shall maintain professional liability
insurance:
Prime Consultant
Each Claim $5,000,000
Policy Aggregate $5,000,000
115
If claims made, retro Date applies prior to contract inception.
Coverage is to be maintained and applicable for a minimum of 5 years following
contract completion.
All Other Consultants
Each Claim
Policy Aggregate
$2,000,000
$2,000,000
If claims made, retro Date applies prior to contract inception.
Coverage is to be maintained and applicable for a minimum of 5 years following
contract completion.
VII. Payment and Performance Bond
Section 5.7 of the Agreement
In the amount required by
CITY OF MIAMI, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES LISTED AS AN OBLIGEE
116
EXHIBIT F
LEASEHOLD INSURANCE REQUIREMENTS
Property Insurance
(A) "All Risk of Direct Physical Loss Or Damage" property insurance with extended coverage
against loss or damage by earthquake, mudslide, windstorm, flood with an endorsement for
amended coverage, vandalism, malicious mischief, sprinkler leakage and special coverage. Such
insurance shall also include coverage for terrorism.
(i) Amounts. Such coverage shall include: (A) windstorm, (B) flood, and (C) other perils, in
amounts based of One Hundred Percent (100%) of the replacement cost of all Improvements in
connection with this agreement or an agreed upon policy limit based on Natural Catastrophe
analytics and the Maximum Foreseeable Loss, including any Improvements as may be applicable
(exclusive of foundation and excavation costs), Tenant's alterations, improvements, fixtures,
equipment, furniture, trade fixtures and floor coverings, including the expense of the removal of
debris as a result of damage by an insured peril (collectively, the "Insured Property") on the
Property.
(ii) Deductibles. The maximum deductibles for such coverage shall be as follows: (A) as to
flood and windstorm, Five Percent (5%) of the completed building value; and (B) as to all other
perils, One Percent (1%) of the insured value.
(iii) Loss Payees and Insureds: CITY OF MIAMI AS LANDLORD, ITS EMPLOYEES,
OFFICIALS, AND INSTRUMENTALITIES
(iv) Reserved.
(v) Determination of Replacement Cost. Unless expressly waived in writing by the City
Manager, the replacement cost of the Insured Property shall be determined every seven (7) years
during the Lease Term by an insurance appraiser selected and paid for by Tenant, provided that
Tenant obtains Landlord's approval (which approval shall not be unreasonably withheld) of the
appraiser before commencement of the appraisal. The appraiser selected by Tenant shall submit
to Landlord and Tenant a written report of the appraised replacement cost. If Landlord or Tenant
is not satisfied with such report, the dissatisfied party shall serve upon the other a notice of
dissatisfaction within thirty (30) days after receipt of the report, and the Parties shall in good faith
attempt to resolve any disputes concerning the appraised replacement cost. During this period of
the dispute, Tenant shall continue to maintain insurance in an amount equal to that maintained
before the dispute arose. Promptly upon receipt of the appraiser's report and resolution of any
such dispute, Tenant shall procure and deliver to Landlord written confirmation from the insurer(s)
evidencing the adjustment in insurance amounts which may be required pursuant to this clause (v).
(B) Business Interruption Insurance. Business interruption insurance covering all risks but
specifically including without limitation and terrorist attack(s), including extra expense, contingent
business income coverage, if applicable, and extended period of indemnity coverage, with limits
not less than an amount equal to the sum of: (i) the Annual Rent for the immediately preceding
twelve (12) month period. CITY OF MIAMI, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES listed as loss payee.
117
(C) Boiler and Machinery Insurance. Boiler and machinery insurance covering repair and
replacement of all boilers and machinery serving or benefiting the Improvements. The policies of
insurance shall be endorsed to provide use and occupancy coverage for the Improvements in such
amount as may be reasonably acceptable to Landlord. CITY OF MIAMI AS LANDLORD, ITS
EMPLOYEES, OFFICIALS AND INSTRUMENTALITIES AS LOSS PAYEE AND
ADDITIONAL INSURED.
(A) COIVIIVIERCIAL GENERAL LIABILITY
Commercial General Liability insurance on a commercial general liability coverage form with
"broad form" coverage, or its equivalent, including contractual liability, products and completed
operations, primary insurance clause endorsement, personal and advertising injury, liquor legal
liability, garage keepers liability, terrorism, and premises and operations coverage against sums
adjudicated to be payable by the insured on account of bodily injury, death or property damage
occurring in or about the Property. CITY OF MIAMI AS LANDLORD, ITS EMPLOYEES,
OFFICIALS, AND INSTRUMENTALITIES AS AN ADDITIONAL INSURED.
(i) Amounts. The limits of such coverage shall not be less than One Million Dollars
($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate single limit for
bodily injury and property damage. A deductible will be carried under this coverage with the City
Manager's prior written consent, which shall not be unreasonably withheld.
(ii) Umbrella Policy. Tenant shall further maintain an excess liability umbrella policy whose
limits shall not be less than a combined single limit of Ten Million Dollars ($10,000,000). Such
coverage shall be excess follow form over corresponding liability policies contained herein,
including liquor. CITY OF MIAMI AS LANDLORD, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES AS AN ADDITIONAL INSURED.
(iii) Excess Liability. Tenant shall maintain an excess liability policy with limits of
$15,000,000. CITY OF MIAMI AS LANDLORD, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES AS AN ADDITIONAL INSURED.
(B) Worker's Compensation. Worker's compensation and occupational disease coverage in
the amounts and types required by Chapter 440, F.S., or any successor thereto. Only Tenant shall
be named as an insured, and such policy shall contain a waiver of subrogation.
(C) Automobile Liability. Automobile liability insurance covering all owned, non -owned and
hired vehicles used in conjunction with operations covered by this Lease. The policy or policies
of insurance shall contain such limits as may be reasonably requested by Landlord from time to
time but not less than Five Hundred Thousand and No/100 Dollars ($500,000.00). CITY OF
MIAMI AS LANDLORD, ITS EMPLOYEES, OFFICIALS, AND INSTRUMENTALITIES AS
AN ADDITIONAL INSURED.
(D) Other Coverage. In the event that any other type of legislation may be enacted imposing
special liability upon Landlord or Tenant by virtue of its use for any special purposes, before
Tenant shall so use the Property and/or the Improvements or any part of it for such purposes,
Tenant shall provide insurance in form and substance, and with insurers and limits reasonably
satisfactory to Landlord and meeting commercial standards insuring the interests of Landlord and
Tenant and naming Landlord as additional insured. Landlord further reserves the right to
reasonably request additional insurance requirements as may be applicable under this agreement.
118
(E) Delivery of Insurance Policies. All public liability and worker's compensation policies
shall be retained by Tenant. Subject to the rights of any Leasehold Mortgagee, all other policies
of insurance required to be furnished pursuant to this section shall be held jointly by Landlord and
Tenant. Insurance company certificates evidencing the existence of all these policies of insurance
shall be delivered to Landlord.
(F) Required Policy Provisions. All policies of insurance required to be provided and
obtained pursuant to this section shall provide that they shall not be amended or canceled on less
than thirty (30) days' prior written notice, or not less than ten (10) days' for nonpayment of
premium, to Landlord and all insureds and beneficiaries of the policies; provided, however, that if
thirty (30) days' notice is ever commercially unavailable, then the required number of days' notice
shall be reduced to such number as is commercially available.
(G) Delivery. On or before the Lease Commencement Date and then no more than seven (7)
days following the renewal of any policy, Tenant shall deliver to Landlord and any Approved
Leasehold Mortgagee the applicable respective insurance company certificates evidencing all
policies of insurance and renewals required to be furnished hereunder. Receipt of any
documentation of insurance by Landlord or by any of its representatives which indicates less
coverage than required shall not constitute a waiver by Landlord of Tenant's obligation to fulfill
the insurance requirements herein.
(H) Landlord's Right to Obtain. If Tenant fails to pay insurance premiums when due or to
comply with other insurance requirements set forth in this agreement, Landlord shall have the
right, at its option, to order insurance policies and to advance such sums as are required to maintain
or procure such insurance, and to the extent of the money so advanced, Landlord shall be entitled
to reimbursement by Tenant upon demand thereof. Unless there would ensue a lapse of coverage,
Landlord shall, before making any such advance, provide Tenant with ten (10) days' prior written
notice and the opportunity to obtain the required policies.
(I) Insurers. All policies of insurance of the character described in this section shall be
affected under policies issued by insurers permitted to do business in the State of Florida and rated
in Best' s Insurance Guide, or any successor thereto (or, if there is none, an organization having a
national reputation for rating insurance companies) as having a general policyholder rating of "A-
" and a financial rating of at least "VII". On written request by Landlord, Tenant shall provide
photocopies of receipts showing the payment of premiums for all insurance policies required to be
maintained by this Lease. Tenant may finance the premium.
