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Home My WebLink AboutFlagstone Agreement to EnterAMENDED AND RESTATED AGREEMENT TO ENTER INTO GROUND LEASE AS OF FEBRUARY 1, 2010 OF AGREEMENT TO ENTER INTO GROUND LEASE BETWEEN THE CITY OF MIAMI, FLORIDA AND FLAGSTONE ISLAND GARDENS, LLC DATED AS OF JANUARY 1, 2003 41 2243_98 Revised 05/05/10 Revised 7/29/2010 CSE; with coni rents from N4V & AB Revised 8/5/2010 CSF.. �vjth comments from MV. AB & CM Revised 8/11/2010 CSL wi.til. comments from 1�IV. 1.13 & MIADOCs 4419281 2 . ARTICLE 1 DEFINITIONS; INCORPORATION OF RECITALS, EXHIBITS AND ATTACHMENTS; AND EFFECTIVE DATE .................................... ti.3 ARTICLE 2 NATURE OF THIS AGREEMENT; GROUND LEASE ATTACHED; NEW CONSTRUCTION SCHEDULE; OPTIONS TO EXTEND, NEW PAYMENTS SCHEDULE -RELATED DEFAULTS AND NOTES REGARDING CONDITIONS RELATED THERETO ......... 63 2.1 Nature of this Agreement; Term.......................................................................... 63 2.2 Ground Lease(s)................................................................................................... 74 2.3 New Construction Schedule, New Payments Schedule, Options to Extend, Related Defaults, and Notes Regarding Conditions Related Thereto ............... -74 ARTICLE 3 INSPECTION PERIOD................................................................. 83 3.1 Termination of Access and Indemnification Agreement .............................. 8 3.2 Inspections........................................................................................................... 85 3.3 Environmental Inspections.....................:.............................................................9H 3.4 Indemnification.................................................................................................... 96 3.5 Insurance............................................................................................................107 ARTICLE 4 AGREEMENT CONDITIONS AND DELIVERIES .................................. 10-7 4.1 Flagstone's Acknowledgments and Deliveries .................................................. 10 4.2 Other Conditions and Deliveries........................................................................ 12 4.3 Outside Date..................................................................................................... 1511 ARTICLE 5 SECURITY DEPOSITS............................................................................ 164-2- 5.1 64-25.1 Security for the Easements............................................................................... 116+2 5.2 Security .Deposit for the Construction Rent/Base Rent .................................................. I ........... ...1(i43 3-t ^A4 itiefial`eeLifity €ef the G Elrod I eage 1 5.34; Deposits; Letters of Credit....:..........................................................................1�i1? ARTICLE 6 EXECUTION AND DELIVERY OF GROUND LEASE(S) ..................... 183 6.1 Conditions Precedent to Execution and Delivery of Each of the Ground Leases 18- 6.2 Special Additional Conditions Precedent with Respect to Component by Component Development................................................................ 24•.+9 6.3 Outside Dates............................................................................. 25.1-9 ARTICLE 7 DEVELOPMENT OF PROJECT......................................................... 2«9 a q 224398 Revised 05105110 Revised 7/29/2010 CSL with comments from M[V & AB Revised 8'5/2010 CSE with comments from MV. AB & CyI Revised 8/112010 CSI; with comments from. MV. AB & Ci4'1. MIADOCS 4419291 2 7.1 Development Plans......................................................................................... 26-14 7.2 Use and Ownership of Development Plans and Permits and Approvals in the eventof Termination.......................................................................................... 260 7.3 Platting and Other Development Matters.......................................................... 260 7.4 License(s)/Easements for Pre -Development Work ........................................... 270 7.5 Indemnification and Waiver............................................................. 282 7.6 Issuance to Flagstone of Marine Operating Permit for Existing Marina........... 2132 7.7 Marina Approvals.............................................................................................. 293 7.8 Water and Sewer Agreement ............................3326 ARTICLE 8 COORDINATION WITH CITY; APPROVAL PROCEDURES ............. 3 22-7. 8.1 Coordination with City....................................................................................33-^-7 8.2 (Y r.a FE.xe ttti, -e nca,.. Citv Manager Approval Procedures 34-24 8.3 ChieEeeativeof Tem' anaee�_ Approvals; Disclaimer ........................ City 141 =1 5.29 ARTICLE 9 DISCHARGE OF LIENS. JEJDGMENTS. AND GARNISHMENTS ..... 363.0. 9.1 No Liens. Jud-anients and Garriishments.......................................................... 3()30 9.2 Discharging Liens. Judgments and Garnishments ........................................... 7630 9.3 Hold Harmless and Indemnification Agreement ..................................... ?7.34 ARTICLE10 CONDEMNATION................................................................................... 373.4. 10.1 Material Taking................................................................................................ 3734 10.2 Less than a Material Taking............................................................................. 3803-1- 10.3 Award ............................................ ................................................................... 393,1 - ARTICLE 11 DEFAULT AND REMEDIES; TERMINATIONS ................................... 30834 11.1 Events of Flagstone's Default •.......................................................................... 30831 11.2 Remedies for Flagstone's Default.................................................................... 39312 11.3 City's Default...................................................................................................:i933 11.4 Terminations................................................................................4033 ARTICLE 12 REPRESENTATIONS BY FLAGSTONE AND CITY; DEFENSE ANDRELEASE.........................................................................................4134 12.1 Flagstone's Representations............................................................................. 4134 q 224398 Revised 05/05/10 Revised 7/29/2010 CSI:? with comments firom MV & AB Revised 8/5/2010 CSE with comments fi•om MV. AB & CM Revised 8/11/2010 CSL; Nyi.th comments from MV. AB, & C:149: MIADOCS 4419281 2 12.2 City's Representations..................................................................................... 42-345 12.3 Disclaimer of Representations by Flagstone .................................................... 4-23$ ARTICLE 13 MISCELLANEOUS X43€1 13.1 Assignment...................................................................................................... L,-16 13.2 Notices............................................................................................................. L33 6 13.3 Applicable Law................................................................................................ 4346 13.4 Severability ...........................43Ei 13.5 Waiver/Deferral...............................................................................................436 13.6 No Third -Party Beneficiary............................................................................. 44--W 13.7 Enforcement Costs........................................................................................... 44P 13.8 Entire Agreement............................................................................................. 44--P 13.9 HeadingsX437 ............. 13.10 References ...........................................................................................:...4437 13.11 Brokers.............................................................................................................4437 13.12 No Partnership or Joint Venture 45 r4 13.13 Counterparts.....................................................................................................45 13.14 Jurisdiction and Venue ..........................................................L535 13.15 Waiver of Jury Trial ........................................................... ..........4�?* 13.16 No Conflicts of Interest...................................................................4535 o 0 q - 22_43_98 Revised 05/05/10 Revised 7/29/2010 CSE, with comments from MY & All Revised 8./5/2010 CSE with comments from MV. AB & C1VI Revised 8/11/2010 CSE with comments from. MV. AB & C[vl. MIADOCS 4419291 2 AMENDED AND RESTATED AGREEMENT TO ENTER INTO GROUND LEASE AS OF FEBRUARY 1, 2010 OF AGREEMENT TO ENTER INTO GROUND LEASE DATED AS OF JANUARY 1, 2003 The CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida and FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company, which is successor by merger to Flagstone Properties, LLC, a Florida limited liability company ("Flagstone"), hereby enter . into this Amended and Restated Agreement to Enter Into Ground Lease as of February 1, 2010 (the "Effective Date") of the Agreement to Enter Into Ground Lease (the "Original Agreement to Enter"), dated as of January 1, 2003 (the "Original Effective Date") as amended by the subsequent First Amendment, Second Amendment and Third Amendment each as defined below (the Original Agreement to Enter, the First Amendment, Second Amendment, Third Amendment and this Amended and Restated Agreement to Enter Into Ground Lease and all of the exhibits, attachments, and riders to all of the foregoing being collectively amended restated and superseded by and referred to hereinafter as this "Agreement"), as follows: RECITALS: WHEREAS, City owns that certain real property consisting of approximately 10.8 acres of upland (the "Upland Parcel") and 13.4 acres of adjacent submerged land (the "Submerged Parcel") in and about the northwest quadrant of Watson Island, located in Miami-Dade County ("Count '), Florida, as more particularly described in Exhibit A attached hereto (the "Property'); and WHEREAS, City desires that the Property be developed as a mixed use waterfront development in accordance with that certain Mega Yacht Marina and Mixed ` Use Waterfront Development Opportunity Watson Island Miami, Florida Request for Proposals, dated February, 2001 (as amended and with all addenda thereto, collectively, the "Watson Island RFP"); and WHEREAS, in response to the Watson Island RFP, Flagstone submitted a proposal to City entitled "Island Gardens at Watson Island RFP" dated July 13, 2001 (the "Island Gardens Proposal") for the development on the Property of a mega-yacht marina and related and other upland facilities (the "Project"), and Flagstone was selected as the most qualified and responsive and responsible bidder; and q WHEREAS, the City Commission pursuant to Resolution No. 01-972, adopted September 17, 2001 and Resolution No. 01-1028, adopted September 25, 2001(both attached hereto and made a part hereof as part of Composite Attachment 1), polled the 4 224398 05/05/10 showing changes from 05/03/10 �;fI�DQ�S4419?312 - electors of the City of Miami regarding leasing the Property to Flagstone Island Gardens, LLC for the Project and on November 6, 2001, the Island Gardens Proposal was approved by voter referendum by the electorate of the City of Miami (the "Referendum"), which Referendum granted Flagstone the right to negotiate with City the terms and conditions by which Flagstone would develop and ground lease the Property; and WHEREAS, Flagstone Properties LLC subsequently merged with Flagstone Island Gardens, LLC ("Flagstone") and pursuant to City Commission Resolution No. 02-1304 adopted December 12, 2002, the City and Flagstone previously entered into the Original Agreement to Enter for the development and ground lease of the Property, subject to the terms and conditions contained therein and subsequently amended those terms and conditions (a) pursuant to City Commission Resolution No. 04-0558, adopted September 9, 2004, authorizing the First Amendment to Agreement to Enter Into Ground Lease and Amendment to Form of Ground Lease, dated December 12, 2004 (the "First Amendment"), (b) pursuant to City Commission Resolution No. 06-0674, adopted November 9, 2006, authorizing the Second Amendment to Agreement to Enter Into Ground Lease, dated December 8, 2006 (the "Second Amendment"), and (c) pursuant to City Commission Resolution No. 08-0350, adopted June 12, 2008 authorizing the Third Amendment to Agreement to Enter Into Ground Lease, dated July 30, 2008 (the "Third Amendment"); and WHEREAS, Flagstone has requested in accordance with the Watson Island RFP and the Island Gardens Proposal, among other things, for the development of the Property to occur at Flagstone's option either on an entire Project basis or on a component by component basis, and the City Commission has authorized pursuant to Resolution No. 10- , adopted , 2010 (attached hereto and made a part hereof as part of Composite Attachment 1), certain terms and conditions for, among other things, development of the Property on either an entire basis or on a component basis and related ability for Flagstone to enter into either one ground lease or multiple ground leases for different areas of the Property if and as may become necessary, all in accordance with this Agreement; and WHEREAS, the execution of this Agreement on behalf of Flagstone has been authorized by Flagstone, which authorization is attached hereto and made a part hereof as C-2t11-ntx site -Attachment 2, and is consistent with Flagstone's governing documents; and WHEREAS, this Agreement (a) now amends and restates the Original Agreement to Enter, the First Amendment, the Second Amendment, the Third Amendment, and all exhibits, attachments, and riders to the foregoing, (b) adds certain new terms and conditions, and modifications agreed to by the City and Flagstone which are consistent with the RFP, the Island Gardens Proposal, and the Referendum, and (c) is intended to fully and completely supersede, replace, and restate the Original Agreement to Enter, the First Amendment, the Second Amendment, the Third Amendment, and all exhibits, attachment, and riders to the foregoing including, but not limited to the 'form of Amended and Restated Ground Lease(s) (hereinafter the" Ground Lease(s)") as set forth below; and 224398 5 05/05/10 showing changes from 05/03/10 vtlaDQCS 4:1 L�3„7.$1 2 NOW THEREFORE, in consideration of the premises and the mutual covenants herein contained, Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, City and Flagstone agree as follows: ARTICLE 1 DEFINITIONS; INCORPORATION OF RECITALS, EXHIBITS AND ATTACHMENTS, AND EFFECTIVE DATE The foregoing Recitals are true and correct and are incorporated herein by this reference. All attachments and exhibits to this Agreement are incorporated herein and made a part hereof by this reference. This Agreement shall be effective as of the date of execution hereof by the City, as set forth next to the place designated for execution by the City on the last page hereof. The parties hereby agree that the "Effective Date" as used herein shall be deemed to be February 1, 2010._ -.All capitalized terns used but not defined in this Agreement shall have the meanings ascribed to such terms in Exhibit B attached hereto or in the form of Ground Lease(s) attached hereto as Exhibit C. ARTICLE 2 NATURE OF THIS AGREEMENT; GROUND LEASE ATTACHED; NEW CONSTRUCTION SCHEDULE, OPTIONS TO EXTEND, NEW PAYMENTS SCHEDULE, RELATED DEFAULTS, AND NOTES REGARDING CONDITIONS RELATED THERETO 2.1 Nature of this Aureement; Term. 2.1.1 This Agreement constitutes an agreement to enter into one or more ground lease(s) in order for Flagstone to have the option to accomplish the development of the Property all at once or on a component by component basis upon the terms and conditions set forth herein. This Agreement shall not constitute a lease of any portion of the Property and shall not impose any encumbrance on the Property nor entitle Flagstone or any other Person to file a lis pendens in connection with this Agreement or any alleged breach or default hereunder. 2.1.2 Term. The term of this Agreement shall commence upon the Effective Date and, unless sooner terminated by the terms hereof (except for any provisions hereof that expressly survive such earlier termination), continue until the --later of -•(a) the execution of one Ground Lease if Flagstone determines to develop the Project on the Property all at once, or (b) until the execution of the last of all Ground Leases relating to Major Project Components if Flagstone determines to develop the on a component by component basis. 2.1.3 Before entering into any Ground Lease(s), whether all at once or on a q component by component basis, Flagstone must meet any arad all conditions precedent, as stated in this Agreement, for construction of the related Major Project.Component(s). The last day which can be the Lease Delivery Date for each Major Project Component shall be as follows: (a) for the Marina Component, February 1, 2013, (b) for the 224399 6 05/05/10 showing changes from 05/03/10 Nf1.:1pCS44192$12 Parking/Retail Components, February 1, 2013, (c) for any of the Hotel Components (if no option to extend the commencement of construction is exercised), February 1, 2018, (d) for the Hotel Components (if the first five-year option to extend the commencement of construction is exercised), February 1, 2023, and (e) for the second Hotel Component (if the second five-year option to extend the commencement of construction is exercised), February 1, 2028; .provided, however, that construction of any Major Project Component must commence for that Component within ninety (90) days after the applicable Lease Delivery Date and cannot commence beyond the construction commencement dates set forth for each Major Project Component in Composite Attachment 3. 2.1.4 In no case shall this Agreement continue beyond January 31, 2018, unless Flagstone has exercised one or both of its five-year options to extend the commencement of construction of one or both of the Hotel Components as set forth in Composite Attachment 3 described in Section 2.3 below and in such event pursuant to Composite Attachment 3, (i) should Flagstone exercise only the first 5-year option to extend, then the term of this Agreement shall expire on January 31, 2023, and (ii) should Flagstone exercise both the first and the second 5-year options to extend, then the term of this Agreement shall expire on January 31, 2028. 2.2 Ground Lease(s). Attached as Exhibit C is the Amended and Restated form of Ground Lease(s) (as such may remain as one ground lease or may be divided into separate ground leases, at Flagstone's option) which (i) the parties have fully negotiated and approved, (ii) has been approved by the City Commission at a regularly scheduled meeting, (iii) has been approved by Flagstone, and (iv) the parties intend to execute and deliver to each other, subject to the satisfaction, waiver, or deferral of the conditions precedent set forth in ARTICLE 4 and ARTICLE 6 of this Agreement in connection with development of the Property all at once or on a component by component basis. 2.3 New Construction Schedule New Payments Schedule, Options to Extend, Related Defaults and Notes Re arding Conditions Related Thereto. 2.3.1 Attached as Composite Attachment 3 are the New Construction Schedule, Options to Extend, Defaults, and the New Payments Schedule and Notes Regarding Certain Conditions Related Thereto which (i) the parties have fully negotiated and approved in order to undertake the development of the Property on a component by component basis and to make corresponding required payments to the City on a component by component basis, (ii) has been approved by the City Commission at a regularly scheduled meeting, (iii) has been approved by the authorized representatives of Flagstone on, and (iv) which the parties intend to apply to both this Agreement and to each Ground Lease, including the form thereof,. unless sooner terminated in accordance with the terms and conditions hereof (except for provisions that expressly survive such termination). 2.3.2 Composite Attachment & Serves as Guideline for Business Terms: ° With reference to Composite Attachment 3 attached and incorporated, the parties intend that as each of the Amended and Restated Ground Lease(s) is prepared for execution, the parties' legal counsels shall (i) utilize the form of Amended and Restated Ground 7 224398 05/05/10 showing changes from 05/03/10 �fl_1:€7QCS 41;1,�?2$i 2 Lease(s) attached hereto and incorporated hereby as Exhibit C, (ii) consistent with the covenant of good faith and fair dealing and consistent with the requirements of the RFP, the Island Gardens Proposal, and the City Commission's authorizing Resolution No. tailor such form of Amended and Restated Ground Lease(s) so that it properly applies to the specific Major Project Component then being ground leased, and (iii) incorporate the terms from Composite Attachment 3 as are relevant to such Amended and Restated Ground Lease(s). ARTICLE 3 INSPECTION PERIOD 3.1 Termination of Access and Indemnification Agreement. The parties hereby acknowledge and agree that the certain Access and Indemnification Agreement entered into between City and Flagstone was previously terminated in 2003 and is of no further force or effect (except for any indemnification and confidentiality obligations which expressly survive such termination). 3.2 Inspections. 