Waiver of Subrogation.
Tenant Waiver. Tenant expressly, knowingly, and voluntarily waives and releases any right of
recovery that it may have against the Landlord for loss or damage to its property, and property of
third parties in the care, custody, and control of Tenant, and loss of business (specifically including
business interruption by Tenant) directly or by way of subrogation or otherwise as a result of the
acts or omissions of the Landlord (specifically including the negligence of Landlord and the
intentional misconduct of the Landlord), to the extent any such claims are covered by the property,
rental income, business income, or extra expense insurance carried or required to be carried under
119
the terms of this Lease Agreement (whether or not actually carried by either party), or other
property insurance that Tenant may carry at the time of an occurrence or under a so-called "special
perils" or "special form causes of loss" property insurance policy or under a so-called "contents"
insurance policy (whether or not actually carried). Tenant shall, on or before the earlier of the
Lease Commencement Date obtain and keep in full force and effect thereafter a waiver of
subrogation from its insurer concerning the commercial general liability, commercial automobile
liability, workers' compensation, employer's liability, and property.
120
EXHIBIT G
APPRAISAL PROCESS
(a) Appraisals shall be made by three (3) real estate appraisers, each of which
(i) shall be a member of the American Institute of Real Estate Appraisers, (ii) shall have not less
than ten (10) years' experience in appraising commercial real estate of the applicable type, and
(iii) shall have no affiliation with City or Developer. One appraiser shall be selected and appointed
by City (the "City's Appraiser"), and shall be paid by City, one shall be selected and appointed by
Developer (the "Developer's Appraiser") and shall be paid by Developer; and the third shall be
selected and appointed by the first two (2) appraisers so appointed (the "Third Appraiser"). The
cost of the Third Appraiser shall be evenly split between Developer and City. In the event of a
failure of City's Appraiser and Developer's Appraiser to agree on the Third Appraiser within
fifteen (15) days after their appointment, the Third Appraiser shall be appointed by the President
of the American Institute of Real Estate Appraisers (or its successor) on the application of either
appraiser appointed by City or Developer on ten (10) days' notice to the other appraiser so
appointed.
(b) In the event either City or Developer shall fail to appoint an appraiser within
fifteen (15) days after demand from the other to make the appointment, then the appraiser
appointed by the Party not in default shall appoint the second appraiser, and the two (2) appraisers
so appointed shall appoint the Third Appraiser. If the first two (2) appraisers so appointed shall
fail to agree on such Third Appraiser within fifteen (15) days after their appointment, the Third
Appraiser shall be appointed in the same manner provided in Paragraph (a) above. In no event
shall the fee charged by the Third Appraiser be greater than twice the total of the fee charged by
the City's Appraiser.
(c) After appointment, the three (3) appraisers, after having been duly sworn to
perform their duties with impartiality, shall proceed promptly to prepare an appraisal reflecting:
(i) the appraised value of the Land immediately prior to the Date of Taking (the "Appraised Land
Value"); and (ii) the appraised value of the Property immediately prior to the Date of Taking (the
"Appraised Property Value"). The Appraised Land Value and Appraised Property Value
determined by the appraisers shall be binding and conclusive on City and Developer. The
appraisers shall have the right, by majority vote among them, to determine the procedure to be
adopted in arriving at the Appraised Land Value and Appraised Property Value, and may, in their
discretion, dispense with formal hearings, it being agreed that their task will be solely that of
appraisal.
121
EXHIBIT H
MEMORANDUM OF LEASE
Prepared by and after recording return to:
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE (this "Memorandum") is entered into as of the
day of , 202, between The City of Miami, a municipal corporation of the State of
Florida ("City") having an address at 444 SW 2nd Avenue, 10th Floor, Miami, Florida 33130 and HRM
Owner, LLC, a Delaware limited liability company ("Developer") having an address at c/o Gencom
2700 Tigertail, Miami, Florida 33133.
RECITALS: [DATES TO BE INSERTED AS OF COMMENCEMENT DATE]
A. City and Developer have entered into that certain Agreement and Lease dated as of
2023 (the "Lease").
B. The parties hereto desire to file this Memorandum of Lease in the Public Records
of Miami -Dade County, Florida, to provide record notice of the Lease and the terms and conditions
contained therein with respect to that certain real property located in Miami -Dade, County, State of
Florida, and more particularly described in the attached Exhibit A.
NOW, THEREFORE, for good and valuable consideration and in further consideration of
the rents reserved and the covenants and conditions more particularly set forth in the Lease, City
and Developer hereby agree as follows:
Page 122
1. Incorporation of Recitals; General Provisions. The above recitals are true and
correct and are incorporated herein as if set forth in full. All capitalized terms in this Memorandum
shall have the same meaning as in the Lease, except if otherwise noted.
2. Commencement Date. The Commencement Date, as defined in the Lease, is
20 .
3. Lease Term. The Lease Term means that period of time commencing on the
Commencement Date and ending at 11:59 p.m. eastern time on , 21. [insert date that
is 99 years from Commencement Date]
4. Lien Prohibition. Developer shall have no power or right to and shall not in any
way encumber City's fee simple interest in the Property. Other than those caused by City or
otherwise permitted by this Agreement, if any Liens and Encumbrances (which, for the avoidance
of doubt, does not include Leasehold Mortgages or Accommodation Pledges) shall at any time be
filed against the Property and relate to work or other matters pertaining to Developer, the work
performed by Developer, or otherwise in relation to the authority granted to Developer pursuant
to this Agreement, during the Lease Term, then Developer shall, upon acquiring knowledge of
such lien or encumbrance, promptly take and diligently pursue a cause of action to have the same
discharged or to contest in good faith the amount or validity thereof and if unsuccessful in such
contest, to have the same discharged or transferred to bond. If Developer fails to discharge, contest
or bond the lien within sixty (60) days from the date Developer obtains knowledge of same, then
City, in addition to any other right or remedy that it may have, may take such action as may be
reasonably necessary to protect its fee simple interest, and Developer shall be responsible for any
and all reasonable verifiable costs incurred by City in connection with such action, including all
reasonable paralegal or title company fees, costs and expenses. Each party shall bear their own
attorney's fees and costs.
5. Fee Mortgages. City may grant mortgages encumbering its fee estate, but only in
strict compliance with the provisions of the Lease and any such mortgage is subject and
subordinate to the Lease.
6. Purpose. This Memorandum is not a complete summary of the terms of the Lease
and is made by the parties hereto for the purpose of evidencing and providing actual and
constructive record notice of the Lease and the lease terms set forth herein. This Memorandum is
for information purposes only and it is subject to all of the terms, provisions and conditions of the
Lease, all of which are incorporated herein by reference. Nothing contained in this Memorandum
shall be deemed to in any way modify, supplement, negate or otherwise affect any of the terms,
provisions or conditions of the Lease. In the event of any inconsistency between the terms of the
Lease and this Memorandum, the terms of the Lease shall prevail. The rights and obligations of
City and Developer shall be binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, successors and permitted assigns.
7. Successors and Assigns. The Lease and this Memorandum shall bind and benefit
the parties and their successors and assigns.
8. Counterparts. This Memorandum may be signed in counterparts.
123
[Signature Page Follows]
124
The parties hereto have executed this Memorandum to be effective as of the date first above
written.
WITNESSES: CITY:
Print Name:
Print Name:
STATE OF FLORIDA
) ss:
COUNTY OF MIAMI-DADE )
CITY OF MIAMI
By:
Name:
Title:
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this day of , 202, by , as
, of The City of Miami, on behalf of The City of Miami. He/She is personally
known to me or has produced State of [include state of driver's license] driver's
license as identification O.
(Sign Name)
(Type or Print Name)
My Commission Expires: Notary Public, State of
Serial No. (none, if blank):
[AFFIX NOTARIAL SEAL]
[SIGNATURE PAGE TO MEMORANDUM OF LEASE]
Page 125
WITNESSES: DEVELOPER:
HRM OWNER, LLC, a Delaware limited
Print Name: liability company
Print Name:
STATE OF )
) ss:
COUNTY OF )
By:
Name:
Title:
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this day of , 202, by , as
of HRM Owner, LLC, a Delaware limited liability company. He/She is
personally known to me or has produced State of driver's license as identification
❑.
(Sign Name)
(Type or Print Name)
My Commission Expires: Notary Public, State of
Serial No. (none, if blank):
[AFFIX NOTARIAL SEAL]
[SIGNATURE PAGE TO MEMORANDUM OF LEASE]
Page 126
Exhibit A
Legal Description
The Land referred to below situate in the County of Miami -Dade, State of Florida, described as
follows:
Tracts B and C, Miami Convention Center Amended, as recorded in Plat Book 119, Page 36,
Public Records of Miami -Dade County, Florida
Less and Except:
That portion thereof deeded to the State of Florida Department of Transportation pursuant to
instrument recorded in Official Records Book 15470, Page 3544 of the Public Records of
Miami -Dade County, Florida.
127
Schedule R1
City Resolution
128
Schedule R2
Developer Consent
129
Schedule 1.3(kkkkk)
List of Prohibited Uses
1. Any unlawful or illegal business, use or purpose;
2. Any use that is lewd, lascivious or obscene, as defined by Florida Statutes;
3. Adult entertainment (as defined in the Miami 21 Zoning Code or the Code);
4. Any use or purpose that would constitute a nuisance of any kind (public or private) that is
prohibited by the Code;
5. With respect to any Sublease or other right to use, a use or purpose in the applicable Sublease
or right to use premises that the Code, as of the date of the execution of the applicable Sublease
or other right to use, sets forth as a prohibited use on any City -owned property;
6. Any use that would violate the terms of the applicable entitlements, certificates of occupancy or
other similar approvals of applicable governmental authorities;
7 A funeral parlor or home or other death industry related business;
8. A car wash or gas station, except for car washing activities that may be conducted ancillary to
any Permitted Use;
9. A so-called "flea market" facility, "second hand", "used goods" or "surplus" store or pawn
shop, excluding a farmers market and the sale of products customarily sold in such farmers
market;
10. A gun range or gun shop or other establishment selling fire arms or ammunition, except
ancillary sales of such through an established sporting goods or similar store (e.g., Dick's
Sporting Goods or Bass Pro Shops);
11. A residential for -sale condominium use (for the avoidance of doubt, this prohibition does
not prohibit commercial condominium use);
12. An industrial space or repair facility;
13. A junkyard or stockyard;
14. A fire sale (fictional) or bankruptcy sale (except pursuant to court order);
15. A coin -operated laundry, central laundry (excluding any coin -operated laundry or central
laundry that is ancillary to any Permitted Use), or laundromat (excluding a laundromat that is
ancillary to any Permitted Use);
16. A store selling drug or "head shop" paraphernalia (excluding, without limitation, atypical drug
store such as Walgreens);
17. A warehouse or storage facility ("mini", "self' or otherwise), other than warehouse or storage
facilities that are ancillary to a Permitted Use;
18. An industrial or manufacturing facility;
19. A slaughterhouse, meat packing facility, or facility selling live animals for consumption; or
20. A soup kitchen, homeless shelter or other similar facility.
21. Gambling.
130
Schedule 5.5
Milestone Dates
Milestone
Deadline
Commencement of Demolition of the
Existing Improvements Milestone
120 days after City vacates JLK Center
Completion of Demolition of the Existing
Improvements Milestone
12 months after Commencement of
Demolition of the Existing Improvements'
Commencement of Construction of the
Minimum Initial Program (Required Hotel
Tower and Required Residential Tower)
Milestone
3 months after Completion of Demolition of
the Existing Improvements
Substantial Completion of the Minimum
Initial Program (Required Hotel Tower and
Required Residential Tower) Milestone
4 years after Commencement of the
Minimum Initial Program (Required Hotel
Tower and Required Residential Tower)2
1 Milestone for completion of demolition may be extended by up to an additional 12 months upon payment of the
Demolition Extension Fee in accordance with Section 5.5 of this Agreement.
2 Milestone for completion of the Minimum Initial Program may be extended by up to an additional 24 months upon
payment of the Minimum Initial Program Extension Fee in accordance with Section 5.5 of this Agreement.
131
Schedule 5.9
Hyatt Proprietary Materials
"Hyatt Proprietary Materials" may include (i) all software from time to time owned by, or
leased or licensed on an exclusive basis to, Hyatt or Hyatt's Affiliates (including revisions or
enhancements to otherwise commercially available software) together with related source and
object codes, (ii) the Hyatt Trademarks and all depictions thereof, either graphic or verbal, (iii)
copyrighted materials, (iv) operating handbooks (including employee manuals, training materials,
user manuals and maintenance procedures), (v) operating policies and procedures, (vi) reporting
and budgeting formats, (vii) promotional materials, (viii) recipes, (ix) Guest Information, (x)
financial records of Hyatt and its Affiliates (except as otherwise herein expressly provided), (xi)
information relating to other Hyatt -Affiliated Hotels or non -Brand hotels, (xii) business leads,
booking proposals, and tentative bookings not yet confirmed, (xiii) outlet names and concepts and
(xiv) information that Hyatt reasonably determines may not be disclosed by Hyatt or its Affiliates
under applicable privacy or identity theft laws.
For purposes of this Schedule 5.9 only:
"Affiliate" means a legal entity or an individual who directly or indirectly through one or more
intermediaries has control of a party to the Hotel Services Agreement, or is controlled by a party
to the Hotel Services Agreement or is jointly controlled together with a party to the Hotel Services
Agreement. For purposes hereof, the term "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of such entity, either
alone or in combination with any one or more Persons. Persons who are Affiliates of each other
are sometimes herein referred to as being "Affiliated".
"Brand" means Hyatt Regency.
"Building(s)" means all buildings and other permanent improvements constructed on the Land
which shall include all buildings and other improvements in which are located guest rooms and
suites, parking, restaurants, lounges and health and recreational facilities, and shall also include
those hotel amenities and facilities which are permanent improvements to the Land such as
swimming pools and the like.
"Building Systems" means any structural, mechanical, electrical, plumbing, heating,
ventilating, air conditioning and life safety equipment and systems; major architectural features or
systems such as water features, curtain walls and roofs; major laundry appliances; major kitchen
appliances; elevators and escalators; pumps, filters and other pool equipment; water features and
other similar systems and items of equipment installed in or upon, and affixed to, the Building,
whether or not the same may be movable and whether or not removal thereof would cause damage
to the Building or the Land, excluding, however, any items of FF&E.
"FF&E" means all furniture, furnishings and equipment located at the Hotel, together with all
replacements therefor and additions thereto, but shall not include Operating Equipment.
132
"Guest Information" means guest data, whether obtained from the guest or customer or from
any other source, including names, preferences and other information about the guests' or
customers' experiences and/or purchases, and including information stored in or provided to the
Hotel's reservations system or the Hotel's property management system and relating to (i) Hotel
Guest Records, (ii) frequent guest program data and member information, (iii) customer
information and customer contact lists for guests, patrons and groups patronizing other Hyatt -
Affiliated Hotels (whether or not also patrons of the Hotel) or (iv) data and information on potential
guests or groups, not otherwise guests or groups patronizing the Hotel.
"Hotel" means the Land, the Building(s), the Building Systems, the FF&E and the Operating
Equipment, together with all other items of real and personal property at any time used in
connection with the operation of the foregoing, collectively.
"Hotel Guest Records" means guest records, profiles, histories, contact information and
preferences gathered by the Hotel based on the guest' s stay or information provided by the guest
during such stay at the Hotel (and not supplied to the Hotel by Hyatt or its Affiliate) and stored in
the Hotel's property management system database.
"Hyatt" means Hyatt Corporation, a Delaware corporation.
"Hyatt -Affiliated Hotels" means the hotels and resorts that from time to time are owned and/or
operated by Hyatt, its Affiliates or its or their franchisees or licensees under the name "Hyatt" or
another brand owned by the Hyatt and its Affiliates, including hotels operating under the Andaz,
Grand Hyatt, Park Hyatt, Hyatt Regency, Hyatt Centric, Hyatt (without a sub -brand), Hyatt Place,
Hyatt House, Hyatt Ziva, Hyatt Zilara, The Unbound Collection by Hyatt, Thompson, tommie,
Destination by Hyatt, JdV by Hyatt and Caption by Hyatt names and marks.
"Hyatt Trademarks" means the name "Hyatt" and various other service marks, trademarks,
trade names, slogans, symbols, designs, insignia, emblems and other identifying characteristics
associated with Hyatt, its Affiliates and/or the Brand, in all cases whether graphic or verbal.
"Operating Equipment" shall include uniforms, china, glassware, linens and silverware and the
like, but shall not include FF&E.
133
Schedule 5.16
Community Benefits
Pursuant to Section 5.16 of the Agreement, Developer shall provide the Defined Community
Benefits set forth in Part A below and the Conceptual Community Benefits set forth in Part
B below, which will be incorporated into a Final Community Benefits Plan.
Part A — Defined Community Benefits (Total Value: $53,000,000)
The Final Community Benefits Plan, which shall be approved by the City Manager in
accordance with Section 5.16, shall incorporate all of the Defined Community Benefits set
forth below.
• After the issuance of a Certificate of Occupancy for the Required Hotel Tower or the
Required Residential Tower, Developer will contribute $25,000,000 (Le., the Affordable
Housing Payment) to the City for the City's use, in its sole discretion, to support affordable
housing and other community initiatives.