3.2.1 Flagstone has performed, at Flagstone's sole cost and expense, all such investigations and inspections as to the Property, the physical condition thereof, matters of zoning, title, survey and all other matters with respect to the Property, including, without limitation, environmental matters (collectively, the "Inspections'), which are in Flagstone's judgment relevant to Flagstone's determination whether to lease the Property (subject to the terms and conditions contained herein) or to terminate this Agreement. Prior to performing any on-site Inspections, or which are necessary for Flagstone's lenders, Flagstone has previously provided for such Inspections conducted before the Effective Date of this Agreement and shall provide, if any further Inspections (including any related access agreements for Inspections to be conducted by Flagstone's lenders) need to be provided or conducted after the Effective Date of this Agreement) at least three (3) business days prior written notice to the Director of Real Estate and Public Facilities, City of Miami, at 444 S.W. 2nd Avenue, P Floor, Miami, FL 33130, Telephone: 305/416-1436, Facsimile: 305/416-2156 (or to such other City representative as designated by City), which written notice provided or shall provide, as the case may be, reasonable details regarding the type and scope of Inspections) performed or to be performed, as the case may be, information for the related access agreement(s), and the scheduled date and time of such Inspection and provided or shall provide, as the case may be, the \,lanager with, the opportunity to have a representative from the City present at any such Inspections. Any written report, test, analysis, evaluation, appraisal, study or similar item with respect to the physical condition of the Property which is in the possession or control of City, shall, upon written request of Flagstone, be made available to Flagstone at reasonable times for review. 3.2.2 Following any such Inspections, Flagstone restored or shall promptly", restore, as the case may be, the Property to the condition existing immediately prior to such Inspections. Flagstone and its agents, employees, representatives and contractors shall keep the results of any Inspections confidential (provided, however, that Flagstone 224398 8 05/05/10 showing changes from 05/03/10 vtJAQ.0 CS 41_1!32$12 may disclose all information obtained with respect to the Inspections to its principals, officers, directors, bankers and investors (including potential bankers and investors, attorneys, contractors and advisors as long as such parties agree to keep the information confidential)), and this obligation shall survive the termination of this Agreement. Flagstone shall promptly deliver copies of any of the reports prepared in connection with any of its Inspections directly to the Manager. The Inspections conducted prior to the Effective Date of this Agreement were conducted and the future Inspections conducted after the Effective Date of this Agreement shall be conducted in accordance with all applicable laws utilizing licensed and insured professionals and Flagstone did cause and shall cause, as the case may be, its inspectors to obtain, at Flagstone's sole cost and expense, any and all licenses and permits required to conduct the Inspections, as applicable. 3.3 Environmental Inspections. Notwithstanding anything contained herein to the contrary, with respect to any Inspections regarding environmental matters related to the Property (such Inspections shall be referred to herein as the "Environmental Inspections'), in addition to the requirements set forth in Section 3.2 above, the following shall apply: 3.3.1 Any Environmental Inspections were performed and shall be performed, as the case may be, by those certain environmental firm(s) or consultant(s) listed on Exhibit 3.3.1 attached hereto and no other environmental firm(s) or consultant(s) shall be permitted to perform the Environmental Inspections without the prior written approval of the Ghief••lr-tee-uti-ve--Offie•eeCit -Manager, which may be given or withheld in his or her sole and absolute discretion. 3.3.2 Flagstone did not, and shall not, perform any invasive environmental tests (such as drilling or soil or groundwater testing) unless thekie# l✓eeltiwe 4f icer -City Manager has provided its prior written consent thereto, which consent may be withheld in City's sole and absolute discretion. Flagstone's request for any invasive environmental testing must be accompanied by the inspection report (including all test results and analysis thereof) prepared by a reputable environmental engineering company which recommends such additional testing and sets forth the basis thereof and the protocol for testing in reasonable detail. 3.3.3 Flagstone agrees that in the event the need arises to notify, under applicable laws, any federal, state or local public agencies of any conditions at the Property as a result of the Environmental Inspections performed by Flagstone, its agents, employees, contractors and/or other representatives, Flagstone shall notify the City Attorney only and such disclosures shall be made directly by the City (if deemed necessary thereby), and not Flagstone, to any such public agency. 3.4 Indemnification. Flagstone assumes all risks associated with the Inspections Gone or to be done in the future and agrees to indemnify and hold harraless City, of, from and against any and all costs, losses, claims, damages, liabilities, expenses and other obligations (including, without limitation, reasonable attorney's fees and court costs) . arising from, out of or in connection with or otherwise relating to the Inspections, 224398 9 05/05/10 showing changes from 05/03/10 'v_1L11�Q�S X33197.81 2 including, without limitation, the entry by any one or more of Flagstone and its agents, employees, contractors and other representatives in or upon the Property for the purposes of the Inspections. The foregoing shall not apply to any diminution in the value of the land or cost or expenses which might arise due to the uncovering of the existence of adverse conditions (e.g., environmental conditions), provided, however, That the foregoing is not intended to relieve Flagstone from liability if Flagstone, its agents, employees, contractors or other representatives cause(s) such a condition to exist. The foregoing indemnification obligations of Flagstone shall survive any expiration or termination of this Agreement. 3.5 Insurance. Flagstone diel—ane4—alse.-shall provide an updated Certificate of Insurance ,prior to the execution of this Agreement to be attached hereto as part of Composite Exhibit 3.5 and shall in the future, prior to entering the Property and performing any Inspections, provide to City evidence of insurance by Flagstone and its contractors, as applicable, as specified in al-1--Composite Exhibit 3.5 attached hereto, insuring against any liability by any one or more of Flagstone and its agents, employees, contractors or other representatives arising from, out of or in connection with or otherwise relating to the entry by any one or more of Flagstone and its agents, employees, contractors or other representatives in or upon the Property for the purposes of the Inspections. Flagstone shall provide City with a certificate from Flagstone and its contractors, as applicable, evidencing such insurance coverage, naming City as an additional insured thereon and which insurance coverage shall be kept in force until the expiration or earlier termination of this Agreement. ARTICLE 4 AGREEMENT CONDITIONS AND DELIVERIES 4.1 FInstone's Acknowledgments and Deliveries. 4.1.1 Accept nee of Property. Flagstone acknowledges that it has had adequate opportunity to review and has inspected and reviewed all portions of the Property, including, without limitation, the status of title, survey and the environmental condition of the Property, and, on the basis of its Inspections, Flagstone has determined that the condition of all portions of the Property is satisfactory to Flagstone, and subject to the Amended Partial Modification of Restrictions as defined in Section 4.2.5 below and, and subject to any updates to the Title Commitment (such updates to be paid by Flagstone), upon delivery of possession of the Property by City to Flagstone, Flagstone shall accept every portion of the Property in its "AS-IS, WHERE-IS, WITH . ALL FAULTS" condition, without requiring any action, expense or other thing or matter on the part of City to be paid or performed, other than those obligations of City set forth on Exhibit 4.1.1 or in this subsection. 4.1.2 Environmental Condition Acceptance Notice. Flagstone acknowledges that on or before the expiration of the Inspection Period, Flagstone ° executed and delivered to the City the "Environmental Condition Acceptance Notice", dated March 10, 2006, in form and substance attached hereto as Exhibit 4.1.2. 224398 10 05/05/10 showing changes from 05/03/10 nt11DUCS__4419„7.,12,.. 4.1.3 Investors. As of the Effective Date, Exhibit 4.1.3 attached hereto is a true, correct and complete listing (the "Investor List") of the name, address and Social Security Number or U.S. Federal Taxpayer Identification Number (or in the case of foreign investors who do not have such Social Security Number or U.S. Federal Taxpayer Identification Number, any similar identification number, if one exists, provided for in the country of their primary residence or domicile) of all of the currently existing Investors in the Project other than those Investors: (a) whose investments in the Project are made through an Existing Investment Fund; or (b) who are or will become Investors on account of a Going Public Transaction. (collectively, the "Non -Disclosed Investors") (it being understood and agreed that all Investors other than Non -Disclosed Investors shall be referred to herein as the "Disclosed Investors" ). 4.1.3.1 As required by the RFP, the Island Gardens Proposal, and as set forth in the form of Ground Lease(s) attached hereto as Exhibit C, Flagstone acknowledges and agrees that Mehmet Bayraktar and/or the qualified members of the Bayraktar Family shall at all times retain voting and beneficial control of Flagstone for the time periods required.eeordirrg4}; at st�eh lz�ter-tir13e-13ertn3tted; tfs ity sltal4 have the riglu; it3 its sole cli�letif�l3; Ii>t rrc�t the c�bliatietr-}{�fln €he re�}��est c I lragstone e allo�o sfl3rle cjthe3 aali€eel Disclosed l west®tie-have s�ieli vetir� control Accordingly. at such later time perinitted, the City shall have the right, inits sole discreticm. but not the obligation inion the request of 1'Iagstone to allow some other disqualified. Disclosed Investor to have such voting control. During the term of this Agreement, Flagstone shall cause its Financial Advisor to require each Disclosed Investor (other than Flagstone or Mehmet Bayraktar) to complete the Investment Questionnaire. Based on the responses to the questions in the Investor Questionnaire and such other due diligence the Financial Advisor may perform in the normal course of its fiduciary duties, the Financial Advisor shall determine, in its good faith, commercially reasonable judgment, whether or not such Disclosed Investor is a Disqualified Person. Financial Advisor shall not propose to the City any Disclosed Investor which it has concluded is a Disqualified Person. Furthermore, the City itself shall have the right to object to any Disclosed Investor if it determines in its good faith commercially reasonable judgment that such Disclosed Investor is a Disqualified Person. The parties acknowledge and agree that no Disqualified Person shall hold a legal or beneficial interest in the Project. 4.1.4 Organizational Documents. As of the Effective Date, the documents listed in Exhibit 4.1.4 attached hereto constitute all of the existing organizational documents of Flagstone, including, without limitation, any operating acid/or voting agreements among the members thereof (collectively, the "Organizational Documents"), and Flagstone has provided to the A-1anager true, correct and complete copies of all such Organizational Documents. Flagstone shall promptly provide City written notice of any amendments, modifications, additions or terminations of the Organizational Documents, together with written copies thereof. The member(s) or other Investor(sl of Flagstone shall not enter into any voting agreements o the effect of which would cause Mehmet Bayraktar and/or other qualified members of the Bayraktar Family, to become contray to the form of Ground Lease(s) (which was prepared in accordance with requirements of the RFP and the Island Gardens Proposal), to relinquish voting and beneficial control of Flagstone: provided, however, major or 224398 I I 05/05/10 showing changes from 05/03/10 An DQCS 44t97_$1_1. material decisions requiring investor or shareholder consent, agreements among minority shareholders and/or other customary commercial arrangements are not intended to be prohibited by the foregoing. 4.1.5 Expressions of Interest. The Original Agreement to Enter had attached to it as Exhibit 4.1.5 a letter to the City from Flagstone's then Financial Advisor and Holiday Fegnolio, which set forth in favor of the City that, based upon the Island Gardens Proposal, the Original Agreement to Enter and the original form of Ground Lease attached thereto as Exhibit C, such parties were highly confident that Flagstone would be able to raise its Initial Equity Requirement, which together with the projected financing would be sufficient to fully fund the development and construction of the Project Components as then contemplated as well as the operation thereof through Project Stabilization as originally defined. 4.2 Other Conditions and Deliveries. 4.2.1 MUSP Approval. From and after the Effective Date and at no costs to the City, Flagstone shall use good faith reasonable efforts to maintain in full force and effect the approval of the Major Use Special Permit by the applicable governmental authority(ies) for the Major Project Components. To date, Flagstone has obtained such Major Use Special Permit approval as evidenced by Resolution No. 04- 0462, adopted by the City Commission on July 8, 2004. Flagstone has subsequently requested and been. granted modifications to said Major Use Special Permit approval through "de minimus" non-substantial changes (such approval, as modified from time to time, shall be referred to herein collectively as the "MUSP Approval"). With reference to the existing MUSP Approval and any future modifications to the MUSP Approval, the City shall reasonably and in good faith cooperate with such efforts, including, without limitation, executing all applications jointly as owner, if necessary. Flagstone shall obtain written approval of the Manager to any application for a modification for the Major Use Special Permit which shall include any applications for zoning changes or variances and/or amendments to the Comprehensive Plan currently in effect for the City of Miami (collectively, the "MUSP Application") prior to submission of the MUSP Application to any governmental and/or quasi-governmental agency (it being understood that, notwithstanding anything contained herein to the contrary the Chief-Executive.-Off•€tieerCity 1\ IanaQer may withhold his or her consent to any zoning changes, variances or Comprehensive Plan amendments included in the MUSP Application in his or her reasonable discretion). The 1�11S.1�-A1}prn�aal-earrentlyx}�ires atrJt�1}�r�•-?•U-1•t!?�?-}-?._ ('1*h�}-ior eac�ira�ia}� f#fete of Jolt-•8-X41•{-E1-�veEk-e•�ctendec4-€fir-t�-c�-(2) �+eals�sulsttant to Laws �1f 1'lf?rida-(`ltapter X0••1-0-1.47 FEc�n��i�ittee�ubst}tote tor--Senate 13i11�1u}r}ber-173?- - •ecrl•lectvely--- `=Se}Brite--I�}11---1-1�-5-2=}--I-he-C-�•t�-•af-k}�er•�•led�xe;,--that•-Et 'v1 U):SR-tl .. t-ey-a l- a. }eceiwed �t written request for-such-e;�ter}sion €iom4l1e-holder-of•the...s re,vided-ttj-ider senate-1.311.1-4752:4-\! staiid}n<x....an.- 11-ave-been p}ev}ofEsly tx-•e€feat- pur9ttftnt-._to..-the-L-••"•}tv-s••-lend-clew•elf3t}rtiet}t-re��alftttarts:-•t'1=he--l�l•F3••��'1� f11313'Ff3Wai i9 h@ieli r e'fiEii(leEi–fE)}' i}f3 'xtL1(ittiOnal j9el}E3f1 Of-t«{> (?} Feat's—uftfi•}-pef}ed&-•()f Ito- {2)-years-eaclrfr�}t}-the -eu}rent-expiration-date With the-extensi-er}s-re.fereneed ltereit}; tke nem=e�(pitatiel}-�1ate of-the-1 4O:rS1� �ppre�rtl_is y-&;--M-14-.-C-The-parties ex ressl -ackne led e that the e� te}}sions- rowided b ex�tte-Bill-175? m et e -of€eetive 224398 12 05/05/10 showing changes from 05/03/10 t1:17)OGS.4119?.812 Errol tcrextexsi©n� etc}rated under the f'it�+'s'al el-cle�selc��3rrrerlt lea�+latl©rls } The parties agree to use reasonable, good -faith efforts to agree upon any other necessary modifications to the MUSP Approval or the MUSP Application, as applicable, which result from any governmental or quasi -governmental process, provided that in no event shall the Lhief l xecutiv E3€� erC•'it" Mana.er be required to consent to any changes which would violate any material terms of the Watson Island RFP or deviate materially from the Island Gardens Proposal. Prior to the Possession Date for the first Ground Lease, Flagstone shall have submitted to and received approval from the appropriate Governmental Authority for any.MUSP Application, including but not limited to any MUSP modification relating to the Major Project Component covered by such Ground Lease. 4.2.2 NOPC Approval. Flagstone has obtained a determination dated June 21, 2004 from the State of Florida Department of Community Affairs ("DCA"), and shall use good faith reasonable efforts to maintain in full force and effect such determination of the DCA, that a "Notice of Proposed Change" ("NOPC") to the Downtown Development of Regional Impact Increment H ("Downtown DRI"), which amends the Downtown DRI to: (i) add the Marina as a new use thereunder, including the applicable simultaneous increase and decrease from an existing land use category to account for any impacts of the Marina slips on traffic, if necessary; and (ii) expand the boundaries of the Downtown DRI to include the Project (such approval shall be referred to herein as the "NOPC Approval"), would not result in a substantial deviation under Chapter 380 of the Florida Statutes. The City has amended the Downtown DRI in accordance with the NOPC to accommodate the Project. Flagstone has in the past obtained and shall for any future submissions obtain written approval of the Ghi-e€ Exeet-t6vie-Offie erC itv Manager to any application for a NOPC and for any continuation or modification requirements therefor (collectively, "NOPC Application") prior to submission thereof to the City of Miami Downtown Development Authority ("DDA"). No other development orders or amendments thereto shall be applied for without the express prior written approval of the Chief leeltiwe L3freerCity Manaser. Any future changes to the NOPC Application or any other required approvals or continuations during any future NOPC approval process, including, without limitation, any conditions that may be imposed by DDA or DCA in connection therewith must be approved by the Ghi.e€ Exeeutive Offreef•City Manager in advance of the approval of the NOPC. The parties agree to use reasonable, good -faith efforts to agree upon necessary modifications to the NOPC Application or any other required approvals or continuations which result from any governmental or quasi -governmental process, provided that in no event shall the Chief-L4xec-utWe-O•ffreerCity Mana-er be required to consent to any changes which would violate any material terms of the Watson Island RFP or deviate materially from the Island Gardens Proposal. Attached hereto as Exhibit 4.2.2 is a letter from DCA with respect to the vested rights for the existing marina slips at the Property. Flagstone hereby agrees that it submitted the NOPC Application to DCA for approval thereof in a timely manner o and that for any future updates, if and as applicable, Flagstone further agrees that it will D make any required submissions in a timely manner. 4he 4 its issued E} develour�lent order {the `DIR 1 -Order") -in c c��rt3ee#io}1-witl} tl3e l3oi�r�tc�wr�-Dl�l-ainei�elrrrent-related to-the•-P-�>� eet: •�;orrdttic�t�•-a-•ef tlre-I�•F�•1r1-Circler 13 224398 05/05/10 showing changes from 05/03/10 •jj.Aj (KI 1.1°281 ?:. 122reAdes anion'= otherthings-i-t}iat £ oil 95t Uotiell.-an a-:Raltieil—et tli£-{ foifet_i•kik�it-•St.ai*t-t}e latert}tan—si\....(j.. eaPti-aftf'I' t13e i'ft8fi tilde CiatE of -d -ie Agreek] en 4o linter } hE 1° rr5t A-mend•knent-terthe he-e€#eetive elate to-lu(v {- x()414; thei${rtr oxtelldini> the con5tructton e�rminellcekneklt ela-...;to Ix•lor-ida-St�atiktes Sectie�n--3g(1:1}€i-...tl}e-c;e3nstr�ikctiekkl-ee�rrlrl}ekleenlent-dikte• trrlelek.-.tho-l�lll�•1 Ordek i� as frxrther extene{ad by three-�>) ears-1'lieraiero-the eoi striae-fien eokrrrkerleekrkerit date othe I�lJl�l; k�ased ori the l Ir�t Anlerkdnloirtte4-he-!k<*l eenleikto Ek3ter rknd l loritla Statutes Seotiotl 13E} €# -is Frklt-1-2I313 11te k3arties-new-agi-ee-her'eiii that: fCik= �lkr e)si'5-e dEt4ri31ikikii�_' E3nli thE`eeii5trtiGtff3n-LefiTit�ltCreefiiierlt-d-ealline-under. the 13D1 1 -the ``effective elate of the k�xreen�ei}t-to-linter shxild-E�e deerned-to-be-ixehrriar 1; 2£? 141:-'Thlxs-tile ee3rrstructie>n-eenlinexe ekljent dea ..... . .... er-the•-DDR1-rs-heretr� doer keei tc�...�e.-},.ef�rekai-y {..;..20+6 4.2.3 MUSP/NOPC Application Date and Approval Date. The date of the latter of the filing of the MUSP Application and the NOPC Application shall be referred to herein as the "MUSP/NOPC Application Date". The date of the latter of the MUSP Approval and the NOPC Approval shall be referred to herein as the "MUSP/NOPC Approval Date". 4.2.4 First Source Hiring Agreement. The parties acknowledge that Flagstone and the City have previously executed four (4) counterpart originals of a "First Source Hiring Agreement" (prepared by Flagstone) for the Project (which is referred to in Section 34.1 of the Ground Lease), which First Source Hiring Agreement (a) was in form and substance reasonably acceptable to the parties and (b) shall continue to remain in full force and effect as required by the RFP. 4.2.5 Partial Modification of Restrictions; Amended Partial Modification of Restrictions. (a) From and after the Original Effective Date, City used good faith reasonable efforts(which shall in no event be deemed to have included any financial obligation on the part of the City) and obtained from the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (the "Board of Trustees") a "Partial Modification of Restrictions" (the "Partial Modification of Restrictions") which modifies the restrictions set forth within Deed No. 19447 from the Board of Trustees in favor of the City filed for record April 11, 1949 in Deed Book 3130, Page 257 of the Public Records of Dade County, Florida ("Board of Trustees Deed") in order to permit the Project. City's efforts to obtain the Partial Modification of Restrictions for the Project were not inconsistent with other actions and efforts by the City in connection with the City's obtaining of other partial modifications of restrictions from the Board of Trustees. Such Partial Modification of Restrictions was obtained by the City March 2, 2005 and requires the State to approve the amended and restated form of Ground Lease(s) attached to this Agreement. 4 4 (b) On March 25, 2010, the City Commission pursuant to Resolution No. 10-144 authorized the City to discuss the proposed amended and restated form of Ground Lease with the Board of Trustees to determine whether any amendments would 224398 14 05/05/10 showing changes from 05/03/10 At111;)(jC9441y2$12 be necessary to the Partial Modification of Restrictions. On , 2010, the City obtained the required updated approval (the Amended Partial Modification of Restrictions) from the Board of Trustees for the form of Amended and Restated Ground .Lease(s) attached hereto. On , 2010 pursuant to Resolution No. 10- , the City Commission authorized the City to enter into the Amended Partial Modification of Restrictions with the Board of Trustees. In accordance with the Amended Partial Modification of Restrictions, 4.2.6 Removal of Existing Occupants. The parties acknowledge that the existing occupants of the Property described on Exhibit 4.8 attached hereto (the "Existing Occupants") have been removed from the Property. The City shall have no responsibility under any agreements negotiated by Flagstone with Existing Occupant(s) (it being understood that: (i) in no event shall Flagstone be permitted to bind the City to any such agreement in the event that Flagstone and the City do not enter into a Ground Lease hereunder or in the event of any termination of such Ground Lease; and (ii) any such. agreement between Flagstone and an Existing Occupant(s) shall contain an acknowledgment by such Existing Occupant(s) that its rights under such agreement relate only to Flagstone's leasehold estate and such Existing Occupant(s) releases City from any and all claims of rights to occupy the Property or entitlement to compensation in lieu thereof in the event of a termination of the Ground Lease for any reason whatsoever). 4,2.7 Each party hereby agrees to keep the other parry regularly apprised in writing as to what actions have been taken by such party in order to satisfy their respective conditions precedent set forth above and the status thereof. 4.2.8 Labor Peace Agreement. The parties acknowledge that this Agreement and the Amended and Restated Ground Lease(s) are subject to the requirements of City Commission Resolution No. 09-0263, adopted May 28, 2009 (attached hereto and made a part hereof as Gemposite-Attachment 4). 4.3 Outside Dates. As set forth in Section 2.1.3, the parties agree and acknowledge that certain outside dates (collectively, the "Outside Dates") are established for the commencement of construction of each Major Project Component on Composite Attachment 3, so that when adding up all of the time periods for satisfaction of the conditions precedent set forth in this ARTICLE 4 plus all the applicable extensions therefor (including, without limitation, any extensions or other required time periods set forth in Composite Attachment 3 regarding the New Construction Schedule, the Options to Extend, the New Payment Schedule and the Notes Regarding Conditions Related Thereto) the longest possible term for this Agreement shall not continue beyond February 1, 2028 for both (i) the date for entering into the last Ground Lease(s) for the final Major Project Component(s) (the "Final Possession Date") and (ii) the start of construction for all of the Components (the "Final Construction Commencement pate"). Therefore, the parties acknowledge and agree that notwithstanding anything contained herein to thb contrary, either party shall have the absolute right to terminate this Agreement by providing written notice to the other party if the conditions precedent set forth in Section 4.2 above are not satisfied on or before February 1, 2028. 224398 15 05/05/10 showing changes from 05/03/10 At7;1DOCSa1_tQ2$12 ARTICLE _5 SECURITY DEPOSIT 5.1 Securitv for the Easements. The parties acknowledged that the City has previously delivered to Flagstone certain easements or licenses referred to in Section 7.4 hereof as set forth in E c>ll}pasite- kttaehlnerrt--5 Exhibit 7.4.1 (collectively, the "Easements"). -U pe.n.-Prior to the execution and delivery of this Agreement by City to Flagstone, Flagstone shall either (a) deliver the amount of Thirty -Five Thousand and No/100 Dollars ($35,000.00) (the "Easement Deposit") to Escrow Agent or (b) provide to City, at Flagstone's sole cost and expense, a Letter of Credit in the amount of Thirty - Five Thousand and No/I00 ($35,000.00) (the "Easement Security LOC"). Notwithstanding the foregoing, Flagstone shall be permitted to utilize any combination of cash or Letter of Credit so long as the eEasement Seeilr-ity--deposit equals Thirty -Five Thousand and No/100 Dollars ($35,000.00) in the aggregate. The Easement Seufity Deposit or the Easement Security LOC, as applicable, shall hereinafter be referred to as the "Easement Security" and shall provide security for the faithful performance by Flagstone of all of the provisions of Easements to be performed or observed by Flagstone. 5.2 Securip, Deposit for the Construction Rent/Base Rent: Prior to execution of-- Formatted: _Indent: �First line: 0" thine Agreement, to Bntet Flagstone shall either (a) deliver the amount equal to one ear's Construction Rent/--andrjqr- Base Rent as defined. In Section 5.2 to the Escrow Agent or (b) provide to City at Flagstone's sole cost and expense. a Letter of Credit in the amount equal to one year's Construction .Rent--and%r-•-/Base Rent as defined herein. Notduithstand ing the foregoing, Flagxstone shall be permitted to utilize any combination of cash or Letter of Credit so longs as the Security Deposit for the Pre -Paid Construction Rent Base Rent equals the amounts defined in the aggregate The Security Deposit for the Construction Rent%Base Rent. shall herein after be referred to as the '`.Ierlt Security Rent Deposit -Rent" and shall provide security for the faithful performance by Flap -stone of all rent paympent provisions of this Agreement to be performed or observed by Flagstone. During the periods outlined below, Flagstone shall deliver the Security Rent Deposits as defined below: Commencing Annual Amount Required for Rent Security Deposit Reit Febr�uarv_t _2OMQ00000 February :1.20:1.1 $500.000 February 1, 2012 $750.000 February 1.2013 $1.,000,000 February 1, 2014 $1.000,00() 224398 16 05/05/10 showing changes from 05/03/10 All'�1;)UG,C.4.4._192812 February 1, 2015 $1.000,000 FebruaLv 1-,_201;6 $1.- 00 000 Febtuary 1, 20.1.7 $1.675,000 Febtuary 1.2018 52.000.000 Any .I.,OC Deposit held by the .Lessor or Cash Deposit held by Escrow Agent. as defined in thise .Aereetnen.t L�mav be credited toward the followm�7 year s Rett Securlh Rent .Denoslt Rei -4 +/ n ,d,J'+ t Qv9•ktti-t�fE1r %l3P—rcH•fithtd—rc"" AA efft. The annual anlaunt due an Februar 1.201.8 of 52,000.000 shall Iemaln in � effect for the life of thine Agreement te-Effletand of the CTround Creasers), in accordance with the schedule listed in this Secrio:n 5.2. If an Event of Lessees Default for non payent of tent occurs hereunder Lessor ]nay at its option and without prejudice to m anv other ri-ht or remedy that .Lessor may have hereunder. apply or require distribution of all or any portion of the Rent Seeurity Rent Deposit Rent for the payment of any sum to which .Lessor may become entitled by reason of such Event of Lessee's Default including. without limitation reasonable attorneys' fees and costs which I.sessor may incur in connection therewith. If Lessor- so a »lies or requires the distribution to Lessor of all or any portion of the Relit -Security Rent Deposit-RefA.Lessee shall. within thirty 30 d -,vs after written demand therefor. deposit cash with Lessor i i an amount sufficient to restore anv such deficiency or amend or replace any LOC Deposit. whichever is U.licable. to the full arnount thereof, and Lessee's failure to da so shall.. at Lessor's oration constitute an Event of Lessee's Default hereunder. In the event .Lessor U. plies 01- requires rre uires distribution of all or any portloil of an LOC De osis where no Event of Lessee s Default then existed Lessor shall be deemed to have improperly re uested and received such a p plication or distribution. and Lessee shall be entitled to recover from .Lessor the amount which was improperly requested and received. or to reduce the Rent Security it'tD'cv +—t'tc—srRcil—cv +'f' + iz'.t:{.l _ Deposit by. anequivalent amount. Af the e. #et�•i�tefi-ii}-aEc 'cet�et=tlt-t}•t-tkte- ^�.-�=t-�+� _ —_ — tte_ Formad1 : Font; Not Bold —3AW+iii three �^ days EAl- ,G;a-j tpeneHi 1' lan5 (31st' Fri&ll-e}tiZeI-{•Et}Eli'1i1'@I tE3-ti3e-1 SGrffltM A�L}]t-t12E aC1FiYt1{)}]ii� ti�i �}�}�}) Eler�E�sit ftn3E�unt s} eletert3lit�eEl fps }>ittltiplvirt� 'I= L() lt�llLI�I.C}}� .DGU-- rR--&-{-; 4 E,y-e froctiat3-t�hare tkte n�ttrtet-Ettor is_ the-Ettrr�3txt�Q <rf cicpl}tzrs 4�ttdneteEl-fEpt z }e development Ql stxe�li tVlltEpt T�reec-t-Ccitxoriertt prrd-Mie ElenUniitiator-ie-tke-trmcpurlt k�ttEletetl fFpr the overall-lztoect-devE?ltpp}stent-{the-` EPciltio�}stg DepaSii• i er--•(b-)-.prOwide-t©-L•.'it ; at klaastanE>'-s--sole---c;ost-rtnd-caper}:;e;-an.--addrtiEarial-.l;ettet---cpf-L-;redt--ir}--xl}e-sttrr�e 17 224398 05/05/10 showing changes from 05/03/10 }�tol�ot=tiflt�ate-atn�Ttznt {the•-`:�dditii�n�a4-I:,�I�::'-'}_(tl;e-:k•�iElitic•3�a} t3elrcTstt r�r the '1.dd:ttlflrta•} 1 OC:: as-Erl�p}ieftble; 1}ereinafter the ``Adclition�el-iieeug*ity"-). l lft tcTne-sha}l 5irbprtlt the Go nstr••uetien 13�ad�:et -re ptireE{-4n- �ecticTn-fi:4 : � tc> ena}rle tkle artier to -cel u4ate•-the afOretnel}ttOned pre pata-..amounts. I�flt�apth5tftnc4finb the _tflpegflinn, l lagstc�p�e-sl?al}-(�e pe1'13titte{I tET-ltti}lie at3y e(1}fT�ilnat}flri CTt eaS}p ()} I ettE'I: Eif % p'ei4it SCT }Oi3 aS-tiif Add•itpflnal Seeitrity—e+}tta};-tl�e- iecluired-anic�ulit -in -tke -aggregate: .—Flagstone—shall eflntinue -te maintain-•tile-r�dditieTnzp} �eet�ptty-e�ir-•a-co-rnpflnent {�y_e�Tn�pot3ent-basis--b�+-tlte-recluired p�lopflrticTnztte-aprtflunt"ef-tl e 1?pfl}eet develol�lrlent-kludget tliroug4iout-the-tenx�s-cT the respeetive•--L-ir-eTunet---L-ease: --4'he ••Iasenrent recur-ity-.-and- the-Act�iitieTna4—Saentrlt�•� dee}leetivela+;__tlle-=`•:��e�ec>tnent..._.Seeu�ity�r.�_._s1�a14--prflwif4e.._SeEur•tt}---_for..__tlle-� fa{thful perf©�prlanoeb,-1 }a �stflne flf aTl er the }�rflvisi }rs fl€t41e Basement to•-be-pea-feTrtrlet}-or-e3l�aervee{ ••}�y-i � •}•absto-r�e: 5.34-3 Deposits; Letters of Credit. Any Security Deposit held by Escrow Agent shall be held in accordance with the Escrow Agreement, in form and substance-as-•sha•11 he-ap�ro-vecl-by-the-•%ity <4ttc�rrtey--an�4-the-C;hief�tTer-ating-Gf€ieer•-as set forth in Exhibit 53(the "Escrow Agreement"), which Escrow Agreement shall be executed by City, with the execution of the this Agreement in Flagstone and Escrow Agent simultaneously connection for Additional Security to be deposited with the Easements and shall cont under the Escrow Agreement upon the execution of the first Ground Lease and additional security deposits upon the execution of any and all additional Ground Leases. Any Letter of Credit elected by Flagstone pursuant to the provisions of this ARTICLE 5 (or a replacement thereof satisfactory to City) shall remain in effect throughout the term of the related Ground Lease(s), unless Easements and the related Ground Lease(s) are otherwise terminated. ARTICLE 6 EXECUTION AND DELIVERY OF GROUND LEASE(S) 6.1 Conditions Precedent to Execution and Delivery of Each of the Ground Leases. Within fifteen (15) days after the satisfaction of all of the following conditions precedent applicable to a Major Project Component (or the written waiver or deferral by theF 13ie€ l✓xeeuti�Je U€cerCity Nlana<-'er in his or her sole and absolute discretion of any such conditions precedent that are not satisfied), the City and Flagstone hereby agree to execute four (4) duplicate original counterparts of each of the Ground Leases for that Major Project Component (or one Ground Lease for all Major Project Components, at Flagstone's election), in form and substance attached hereto as Exhibit C for delivery to each party hereunder and in accordance with the Outside Dates for the respective Lease Delivery Dates as set forth in Section 2.1.3 above. The parties acknowledge that the Major Project Components of the Project may be developed and constructed by Flagstone on a Major Project Component by Major Project Component basis (i.e. with the Marina Component alone possibly being the first Major Project Component to be constructed). If - Flagstone develops and constructs on a component by component basis, then (a) all of the q conditions set forth in this Article 6 shall be satisfied on a component by component basis in full for the applicable Major Project Component being developed or, as applicable, deferred er- -anted-by the Ghief-1-�eeittive-Offieei-Citti iYlana er on a component by component basis, and (b) at the election of Flagstone or its lenders one Ground Lease or 18 224398 05/05/10 showing changes from 05/03/10 Aft=\I��Cs!1__11�37_81_2. separate Ground Leases shall be executed and delivered by the City and the form of Ground Lease in Exhibit C shall be revised as necessary to apply only to the Major Project Component being developed, and (c) the provisions of this Agreement that have not been satisfied with respect to all Major Project Component(s) shall continue to survive until such time as satisfied in order for Flagstone to enter into one or more Ground Leases for the development of such remaining Major Project Component(s). For any Major Project Component for which the conditions precedent have been satisfied in order to enter into one or more Ground Leases, then the provisions of this Amendment shall terminate (except for those provisions expressly surviving) and the applicable Ground Lease shall control. Within a reasonable time after Flagstone believes that it has satisfied each condition precedent of this Article 6, Flagstone shall notify the City in writing and the City shall have thirty (30) calendar days to acknowledge in writing whether the City agrees or disagrees that such condition precedent has been satisfied. Flagstone agrees to use diligent good -faith efforts to cause the satisfaction of the conditions precedent set forth in this Section 6.1 prior to the Lease Delivery Date for the applicable Major Project Component either all at once or on a component by component basis, at Flagstone's option regarding which development course to choose, and Flagstone shall promptly provide to the City Manager, from time to time, such written documentation as may be reasonably requested by the CGhief LAeeutixe Of€�terCi Manager to evidence the same. 6.1.1 Construction Plans and Specifications. The C21ieP-Bx-eeU ire 0fficei-Carty Manager shall have received and approved In his or her good faith, reasonable discretion plans and specifications for the development and construction of the applicable Major Project Component of the Project '(the "Construction Plans and Specifications") which shall be in sufficient detail in order for Flagstone to obtain foundation permits, as applicable, for such Major Project Component(s) being developed which Construction Plans and Specifications shall be in accordance with the Project Approvals. Flagstone shall submit on a component by component basis, for each Major Project Component, such Construction Plans and Specifications that shall contain sufficient detail in order for the L hief I-xece�:�ti�+e Offleei=City 1Vlanager to determine, using the Schedule of Values, the proposed Construction Budget and the GMP Contract(s) described in Section 6.1.6 hereof for each component, that the Project can be completed (either all at once or on a component by component basis, as applicable) in accordance with the MUSP Approval and the Hotels can be constructed as four or five star hotels or better, as defined in the American Automobile Association, Mobil or similar (collectively, "AAA") hotel rating standards, within the Construction Budget. Regarding the items to be included for the Marina Component, see Exhibit E attached attached to the form of Ground Lease and Composite Attachment 3 attached hereto and made a part hereof. 6.1.2 Closina of Construction Loan(s); Other. For each Major Project Component, Flagstone shall have closed its Initial Construction Loans) with an Approvedli tial Construction Lender (as defined in the Ground Lease), which financing thereunder, together with the amount of Initial Equity Requirement or more as Flagstone' may determine to invest into the same, applicable to the relevant Major Project Component(s), shall be sufficient to complete the development and construction (either 224398 19 05/05/10 showing changes from 05/03/10 i�fi1E7QC$44ty,?,,81,2,. all at once or on a component by component basis at Flagstone's option) of the applicable Major Project Component of the Project and to fund any shortfalls in operations that may exist prior to Project Stabilization for such Major Project Component. For each Major Project Component Flagstone shall provide the Chief Financial Officer with a copy of the closed Initial Construction Loan documents as evidence of such closing. 6.1.3 Initial Equitv Requirement. Flagstone shall have provided to the :ti/lanaaer written evidence satisfactory to the (=hief Executive-(-.f-fteerCiV M. anaaer in his or her reasonable judgment of the availability and/or the expenditure of the Initial Equity Requirement applicable to the relevant Major Project Component(s) (which funds shall be available to Flagstone subject to typical conditions for the funding of equity in similar projects) which, when added to the equity expenditures heretofore made by Flagstone and/or committed to be made by Flagstone or its qualified Disclosed Investors and the loan proceeds to be funded in connection with the Initial Construction Loan(s) for the relevant Major Project Component(s), is sufficient to complete the development and construction) of the applicable Major Project Component and to fund any shortfalls in operations that . may exist prior to Project Stabilization for the relevant Major Project Component(s). In connection with the foregoing, Flagstone and the Financial Advisor shall provide to the City an updated Investor List, certified to the City by the president or vice-president of Flagstone and an officer of Financial Advisor, under penalty of perjury, that such Investor List accurately sets forth each and all of the Disclosed Investors as of the execution date of each Amended and Restated Ground Lease for the particular component being financed and constructed at such time, together with a listing, to the best of Flagstone's and the Financial Advisor's knowledge, of the current address and Social Security Number or U.S. Federal Taxpayer Identification Number (or in the case of foreign investors who do not have such Social Security Number or U.S. Federal Taxpayer Identification Number, any similar identification number, if one exists, provided for in the country of their primary residence or domicile) of such Disclosed Investors: it being understood and agreed that the provisions of Section 4.1.3 hereof shall apply.to all Investors. 6.1.4 Development Team. On either an all at once development basis or on a component by component development basis, at Flagstone's option, Flagstone shall have (a) obtained the prior written approval of the 0.ffieelCity Manuel to the identities of all of the following individuals and/or entities: (i) the lead architect which is coordinating preparation of the conceptual and architectural plans for each of the applicable Major Project Components; (ii) the lead landscape architect which is coordinating preparation of the landscape plans for each of the applicable Major Project Components; and (iii) the construction manager(s) for the Project and/or for each of the applicable Major Project Components, to the extent different (collectively, the "Development Team") and (b) provided written evidence that binding agreements with each of the members of the Development Team have been executed. Each member of the Development Team shall be subject to the prior written approval of the City, which ° approval shall not be unreasonably withheld and shall include, but not be limited to, the City's ability to withhold its approval of any Disqualified Person. Flagstone shall be permitted to supplement the Development Team with additional members without the prior consent of the City: provided, however, any replacements of an approved member 224398 20 05/05/10 showing changes from 05/03/10 AfIF11�UCS X7119231 2 of the Development Team shall be subject to the City's approval in accordance with the foregoing sentence. The City hereby approves the Persons listed on Exhibit 6.1.4 attached hereto. 6.1.5 Operating Team. On either an all at once development basis or on a component by component development basis, at Flagstone's option, Flagstone shall have (a) obtained the prior written approval of the E,lrief lscec��#ive L3ffieerCity Manager to the identities of the operator for each of the Hotels (when the Hotel(s) Components are being developed and constructed) and the Marina (when the Marina Component is being developed and constructed) within the Project (the foregoing, together with Fairchild Tropical Garden and The Historical Museum of South Florida, shall be collectively referred to herein as the "Operating Team"), and (b) provided written evidence that at the time of execution of the applicable Ground Lease(s) binding agreements with each of the applicable members of the Operating Team have been executed. Each member of the Operating Team shall be subject to the prior written approval of the City, which approval shall not be—be unreasonably withheld and shall include, but not be limited to, the City's ability to withhold its approval of any Disqualified Person. City hereby approves those certain hotel operators and/or franchisors set forth on Exhibit 6.1.5 attached hereto. City hereby agrees that, if Flagstone so elects, Flagstone shall be permitted to operate or manage the Hotel(s), Marina, Retail, and/or Parking Garage either directly or through an Affiliate thereof. 