• Developer will contribute 15 multifamily units from the Project that will be rent -restricted
to the rent established by the Florida Housing Finance Corporation (or such successor
organization) for individuals and families earning no more than 60% of area median
income for Miami -Dade County. The units will be set aside for retired first responders and
their families. The estimated value of this benefit, as a reduction from estimated market
rents over the Lease Term of the Lease, is $7,500,000. Developer and City will work
together in good faith to determine the process by which the units will be subleased and
occupied in accordance with this provision, Applicable Law, and any reasonable, generally
applicable resident requirements established by Developer and applied in the same manner
to all units in the Project.
• Developer will fund a severance package for the existing Hyatt Regency' s Union (Unite 1)
employees in an amount exceeding $3,000,000.
• Developer will contribute the existing FF&E of the hotel to local charities and
organizations across the City of Miami, the estimated value of which is $2,500,000.
• Developer will spend approximately $15,000,000 in connection with the Art in Public
Places program.
• Developer will make available to City at no charge the use of up to a portion of the Event
Space (as defined in the Minimum Initial Program) as required to host a meeting for up to
200 people for up to 12 City Use Blocks (as defined below) per Lease Year on the following
terms and conditions: (i) the right to use is specific to City, may only be used for non -
revenue generating municipal purposes, and may not be assigned or transferred to any other
party, (ii) the right to use is subject to availability of the space on the date and time period
requested by City, (iii) City must give Developer not less than 60 days' and not more than
180 days' prior written notice of its desire to use Event Space, which notice must specify
the requested date, time, and length of meeting, and the use, number of people to use the
space, and any ancillary services that are requested (e.g., food and beverage or audio/visual
support, collectively, the "Ancillary Services"); (iv) no Ancillary Services may be utilized
by City in connection with its use of the Event Space except for those Ancillary Services
134
timely requested by City and procured by Developer; (v) Developer reserves the right to
select the location of the Event Space to be made available in connection with each such
City request, (vi) Developer reserves the right to identify up to 30 days each Lease Year
for which no use or only limited use by City is permitted, and Developer may change such
dates only upon prior written notice to City; (vii) City is responsible for the cost and
expense of any Ancillary Services and parking provided in connection with its use of the
Event Space; provided, however, that City shall be entitled to a 10% discount from the
generally applicable rates for Ancillary Services and parking, and (viii) City must comply
with the generally applicable rules and regulations established by Developer from time to
time in connection with the use of Event Space. City Use Blocks means periods of time not
to exceed 12 hours on any calendar day.
Part B — Conceptual Community Benefits (Total Value: $25,000,000)
The Final Community Benefits Plan, which shall be approved by the City Manager in
accordance with Section 5.16, shall incorporate all of the items included in the Conceptual
Community Benefits set forth below and will require total Developer contributions or
expenditures, based on the final proposed scope of work for the Conceptual Community
Benefits, that equal at least ninety percent (90%) of the total estimated contributions and
expenditures set forth below. The City Manager, may, in his or her reasonable discretion,
approve a Final Community Benefits Plan that adds or removes items from the Conceptual
Community Benefits provided that such plan requires total Developer contributions or
expenditures that equal at least one hundred percent (100%) of the total estimated
contributions and expenditures set forth below. Prior to the Commencement Date, the City
and Developer shall cooperate in good faith to further define the scope of the Conceptual
Community Benefits set forth below.
• Developer will provide at least $10,000,000 in off -Site traffic improvements to mitigate
the traffic situation, which measures are anticipated to include the widening of 4th street,
signal light synchronization, new bike lanes & sidewalks, walkway under bridge and a new
pedestrian bridge to the metro mover jobs.
• Developer will provide 480 feet of upgraded Riverwalk and increased open space (over an
acre) at an estimated cost of $15,000,000.
135
Schedule 10.2
Form of Bifurcation of Lease
This instrument prepared by and after recording return to:
Name:
Address:
[SPACE ABOVE THIS LINE FOR RECORDING DATA]
BIFURCATION OF AGREEMENT AND LEASE
THIS BIFURCATION OF AGREEMENT AND LEASE (this "Agreement") is made as of
the day of , 20 (the "Effective Date"), by and among (i) the CITY OF MIAMI,
a municipal corporation of the State of Florida (the "City"), (ii) (the
"Developer"), and (iii) [ , a ] ("Tenant").
WITNESSETH:
WHEREAS, the City, as landlord, and the Developer, as tenant, entered into that certain
Agreement and Lease dated as of [ ], 202[ ] (as heretofore and hereafter assigned and
amended from time to time, the "Master Ground Lease"), a memorandum of which was recorded
on [ ], 2021 ], in the Official Records Book [ ], at Page [ ], of the Public
Records of Miami -Dade County, Florida;
WHEREAS, pursuant to Section 10.2 of the Master Ground Lease, the City, the Developer
and Tenant have agreed to bifurcate the Master Ground Lease into two (2) leases by Tenant and
City entering into a Bifurcated Lease solely with respect to the real property more particularly
described on Exhibit A attached hereto (the "Bifurcated Parcel") in substantially the form of the
Master Ground Lease, and as otherwise necessary to reflect that the bifurcated lease covers and
affects the Bifurcated Parcel only (the "Bifurcated Lease").
WHEREAS, City, through the City Manager or the City Commission, approves of this
Agreement and the Bifurcated Lease with Tenant,
NOW, THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
1. Defined Terms; Incorporation of Recitals. Capitalized terms used but not
otherwise defined in this Agreement have the respective meanings given to them in the Master
Ground Lease. The preamble and recitals set forth above are hereby incorporated into this
Agreement by this reference in their entirety.
136
2. Bifurcated Lease. The City and Tenant hereby agree to simultaneously herewith
enter into, execute and deliver the Bifurcated Lease, a memorandum of which shall be recorded in
the Public Records of Miami -Dade County, Florida, pursuant to which City leases to Tenant and
Tenant leases from City the Bifurcated Parcel.
3. Partial Termination and Release; No Cross Default. The Master Ground Lease
is hereby partially terminated solely as to the Bifurcated Parcel and the Bifurcated Parcel shall no
longer be subject to, and is hereby released from, the terms and provisions of the Master Ground
Lease. Notwithstanding anything contained in the Master Ground Lease, effective as of the
Effective Date:
a. The Developer shall not be obligated to perform any obligation under the Master
Ground Lease to the extent such obligation pertains to, or is to be performed on, the Bifurcated
Parcel after the Effective Date of this Agreement, and shall be automatically released from any
and all such obligations (including any obligation to (x) pay any rent allocated to the Bifurcated
Parcel, including without limitation Minimum Rent and Participation Rent, (y) develop the portion
of the Project governed by the Bifurcated Lease, and (z) maintain insurance for the Bifurcated
Parcel);
b. No action or omission of, or default by, Tenant (or anyone acting by, through or
under Tenant) under the Bifurcated Lease, including any failure to develop the portion of the
Project governed by the Bifurcated Lease, shall in any event constitute or give rise to a default, or
any liability of Developer under the Master Ground Lease or deprive Developer of any of its rights
under the Master Ground Lease, including without limitation the right to develop the remainder of
the Project on the balance of the Property in accordance with the Master Ground Lease;
c. City, Developer and Tenant acknowledge and agree that (i) Developer retains all
right, title and interest in and to the Master Ground Lease (and the leasehold estate arising
thereunder), except only as it relates to the Bifurcated Parcel, and (ii) Tenant shall solely be
responsible for the Bifurcated Parcel and bound by all of the terms, covenants, agreement,
provisions and conditions of the Bifurcated Lease with respect to the Bifurcated Parcel; and
d. Neither Developer nor Tenant or any successor thereof shall in any event be
prohibited from developing any portion of the Project (or be in default under the Master Ground
Lease, or have any liability), as a result of any failure of Tenant (or anyone acting by, through or
under Tenant) under the Bifurcated Lease to develop the Phase or component of the Project
governed by the Bifurcated Lease (notwithstanding that such failure may cause the Project to be
developed other than in accordance with the Master Ground Lease).
The City acknowledges and agrees that a default under the Master Ground Lease shall not
constitute a default under the Bifurcated Lease, and a default under the Bifurcated Lease shall not
constitute a default under the Master Ground Lease; it being the intention of the parties that the
Master Ground Lease and the Bifurcated Lease shall not be cross -defaulted. However, nothing set
forth herein shall release the Developer from its obligations under the Master Ground Lease except
as expressly provided herein.