6.1.6 Construction Contracts. On either an all at once development basis or on a component by component development basis, at Flagstone's option, Flagstone shall have provided to and the City .Nlanager shall have received and approved in his or her good faith, reasonable discretion one (1) or more binding construction contract(s), whether guaranteed maximum price, cost plus, construction manager at risk, or some other commercially reasonable form (individually or collectively, the "GMP Contract") which individually or in the aggregate provide for the development and construction of the applicable Major Project Component(s) in accordance with the MUSP Approval (at a cost which shall not exceed the aggregate costs for development and construction of the applicable Major Project Component(s) as set forth in the Construction Budget), together with a "Schedule of Values" for the Project to be approved by the Ghief (:ity iYtanager in his or her good faith, reasonable discretion. 6.1.7 Construction Budget. On either an all at once basis or on a component by component basis, at Flagstone's option, Flagstone shall have provided and the Nlanager shall have received and approved in his or her good faith, reasonable discretion the budget setting forth in reasonable detail the anticipated costs of development and construction of the applicable Major Project Component(s) (the "Construction Budget"). The Construction Budget shall be submitted no later than 60 days 12rior to the Commission meeting date for consideration o of the respective Gground Llease(s). 6.1.8 Construction Schedule. Prior to the applicable Lease Delivery Date for each Major Project Component, Flagstone shall provide to the Ghie€ 224398 21 05/05/10 showing changes from 05/03/10 :L*eee�ltiWe-£3ffiterC;ity .Manager evidence of all necessary Project Approvals as described in Subsection 6.1.13 below, and the E?i ief 1✓xeenti�re-£)fcerC`iy, 1Vlanauer shall receive and approve in his or her good faith, reasonable discretion the detailed schedule for development and construction of the Project Components and related infrastructure, including, without limitation, the anticipated commencement and completion of major components of the work. Flagstone may accelerate all or any portions(s) of such schedule without the .Manager's approval; provided that Flagstone shall provide prompt advance written notice to the E,hiei=E>:eeltive €3€eel'City 'Manager of such acceleration. 6.1.9 Bonds/Letters of Credit. On either an all at once basis, or on a component by component basis, depending upon Flagstone's option in determining whether to enter into one or more Ground Leases, Flagstone shall deliver and the Ghie€ I *ceeittie (}€eerCit� 11 i.ana�er shall have received and approved in his or her good faith, reasonable discretion a copy of the Payment and Performance Bond and/or Letters of Credit (which shall have been issued at Flagstone's sole cost and expense) in an amount equal to 100% of the hard construction costs of the applicable Major Project Component(s), which shall name City as the owner or dual obligee, as appropriate. The forms of such Payment and Performance Bond and/or Letters of Credit and the surety or institution issuing the same shall be subject to the prior written approval of the C=hief Lheel;tive-L- f-feer•Ci NManager, which shall not be unreasonably withheld (provided that such surety or institution has a credit rating'of A or higher with a financial strength to be mutually acceptable to the parties). Any Payment and Performance Bond may be enforced by City in accordance with its terms. 6.1.10 Hotel Mannement Agreements. On either an all at once basis or on a component by component basis, depending upon Flagstone's option in determining whether to enter into one or more Ground Leases for one or both of the Hotel Components, as applicable,—Flagstone shall have delivered and the Chief- Ems- et}tiWe F3ffieer-Cit Nb-lanaser shall have received and approved in his or her good faith, reasonable discretion (with appropriate consideration given to the manner in which similar issues are resolved by sophisticated lenders in similar transactions) binding hotel management agreements between Flagstone and the approved operators of each of the Hotels within the Project (unless the Hbtel(s) is to be operated directly by Flagstone or an Affiliate, in which case any management agreement between Flagstone and such Affiliate shall not require the prior approval of City but Flagstone shall provide to the City binding franchise or license agreements between Flagstone or its Affiliate and a nationally or an internationally recognized hotel franchisor for such Hotel(s), which franchise or license agreement shall be subject to the City's reasonable approval). Each management agreement (or franchise or license agreement, if applicable) shall provide for, among other things: (i) the operation or management of a four or five star hotel or better, as defined in the AAA hotel rating standards; (ii) that the hotel operator or franchisor shall provide written notice to the Manager of any default by Flagstone under such hotel management agreement or franchise agreement, together with the reasonable opportunity to cure such default by the City; and (iii) an attornment provision whereby the hotel operator or franchisor agrees to attom to the City pursuant to a subordination, non-disturbance and attornment agreement acceptable to the Chief 224398 22 05/05/10 showing changes from 05/03/10 \;11,;1f.)Q�;R44191.31.2 Is*ceeilt}W>Feet(Lit y Nlana>;cr.: iln his or her reasonable discretion. In no event shall the City be required to provide non -disturbance to any operator or franchisor that is an Affiliate of Flagstone (or the applicable Major Subtenant of the Major Project Component which is subject to such operating or franchise agreement), unless a non - Affiliated minority interest in such Affiliate has the right, and so exercises such right, to take over control over such Affiliated -operator or franchisor, in which event City shall provide a subordination, non -disturbance and attornment agreement thereto acceptable to the E lrief E;xeeu- ive O-f-fleet-Ci1y :1vlana�er in his or her reasonable discretion. Any such affiliated operator or franchisor shall execute a subordination agreement reasonably acceptable to the Chief lxee�ltive C)€fleerC;ity Nlanage r. 6.1.11 Insurance.. All insurance policies required to be maintained by Flagstone under the Ground Lease(s) (and applicable to the work that is then ongoing) shall have been obtained, as evidenced by the originals of such policies of insurance or certified duplicates thereof issued by the applicable insurance companies, which policies shall name the City as an additional insured thereunder. 6.1.12 No Default. There shall be no Event of Flagstone's Default (as defined in Section 11.1 of this Agreement). 6.1.13 Proiect Approvals. (a) The Partial Modification of Restrictions, MUSP Approval, NOPC Approval and foundation permits for each applicable Major Project Component(s) (the "Foundation Permits") shall have been issued by the applicable Government Authorities for the development and construction of the applicable Major Project Component(s) (collectively, the "Project Approvals"). The Project Approvals shall not be deemed to have been issued unless and until any and all appeals periods as provided by law shall have, expired without an appeal, objection or challenge having been filed, or, if filed, when such objection, challenge or appeal has been dismissed or resolved finally and conclusively to the satisfaction of the NIana`Yer in his or her reasonable judgment. (b) Flagstone shall (i) obtain and provide to the Clue -€-•-•E xeexItive OffieefCity Manager the Florida Department of Transportation Approvals ("FDOT Approvals") and City Approvals for site utility work for each of the Major Proiect Components on a component by component basis as necessary and as approved by the City and as required by the Master Declaration as a condition precedent to exec.utmlz the first Ground Lease (the utility lines needed for both Hotel C'.omponents shall be provided at the same time as the construction of the utility lines for the Palkine Retail Components) (being undertaken-l3ric�t-t<rnr-anal tile -fit• t-3 ease 13eli tet3 Date} b}-stieh tine-13eritzas-teeessar}--- to begin site utility work for the applicable Major Project Component(s), and in accordance with Composite Attachment 3 hereto, (ii) apply to the City for Foundation Permits and commence site utility relocation wopk by such time period as necessary to begin such site utility work for the applicable Major Project Components, (iii) obtain and provide any other necessary governmental approvals for commencement of construction for the applicable Major Project Component(s), and (iv) 224398 23 05/05/10 showing changes from 05/03/10 continue to use good faith efforts to keep active and in full force and effect such FDOT Approvals, City Approvals, Foundation Permits, other necessary governmental approvals, the Miami -Dade County Class I Permit for Marina which has been previously obtained, all in order for the (•'•hief E eeutive•-OfficerCat , IVl.anal�er to review and consider the construction schedule(s) as set forth in Subsection 6.1.8 above. Should any of the FDOT Approvals, the City Approvals, the Foundation Permits, the Miami- Dade County Class I Permit for the Marina, or any other governmental approvals temporarily lapse, (i) such lapse shall not be a reason to extend the Outside Dates for construction commencement of any Major Project Component, and (ii) such temporary lapse shall not constitute an Event of Flagstone's Default as long as Flagstone continues to use good faith efforts to reinstate any such lapsed FDOT Approval(s), City Approval(s), Class I Permit, the Foundation Permits, or any other governmental approval, as applicable. 6.1.14 Establishment of Skills Training and Employment Center Program. ('1rie 1✓xeE tt3� e <�ftteerCi ilJanaaer shall have approved m its reasonable good -faith judgment sufficient evidence of the establishment of a "Skills Training and Employment Center Program" at a site near the Project in Miami, Florida which shall provide for training of the construction and operations. personnel associated with the Project in accordance with the Proposal. 6.1.15 Trust Agreement. Flagstone and City shall have executed four (4) counterpart originals of the "Trust Agreement" for the "Civic Arts Endowment Trust" to be created for the Project (which is referred to in Section 26.2 of the Ground Lease), which shall be in form and substance reasonably acceptable to the parties. 6.1.16. Composite Attachment 3. The parties agree that all of the conditions precedent set forth in Composite Attachment 3 for the New Construction Schedule, Options to Extend, New Payments Schedule, Related Defaults, and Notes Regarding Conditions Related Thereto shall be a part of this Article 6'. The parties agree that Composite Attachment 3 provides the option for Flagstone to develop the Property on a component by component basis so that the conditions precedent in Composite Attachment 3 may occur on a component by component basis. 6.2 Special Additional Conditions Precedent with Respect to Component b Component Development. With reference to component by component development, the shall have received (a) subject to the terms and conditions of Composite Attachment 3 regarding time periods for cross -defaults, a form of subordination, non -disturbance and attornment agreement for such Major Project Component ground lessee, similar to the form attached to the Amended and Restated Ground Lease as Exhibit —, where the City agrees not to disturb such Major Project Component ground lessee notwithstanding a default hereunder, if applicable for that time period set forth in Composite Attachment 3 or under another Major Project Component ground lease; and (b) the(ief EsxeciEtivt-C�ff}eerCity iblanaeer shall have received a o Master Declaration, subject to City Commission Rpprovals as required, which, among other things (i) provides for the necessary rights of ingress; egress, and access so that each Major Project Component (whether developed or not) can be financed, developed and operated independently in the future, (ii) addresses the design, construction and 224395 24 05/05/10 showing changes from 05/03/10 n%&[? S 4119281..2.. provision of utility lines needed for all Components in connection with Flagstone's construction of each Major Project Component (whether developed or not) on a component by component basis or all at once, as necessary and as approved by the City, and (iii) establishes a Master Association and transfers responsibilities for all common infrastructure utilities and community property so that the entire Project can be financed and developed either all at once or in phases. 6.2.1 Right of Termination ----- -Termination. Flagstone agrees to use diligent good -faith efforts to, Formatted: Line spacing: single, Tab stops: cause the satisfaction of the conditions precedent set forth in Seetion-ii:1-ARTICLE 6 1" List tab + Not at 1.5" above and Flagstone shall promptly provide to the Manager, from time to time, such written documentation as may be reasonably requested by the Floe€ L*ce<ttiWe l)f#icerCity Manager to evidence the same. In the event the conditions precedent set forth in Seetian-FiaARTICLE 6 above are not satisfied (and the Ghief Exeeutive 0- f- leerCity Manager has not waived the same in writing in his or her sole and absolute discretion) on or before twelve (12) months from the MUSP/NOPC Approval Date (the "Lease Deadline"), City or Flagstone, so long as the terminating party is not in default hereunder (which default has not been cured in accordance with any applicable notice and cure periods provided for in :1I=I11E-1-1ARTICLE 11 hereof), shall have the right to terminate this Agreement, without cost or liability of either party to the other party, by written notice from the terminating party to the non -terminating party delivered within five (5) business days after the Lease Deadline, whereupon this Agreement shall be deemed terminated and of no further force or effect as of the date of such notice and both parties shall be relieved of any and all further liability or obligations hereunder except with respect to any provisions hereof that are intended by the parties to survive such termination. 6.3 Outside Date(s). As set forth in Section 2.1.3, the parties agree ands - - ' Formatted: Tab stops: 1', Left _ acknowledge that certain outside dates (collectively, the "Outside Dates") are established for each Major Project Component on Composite Attachment 3, so that when adding up all of the time periods for satisfaction of the conditions precedent set forth in this ARTICLE 6 plus all the applicable extensions therefor (including, without limitation, any extensions or other required time periods set forth in Composite Attachment 3 regarding the New Construction Schedule, the Options to Extend, the New Payment Schedule and the Notes Regarding Conditions Related Thereto)the longest possible term for this Agreement shall not continue beyond February 1, 2028 for both (i) the date for entering into the last Ground Lease(s) for the final Major Project Component(s) (the "Final Possession Date") and (ii) the start of construction for all of the Components (the "Final Construction Commencement Date" ). Therefore, the parties acknowledge and agree that notwithstanding anything contained herein to the q contrary, either party shall hive the absolute right to terminate this Agreement by providing written notice to the other party if the conditions precedent set forth in Section 6.1 above are not satisfied on or before February 1, 2028. 224398 25 05/05/10 showing changes from 05/03/10 AfI:'1pUC544d4?.,$12 ARTICLE 7 DEVELOPMENT OF PROJECT 7.1 Development Plans. Flagstone shall, at its sole cost and expense, design and prepare all plans required or desirable in connection with the design and construction of the applicable Major Project Components, including, without limitation_. (i) the Construction Plans and Specifications, (ii) all application materials necessary in connection with any MUSP Application, (iii) all application materials necessary in connection with any NOPC Application, (iv) all materials necessary or required in connection with obtaining the Project Approvals, the Mega -Yacht Marina Permits (as hereinafter defined) and all other permits and approvals necessary for the development and construction of the Project, and (v) any and all other necessary or desirable plans, drawings or renderings, including conceptual layouts and artistic or architectural renderings, elevations or plans (all of the foregoing collectively, the "Development Plans"). The Development Plans shall be materially consistent with the terms and provisions of this Agreement, the requirements of the Watson Island RFP, and the conditions and commitments set forth in the Island Gardens Proposal. 7.2 Use and Ownership of Development Plans and Permits and Approvals in the event of Termination. In the event of a termination of this Agreement due to an Event of Flagstone's Default, City shall be entitled to full, complete and unconditional use and ownership of the Development Plans (subject to the rights of the architect(s) and engineer(s) who prepare the same and any Approved Lenders' rights therein—and any other persons and entities with rights therein; it being understood that City shall have no obligation to bring current any existing delinquencies but shall be obligated to make payments thereafter as they become due), the Project Approvals, the Mega -Yacht Marina Permits and all other permits and/or approvals obtained by Flagstone in connection with the Project without payment of any consideration therefor by City to Flagstone. Flagstone agrees that any agreement between the architect(s) and engineer(s) with respect to the Project shall provide that the City shall have the right to use such plans with respect to the Project without payment of any additional charge therefor. Attached as Exhibit 7.2 is a list of the Permits and Approvals held by Flagstone as of the Effective Date., which Permits and Approvals Flagstone shall use good faith reasonable efforts to maintain in full force and effect. 7.3 Plattina and Other Development Matters. The Plat of Watson Island Southwest was approved by both the City and Miami -Dade County and recorded on February 7, 2007, in Plat Book 166 at Page 11 of the Public Records of Miami -Dade County, Florida (the "Plat"). The Plat includes the Property. City shall have the right from time to time to enter into development related agreements which may impact or otherwise encumber the Property, including, without limitation, easements, water and sewer agreements (including, without limitation, the amendment or modification of such existing agreements), road vacations, etc, and Flagstone shall have no right to object to the same, provided that such agreements do not materially and adversely affect, in Flagstone's reasonable opinion, the use of the Property as contemplated by the Development Plans. Should Flagstone request additional changes that would require a "Re -Plat", then the City will continue to cooperate with Flagstone to complete such 224398 26 05/05/10 showing changes from 05/03/10 replatting processes in an expeditious manner and Flagstone shall be solely responsible for all costs and expenses related to such Re -Plat (which shall in no event be deemed to include any financial obligation on the part of the City). 7.4 License(s)/Easements for Pre -Development Work. - 7.4.1 License(s)/Easements. Subject to (i) obtaining the City Commission's prior written approval (which shall include, without limitation, approval as to the type and extent of work to be performed), and (ii) compliance with the Board of Trustees Deed (as the same may be modified in connection with Section 4.2.5 hereof) and Applicable Laws (including, without limitation, obtaining the appropriate permits ty necessary from the applicable Governmental Authcri (ies)) City shall grant to Flagstone. for use by its agents, employees and contractors, a license or easement to perform certain pre -approved dredging work on -the Submerged Parcel and/or a license or easement to perform certain,pre-approved utility relocation and/or other pre -development work on the Uplands Parcel (whether a license or an easement, individually and/or collectively referred to herein as the "License" or "Easement", as applicable), all of which pre -approved work (the "Pre -Development Work") shall be performed at Flagstone's sole cost and expense, and in a good and workmanlike manner in accordance with all applicable Governmental Requirements. Each License shall be for a term not to exceed twelve (12) months (in total for each License) and shall be revocable for any reason by City upon thirty (30) days prior written notice. Any Easement shall be nonexclusive and for a temporary or permanent tern as necessary for development of the Project, with security depositrequirements, payment and performance bond requirements, and insurance requirements, all as approved by the City Commission. During the term of any License and any Easement, City, or any of its agents, successors or assigns, shall have the right to enter the Property during all reasonable hours to examine and inspect the same. Except in the event of an issuance of such Licenses or Easements, Flagstone agrees that, Flagstone has no right, title, interest or claim in, or to the use of, the Property, all of which are waived hereby, unless and until the occurrence of the Lease Delivery Date. Notwithstanding anything contained herein to the contrary, in no event shall any License or any Easement granted in accordance with this Section 7.4 hereof be deemed to permit any party other than Flagstone, for use by Flagstone and its agents, contractors and employees, from using the Property as provided for herein. In connection with the Pre -Development Work, City agrees that it shall use good faith reasonable efforts (which shall in no event be deemed to include any financial obligation on the part of the City) to cooperate with Flagstone in coordinating any utility relocation within the Property with the Water and Sewer Department of Miami -Dade County. Attached as Exhibit 7.4.1 is a list of the Licenses/Easements in effect as of the Effective Date. 7.4.2 No Consideration Except for Required Easement Security Deposit. The parties hereby acknowledge and agree that, during the term of the License or Easements, as applicable, except for the required Easement Security Deposit, no consideration (i.e., construction rent or otherwise) will be due from Flagstone to City. In the event that this Agreement is terminated for any reason whatsoever, (i) Flagstone shall not be entitled to reimbursement for any of its costs and expenses incurred in connection 27 224398 05/05/10 showing changes from 05/03/10 nfl'�;DVC�41_t97.81_1. with the Pre-Development Work or for the value of any such improvements made by Flagstone to the Property in connection therewith; and (ii) except as specifically set forth in a surviving indemnification section of this Agreement or to the extent necessary to correct any defective work performed by Flagstone or to complete any incomplete work which is necessary in order to provide uninterrupted services to any other property owners (such costs shall be deemed to be "Reimbursable Expenses"), City shall not be entitled to reimbursement for any costs or expenses that may be incurred by City in connection with the Pre-Development Work (it being understood that in no event shall the foregoing be deemed to impose any obligation of the part of the City to incur any such cost or expense, but to the extent that City does incur Reimbursable Expenses, Flagstone shall promptly reimburse the same to City within thirty (30) days after receipt Of a written invoice, together with reasonable supporting documentation, therefor. Flagstone shall maintain and cause its contractors to maintain the insurance referred to in Article XI of the Ground Lease (which is applicable to the work that is then ongoing) with respect to any Pre-Development Work performed by Flagstone in connection with such License or Easement(s). 7.5 Indemnification and Waiver. Flagstone agrees to defend, indemnify and hold City harmless from any and all claims, demands, actions, whether legal, equitable or otherwise, costs, damages (including reasonable attorneys' fees and experts' fees) and any other liability incurred now or in the future as a result of any claim, injury, death or property damage, resulting directly or indirectly from Flagstone's entry upon the Property and performance of the Pre-Development Work thereon. Flagstone agrees that its access. to and use of the Property for the Pre-Development Work shall be solely at its own risk and expense. As a material inducement for City to grant the License(s) or the Easement(s), Flagstone does hereby release, waive, discharge, covenant not to sue, acquit, satisfy and forever discharge City and its officers, directors, employees, agents and attorneys and the affiliates and assigns of all of the foregoing of and from any and all liability, claims, counterclaims, defenses, actions, causes of actions, suits, controversies, agreements, promises and demands whatsoever, at law or in equity, which Flagstone or any of its members, officers, directors, employees, attorneys and agents and the affiliates and assigns of all of the foregoing had, now has, or hereafter can, shall or may have against City or its officers, directors, employees, attorneys and agents and the affiliates and assigns of all of the foregoing, for, upon, or by reason of any matter cause or thing whatsoever arising out of the License(s) or the Easement(s), the Pre-Development Work and/ or Flagstone's use of the Property. The foregoing indemnification obligations of Flagstone shall survive any expiration or termination of this Agreement. Subject to the provisions and limitations of Florida Statutes Section 768.28, this subsection does not apply to the extent of the gross negligence or willful misconduct of the City or of any representative, agent, or independent contractor of the City. 7.6 Issuance to Flagstone of Marine Operating Permit for Existing Marina. The City has transferred Marine Operating Permit No. MOP-000306 for the existing A marina on Watson Island (the "Operating Permit"), from the City to Flagstone. The Operating Permit remains in full force and effect in Flagstone's name through September 302010. The City shall continue to cooperate (which shall not include any obligation for the City to incur any cost or expense) with Flagstone in connection with keeping the 28 224398 05/05/10 showing changes from 05/03/10 Af1:;1€)UCS 4419?$1.7. Operating Permit in good standing. In the event Flagstone desires to make minor repairs or improvements to the existing marina, and such repairs or minor modifications require the Miami -Dade County Department of Environmental Resources Management's ("DERM") approval, City shall, provided said repairs and renovations are approved by the E:bie€- xeeut{-ve k}ffieerCitN. M,,napor, execute whatever documentation may be reasonably required .in order to obtain DERM's approval. Any income derived from the operation of the existing Marina prior to the Lease Delivery Date shall belong to the City. Flagstone shall use continuing good faith efforts to maintain the Operating Permit in full force and effect throughout the term of this Agreement as it relates to the Marina Component and throughout the term of the applicable Ground Lease for the Marina Component; any failure to use continuing good faith efforts to maintain the Operating Permit in full force and effect shall constitute an Event of Flagstone's default related to the Marina Component of the Project. In the event that this Agreement is terminated for any reason related to the Marina Component other than the. execution and delivery of the Ground Lease for the Marina Component, then, if so requested by City, Flagstone shall take whatever actions are necessary in order to promptly transfer the Operating Permit back to the City. The City shall have the right (but not the obligation), given or withheld in City's sole and absolute discretion, upon written request by Flagstone, prior to the execution of the Ground Lease for the Marina Component by Flagstone and the City, to issue Flagstone a License (in accordance with all provisions of Section 7.4.1 and in accordance with all City requirements for insurance, bonding, financial security, public safety and security for operators of City -owned facilities) to operate the existing marina and some temporary related facilities on terms mutually agreeable between the City and Flagstone. Should any of the approvals for the Marina Operating Permit temporarily lapse, (i) such lapse shall not be a reason to extend the Outside Dates for construction commencement of the Marina Component, and (ii) such temporary lapse shall not constitute an Event of Flagstone's Default as long as Flagstone continues to use good faith efforts to reinstate any such lapsed Marina Operating Permit. 7.7 Marina Approvals. Flagstone has obtained its required Marina Approvals from the County and Flagstone shall use its "best efforts" (as such term is defined below) to maintain in full force and effect throughout the term of this Agreement related to the Marina Component and throughout the term of the Ground Lease for the Marina Component all permits and approvals from Governmental Authorities (collectively, the "Mesa -Yacht Marina Permits") which are required to construct and operate a marina substantially similar in size and capacity as the marina depicted in the Island Gardens Proposal (a "Mega -Yacht Marina"). If deemed necessary or desirable by the Chief E.—xr�tive Of€it erCity Manager, any applications for renewals for Mega -Yacht Marina Permits shall be made with the City as the named applicant or co applicant, as required by law. In the event Flagstone is able to maintain in full force and effect all of the Mega - Yacht Marina Permits as a condition precedent to executing the Ground Lease for the Marina Component, then the term "Marina" as used in the Ground Lease shall mean and refer to such Mega -Yacht Marina, and Flagstone shall develop and operate such Mega- o Yacht Marina subject to and in accordance with the terms and conditions of the Ground Lease for the Marina Component. 224398 05/05/10 showing changes from 05/03/10 !M.d : QC,541;19,7..8]. ,2,.. 7.7,1 Best Efforts. For purposes hereof, the term "best efforts" shall mean that Flagstone shall take all of the following actions: 7.7.1.1 Flagstone has made and shall continue to make good faith efforts, including expending commercially reasonable amounts of funds, and use all due diligence (including retaining consultants, professionals and experts and taking their advice) in pursuing and in continuing to maintain in full force and effect throughout the term of this Agreement relating to the Marina Component and throughout the term of the Ground Lease related to the Marina Component, all necessary Mega-Yacht Marina Permits (and specifically in taking all of the actions described in subsections 7.7.1.2 through 7.7.1.5 below). 7.7.1.2 Flagstone has diligently developed and shall continue to diligently develop such detailed plans and specifications, drawings, schematics, sketches and other documentation with respect to a Mega-Yacht Marina (as defined above) as may be necessary or appropriate in connection with its good faith efforts in pursuing and in maintaining in full force and effect the Mega-Yacht Marina Permits (collectively, the "Mega-Yacht Marina Plans"). Should any of the Mega-Yacht Marina Permit for the Marina temporarily lapse, (i) such lapse shall not be a reason to extend the Outside Dates for construction commencement of the Marina Component, and (ii) such temporary lapse shall not constitute an Event of Flagstone's Default as long as Flagstone continues to use good faith efforts to reinstate any such lapsed Mega-Yacht Marina Permit,as applicable. 7.7.1.3 Flagstone submitted the Mega-Yacht Marina Plans to the (=drie# Rx-eestive 0.fficeKJtMa Manager for his or her approval in accordance with the Manager Approval Procedures and obtained such approval. 7.7.1.4 After approval of the Mega-Yacht Marina Plans by the E'1}ief 11eeutive-®€fieerCit�r Manager, with whatever modifications as were agreed upon at that time, all subject to and in accordance with the £;1�ief 11xec�xtive—(3f#icerC Manage r Approval Procedures, Flagstone submitted the Mega-Yacht Marina Plans to all necessary Governmental Authorities and obtained the Mega-Yacht Permits (it being understood that the applicable Governmental Authorities include, but are not necessarily limited to, the State of Florida Department of Environmental Protection, the Army Corps of Engineers (the "Cor s" ), the South Florida Water Management District ("SFWMD") and the Miami-Dade County Department of Environmental Resources Management ("DERM"), after responding to and accommodating, in a commercially reasonable manner, any reasonable requests by such Governmental Authorities for modifications to the Mega-Yacht Marina Plans. Flagstone informed the Ll}ief-) cee�tive c�#ffieerCity Manager in writing of such modifications at that time. For any future modifications, the hief Fxee«ti�re-E)€f erCity Nlanager shall be informed, in writing, of such modifications by Flagstone, which shall include a legend at the top of the first page in a type face larger thai? that used elsewhere in the notice indicating that City is to provide approval or denial with comments within ten (10) business days pursuant to this Section 7.7.1.4. The. GI ief Rx--eeutit e-OffifeerCity Manager shall have ten (10) business days from the date of receipt of such notice to review the modifications and advise Flagstone in writing that the . 30 224398 05/05/10 showing changes from 05/03/10 modifications are disapproved. If notice of disapproval is not delivered within the ten (10) Business Day period, Flagstone shall give a written reminder notice to the Chief C aeee�ltive Ufi�eerCity Manager. If notice of disapproval is not delivered within five (5) Business Days after such reminder notice is given, the modifications shall be deemed approved. The notice to review and the reminder notice shall each contain legends at the top of the first page, in a typeface larger than that used elsewhere in the request, identifying the applicable required response time. 7.7.1.5 After Flagstone obtained consensus among the staff of the applicable Governmental Authorities for the Mega -Yacht Marina Plans, Flagstone (a) submitted the Mega -Yacht Marina Plans (as same may have been modified as described above) and an application for a Class I Permit for the Mega -Yacht Marina (the "Class I Permit Application") to the Miami -Dade County Board of County Commissioners (the "Board") for final approval for the construction and operation of the Mega -Yacht Marina substantially in accordance with such Mega -Yacht Marina Plans, and had its representatives attend the hearing before the Board concerning same and persuaded the Board to approve same: and (b) submitted to the other applicable Governmental Authorities, including the SFWMD and the Corps., the Mega Yacht Marina Plans and the appropriate application(s) required for the issuance of the applicable Mega -Yacht Marina Permits and Flagstone thereafter continued to follow up with such application(s) including, but not limited to, appearing before the SFWMD Governing Board, until such Mega -Yacht Marina Permit(s) were issued by such Governmental Authorities. 7.7.2 Notice and Meetings with City. Flagstone has in the past provided and from the Effective Date of this Agreement shall continue to provide City with at least seven (7) days prior written notice of any meeting with the staff of applicable Governmental Authorities. City shall have the right to have a representative present (by telephone or in person) at each such meeting. In addition, Flagstone shall provide City with copies of any written correspondence between Flagstone and such Governmental Authorities in connection with the "best efforts" steps described in Section 7.7.1 above for any future matters regarding the Mega -Yacht Marina. 7.7.2.1 Flagstone has in the past held and from the Effective Date of this Agreement hereby agrees to continue to have monthly meetings with City's designated representatives to discuss the status of Flagstone's "best efforts" regarding the Mega -Yacht Marina, and to keep City regularly apprised through written updates as to what "best efforts" have been and are being taken by Flagstone in order to satisfy its continuing obligations regarding any future Governmental Approvals in Section 7.7.1 above and the status thereof. If, after any such monthly meeting or after City receives any such written update, City believes, reasonably and in good faith, that Flagstone is not using its best efforts as described in subparagraph (c) above, City shall, within seven (7) Business Days after receiving any such meeting or written update, give written notice to Flagstone stating with particularity City's belief and the specific basis for such belief. If o City fails to give such written notice within such seven (7) Business Day period, the actions by Flagstone which are described in such meeting or written update shall be deemed to constitute best efforts as described in Section 7.7.1 above up to the last step taken by Flagstone as described in such meeting or written update, and City shall not be 31 224398 05/05/10 showing changes from 05/03/10 1fI:117QCS41197,$11 entitled to submit to arbitration the question of whether such actions by Flagstone constitute best efforts. 7.7.2.2. Notwithstanding the foregoing, Flagstone shall not be required to accept any unreasonable conditions for continued approval(s) or renewal(s) which would compromise the feasibility of the proposed Mega -Yacht Marina or place unreasonable financial or economic burdens on Flagstone (either in terms of increased costs or reduced income) or unreasonable covenants, conditions and/or restrictions with respect to the development and operation of the proposed Mega -Yacht Marina Component. 7.7.3 Notice of Failure to Maintain Mega -Yacht Marina Permits In the event Flagstone is unable, after using such best efforts, to maintain in full force and effect all of the Mega -Yacht Marina Permits then Flagstone shall provide written notice thereof to City. If City agrees that Flagstone has used such best efforts and the Mega -Yacht Marina Permits cannot be maintained, then, the term "Marina" as used herein and in the Ground Lease related to the Marina Component shall mean such marina as Flagstone is able to construct and operate based on the existing marina permits or such other permits and approvals from Governmental Authorities Flagstone is able to maintain in full force and effect, and Flagstone shall develop and/or operate such Marina subject to and in accordance with the terms and conditions of the Ground Lease related to the Marina Component. If City does not agree that Flagstone has used such best efforts to maintain in full force and effect the Mega -Yacht Marina Permits, then no later than thirty (30) days after City's receipt of written notice from Flagstone, City shall provide written notice to Flagstone that City is submitting the matter to arbitration in accordance with Section 7.7.4 below; provided, however that City shall not be entitled to submit the matter to arbitration to the extent Section 7.7.2.2 provides otherwise. 7.7.4 Arbitration. If at any time (including, without limitation, at the time Flagstone provides written notice to City that Flagstone is unable to maintain in full force and effect the Mega -Yacht Marina Permits) City believes in its good -faith reasonable judgment that Flagstone has not or is not using "best efforts" to maintain in full force and effect the Mega -Yacht Marina Permits, then City shall refer such dispute to final and binding arbitration, before a single arbitrator (the "Arbitrator"), under the commercial arbitration rules of the American Arbitration Association in Miami -Dade County, Florida. In determining whether Flagstone has used its best efforts as described in Section 7.7.1 above, the Arbitrator may consider whether Flagstone should pursue any administrative appeals. In no event shall Flagstone be required to pursue litigation (although it may, at its option, elect to do so). The Arbitrator shall be selected by the parties and if the parties are unable to reach agreement on selection of the Arbitrator within ten (10) days after the notice of arbitration is served, then the Arbitrator will be selected by the American Arbitration Association. All documents, materials, and information in the possession of a party to this Agreement and in any way relevant to the claims or disputes shall be made available to the other parties for review and copying not Q later than 30 days after the notice of arbitration is served. To the extent that a party would be required to make confidential information available to any other, an agreement or an order shall be entered in the proceeding protecting the confidentiality of and limiting access to such information before a party is required to produce such information. 32 224398 05/05/10 showing changes from 05/03/10 R11;1;pc)C$d114231;2. Information produced by a party shall be used exclusively in the arbitration or litigation that may arise, and shall not otherwise be disclosed. The decision of the Arbitrator shall be final, binding and conclusive upon the parties and their respective administrators, personal representatives, legal representatives, heirs, successors and permitted assigns. 7.8 Water and Sewer Agreement. The parties acknowledge that on April 27, 2007, Miami -Dade County, the City and Flagstone entered into an Agreement for Water and Sanitary Sewage Facilities for the Project, which was subsequently amended (the "WASA Aareement").The WASA Agreement expired in September, 2009. The City agrees that with the approval of this Agreement, the City hereby authorizes the Chief £Neeulive Off•►cerCity Nlanaacr to approve and execute, after consultation with the City Attorney, a new Agreement for Water and Sanitary Sewage Facilities for the Project so long as such agreement is in substantially the same form as the original WASA Agreement. ARTICLE 8 COORDINATION WITH CITY• APPROVAL PROCEDURES 8.1 Coordination with Citv. 8.1.1 Ombudsman. 'City has appointed Public Facilities Real Estate Manager, Aldo Bustamante, as the City's internal representative who is experienced and qualified to (i) report directly to the Clrie:`—f reet�ti� e-Efter'C. ity Manager, (ii) have authority to coordinate, expedite and respond for the City on behalf of the City i'vi.anager with respect to construction and development issues through the final permitting process; and (iii) have authority to coordinate on behalf of the City tenant -related issues among the various tenants of Watson Island (the "Ombudsman"). Among other things, the Ombudsman shall (i) lead and set schedules for the internal City review processes with respect to Construction Plans and Specifications, for at Flagstone's option, either development all at once or development on a component by component basis, (ii) after the Lease Delivery Date(s), for, at Flagstone's option, either development all at once or development on a component by component basis, expedite and help deliver construction inspection approvals (including building and fire department approvals), (iii) after the Lease Delivery Date(s), for at Flagstone's option either development all at once or development on a component by component basis, monitor and inspect the development and construction process on City's behalf, and (iv) otherwise represent and assist the City in coordinating the City's roles and responses and approvals. 8.1.2 City Consultant. In addition to the Ombudsman, City, at the request of Flagstone, shall retain on its behalf but at the sole cost and expense of Flagstone (which costs shall be mutually acceptable to the parties), .an outside, qualified construction, development and fire and building consultant(s) who shall be mutually agreeable to O ty and Flagstone (individually or collectively, the "Consultant" � to coordinate and assist in • the development processes, at Flagstone's option either for development all at once or development on a component by component basis, and advise Ombudsman and Chief-1✓Neetftive—GftreerC its 1Vtanager. Responsibilities of the 224398 33 05/05/10 showing changes from 05/03/10 Af l 11�O$ 41 x92131_1. Consultant shall include the review of plans and development issues, assistance with permitting and inspection issues during the construction and development process and -T�-,tee�lzt e-C�f#iterC"ity Manager and Ombudsman. recommendations directly to Chief Flagstone shall provide on-site desk, telephone and storage space to the Consultant. 