137
4. Mutual Indemnification. Tenant hereby indemnifies and agrees to defend (with
counsel reasonably satisfactory to the Developer) and hold harmless the Developer from and
against any and all liabilities, obligations, claims, costs and expenses (excluding attorneys' fees
and costs at trial court and all appellate levels and in any post judgment proceedings) suffered or
incurred by the Developer by reason of Tenant's failure to perform any obligations under the
Bifurcated Lease with respect to the Bifurcated Parcel. Developer hereby indemnifies and agrees
to defend (with counsel reasonably satisfactory to Tenant) and hold harmless Tenant from and
against any and all liabilities, obligations, claims, costs and expenses (excluding attorneys' fees
and costs at trial court and all appellate levels and in any post judgment proceedings) suffered or
incurred by Tenant by reason of the Developer's failure to perform any of the obligations of the
Developer under the Master Ground Lease with respect to the Bifurcated Parcel, which obligations
were to be met by the Developer prior to the Effective Date.
5. Minimum Rent. As contemplated by Section 10.2 of the Master Ground Lease,
the Minimum Rent due and payable by the Developer under the Master Ground Lease is hereby
adjusted and reduced, on a dollar for dollar basis, by the aggregate amount of Minimum Rent due
and payable under the Bifurcated Lease. Accordingly, Minimum Rent under the Master Ground
Lease is hereby adjusted and reduced by and No/100 Dollars ($ ) per
annum to and No/100 Dollars ($ ) per annum, subject to increases as
provided in the Master Ground Lease. All references to Minimum Rent in the Master Ground
Lease shall be deemed modified accordingly.
6. Continuing Effect. The Master Ground Lease shall hereinafter continue to affect
the Land less and except the Bifurcated Parcel (and any other parcels previously released from the
terms of the Master Ground Lease), and the Bifurcated Lease shall hereinafter affect the Bifurcated
Parcel. The terms "Land", "Property", and "Improvements" under the Master Ground Lease are
hereby deemed modified so as to exclude the portion of the Property, Improvements, and
building(s) located on or comprising the Bifurcated Parcel. The term "Lease", as used in the
Master Ground Lease, is hereby deemed modified to refer to the Master Ground Lease, as modified
hereby.
7. Authority to Execute. City hereby represents and warrants to Developer and
Tenant that the individual(s) signing this Agreement on behalf of City have full power and
authority to execute and deliver this Agreement and bind City. Developer hereby represents and
warrants to City and Tenant that the individual(s) signing this Agreement on behalf of Developer
have full power and authority to execute and deliver this Agreement and bind Developer. Tenant
hereby represents and warrants to City and Developer that the individual(s) signing this Agreement
on behalf of Tenant have full power and authority to execute and deliver this Agreement and bind
Tenant.
8. Estoppel. The Master Ground Lease is presently in full force and effect, and has
not been modified, amended, supplemented, altered, assigned or transferred (in whole or in part)
since the date thereof, except for any amendments identified herein and any partial assignments
and/or bifurcation(s) of the Master Ground Lease prior to the Effective Date, and except as
contemplated in this Agreement.
138
9. Miscellaneous. This Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective successors and assigns. This Agreement shall be construed
according to the laws of the State of Florida. This Agreement cannot be changed except by an
agreement in writing, dated subsequent to the Effective Date, signed by the party against whom
enforcement of the change is sought. In case any one or more of the covenants, agreements, terms
or provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect,
the validity of the remaining covenants, agreements, terms or provisions contained herein shall be
in no way affected or prejudiced thereby. This Agreement may be executed in any number of
counterparts, each of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same Agreement. The headings of the
articles, sections, paragraphs and subdivisions of this Agreement are for convenience of reference
only, are not to be considered a part hereof, and shall not limit or expand or otherwise affect any
of the terms hereof.
10. Condition. This Agreement is conditioned upon and, shall not be effective unless,
City and Tenant enter into the Bifurcated Lease. In the event City and Tenant fail to execute and
deliver the Bifurcated Lease, this Agreement shall be deemed void ab initio and no party hereto
shall have any further rights or obligations hereunder. Upon the satisfaction of the condition set
forth in the preceding sentence, this Agreement shall be recorded in the Public Records of
Miami -Dade County, Florida, and the Master Ground Lease shall be deemed permanently
bifurcated and split into two (2) separate and independent leases as contemplated herein and in the
Master Ground Lease.
[Remainder of Page Intentionally Blank]
139
IN WITNESS WHEREOF, City, Developer, and Tenant, intending to be legally bound
hereby, have executed and delivered this Agreement as of the Effective Date.
Signed in the presence of the following CITY:
witnesses:
Print Name:
Print Name:
ATTEST:
By:
, City Clerk
Approved as to form and legal sufficiency
Name:
Title: City Attorney
CITY OF MIAMI, a municipal corporation
of the State of Florida
By:
Name:
Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
140
Signed in the presence of the following DEVELOPER:
witnesses:
Print Name:
Print Name:
STATE OF
) ss.:
COUNTY OF )
,a
By:
Name:
Title:
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this day of , 202 by , as
, of . He/She is personally known to me or has
produced State of [include state of driver's license] driver's license as
identification ❑.
(Sign Name)
(Type or Print Name)
My Commission Expires: Notary Public, State of
Serial No. (none, if blank):
[AFFIX NOTARIAL SEAL]
141
Signed in the presence of the following TENANT:
witnesses:
Print Name:
Print Name:
STATE OF
) ss.:
COUNTY OF )
By:
Name:
Title:
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this day of , 20 , by , as
, on behalf of Tenant. He/She is personally known to me or has produced State
of [include state of driver's license] driver's license as identification O.
(Sign Name)
(Type or Print Name)
My Commission Expires: Notary Public, State of
Serial No. (none, if blank):
[AFFIX NOTARIAL SEAL]
142
Exhibit A
To Schedule 10.2
Legal Description Of Bifurcated Parcel
[to be attached]
143
Schedule 10.5
Form of Recognition and Non -Disturbance Agreement
This instrument prepared by or under the supervision of
(and after recording should be returned to):
[SPACE ABOVE THIS LINE FOR CLERK OF COURT]
RECOGNITION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
This Recognition, Nondisturbance and Attornment Agreement (this "Agreement") is made
effective as of the day of , 20 , by and among the CITY OF MIAMI, a municipal
corporation of the State of Florida (the "City"), having its office at 3500 Pan American Drive,
Miami, Florida 33133, [Insert name ofSubtenant], a [Insert type ofentity], having
an office at ("Subtenant"), and [Insert name of Sublandlord], a [Insert
type ofentity], having an office at ("Sublandlord").
WITNESSETH:
WHEREAS, the City is the owner in fee simple of certain real property more particularly
described in Exhibit "A", attached hereto and incorporated herein by this reference (the
"Property"); and
WHEREAS, Sublandlord is the tenant of the Property described in and pursuant to that
certain Lease Agreement dated as of between the City and Sublandlord (such
agreement, as the same may be assigned, amended or restated from time to time, the "Lease"). A
Memorandum of Lease was recorded , 20 , in Official Records Book , at Page
of the Public Records of Miami -Dade County, Florida; and
WHEREAS, Sublandlord subleased to Subtenant that portion of the Property (the
"Subleased Premises") as more particularly described in that certain Sublease dated
between Sublandlord and Subtenant (the "Sublease"); and
WHEREAS, the City and Subtenant desire to evidence their understanding with respect to
the Lease and the Sublease as hereinafter provided.
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. The Recitals set forth above and incorporated herein are true and correct.
144
2. Subtenant covenants and agrees that the Sublease and the rights of Subtenant
thereunder are and shall be at all times subject and subordinate to the Lease.
3. The City agrees that so long as no default exists under the Sublease which has
continued beyond all applicable notice and cure period and would permit Sublandlord to terminate
the Sublease or exercise any dispossess remedy provided for in the Sublease, the Sublease and
Subtenant's rights thereunder (including without limitation Subtenant's right of possession, use
and quiet enjoyment of the Subleased Premises, and any extension or renewal period thereof which
may be exercised in accordance with any option afforded in the Sublease to Subtenant), shall not
be terminated, altered, disturbed or extinguished by any action of the City or any New Owner (as
hereinafter defined), including without limitation, by any suit, action or proceeding for the eviction
of Sublandlord or otherwise for the enforcement of the City's rights or remedies under the Lease.
Notwithstanding anything to the contrary contained in this Agreement, the City or any New Owner
upon a Termination Event (as hereinafter defined) shall have the right to pursue all rights and
remedies set forth under the Sublease for any default by Subtenant under the Sublease beyond any
applicable notice and cure period which thereafter occurs or is otherwise then continuing. The
City will not join Subtenant as a party defendant in any action or proceeding for eviction of
Sublandlord from the Property or termination of the Lease, unless such joinder is necessary to
complete such eviction or termination and then only for such purpose and not for the purpose of
terminating the Sublease.