8.1.3 Cooperation. Flagstone shall cooperate fully with the Ombudsman and Consultant, and shall promptly forward to same complete copies of plans and specifications and other reports and information customarily provided to an institutional mortgage lender, and such other information and materials as may be reasonably requested by the Ombudsman, Consultant or City. No inspection performed by the Ombudsman and Consultant with respect to the Pre -Development Work shall impose upon City any responsibility or liability for any failure by Flagstone to observe any requirements or safety practices in connection with such construction work, or constitute an acceptance of any work which does not comply with the provisions of this Agreement. Ombudsman and Consultant shall provide copies to Flagstone of all reports and records concerning construction inspections. All matters shall be undertaken by the parties with a covenant of good faith and fair dealing by Flagstone and the City in reasonably complying with their respective obligations hereunder. g,2 'hief l eetiti w€x Of#leef-C`ity Mang er Approval Procedures. Any matter requiring (;krief is eetttive-C)ffieer•City Manager approval under thls Agreement or in connection with the Project (any such matter, an "Approval-Reguirin6 Matter") shall be subject to the procedures set forth in this Section 8.2. The following shall apply with respect to all approvals requested by Flagstone from the Chief-l✓xe� utiWe 43€fleerCity Manager: 8.2.1 Except for those instances expressly set forth herein where approval may be withheld by the L }lie€ E�cec�ltive }f-ieer•C'ity Manager his or her "sole discretion" or "sole and absolute discretion any other approvals to be given by the C lief Lxeelt}ve offieer•City M.anager hereunder shall not be unreasonably withheld; 8.2.2 Approval or denial responses shall be given within fourteen (14) days (provided that for submissions which require the review of Construction Plans and Specifications or new modifications thereof which are not merely items that follow from or are consistent with prion approvals already given, thirty (30) days shall be given) of submission to Chief•••-laxeeutive O-ffieerCity iIN/lanaeei of the last piece of materially necessary written information; provided, however, that (i) submission of any Approval - Requiring Matter shall be accompanied by a written request for approval .which shall include a legend at the top of the first page in a type face larger than that used elsewhere in the request for approval indicating that City is to provide approval or denial with comments within fourteen (14) days (or thirty (30) days, as applicable) pursuant to this Section 8.2.2, (ii) Flagstone shall promptly submit to City any additional information or materials requested by City (provided that such request: (a) shall be made by City no later q than seven (7) calendar days of receipt by City of Flagstone's initPal submission; (b) shall be for information which is materially necessary for the purpose of aiding the City's review of the original submission; and (c) shall be limited to no more than two (2) times for any such request for additional submission), and (iii) the fourteen (14) day approval 34 224398 05/05/10 showing changes from 05/03/10 ASI::�I)Sl4S'�11y2Yt period (or thirty (30) day, as applicable) shall not commence until such additional information and materials are received by City; 8.2.3 Notice of denial shall be accompanied by reasonably specific written comments as to the reasons for such denial and what alternatives might be acceptable to City. Denial of approval of any Approval -Requiring Matter may be based on any reasonable grounds; however, denial may not be given with respect to, or materially inconsistent with, any approval previously given to Flagstone; 8.2.4 Approval or denial with comments of any resubmission of an Approval - Requiring Matter shall be given within seven (7) business days provided that such resubmission of any Approval -Requiring Matter shall be accompanied by a written request for approval which shall include a legend at the top of the first page in a type face larger than that used elsewhere in the request for approval indicating that City is to provide approval or denial with comments within seven (7) business days pursuant to this Section 8.2.4; 8.2.5 In the event that the City has not provided its approval or denial with comments to Flagstone in accordance with the time -frames set forth above, then Flagstone shall provide a written reminder notice to 'City which specifies that City has five (5) days to so respond to such submission, which reminder notice shall include a legend at the top of the first page in a type face larger than that used elsewhere in !(.he reminder notice indicating that City is to provide approval or denial with comments within five (5) days pursuant to this Section 8.2.5. In the event that City does riot then respond within such five (5) day period, such matter shall be deemed approved by City; and 8.2.6 If materials resubmitted by Flagstone in connection with any construction related issue, which conform to all written comments, are not subsequently approved, disagreements may be submitted to binding, expedited arbitration. (l�i�# 1 xEetati�'4 €3ftieEaC'itw Manager Approvals,• Disclaimer. 8.3 Notwithstanding anything to the contrary contained m this Agreement, Flagstone acknowledges that any approvals by the C—;klief pxeEaxtvE ()fficz'ErCity Alanaer of any Approval -Requiring Matter shall in no event be deemed to be a guarantee of the City Commission's or any other governmental or quasi -governmental agencies' approval of such Approval -Requiring Matter. Any approval by the Ghief Exeratid. —C�f -leEr_ _ Manager of an Approval -Requiring Matter shall be made solely in City's capacity as the owner of the Property and not in any governmental capacity and Flagstone shall remain responsible for obtaining whatever permits, licenses and approvals may be necessary to improve the Property in accordance with any such Approval -Requiring Matter, as well as all Applicable Laws. In addition, approval by the Ghief Lhee-utiive-(}ffieer•City Managgi of any Approval -Requiring Matter shall not constitute a warranty or representation by City that the Project Components meet all government requirements or building codes nor that such plans will, if followed, result in properly designed or constructed Project Components or that any Project Component built in accordance therewith will be built in a good or workmanlike manner. Notwithstanding anything contained to the contrary in 35 224398 05/05/10 showing changes from 05/03/10 '�311L)faCi41t9,7..$1 this Agreement, the parties recognize and agree that certain provisions of this Agreement may require the City and/or its boards, departments or agencies, acting in their governmental capacity, -to consider certain changes in applicable City codes, ordinances, plans or regulations, as well as to consider other governmental actions. All such considerations and actions shall be undertaken in accordance with established requirements of state statute and City ordinances, in the exercise of the City's jurisdiction under the police power. Nothing in this Agreement is intended to limit or restrict the powers and responsibilities of the City in acting on applications for Project Approvals and/or other permits and approvals which may be required in connection with the Project by virtue of the fact that the City may have consented to such applications as a property owner hereunder. The parties further recognize and agree that these proceedings shall be conducted openly, fully, freely and fairly in full accordance with law and with both procedural and substantive due process to be accorded the applicant and any member of the public. Nothing contained in this Agreement shall entitle Flagstone to compel the City to take any such actions, save and except the consents to the filing of such applications for MUSP Approvals, land use approvals or other required approvals, as more fully set forth herein, and to timely process such applications. This Section shall not limit the City's obligations under this Agreement in the City's proprietary capacity nor limit the City's rights and responsibilities in its governmental capacities. ARTICLE 9 DISCHARGE OF LIENS 9.1 No Liens. Flagstone shall use reasonable efforts to not create or permit to be created any Liens upon the Property or any part thereof. Formatted: Font: Bold 9.2 Discharain Liens ,Inclagnreiats and Garnishments.: _ -- -- _ _ _ _ .- -- -. _ - _ _ _ _ _.. _...� 9.2.1 With respect to the liens listed on Exhibit 9.2.1 attached hereto as of the Effective Date of this Agreement (collectively, the "Existing Liens"), Flagstone shall either discharge all existing and alleged liens. judgments. and garnishments or deliver to the Miami -Dade Countv..Clerk of Courts Regis ,, to be held in an escrow account an amount not less than TI•I.REE MILLION FIVE -HUNDRED TIIOCJSAND .DOLLARS ($3,500.000) 12rior to this Agreement being executed.,1f Flagstone elects to discharge all existing and alleged liens. Judgments and garnishments prior to the ex eutuieneaecutlon of this Agreement.� the i -Ti tent to be held t:-%lerle o -f _.......__._.._........_......... __ ....-........ _ - _...._.._. jur s�ha}} be ectu�i( to Y x Xkx XX- k. r . Flagstone shall provide satisfactory Formatted: Highlight evidence of such discharges to the City prior to this Agreement being exE CUtCd. The_. Formatted: Highlight escrow amount shall remain until the first Ground Lease is dgrveredeaecuted.Sucli escrow deposit amount shall be incremented as and if necessary to cover anv alleged additional liens claims of liens judgments. and garnishments. aettx� rih Ieild paiy-(f3ii# ��ith-the..-(-i#}�-j�iniiig--as._iixd-i�-rieeessar�-:�inee the-rietit3i�--tx�+al-yes-(;it,^._l�'ropel�ty) shall kiave si, (f+}-ri aiiths Sifter file Trite cif xeeutioi�-crf-this-A�reei�sent }ski an} appea-1-period; IO 1,emove.. dise-h r•�ei';-©� t1`zi135 £i th8-1 3fi5 ii1£s lrlen9-(lf-t1}E' 3a%ile-ftTe-li+ ng again•9t•4-17e Pii�laerty in tlrrrt-tiirt�} Ef l:la stone €ail:;_te all liseharged; reirle�-ed; er traiisferyeti-tee b�l�d-tri#{riiZ sixeliai {b}-ri;cilttlt-p1ts peatlirt_;_appeal periflel(s) tinle-f-i=aine(�}-then-tile--Eity--l�tft�;-hti# s1�a14-rtc�t be-e1�liaateel-tom;-dischar•�;e-the-siirne-eit1�er 224398 36 05/05/10 showing changes from 05/03/10 t;i.1i)UCS4�197.$1;2 h�-•pay}.rtg tyke-zkirte)txxt-••-t;Ialarkec!•-te--be-d{te-�k'-•kk;---}•k�oe�kr••irkg•-tlre-disch�kr�;e..c�#�-sitelr._IAisttnf Liens._.:by......depeTs}t•._eTk:......bend...-pi-eeeedirr;by any la }rrcTvaeled IreTeve}=; -drat befete-rty-pit}xs tax}� axfluxts eTrr belkalf of -1 1a�stc�ne ._}fl - five -(.5.) days pr}tar of -its intent to tic� se-1}eretaxtler:}.kn�- ttrrreTkrt(s} se paid b}�;ity and zrl}-casts-aneE-expenses. ine-urred•--by-Litv_-in eenxeefien- with tbe-di-sehar-ge ef-•stteh1B_Nistnrf Liens sha-11-be rein btarsed teT Ci#}° } ltagsteTxe; to nether tlr interest tlre3eeTn at -tyre Irt��liest-}awfu rate permitted Iky-lar-frt�rrr the date c>f tke-Cit r=s exal�irrg o -t sire }r pa rl ant-o1-irTctirrrlTg o -t any srxelr Bests akrd e tpenses kantil-ptakd-an-€ull E tty slrtall-notify #labstoxe-irr wttrrrg cef •the crate;-ttrld tarrreita�ts-ef airy btwh payxrerrts-arrel-related -interest rate( 4hereen5-and Flagstone sh01-reitrrbrkrse the E'ity-arid-pray-tlre-aeertaed irrtei est-ttlri3r-sevear f 7} ctalexclar days €eTlde ixg-sttelr ritterr aeti-ea-fien..-ln• keeping w}th their-respeetive eeTvenante. of geeel-faith-rand-fair-dealing the parties v i•}I--eeeper•tate-with-each-eTtker-reDtarclixg the ireeessary-eaurt mafters renieµal•-ef4-he--&-isthig Liensfein-the preper-ty: 9.2.2 After the Effective Date of this Agreement (except as provided in 9.2.1 above for Existing Liens) and during the term thereafter of this Agreement, if any Lien shall at any time be filed against the Property, or any part thereof, within forty-five (45) days after notice of filing thereof, Flagstone shall cause the same to be discharged, removed, or transferred to bond in accordance with the requirements of law. If Flagstone fails to cause such Lien to be discharged or transferred to bond within such forty-five (45) day period, then City may, but shall not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such Lien by deposit or by bonding proceedings, or by any other manner permitted by law (provided, however, that before City pays any amounts on behalf of Flagstone in connection e (5) days prior written notice of its intent to so herewith, City shall provide Flagstone fiv do so hereunder). Any amount so paid by City and all costs and expenses incurred by City in connection with the discharge of such Lien shall be reimbursed to City by Flagstone, together with interest thereon at the highest lawful rate permitted by law from the date of City's making of any such payment or incurring of any such costs and expenses until paid in full. City shall notify Flagstone in writing of the dates and amounts of any such payments and related interest rates thereon, and Flagstone shall reimburse City within seven (7) calendar days following receipt of such notification. 9.3 Hold Harmless and Indemnification Agreement. As required by City Commission Resolution No. 10-0144 adopted March 25, 2010, Flagstone has provided the Hold Harmless and Indemnification Agreement attached hereto and incorporated hereby as Exhibit 9.2.3. Any default by Flagstone under the Hold Harmless and Indemnification Agreement shall be an Event of Flagstone's Default under this Agreement and an Event of Lessee's Default under the related Ground Lease(s). ARTICLE 10 A q CONDEMNATION 10.1 Material Taking. If at any time prior to the Lease Delivery Date(s) the whole or any portion of the Property which would have a material impact on the Project (as 224398 37 05/05/10 showing changes from 05/03/10 '�t117)000 41.197.,812 reasonably determined by Flagstone and City) shall be taken by the exercise of the right of condemnation or by agreement between City, Flagstone and those authorized• to exercise such right, this Agreement shall, upon the written election of either party, terminate and expire as of the date of such election. 10.2 Less than a Material Taking,. If at any time prior to the Lease Delivery Dead1-h-ie(s);-Date for the applicable Major Project Component a portion of the Property for such Major Project Component which does not have a material impact on the Project (as reasonably determined by Flagstone and City) shall be taken by any lawful power or authority by the exercise of the right of condemnation or by agreement between City, Flagstone and those authorized to exercise such right, this Agreement shall not terminate in connection with the exercise of such right and shall continue in full force and effect. 10.3 Award. The award. or awards received in consideration of any taking (material or non -material) shall be allocated between the parties based upon the parties' respective interests under this Agreement and the Ground Lease(s). Each party shall bear its own expenses of negotiation and litigation with respect to the award or awards unless the parties agree to share certain expenses, in which event the shared expenses shall be allocated between (and paid from) the proceeds thereof, in the ratio in which the amount of the gross award payable to each parry bears to the total thereof. ARTICLE 11 DEFAULT AND REMEDIES• TERMINATIONS 11.1 Events of Flagstone's Default. Each of the following events shall be an "Event of Flagstone's Default" hereunder: 11.1.1 The failure of Flagstone to perform or observe any of the covenants, conditions and agreements on the part of Flagstone to be performed hereunder within thirty (30) days (unless another time period is provided in the Agreement) after written notice of such failure; 11.1.2 ----If Flagstone (a) shall suffer or permit to be entered a decree or order of a court or agency or supervisory authority having jurisdiction determining it to be insolvent or providing for the appointment of a conservator, receiver, liquidator, trustee or any similar Person or entity appointed in connection with any insolvency, readjustment of debt, marshaling of assets and liabilities, bankruptcy, reorganization or similar proceedings of or relating to it or of or relating to all, or substantially all, of its property, or for the winding -up or liquidation of its affairs and such proceedings remain undismissed or pending and unstayed for a period of ninety (90) days or (b) shall suffer or permit to be instituted proceedings under any law relating to bankruptcy, insolvency or the reorganization or relief of debtors to be instituted against it and such proceedings remain undismissed or pending and unstayed for a period of ninety (90) days; 0 11.1.3 --- -If Flagstone shall (a) consent to .the appointment of a conservator, receiver, trustee, liquidator or custodian in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to it or of or 224398 38 05/05/10 showing changes from 05/03/10 Atil_17;)UCS 4117?.$1 2, relating to all, or substantially all, of its property or for the winding -up or liquidation of its affairs, (b) admit in writing its inability to pay its debts generally as (they become due, (c) file a petition, or otherwise institute, or consent to the institution against it of, proceedings to take advantage of any law relating to bankruptcy, insolvency or reorganization or the relief of debtors, or (d) make an assignment for the benefit of its creditors; 11.1.4 --If Flagstone shall be dissolved without City having permitted a successor to the rights of Flagstone under this Agreement; or 11.1.5 Any express, material representation made hereunder shall prove to have been incorrect in any material respect when made. 11.1.6. Any failure of Flagstone to make any payment required by Composite Attachment 3 hereto which failure is not cured within ten (10) days of the payment due date. 11.1.7. Any failure of Flagstone to make any payment or any deposit required by the Escrow A�xreement described in Article V hereof or by the Hold Harmless and Indemnification Agreement attached hereto as Exhibit 9.2.3 which failure is not cured within the cure period set forth in such Escrow Aareelnent or such Hold Harmless and Indemnification Agreement. as applicable. 11.1.8. Any failure of Flagstone to make the security deposit(s) required by Article 5 hereof, which failure is not cured within ten (10) days of the required security deposit date. 11.1.9. Any Composite Attachment 3 deadline providing for a termination if such deadline is not achieved is not to be considered a default hereunder; provided however, that where failure to perform under Composite Attachment 3 by a certain deadline does not have a termination right, then such type of failure to perform by a certain deadline is a default hereunder-. 11.2 Remedies for Flagstone's Default. If an Event of Flagstone's Default shall occur, City shall have the right to terminate this Agreement and require full distribution of the Article 5 Security Deposits, and the Hold Harmless and Indemnification Agreement Security Deposit(s) to .City as liquidated damages as and for its sole remedy hereunder; it being agreed that the Article 5 Security Deposits and the Hold Harmless and Indemnification Agreement Security Deposits represents a reasonable endeavor by the parties to ascertain that said sums would be the minimal damages suffered by City upon the occurrence of an Event of Flagstone's Default hereunder or pursue the remedy of specific performance for any such Event of Flagstone's Default. 11.3 City's Default. If qty fails to perform or observe any of the covenants, q conditions and agreements on the part of City to be performed hereunder within thirty (30) days after written notice of such failure, then Flagstone may, provided that an Event of Flagstone's Default has not occurred, at its option: (i) terminate this Agreement and require full distribution of the Article 5 Security Deposits to Flagstone as liquidated 224398 39 05/05/10 showing changes from 05/03/10 i�tI11;)OCS,4�19?_Si,2 damages as and for its sole remedy hereunder, it being agreed that the Article 5 Security Deposits represent a reasonable endeavor by the parties to ascertain that said sums would be the minimal damages suffered by Flagstone upon the occurrence of a default by the City; or (ii) pursue the remedy of specific performance. Flagstone waives all other remedies it may have against City at law or in equity. Notwithstanding any default by the City, Flagstone acknowledges that it is not entitled to any security deposit funds under the Hold Harmless and Indemnification Agreement (as the City has had to become involved in lawsuits and use City time, personnel and resources due to the Existing Liens against Flagstone which were wrongly attached to the City's Property). 11.4 Terminations. 