4. If the Lease terminates for any reason other than on its natural expiration or in the
event Sublandlord's right to possession of the Property shall terminate for any reason, including
voluntarily, by operation of law, by reason of default thereunder (any or all of the foregoing, a
"Termination Event"), then Subtenant shall attorn to the City or any party taking title or leasehold
interest to the Property through the City ("New Owner") as its landlord, the City or the New Owner
shall assume the Sublease and all obligations of landlord thereunder and recognize Subtenant as
the tenant thereunder, and the Sublease shall continue in full force and effect, notwithstanding such
Termination Event, as a direct [sublease] [OR] [space lease] between the City or New Owner and
Subtenant for the remainder of the term of the Sublease (including any extensions thereof), without
the necessity of executing a new [sublease] [OR] [space lease], and on the same terms and
conditions as are in effect under the Sublease immediately preceding the Termination Event. Upon
the written request of the City or New Owner to Subtenant within thirty (30) days after any
Termination Event, the City or New Owner and Subtenant shall execute a lease of the Subleased
Premises upon the same provisions as contained in the Sublease between Sublandlord and
Sublessee for the unexpired term of the Sublease, except as set forth in this Agreement. If the City
or New Owner does not elect to enter into a direct lease with Subtenant pursuant hereto, then the
City or the New Owner shall, not be:
(i) bound by any fixed rent which Subtenant might have paid for more than one (1)
month in advance of its due date under the Sublease to any prior landlord (including Sublandlord);
unless otherwise consented to by the City or the New Owner or unless such prepaid amount is
actually received by the City or the New Owner;
(ii) liable for any previous act or omission of any prior landlord (including without
limitation, Sublandlord) in violation of the Sublease except for any repair and maintenance or other
obligations of a continuing nature as of the date of such acquisition; or
145
(iii) subject to any claims, counterclaims, offsets or defenses which Subtenant might
have against any prior landlord (including Sublandlord); or
(iv) liable for the return of any: security deposit; overpayments of taxes, operating
expenses, or other items of additional rent paid in estimates in advance by Subtenant subject to
subsequent adjustment; other monies which pursuant to the Sublease are payable by Sublandlord
to Subtenant; or other sums, in each case to the extent not delivered to the City or the New Owner,
as the case may be; or
(v) obligated to complete any construction work required to be done by any prior
landlord (including Sublandlord) pursuant to the provisions of the Sublease, to reimburse
Subtenant for any construction work done by Subtenant, to make funds available to Subtenant in
connection with any such construction work, or for any other allowances or cash payments owed
by any prior landlord to Subtenant (but the foregoing shall not relieve the City or New Owner from
any repair and maintenance obligations of a continuing nature as of the date of such acquisition,
nor shall the foregoing affect or limit any offset rights of Subtenant pursuant to the Sublease or the
casualty and condemnation provisions of the Sublease); or
(vi) bound by or have any liability for any warranties of any nature whatsoever made
by a prior landlord, including any warranties respecting Sublandlord's title, Sublandlord's
authority, habitability, fitness for purpose or possession; or
(vii) bound by any material or substantial amendment or modification of the
Sublease (such as revisions to the length of the term or payment of rent) entered into without the
City's or New Owner's prior review and approval, which approval shall not be unreasonably
withheld, conditioned or delayed.
Nothing contained herein shall be deemed to modify the obligations of the City or
Sublandlord under the Lease.
5. No provision of this Agreement shall be construed to make the Subtenant liable for
any covenants and obligations of Sublandlord under the Lease, unless expressly provided for
herein or under the Sublease.
6. The foregoing provisions shall be self -operative and effective without the execution
of any further instruments on the part of any party hereto; provided, however, that at such time as
the Lease may terminate or the City or New Owner may otherwise succeed to Sublandlord's
interest under the Sublease, Subtenant agrees to execute and deliver to the City or New Owner
such other instrument(s) as may from time to time reasonably be requested to confirm the same,
and the City or New Owner agrees to do likewise.
7. Any notices or communications given under this Agreement shall be in writing and
shall be delivered by (a) personal delivery, (b) the United States mail, certified or registered,
postage prepaid, return receipt requested, or (c) a nationally recognized overnight courier, in each
case addressed as follows:
146
If to the City:
F
If to Subtenant:
[
with a copy to:
[
If to Sublandlord:
F
with a copy to:
I
]
Either party may designate a different or an additional address or addresses for notices
intended for such party from time to time by at least 5 days' notice to the other party. Notices
from any party may be given by such party's attorney. Each notice shall be deemed to have been
given on the date such notice is actually received as evidenced by a written receipt therefor, and
in the event of failure to deliver by reason of changed address of which no notice was given or
refusal to accept delivery, as of the date of such failure or refusal.
8. This Agreement shall bind and inure to the benefit of and be binding upon and
enforceable by the parties hereto and their respective successors and assigns.
9. This Agreement contains the entire agreement between the parties and cannot be
changed, modified, waived or cancelled except by an agreement in writing executed by the party
against whom enforcement of such modification, change, waiver or cancellation is sought.
10. This Agreement and the covenants herein contained are intended to run with and
bind all land affected thereby. It is expressly acknowledged and agreed by Sublandlord and
Subtenant that as between Sublandlord and Subtenant, the subordination of the Sublease to the
Lease effectuated pursuant to this Agreement shall in no way affect Sublandlord's and/or
Subtenant's rights and obligations under the Sublease.
11. The parties hereto agree to submit this Agreement for recordation in the Public
Records of Miami -Dade County, Florida. The parties further agree that this Agreement shall
terminate and be void automatically, immediately upon the expiration or earlier termination of the
Sublease, and without the need for any termination or other agreement being recorded to evidence
such termination. Notwithstanding the foregoing and without in any way affecting the automatic
termination of this Agreement as aforesaid, the parties agree to execute, deliver and submit for
147
recordation a Memorandum of Termination confirming the termination of this Agreement,
promptly following the expiration or earlier termination of the Sublease.
12. This Agreement may be executed in counterparts, any one or all which shall be one
and the same agreement.
13. No security interest that the City may have in the Property pursuant to the Lease or
otherwise shall cover, or be construed as subjecting in any manner to the lien thereof, any
Subtenant's moveable personal property, regardless of the manner or mode of attachment thereof.
14. This Agreement shall be governed by the internal law (and not the law of conflicts)
of the State of Florida. The parties hereto agree that any suit brought to enforce this Agreement
shall be brought in Miami -Dade County, Florida, in the courts of the State of Florida or in the
United States District Court for the Southern District of Florida, and, by execution and delivery of
this Agreement, each of the parties to this Agreement hereby irrevocably accepts and waives all
objection to, the exclusive jurisdiction of the aforesaid courts in connection with any suit brought
to enforce this Agreement, and in case of any dispute, each party further agrees to assume full
responsibility for its own court costs and attorneys' fees.
[Remainder of page left intentionally blank]
148
IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be
duly executed as of the day and year first above written.
WITNESSES (as to City Manager/City THE CITY OF MIAMI, a municipal
Manager's designee and City Clerk): corporation of the State of Florida
Print Name:
Title:
Print Name:
Title:
APPROVED AS TO FORM
AND CORRECTNESS:
By:
City Manager or
City Manager's designee
ATTEST:
By:
City Clerk
By: [SEAL]
City Attorney
STATE OF )
) ss.:
COUNTY OF )
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this day of , 202 by , the City Manager
or the City Manager's designee, and , the City Clerk, of the City of Miami, Florida
municipal corporation, in the capacity aforestated. He/She is personally known to me or has
produced State of [include state of driver's license] driver's license as
identification ❑.
(Sign Name)
(Type or Print Name)
My Commission Expires: Notary Public, State of
Serial No. (none, if blank):
[AFFIX NOTARIAL SEAL]
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
149
IN WITNESS WHEREOF, Subtenant has caused this Agreement to be executed under
seal the date first above written.
WITNESSES:
By:
Print Name: Name:
Title: Title:
Print Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this day of , 202, by , as
, on behalf of Subtenant. He/She is personally known to me or has produced
State of [include state of driver's license] driver's license as identification O.
(Sign Name)
(Type or Print Name)
My Commission Expires: Notary Public, State of
Serial No. (none, if blank):
[AFFIX NOTARIAL SEAL]
150
IN WITNESS WHEREOF, Sublandlord has caused this Agreement to be executed under
seal the date first above written.
WITNESSES:
By:
Print Name: Name:
Title: Title:
Print Name:
Title:
STATE OF
) ss.:
COUNTY OF )
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this day of , 202, by , as
, on behalf of Sublandlord. He/She is personally known to me or has produced
State of [include state of driver's license] driver's license as identification O.
(Sign Name)
(Type or Print Name)
My Commission Expires: Notary Public, State of
Serial No. (none, if blank):
[AFFIX NOTARIAL SEAL]
151
Schedule 21.35
Affidavit
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
BEFORE ME, the undersigned authority, personally appeared as City
Manager of The City of Miami ("City"), who being first duly sworn deposed, said.