11.4.1 Terminations by Either Party: (a) If all of the conditions precedent set forth in Section 4.2 above are not satisfied on or before February 1, 2028, and so long as the terminating party is not in default (which default has not been cured in accordance with any applicable notice and cure periods provided in this ARTICLE 11), either party shall have the absolute right to terminate this Agreement, without cost or liability of either party to the other party, by written notice from the terminating party to the non -terminating party delivered within five (5) business days after the Lease Delivery Date has passed, whereupon this Agreement shall be deemed terminated and of no further force or effect as of the date of such notice and both parties shall be relieved of any and all further liability or obligations hereunder except with respect to any provisions hereof that are intended by the parties to survive such termination. (b) If all of the conditions precedent set forth in Section 6.1 above are not satisfied on or before February 1, 2028, and so long as the terminating party is not in default (which default has not been cured in accordance with any applicable notice and cure periods provided in this ARTICLE 11), either party shall have the absolute right to terminate this Agreement, without cost or liability of either party to the other party, by written notice from the terminating party to the non -terminating party delivered within five (5) business days. after the Lease Delivery Date has passed, whereupon this Agreement shall be deemed terminated and of no further force or effect as of the date of such notice and both parties shall be relieved of any and all further liability or obligations hereunder except with respect to any provisions hereof that are intended by the parties to survive such termination. (c) Composite Attachment 3 attached hereto and incorporated hereby also provides for certain rights of termination of the parties in certain events as set forth therein. D 40 224395 05/05/10 showing changes from 05/03/10 �t1117QCS 41147,,A1;_2.. ARTICLE 12 REPRESENTATIONS BY FLAGSTONE AND CITY: DEFENSE AND RELEASE 12.1 Flagstone's Representations. Flagstone hereby represents and warrants to City that: 12.1.1 Existence and Capacity. Flagstone is a duly organized and validly existing limited liability company in good standing under the laws of the State of Delaware, and is in good standing and authorized to transact business as a foreign entity under the laws of the State of Florida. Flagstone has full power and capacity to carry on its business as presently conducted by Flagstone, and to enter into this Agreement and the transactions contemplated by this Agreement. 12.1.2 Financial Resources and Evaluation of Proiect. At such time as Flagstone enters in to the related Ground Lease(s) for each of the applicable Major Project Component(s), Flagstone shall represent and warrant to the City that, to the best of Flagstone's knowledge: (i) Flagstone has access to sufficient funds to satisfy the Initial Equity Requirement regarding such Major Project Component; (ii) as of the Lease Delivery Date, Flagstone will have closed upon an Initial Construction Loan for the applicable Major Project Component(s); and (iii) the total of such sums will be sufficient to carry out the development and construction of the applicable Major Project Component(s) and to operate the applicable Major Project Component(s) and comply with the terms and conditions of this Agreement and the related Ground Lease(s). Flagstone has done such studies and has made such evaluations as it deems appropriate regarding the tourism and local markets in the area surrounding Watson Island and has deemed it desirable to invest in the Project, recognizing the risks inherent therein. Flagstone acknowledges that the City shall not be liable under this Agreement for any actions taken by the City, acting in its municipal capacity, including, without limitation, any actions which may adversely impact tourism, crime, the local economy, the success of this Project, etc., and that in no event shall any actions taken by the City in its municipal capacity be the basis for any cause of action or defense of any obligation by Flagstone hereunder. Flagstone shall provide to the City at least thirty (30) days .in advance of the proposed Lease Delivery Date for each Major Project Component such pro forma, budget, financial, and other commercially reasonable written information necessary for the City's review and to determine the pro rata amount of the Initial Equity Requirement for that Major Project Component and to determine that such Initial Equity Requirement has in fact been met for the particular Major Project Component. This section shall survive any termination of this Agreement. 12.1.3 Binding Obligations. This Agreement constitutes the valid and binding obligations of Flagstone, enforceable against Flagstone in accordance with its terms. A q 12.1.4 Insurance. Flagstone currently holds 1:, the insurance types, amounts and coverages required by the City's Risk Management Department as evidenced by its certificates attached hereto as Exhibit 12.1.4, naming the City as an additional insured, and Flagstone will maintain such insurance types, amounts and 224398 41 05/05/10 showing changes from 05/03/10 �fl_�pQCS,44[,@2$12 . i coverages in full force and effect throughout the term of this Agreement. All information set forth in such Exhibit 12.1.4 is true and correct to the best of Flagstone's knowledge. 12.2 City's Representations. City hereby represents and warrants to Flagstone that the Property is free of any encumbrance or restriction other than those disclosed in Exhibit 12.2 attached hereto, as the same may be updated at Flagstone's request and Flagstone's expense (the "Permitted Title Exceptions"). City shall maintain the Property in its present condition, ordinary wear and tear excepted, and except for the matters set forth in Section 7.3 and the Permitted Title Exceptions, City shall not permit any liens or other encumbrances to be filed against the Property. 12.3 Disclaimer of Representations by Flagstone. Flagstone hereby expressly acknowledges and agrees that, in connection with the Watson Island RFP or otherwise: 12.3.1 ----_.-City makes and has made. no warranty or representation whatsoever as to the condition or suitability of any portion of the Property for Flagstone's purposes; 12.3.2 City makes and has made no warranty, express or implied, with regard to the accuracy of any information furnished to Flagstone, and City shall not be bound by any statement of any broker, employee, agent or other representative of City; 12.3.3 -- -----City has made no representations, warranties or promises to Flagstone not explicitly set forth herein. 12.3.4 --..—City makes and has made no representation or warranty, express or implied, with regard to the likelihood that the remainder of Watson Island will be developed or as to the precise type; or quality of improvements that will be constructed thereon or the timing of the same; and 12.3.5 •--City makes and has made no representation or warranty, express or implied, concerning any portion of the Property, their condition or any other thing or matter directly or indirectly related thereto or hereto including, without limitation, no warranty, merchantability, or fitness for any particular purpose or relating to the absence of latent or other defects. - 12.3.6 —Defense and Release. The parties believe that this Agreement and the form of Ground Lease(s) attached hereto are consistent in all material respects with the Watson Island RFP and Island Gardens Proposal. Nevertheless, Flagstone acknowledges and agrees that the Watson Island RFP, the Island Gardens Proposal, this Agreement and/or the Ground Lease(s) may be challenged by private third parties for various reasons. Flagstone agrees to defend City, its officials, employees, agents and representatives against any and all claims arising from, out of or in connection with or otherwise relating to any such challgnge. Furthermore, Flagstone acknowledges q and agrees that City shall have no liability whatsoever to Flagstone or any Investors in Flagstone and/or the Project in connection with any such challenge or otherwise and notwithstanding that the foregoing acknowledgement that City shall have no such liability, Flagstone hereby forever waives and releases City from any such liability, now 224398 42 05/05/10 showing changes from 05/03/10 or hereafter arising. The foregoing defense obligations of Flagstone and release shall survive any expiration or termination of this Agreement. ARTICLE 13 MISCELLANEOUS 13.1 Assignment. 13.1.1 By Flagstone. In no event shall Flagstone be permitted to assign its rights and/or obligations under this Agreement (it being understood that in no event shall the foregoing be deemed to prohibit Flagstone from obtaining equity investments therein, subject to the provisions of Section 6.1.3); provided, however, and subject to the change of control and transfer provisions of the applicable Ground Lease(s) (which were prepared in accordance with the requirements of the RFP and the Island Gardens Proposal), Flagstone shall be permitted to make assignments, enter into subleases for each Major Project Component, obtain equity investments in the Project, and effect other transfers to the extent not in conflict with the requirements of, and the resulting change of control, permitted transfers, and other applicable provisions of the form of Ground Lease(s) . 13.1.2 By City. In no event shall City be permitted to assign its rights and/or obligations under this Agreement. 13.2 Notices. Any notices or communications under this Agreement between the parties shall be in writing and delivered to the persons at the addresses specified for notices to such parties in the Ground Lease. All notices shall be deemed received when actually delivered, if delivered by hand, facsimile transmittal or by a nationally recognized overnight delivery service. Each party may substitute one or more times the persons and the addresses to whom notices and communications shall be sent to, but such change shall not be effective until the other party receives such communication in accordance with this Section 13.2. 13.3 Applicable Law. This Agreement shall be governed by the laws of the State of Florida. 13.4 Severability. If any term, covenant or condition of this Agreement or the application thereof to any Person or circumstances shall, to any extent, be determined by the appropriate judicial authority to be illegal, invalid, or unenforceable, the remaining terms, covenants and conditions of this Agreement: or application of such terms, covenants or conditions to Persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby and each term, covenant, or condition of this Agreement shall be bound and enforced to the fullest extent possible by law. q 4 13.5 Waiver/Deferral. No waiver or deferral of any term, provision, condition or covenant of this Agreement by any party shall be deemed to imply or constitute a further waiver by such party of any other term, provision, condition or covenant of this 224398 43 ` 05/05/10 showing changes from 05/03/10 �tl;1f)QCS 4f97,,�1.2 Agreement. Any waiver or deferral hereunder must be waived or deferred in writing by the waiving or deferring parry. 13.6 No Third -Party Beneficiary. Nothing contained in this Agreement shall be construed so as to confer upon any other party the rights of a third party beneficiary. 13.7 Enforcement Costs. If any civil action, arbitration or other legal proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys' fees, court costs and all expenses (including, without limitation, all such fees, costs and expenses incident to arbitration, appellate, bankruptcy and post judgment proceedings), incurred in that civil action, arbitration or legal proceeding, in addition to any other relief to which such party or parties may be entitled. Attorneys' fees shall include, without limitation, paralegal fees, investigative fees, administrative costs and all other charges billed by the attorney to the prevailing party. 13.8 Entire Agreement. This Agreement and the Ground Lease(s) (to the extent in effect) represent the entire agreement between the parties hereto and supersede any and all previous agreements and understandings, whether written or oral, between the parties. No representations, inducements, promises or agreements, oral or otherwise, between the parties not embodied or described in this Agreement and the Ground Lease(s) (to the extent in effect) shall be of any force or effect. No modification or amendment of this Agreement shall be binding upon the parties unless such modification or amendment is in writing and is signed by the party to be bound thereby. 13.9 Headings. The titles of the several clauses and parts of this Agreement are inserted for convenience of reference only and shall be disregarded when construing or interpreting any of its provisions. 13.10 References. Except as otherwise specifically indicated, all references to Article, Section and Subsection numbers refer to Articles, Sections and Subsections of this - Agreement and all references to Exhibits refer to the Exhibits attached hereto, and all references to Attachments refer to Attachments attached hereto, which exhibits and attachments are incorporated herein by this reference. The words "herein", "hereof', "hereunder", "hereinafter" and words of similar import refer to this Agreement as a whoale and not to any particular Article, Section or Subsection of this Agreement. Unless expressly stated to the contrary, reference to any Article includes all of the Sections contained therein, and reference to any Section includes the Subsections contained therein. The terms "include" and "including" shall be construed as if followed by the phrase "without being limited to." 13.11 Brokers. Each of the parties represents and warrants that such party has dealt with no broker or finder in connection with any of the transactions contemplated by q this Agreement, and, insofar as such party knows, no broker or other Person is entitled to any commission or finder's fee in connection with any of these transactions. The parties each agree to indemnify, defend and hold harmless one another against any loss, liability, 224398 44 05/05/10 showing changes from 05/03/10 damage, cost, claim or expense incurred by reason of any brokerage commission or . finder's fee alleged to be payable because of any act, omission or statement of the indemnifying party, which indemnification shall survive any termination of this Agreement. 13.12 No Partnership or Joint Venture. Nothing contained in this Agreement is intended or shall be construed in any manner or under any circumstances whatsoever as creating or establishing a partnership or a joint venture between City and Flagstone, or as constituting Flagstone as the agent or representative of City or City as the agent or representative of Flagstone for any purpose or in any manner whatsoever. 13.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall belle deemed an original, but all of which taken together shall constitute one and the same instrument. Confirmation of execution by electronic transmission of a facsimile signature page shall liave the same effect as original sienatures.be binding-upe13-•a11v firrrtln;g. 13.14 Venue and Jurisdiction. The parties acknowledge that a substantial portion of the negotiations, anticipated performance, and execution of this Agreement occurred in Miami -Dade County, Florida. Except for matters to be resolved in accordance with specific Arbitration provisions described herein, the parties agree that any disputes, civil actions, or legal proceedings arising out of or relating to this Agreement shall be brought in the courts of record of the State of Florida in Miami -Dade County, Florida, or in the United States District Court, Southern District of Florida, Miami -Dade County Division. Each Party consents to the jurisdiction of such courts in any such civil actions or legal proceedings and waives any objections to the laying of venue of any such civil action or legal proceeding in such court(s). Service of any court paper may be effected on such party by mail, as provided in the Notice provisions of this Agreement, or in such other manner as may be provided under applicable laws, rules of procedure, or local rules. 13.15 Waiver of Jury Trial. The parties hereby knowingly, irrevocably, voluntarily, and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding, or counterclaim, based on, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the parties to enter into this Agreement. 13.16 No Conflicts of Interest. Flagstone agrees to comply with the applicable conflict of interest provisions of the Code of the City of Miami, the Miami -Dade County Code, and the laws of the State of Florida as such are amended from time to time. No member, official, or employee of the City shall have any personal interest, direct or indirect, in this Agreemeno or the Ground Lease(s), nor shall any member, official, or A employee participate in any decision relating to this Agreement which affects his or her personal interests or the interests of any other Person (as defined in the form of Ground Lease(s)) in which he or she is, directly or indirectly, interested. No member, official, or 224398 45 05/05/10 showing changes from 05/03/10 Ufa 1;)QCS 4_i;197.$1 2 employee of the City shall be personally liable to Flagstone, its successors or assigns, or anyone claiming by, through, or under Flagstone or any successor in interest to the Property, in the event of any default or breach by the City or for any amount which may become due to Flagstone, its successors, and assigns, or any successor in interest to the Property, or on any obligation under the terms of this Agreement or under the Ground Lease(s). [SIGNATURES FOLLOW] (Remainder of Page Intentionally Left Blank) A 224398 05/05/10 showing changes from 05/03/10 11 I 1T)QGS n1192812 IN WITNESS WHEREOF, City and Flagstone have caused this Agreement to be d b 1 f the At. set forth beside the parties signatures below_; executed as require y aw as o THE CITY OF MIAMI, a municipal corporation- Formatted.Table Attest: of the State of Florida By: BY Name: Priscilla A. Thompson Name: Carlos Migoya Title: City Clerk Title: City Manager Date: Date: APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: By: By: Name: Julie O. Bru Name: 11ee iiii-33rehm—Admiliidtrat-OrGai*x- Title: City Attorney Reshefsl:�r Title: Interim Risk Management Director •l?$'efieh Sworn to and subscribed before me this _day of .2010, by `' ' ' Formatted: Left who is personally known to me or ().has produced as identification. Notary Public My commission expires: A A 224398 47 05/05/10 showing changes from 05/03/10 iYf7:'\D(jCS41197.,.5'12 FLAGSTONE ISLAND GARDENS LLC, a Delaware limited liability company ATTEST: By: FLAGSTONE DEVELOPMENT CORPORATION, a Delaware corporation, its By: Managing Partner Name: Title: By: Date: Name: Mehmet Bayraktar Its: President Date: Sworn to and subscribed before me this _ day of . 2010, by who O is personally known to me, or O has produced as identification. Notary Public My commission expires: List of, Exhlb.its and Attachments attached 224398 48 05/05/10 showing changes from 05/03/10 1II•17�UC5 411Q2Y1, 2 LIST OF EXHIBITS Exhibit A Legal Description of the Property Exhibit B Definitions Exhibit C Form of Ground Lease(s) Exhibit 3.3.1 Approved Environmental Consultants Exhibit 3.5 Insurance Exhibit 4. 1.1 Title Matters Exhibit 4.1.2 Environmental Condition Acceptance Notice Exhibit 4.1.3 Investors List Exhibit 4.1.4 List of Organizational Documents Exhibit 4.1.5 Expressions of Interest Exhibit 4.2.2 Binding letter from DCA Exhibit 4.2.6 Existing Occupants Exhibit 5.3 Escrow Agreement Exhibit 6.1.4 Pre -Approved Candidates for Development Team Exhibit 6.1.5 Pre -Approved Hotel Operators and/or Franchisors Exhibit 7.2 List of Permits and Approvals Held by Flagstone Exhibit 7.4.1 List of Licenses/Easements Exhibit 7.6 Marina Operating Permit Exhibit 9.2.3 Hold Harmless_ -and Indemnification Agreement Exhibit 12.2 Permitted Title Exceptions Exhibit 12.1.14 Existing Insurance Coverages Composite Attachment 1 Resolutions of the City (to be updated) Composite Attachment 2 -Company Authorization of Flagstone Composite Attachment 3 Exhibit A to City Commission Resolution No. 10 - adopted 2010, regarding. Construction Schedule, Options to Extend, Payment Schedules, and Related Defaults and Notes Composite Attachment 4 City Commission Resolution No. 09-0263, adopted May 28, 2009, regarding Labor Peace Agreements 228999 1 Exhibit A LEGAL DESCRIPTION OF UPLAND PARCEL Commence at a point shown marked by an 5/8" diameter iron rod and Cap Stamped F.D.O.T., shown as P.T. Sta. 25+50 on the "Official Map of Location and Survey of a portion of Section 8706, designated as part of State Road A -1-A in Dade County, Florida", prepared by the State Road Department of the State of Florida, as recorded in Map Book 56, at Page 71 of the Public Records of Dade County, Florida. Said point being the point of tangency of the original center line of the Douglas MacArthur Causeway running Easterly and South Easterly from the Westerly limits (West Bridge) of Watson Island as shown on Sheet 3 of the State Road Department Right -of -Way Map, Section No. (8706-112) 87060-2117, revised March 25, 1959, said most Northerly curve having a radius of 1432.69 feet and a central angle of 62° 00' 00 seconds"; thence South 59° 51' 26" West departing radially from said centerline a distance of 987.36 feet to a Projected Bulkhead line; thence North 17° 12' 21" West along said bulkhead line, a distance of 238.86 feet to the point and place of beginning; thence North 17° 12' 21" West continuing along said bulkhead line a distance of 924.70 feet to the Southerly right of way line of State Road A -1-A Douglas MacArthur Causeway; thence along said Southerly right of way line the following courses and distances; South 89° 10' 55" East, a distance of 73.08 feet; thence North 86° 44' 00" East, a distance of 67.09 feet to non - tangent curve concave to the Northeast whose radial line bears North 39° 29' 18" East having a radius of 160.00 feet and central angle of 22° 09' 33"; thence along said curve an arc length of 61.88 feet; thence South 72° 40' 15" East continuing along said .Southerly right of way line a distance of 276.49 feet; to a curve concave to the Southwest having a radius of 600.00 feet and central angel of 46° 17' 39" thence along said curve an arc length of 484.79 feet to a point of tangency; thence South 26° 22' 36" East continuing along the southwesterly right of way line of State Road A -1-A, a distance of 196.59 feet; thence South 54° 07' 39" West Departing Said right of way line, a distance of 532.16 feet; thence North 35° 54' 03" West, a distance of 132.74 feet; thence South 54° 07' 39" West, a distance of 150.14 feet to the point of beginning. 