1. This Affidavit is made in connection with the Agreement and Lease (the "Lease")
between City and ("Developer") [that is being executed and delivered
contemporaneously herewith] demising the Property legally described on Exhibit A hereto (the
"Property").
2. Due Authorization and Execution. City has full right, title, authority, and capacity
to execute and perform the Lease and the related Memorandum of Lease (collectively, the "Lease
Documents"); the execution and delivery of the Lease Documents have been duly authorized by
all requisite actions of City; the Lease Documents constitute valid, binding, and enforceable
obligations of City.
3. Liens. With respect to the Property and the improvements thereon, no materials,
labor, or services have been furnished or supplied on behalf of City for at least the 90 days prior
to the date of this Affidavit for which payment has not been made in full, and to City's knowledge
there are no unpaid construction lines affecting the Property by reason of acts of City or its agents.
4. No Pending Construction or Liens. City is not a party to any contract for any
construction respecting the Property and there has been no construction on or respecting the
Property prior to the date hereof for which the full costs thereof have not been paid. No party has
the right to claim any mechanic's or supplier's lien arising from any labor or materials furnished
to the Property before the date hereof.
5. Parties Entitled to Possession. As of the date hereof, Developer is the only party
entitled to possession of the Property and no other party has any right to lease, use, have possession
of or occupy the Property, including City, except pursuant to the terms of the Lease.
6. Gap. There are no matters pending against City that could give rise to a lien that
would attach to the Property between (a) the effective date of the commitment(s) to insure title
issued by [First American Title Insurance Company] pursuant to Title Commitment No.
committing to insure the leasehold estate in the Property in favor of Developer,
and (b) the recording of the aforestated Memorandum of this Agreement; and City has not and will
not execute any instrument during such period that would adversely affect the title or interest to
be acquired by Developer and insured by First American Title Insurance Company.
7. Firpta. City is not a "foreign person" within the meaning of United States Internal
Revenue Code Section 1445(f)(3).
152
8. Reliance. [First American Title Insurance Company], Developer's title insurer, and
Developer may rely on the statements set forth above, and such statements are made under
penalties of perjury.
FURTHER AFFIANT SAYETH NOT.
APPROVED AS TO FORM
AND CORRECTNESS:
By:
City Attorney
THE CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
City Manager
ATTEST:
By:
City Clerk
[SEAL]
153
STATE OF )
) ss.:
COUNTY OF )
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this day of , 202 by , the City Manager
or the City Manager's designee, and , the City Clerk, of the City of Miami, Florida
municipal corporation, in the capacity aforestated. He/She is personally known to me or has
produced State of [include state of driver's license] driver's license as
identification ❑.
(Sign Name)
(Type or Print Name)
My Commission Expires: Notary Public, State of
Serial No. (none, if blank):
[AFFIX NOTARIAL SEAL]
154
Exhibit A
Property
155
Schedule 21.35a
Landlord Non -Disturbance Agreement
(Hotel Services Agreement)
LANDLORD, TENANT AND MANAGER
NON -DISTURBANCE AND ATTORNMENT AGREEMENT
THIS LANDLORD, TENANT AND MANAGER NON -DISTURBANCE AND
ATTORNMENT AGREEMENT ("Agreement") is made and entered into as of this day of
202, by and among , a
("Landlord"), a
("Tenant") and HYATT CORPORATION, a Delaware corporation
("Hyatt").
RECITALS
A. Landlord is the fee simple owner of that certain real property, improvements and
fixtures located at [ ], and more particularly described on Exhibit A
hereto (the "Site"). The Site has been improved with the "Hotel" referred to in the "Management
Agreement" (quoted terms as hereinafter defined).
B. Landlord has entered into an Operating Lease with Tenant, dated as of
[ ], whereby Tenant has leased from Landlord all right, title and interest of
Landlord in and to the Site and the "Hotel" for a term of [ ] with [ ] renewals
(hereinafter the "Lease").
C. The "Hotel" is operated by Hyatt under a hotel services agreement dated
[ ], 202 by and between Tenant and Hyatt (as the same may hereafter be amended
or revised, the "Management Agreement").
D. The management of the Hotel pursuant to the Management Agreement is of
material benefit to Landlord and Tenant, and Landlord and Tenant desire that the Hotel continue
to be managed by the Hyatt subject to the terms of the Management Agreement and the terms of
this Agreement.
E. Landlord, Tenant, and Hyatt desire to enter into this Agreement for the purposes of
assuring that the rights, duties and expertise of Hyatt continue in accordance with the terms of the
Management Agreement without being disturbed irrespective of, among other things, the possible
termination of the Lease or conveyance of the Hotel by Landlord, except as otherwise provided in
the Management Agreement.
F. Landlord and Tenant desire to enter into this Agreement as required by the
Management Agreement and as an inducement to Hyatt for performing its obligations under the
Management Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties, and as described in the above recitals, the parties
hereto agree as follows:
1. Definitions. All terms used herein that are defined in the Management Agreement
shall, except as otherwise hereinafter expressly provided, have the same meaning as set forth in the
Management Agreement. Any terms hereinabove defined in the caption to this Agreement or in
the Recitals shall have their meanings as set forth above, all of which are, by this reference, hereby
incorporated herein. In addition, the following additional terms shall have the respective meanings
set forth below.
"Lease Termination" shall mean any expiration or termination of the Lease, howsoever
arising, including, without limitation, expiration of its term without renewal, termination
by either Landlord or Tenant by reason of the occurrence of any default or event of
default by Landlord or Tenant thereunder, or rejection of the Lease in connection with
any bankruptcy, reorganization or insolvency proceeding.
"New Landlord" shall mean any person or entity acquiring the Hotel from the Landlord
(or any successor in interest to Landlord) together with the rights and interests of
Landlord under the Lease.
"New Lease" shall mean any Lease entered into by Landlord with respect to the Hotel
following any Lease Termination. Upon assumption of the Management Agreement by
the New Tenant, the New Lease shall, for all purposes, become the Lease hereunder.
"New Tenant" shall mean the tenant under any New Lease. Upon assumption of the
Management Agreement by the New Tenant, the New Tenant shall, for all purposes,
become the Tenant hereunder.
2. Termination. In the event of any Lease Termination during the Lease Term of the
Management Agreement, and if at such time there is an absence of an uncured event of default
which, as of the date of such Lease Termination, has continued beyond any applicable cure period,
Landlord shall, concurrently with or prior to such Lease Termination, either: (a) identify a party
which: (i) has entered into a New Lease with Landlord on materially the same terms as the Lease
to the extent such terms impact or relate to the Management Agreement, (ii) has agreed in writing
to assume and become responsible for all of the liabilities and obligations of the "Owner" under the
Management Agreement as of the effective date of the Lease Termination, (iii) has agreed in writing
that Hyatt shall continue to enjoy, occupy, and manage the Hotel throughout the Lease Term of the
Management Agreement, in accordance to its terms, and (iv) is reasonably acceptable to Hyatt; or
(b) agree in writing to expressly succeed to and assume the rights and obligations of "Owner" under
the Management Agreement and this Agreement, effective as of the date of the Lease Termination.
Without implied limitation of the preceding sentence, all accrued and undischarged obligations of
Tenant to Hyatt under the Management Agreement in existence as of the date of the Lease
Termination shall be the obligations of the New Tenant, in the case of the option set forth in
subparagraph (a) above, or Landlord, in the case of the option set forth in subparagraph (b) above,
and shall be discharged by the New Tenant, or Landlord, as applicable, promptly following the
Lease Termination in the ordinary course of business. In the event of a Lease Termination, if the
-2-
New Tenant or Landlord, as applicable, complies in all material respects with the obligations (A) of
the New Tenant or Landlord as set forth above in this Section 2, and (B) of the "Owner" under the
Management Agreement, Hyatt shall manage the Hotel for New Tenant or Landlord, as applicable,
in accordance with the terms of the Management Agreement, and attorn to New Tenant or Landlord,
as applicable, in respect of the Management Agreement.
Tenant, by its execution and delivery hereof, hereby agrees, that upon any Lease
Termination, and concurrently with the execution of any New Lease, or the assumption of the
Management Agreement by Landlord, as applicable, all of the rights, powers, privileges and
interests of Tenant under the Management Agreement and hereunder shall, without further act or
notice of any party, cease and terminate and the New Tenant or Landlord, as applicable, shall
succeed thereto, and the New Tenant shall be and become the "Tenant" hereunder and the "Owner"
under the Management Agreement.
It is the intent and purpose of this Section 2 that, so long as all conditions, covenants and
agreements set forth herein shall have been fully performed, discharged and satisfied, Hyatt's
management of the Hotel, and all of its other rights under the Management Agreement, shall
remain undisturbed by any Lease Termination by any party or for any reason, and shall be
recognized by New Tenant or Landlord, as the case may be, and their respective permitted
successors and assigns, throughout the term of the Management Agreement and any extension or
renewal thereof.
3. Landlord's Sale of Hotel. If Landlord wishes to sell the Hotel, or sells the Hotel,
then Landlord agrees that: (i) it shall cause the Hotel to be sold subject to the Lease and, if
applicable, the Management Agreement to a New Landlord which by instrument in writing
reasonably satisfactory to Hyatt, succeeds to and assumes the rights and obligations of Landlord
under the Lease and this Agreement and, if applicable, the Management Agreement; and (ii) the
New Landlord shall be a permitted assignee of Tenant as "Owner" under the Management
Agreement. Upon any such sale in compliance with the foregoing, the New Landlord shall be and
become the "Landlord" hereunder, and, if applicable, the "Owner" under the Management
Agreement.
It is the intent and purpose of this Section 3 that, so long as the conditions, covenants and
agreements set forth herein shall have been fully performed, discharged and satisfied, Hyatt's
management of the Hotel, and all of its other rights under this Agreement and under the
Management Agreement, shall remain undisturbed by any sale of the Hotel to a New Landlord and
shall be recognized by the New Landlord and its permitted successors and assigns throughout the
term of the Management Agreement and this Agreement and any extensions or renewals thereof.
4. Revision of Lease. Neither Landlord nor Tenant shall agree to any amendment to
or modification of the Lease that adversely restricts, limits or interferes with the rights of Hyatt
hereunder or under the Management Agreement without the prior written consent of Hyatt. No
amendment or modification of the Lease shall be effective if made in breach hereof. Tenant agrees
to deliver copies of any amendments or modifications of the Lease made in compliance with the
provisions hereof to Hyatt promptly following the execution and delivery thereof, and this
Agreement shall continue in full force and effect as to the Lease, as amended or modified in
accordance with the provisions hereof.
3
5. Indebtedness and Mortgagee; Authorization to Mortgage Hotel. Landlord or its
nominee shall have the right to encumber its leasehold interest in the Hotel or any part thereof,
including the real estate on which the Hotel is constructed, the Hotel building and all improvements
thereto, and all fixtures within the Hotel which are owned or leased by Landlord; provided,
however, that any such mortgage must meet the applicable requirements and limitations set forth
in the Management Agreement, if any, and, provided further, that the holder of any such mortgage
indebtedness executes a non -disturbance agreement that complies with the terms of the
Management Agreement or is otherwise satisfactory to Hyatt as evidenced by Hyatt' s execution
thereof. Hyatt agrees, in connection with any such non -disturbance agreement, to subordinate to
the lien of the mortgage any interest under or pursuant to the Management Agreement, if and to the
extent reasonably required by the holder of the mortgage indebtedness.
6. Notices of Default. For so long as the Management Agreement is in effect, (a) each
of Landlord and Tenant shall send a copy to Hyatt of any notice of default, or any notice of any
intention to terminate the Lease, that either gives under the Lease and (b) Hyatt shall send a copy
of any notice of Default under the Management Agreement, or any notice of any intention to cancel
or terminate the Management Agreement, to Landlord and Tenant. Any notices delivered as herein
contemplated shall be in accordance with the notice provision set forth herein, and no such notice
shall not be effective until received by each of the parties hereto.
7. Defaults. The parties hereto agree that during the term of the Lease (subject to early
termination in accordance with its terms), an event with respect to Landlord under the Lease that
constitutes or causes an Event of Default under the Management Agreement shall constitute a
Default with respect to "Owner" under the Management Agreement, and a breach by Landlord or
Tenant of any covenants, undertakings, obligations or conditions under this Agreement shall
constitute an Event of Default with respect to "Owner" under the Management Agreement.
8. General Matters.
(a) Multiple Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original.
(b) Modification. This Agreement may not be modified orally or in any other manner
other than by an agreement in writing signed by the parties hereto.
(c) Notices. Any notice required under this Agreement to be given by a party hereto
to another party hereto shall be in writing in the English language. Any required
notice shall be served by sending the same (a) via personal delivery thereof to, and
actual receipt by, the receiving party; (b) upon electronic mail transmission to the
receiving party, at its email address as set forth below, provided such delivery is
followed by an original of the notice delivered to the receiving party by overnight
delivery or United States postal service delivery; (c) on the next business day
following delivery by the sender to a recognized international courier service; or
(d) three (3) business days following deposit in the United States mail to the address
of the other Party stated in this Agreement. All notices delivered pursuant to this
Agreement shall be addressed to the parties hereto as follows (or to such other
-4
address and to the attention of such Persons as the parties hereto may designate by
like notice hereunder):
If to Landlord:
If to Tenant:
[ ]
[
If to Manager:
HYATT CORPORATION,
a Delaware corporation
c/o Hyatt Hotels Corporation
150 N. Riverside Plaza
Chicago, IL 60606
Attn: General Counsel
Fax No. 312.780.5284
Email: office.of.general.counsel@hyatt.com
Each party hereto shall have the right to change its address for notice, or the identity
of persons entitled to receive copies of any such notices, by delivery in the manner
hereinabove provided of an appropriate notice to the other parties hereto setting
forth the new address or the identity of the additional or replacement persons
entitled to receive copies, or any one or more thereof, and such notice may be
delivered via email transmission only provided the delivering party receives either
a confirmation via email transmission for the receipt of same.
(d) Term. The term of this Agreement shall commence on the date hereof and shall
terminate on the date of termination of the Management Agreement (as the same
may be renewed or extended) in accordance with the terms of the Management
Agreement; provided, however, that the rights and obligations of the then Tenant
hereunder shall terminate on the earlier to occur of a Lease Termination or the
expiration or termination of the Management Agreement.
(e) No Waiver. No failure by any party hereto to exercise, and no delay in exercising,
any right under the Management Agreement or this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right preclude any
other or further exercise thereof or the exercise of any other right.
-5
(f) Remedies Cumulative. The rights and remedies of any party hereto provided in the
Management Agreement or this Agreement are cumulative and are in addition to,
and not exclusive of, any rights or remedies provided by law or equity.
(g) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the jurisdiction in which the Hotel is located.
(h) Severability. The invalidity, illegality or unenforceability of any one or more
phrases, sentences, clauses or sections contained in this Agreement shall not affect
the validity, legality or enforceability of the remaining portions of this Agreement.
(i) Successors and Assigns. The rights and obligations hereunder of the parties hereto
shall bind and inure to the benefit of their respective successors and permitted
assigns.
(j) Captions. The captions and headings of the sections and subsections of this
Agreement are for purposes of convenience and reference only and shall not limit
or otherwise affect the meaning hereof.
(k) Time of the Essence. Time shall be of the essence in the performance of this
Agreement.
(1) Incorporation of Recitals. The recitals hereto are incorporated herein as part of this
Agreement.
(m) Survival. Any covenant, term or provision of this Agreement which, in order to be
effective must survive the termination of this Agreement, will survive any such
termination.
(n) Dispute Resolution. Disputes arising out of this Agreement shall be subject to the
provisions of Article XIX of the Management Agreement and such provisions of
the Management Agreement are deemed incorporated herein by this reference.
(o) Recordation. Any party hereto may cause this Agreement to be recorded among
the land records of the jurisdiction in which the Hotel is located.3
[Signature Pages Follow]
3 NTD: Parties to confirm whether notarization is required for this agreement.
-6-
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives
to execute this Agreement as of the date first above written.
LANDLORD:
By:
Name:
Title:
TENANT:
By:
Name:
Title:
[Signature Page — Landlord, Tenant and Manager Non -Disturbance and Attornment Agreement]
HYATT:
HYATT CORPORATION,
a Delaware corporation
By:
Name:
Title:
[Signature Page — Landlord, Tenant and Manager Non -Disturbance and Attornment Agreement]
EXHIBIT A
LEGAL DESCRIPTION
[SIGNATURE PAGE TO MEMORANDUM OF LEASE]
Page 3
Schedule 21.35b
Confirmation of Effective Date
Confirmation of Effective Date
Re: Agreement and Lease between the City of Miami ("City") and HRM Owner, LLC
("Developer") made the day of , 202 concerning the property located
at 298, 300, 330, and 400 Southeast 2nd Avenue, Miami, Florida (the "Agreement")
City and Developer hereby confirm that the "Effective Date" (as defined in the Agreement) of
the Agreement is , 202
CITY:
CITY OF MIAMI
By:
Name:
Title:
DEVELOPER:
HRM OWNER, LLC, a Delaware limited
liability company
By:
Name:
Title:
Page 4