228999 2 Exhibit A (Cont.) LEGAL DESCRIPTION OF SUBMERGED PARCEL Commence at a point marked by an 5/8" diameter iron rod and Cap Stamped F.D.O.T., shown as P. T. Sta. 25+50 on the "Official Map of Location and Survey of a portion of Section 8708, designated as part of State Road A -1-A in Dade County, Florida", prepared by the State Road Department of the State of Florida, as recorded in Map Book 56, at Page 71 of the Public Records of Dade County, Florida. Said point being the point of tangency of the original center line of the Douglas MacArthur Causeway running Easterly and South Easterly from the Westerly limits (West Bridge) of Watson Island as shown on Sheet 3 of the State Road Department Right -of -Way Map, Section No. (8706- 112) 87060-2117, revised March 25, 1959, said most Northerly curve having a radius of 1432.69 feet and a central angle of 62° 00' 00"; thence South 59° 51' 26" West departing radially from said centerline, a distance of 987.36 feet to a projected. bulkhead line, thence North 17° 12' 21" West along said bulkhead line, a distance of 238.86 feet to the point and place of beginning; thence South 49° 32' 57" West departing said bulkhead line a distance of 550.92 feet to a point of intersection of lines of turning basin limit as established by U.S. Army Corps of engineers and position by coordinates North 527,878.62 feet, East 926,135.22 feet (based on North American Datum 1983-NAC83); thence North 31 ° 03' 50" West, along the limits of said turning basin a distance of 428.44 feet to a point of intersection with the East right of way line of the intracoastal waterway; thence North 03° 27' 54" West along said East right of way line a distance of 874.43 feet to a point of intersection with the Southerly right of way line of said Douglas MacArthur Causeway, said point of intersection being a point on a curve concave Southerly and having a radius of 10,716.59 feet, a radial line to said point bears South 01° 15' 15" East; thence run Easterly for 387.46 feet along the arc of said curve and along said Southerly right of way line, through a central angle of 02° 04' 17" to a point of tangency; thence South 89° 10' 55" East continuing Easterly along the said Southerly right of way line, a distance of 31.87 feet more or less to a point of intersection with an existing bulkhead line; thence South 17° 12' 21" East along said bulkhead line a distance of 924.70 feet to the point of beginning. 228999 Exhibit B Definitions Any capitalized term used but not defined in this Agreement, including, without limitation, this Kxhibit B it BExhibit B shall have the meanings assigned to the Formatted: Font: Bold, Underline ------------------------------ same in the Ground Lease. Formatted: Font: Bold, Underline 1.1 -1-3 "AAA" shall have the meaning ascribed to such term in Section 6.1.1 6..1.10 of this Agreement. T. CCCCLfTIp11 shall.. e sHeh. E.1 ef the Aggeement. `Addi44-&aal-L-4C(s)'=shall hEtv� t]�e Eri aninb aseribed-#o s vh-t r x -ire Seetion— sr 3 cf-the Agfc'cme-rrr. 1-4 "A-z-zad icE��nal-SE eufi-t,"� n,'1ia ean ,-m�-and+e .e-tET-�er-theA'1-z-cdditio na-i4)epet-4t or -tile Adel-iticanal-LOQ-as-el�et�d-blab 4ofle-p>�tsua�•tt-te-�eetde�n—ss:� 1.2-5 "Agreement" shall mean and refer to this "Agreement to Enter into Ground Lease" by and between City and Flagstone. 1.36 "Agreement Security" shall mean and refer to the Easement Security, the Hold Harmless, Indemnification and Secw7__ty Deposit and the AA as l -.Deposit .Rent Security collectively. 1.4-7 "Amended Partial Modification of Restrictions" shall have the meaning ascribed to such term in Section Error! Reference source not found.Ex•^rl�r-e ne not fund " 2 of this Agreement. 1.58 "Approval -Requiring Matter" shall have the meaning ascribed to such term in Section 8.2 of this Agreement. 1.(& "Board of Trustees" shall have the meaning ascribed to such term in Section Error! Reference source not found & -e ! n e f renee seuive not feund " 2 ` of this Agreement. 1.179 "Chig- , eoufi e n4)ffieefCity Manager" means the administrative head of the City's government who is authorized to execute this Agreement and other documents, including notices required hereunder. 228999 4 1.84-1. "Ghier r.;.,.,eutiy Offie rCity Manager Approval Procedures" shall mean and refer to the procedures for submittal by Flagstone and review and approval by the Ghie f E,,,,,,, tiye Offs- .^ amity ManaMr of any Approval -Requiring Matter as described in Section Error! Reference source not found.Errer! Refe.eae^ ^^__ *etc -�.'� hereof. 1.94-2 "Qty" shall have the meaning ascribed to such term in the first paragraph of this Agreement. 1.10: "Completion Date" shall mean that date upon which the earlier of a temporary certificate of occupancy or a certificate of occupancy has been issued for the completion of construction. 1.11.4 "Commence(s) Construction" shall mean that all material plans and permits are approved and issued and the actual act of physical construction has begun. 1.125 "Construction Plans and Specifications" shall have the meaning ascribed to such term in Section Error! Reference source not found.EiTer-! Ref .enee seumenet fa of this Agreement. 1.13£ "DCA" shall have the meaning ascribed to such term in Section Error! Reference source not founds^•^' Ref renee ^ et c und" '" of this Agreement. 1.14- "Development Plans" shall have the meaning ascribed to such term in Section Error! Reference source not found.En-e ' nef ee setwee not Bqund.7.1 of this Agreement. 1.158 "Development Team" shall have the meaning ascribed to such term in Section Error! Reference source not found.E^•er-' not ee setifee not f and 6' " of this Agreement. 1.169 "Disclosed Investors" means all Investors other than Non -Disclosed Investors. 1.1720 "Disqualified Person" means any Person who: (i) shall have committed a material breach under any lease or other written agreement with City; (ii) has had any criminal felony convictions within the immediately preceding ten (10) years; (iii) has a widespread reputation (as evidenced by newspaper articles or other media reports of the mainstream press which are not subsequently retracted) for corrupt or unlawful business dealings; or (iv) is named on any list issued by a Governmental Authority of individuals and/or entities engaged in terrorist 228999 5 activities, including, but not limited to, the following: (a) list of Specially Designated Terrorists (SDTs) issued by the Office of Foreign Assets Control ("OFAC") pursuant to Executive Order 12947; (b) list of Specially Designated Global Terrorist (SDGTs) issued by OFAC pursuant to Executive Order 13224; and (c) list of Foreign Terrorist Organizations (FTOs) issued by the Secretary of State. 1. 182-4 "Downtown DRI" shall have the meaning ascribed to such term in Section Error! Reference source not found.Effad Referenee seufee not d.4.2.2 of this Agreement. 1.192 "Easement Deposit" shall have the meaning ascribed to such term in Section Error! Reference source not found E,rfer-!„ D of re =e set o, nd 5. of the Agreement. 1.203 "Easement Security LOC" shall have the meaning ascribed to such term in Section Error! Reference source not found Eµ -^r-' Referene,, not f ^^a 5. of the Agreement. 1.214 "Easement Security" shall mean and refer to either the Initial Depositor the Initial LOC as elected by Flagstone pursuant to Section Error! Reference source not found.L ^..i Ref ee , e et c^... a c , 1.223 "Effective Date" shall have the meaning ascribed to such term in ."T'- rLC&.E 1ARTICLE 1 of this Agreement. 1.236 "Escrow Agent' shall mean and refer to Shutts & Bowen LLP, whose address is 1500 Miami Center, 201 South Biscayne Boulevard, Miami, Florida 33131, or such other Escrow Agent determined from time to time bathe parties, d.wendinir upon the circumstances of the Easement Secure the Security Rent Deposit,,the Hold Harmless Indemnification and Security Deposit, and any other security required under this Agreement and Composite Attachment 3.. 1.24-7 "Escrow Agreement' shall have the meaning ascribed to such term in Section Error! Reference source not found.En-a-! Ref eesour-ee not f ••^a" of this Agreement. 1.259 "Event of Closure" shall mean and refer to any time periods that the City of Miami, Miami -Dade County or the State of Florida (or any of its applicable 228999 departments or agencies) are closed due to a significant event (such as Acts of God or terrorism, etc.) and such closure has a reasonably demonstrable effect on Flagstone's ability to obtain its Project Approvals hereunder or the City's ability to satisfy its conditions precedent in Seet-.ton-4.-2-.5-a-ad/-ofSeeden 44:6ARTICLE 6 and ARTICLE 7 hereof; provided, however that in no event shall the term "Event of Closure" as used in this Agreement be deemed to: (i) allow any extensions for more than six (6) months in the aggregate; and/or (ii) include, without limitation, normal and customary closures of such governmental offices for weekends and holidays. 1.269 "Event of Flaestone's Default" shall mean and refer to those events which shall constitute a default by Flagstone under this Agreement and which are set forth in Section Error! Reference source not found.En�erj—Deferenceseurse—H.-- f9und.11.1 hereof. 1.2738 "Fla sg tone" shall have the meaning ascribed to such term in the first paragraph of this Agreement. L28 "Gamishments" shall have the meaning ascribed to such term in A.RTICI,E 7 of this Agreement. 1.293-1 "Ground Lease(s)" shall mean and refer to (i) the one ground lease if Flagstone shall determine to develop the Property all at once, and (ii) the multiple ground leases if Flagstone shall determine to develop the Property on a component by component basis, all to be executed by the parties as provided herein and as described in Section 2.2, a form of which shall be attached hereto as Exhibit 1.30 "Hold Harmless Indemnification, anal Securit�DePosit" sh.al.l refer to the, types and amounts of security deposits required by Section IX of Composite Attachment 3. 1.31.-2 "Investor(s) " means: (i) all Persons now or hereafter having an equity interest in the Project; (ii) any direct or indirect legal or beneficial owners of interests in all of the equity investors in the Project; and (iii) holders of any note, debenture, mortgage or other security instrument in any Project Component(s) and/or Flagstone, other than an Approved Lender (as defined in the Ground Lease). 228999 7 Formatted: Font: Bold, Underline Formatted: Font: BoId,-Underline 1.323 "Investor List" shall have the meaning ascribed to such term in Section Error! Reference source not fbund.1✓rrer! Refeaenee seuFee not f, imd ^ ' ' of this Agreement 1.334 "Investor Questionnaire" means a questionnaire prepared by the Financial Advisor as part of the initial screening process for Disclosed Investors, the form of which shall have been mutually agreed upon by the Financial Advisor, the Chief r.,,,,eutive Off eei--Ci Manat*er and Flagstone. 1.345 "Island Gardens Proposal" shall mean and refer to Flagstone's proposal to the City in response to the Watson Island RFP, entitled "Island Gardens at Watson Island RFP" dated July 13, 2001. 1.35 "Judgment" shall mean and refer to any and all judgments of any kind w.b.ich might be or become an encumbrance upon the assets of Flagstone in relation to the Property and for the Project or any part thereof, as referenced. in ARTICLE 9 hereof. 1.36,6 "Lease Delivery" shall have the meaning ascribed to such term in the first paragraph of : P'T'T A.RT.IC.UE 6 of this Agreement. 1.37-7 "Lease Delivery Date" shall have the meaning ascribed to such term in Section 2.1:3 of this Agreement 1.38 "Lien" shall mean and refer to any and all liens, encumbrances, mortgages, pledges, security interests, collateral assignments or charges of any kind, which might be or become a lien upon the Property or any part thereof. 1.39 "Major Project Components" means those certain components and amenities of the Project more particularly set forth on Exhibit E of the Ground Lease. 1.40 "Major Use Special Permit" has the meaning ascribed to it in Article 17 of Ordinance 11000, as amended, the Zoning Ordinance of the City of Miami, Florida. 1.41 "MUSP Application" means any and all of the information required or otherwise necessary in connection with the obtaining of the Major Use Special Permit. 1.42 "MUSP Approval" shall have the meaning ascribed to such term in Section Error! Reference source not found.Errer! Referenee seuree net fem d,4.2.= of this Agreement. 228999 8 1.43 "NOPC" shall have the meaning ascribed to such term in Section Error! Reference source not found.)✓r-rer-I Refefenee seufee net fd " '." of this Agreement. 1.44 "NOPC Application" shall have the meaning ascribed to such term in Section 4:2.2-4.2.2 of this Agreement. 1.45 "NOPC Approval' shall have the meaning ascribed to such term in Section. 44.2.2 of this Agreement. 1.46 "Open for Business" shall mean the earlier of the date that the applicable Major Project Component receives either its temporary certificate of occupancy or its certificate of occupancy. 1.47 "Operating Team" shall have the meaning ascribed to such term in Section Error! Reference source not found=l-pi'. Re€eizen found.6.1.5 of this Agreement 1.48 "Organizational Documents" shall have the meaning ascribed to such term in Section Error! Reference source not foundsrvr! rte€er:ence sour-ee—net ' f9un�.".' .". of this Agreement. 1.49 "Partial Modification of Restrictions" shall have the meaning ascribed to such term in Section Error! Reference source not found.E er! Re r-enee setiree not c„•4.2.5 of this Agreement. 1.50 "Payment and Performance Bond" shall mean and refer to such payment and performance bonds which are required to be obtained, or caused to be obtained, by Flagstone pursuant to Section 41.1:96.1.9 hereof prior to issuance of the master building permit for the Property, which payment and performance bonds shall be in favor of City, in amounts acceptable to City with respect to the work to be performed by the general contractor(s) for the Project and such of the subcontractors as shall be required by City, shall be issued by a company approved by City, and. shall otherwise be in form and substance acceptable to City. 1.51 "Person" means any natural person, trust, frnn, partnership, corporation, joint venture, association, company, or any other legal or business entity investment enterprise. 228999 9 1.52 "Proiect" shall mean and refer to the development of the Property and the construction of the Major Project Components (also known as the Project Components) therein. 1.53 "Project Approvals" shall have the meaning ascribed to such term in Section 64A36.1.13 -of this Agreement. 1.54 "Project Components" means those certain components and amenities of the Project more particularly set forth on Exhibit E of the Ground Lease. 1.55 "Prope " shall have the meaning ascribed to such term in the first recital of this Agreement. 1.56 "Relocated Occupants" shall have the meaning ascribed to such term in Section 4.M4.2.6 of this Agreement. 1.57 "Security Deposit" shall collectively mean and refer to any of the Easement Deposit, the Additi iral--Depes-itSecurity Rent Deposit and the Hold Harmless. Indemnifications and Security Deposit—e,—the�—;3eposit, Flag tette: 1 5f3 "Deposit kennt Security"ahall mean and refer to thetypes and amounts of security pursuant to Section 5.1. hereof 1.593 "Start(s) Construction" shall mean that all material plans and permits are approved and issued and the actual act of physical construction has begun. 1.604 "Total Security" shall mean and refer to the Easement Security, the Security Rent Deposit and the Hold Harmless....Indemnification. and Security Deposit.Additional e fity and the 1 incl Seeur-ity 1.619 "Watson Island RFP" shall mean and refer to that certain Mega Yacht Marina and Mixed Use Waterfront Development Opportunity - Watson Island Miami, Florida Request for Proposals dated February, 2001, as amended. 228999 10 Exhibit C Form of Ground Lease ]SEE END OF AGREEMENT] 228999 11 Exhibit 3.3.1 Approved Environmental Consultants 1. PBS & J (Post Buckley) - Contact: William Pitcher 2. Langan - Contact: Christina Gonzalez 3. K & B Kaderabek & Barreiro Consultants, Inc. -Contact: Thomas Kaderabek 228999 12 Exhibit 3.5 Insurance 1. 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, personal injury, and premises coverage against those sums that the insured becomes legally obligated to pay as damages in connection with any and all claims, demands or actions, bodily injury, death or property damage occurring in the Property, the limits of which shall not be less than One Million Dollars ($1,000,000) per occurrence combined single limit for bodily injury and property damage. 2. Pollution/Environmental Impairment Liability insurance coverage to be provided by Flagstone's contractors perforniing the Inspections on a claims basis (provided that such policy period must be for a minimum of six (6) years from and after the date of the Inspections) with limits of One Million Dollars ($1,000,000) per occurrence, providing coverage for the damage caused by spillage of any fuel, petroleum, products or any other "hazardous substances", "hazardous materials" or "toxic substances" (as defined in any and all state, local, or federal laws, rules, regulations and orders pertaining to environmental, public health or welfare matters), whether those substances are solid, liquid or gaseous. Said policy of insurance shall also provide coverage for the cost of cleanup of the affected area and for the removal, transportation and safe disposal of any contaminated area. 3. Automobile Liability insurance covering all owned, non -owned, and hired vehicles used in conjunction with Inspections of the Property. The policy or policies of insurance shall contain such limits as may be reasonably requested by the City from time to time but not less than Five Hundred Thousand Dollars ($500,000). Worker's Compensation insurance in the amounts and types required by Chapter 440, Florida Statues. Only Flagstone need be named as insured. 4. The limits set forth in paragraphs (1), (2) and (3) above shall be issued by an Insurance Company maintaining an "A" rating and Financial Strength of "T'. 228999 13 Exhibit 4.1.1 Title Matters For purposes hereof, all references to "Schedules" shall refer to those certain Schedules attached to that certain Chicago Title Insurance Company ("Title Insurer") A.L.T.A. Commitment for Leasehold Owner's Policy with an Effective Date of June 9, 2002 at 11:00 PM (a copy of which is attached hereto) as updated by that certain with an Effective Date of 20 at (a copy of which is attached hereto). 1. For purposes of deleting Items 3, 4 and 5 of Schedule B -Section 1 and Item 2.e of Schedule B -Section 2 (as well as modifying Item 2.g of Schedule B -Section 2), City shall provide Title Insurer confirmation that there are no outstanding taxes and/or municipal liens (i.e., proof of payment or exemption from taxation). Flagstone shall provide Title Insurer and City Commission ghat there are no outstanding taxes, liens, judgments, or garnishments a rainst the Property and/or a ainst Flagstone as and if applicable (i.e., proof of payments or exemptions). 2. For purposes of deleting Item 7 of Schedule B -Section 1 and Items 1, 2.a, 2.d, 4 and 17 of Schedule B -Section 2, City shall provide Title Insurer a No Lien, Possession and Gap Affidavit executed on behalf of the City (stating, among other things, that there are no parties in possession or having a right to possession of any.portion of the Property), in form and content reasonably satisfactory to Title Insurer. 3. Item 9 of Schedule B -Section 1 and Item 8 of Schedule B -Section 2 refer to the 1949 deed from the Board of Trustees of the Internal Improvement Fund (the "Trustees"). City shall use reasonable, good -faith efforts to obtain from the Trustees: (i) a release of the right of entry with respect to the oil, gas and mineral reservations contained in this deed (provided that the same not be deemed to require City to incur any monetary obligation other than normal and customary application fees which may be charged in connection therewith); (ii) a termination and/or release of Items 15 and 16 of Schedule B -Section 1, in form and content reasonably satisfactory to Title Insurer to delete the same; and (iii) the Amended Partial Modification of Restrictions. 229999 14 4. City shall provide to Title Insurer the resolution and letter described in Item 11 of Schedule B -Section 1, in form and content reasonably satisfactory to Title Insurer so as to delete this item. 5. City shall provide to Title Insurer the affidavit described in Item 13 of Schedule B -Section 1, in form and content reasonably satisfactory to Title Insurer so as to delete this item. 6. As to Items 9 and 10 of Schedule B -Section 2, City shall use reasonable, good -faith efforts to obtain from the Miami -Dade Water and Sewer Authority Department ("WASllz4"), written confirmation that the water and sewer facilities described in these documents have been properly completed, conveyed and/or dedicated and accepted by WASDA, etc. (if such is the case at the time of execution as of the Lease Delivery Date), and that the City has otherwise fully complied with the terms and conditions of these documents. As specifically. Flagstone shall provide to the City written confirmation from WASD that the water and sewer facilities described in the applicable documents have been properly completed conveyed and/or dedicated and. accepted by WASD etc (if such is the case at the time of execution as of the Lease Delivery Date) and that Flagstone has otherwise fully complied with the terms and conditions required of Flagstone under those documents including the Amended and restated Agreement to Enter into Ground Lease and Composite Attachment 3 thereto. 228999 15 Exhibit 4.1.2 Environmental Condition Acceptance Notice Reference to made to that certain Agreement to Enter into Ground Lease between The City of Miami, Florida ("City"), and Flagstone Island Gardens LLC, a Delaware limited liability company ("Flagstone"), having an effective date of January 1, 2003 as the same has been amended and restated by the Amended and Restated Agreement to Enter Into Ground Lease between the City and Flagstone having an effective date of February 1, 2010 (collectively, the "Agreement"), Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings given to them in the Agreement. Pursuant to Section 4.1.2 of the Agreement, Flagstone hereby gives notice to City as follows: (i) Flagstone has inspected the environmental condition of the Property prior to the expiration of the Inspection Period pursuant to Section 4.1.1 of the Agreement; and (ii) The environmental condition of the Property is satisfactory to Flagstone. FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company By: FLAGSTONE DEVELOPMENT CORPORATION, a Delaware corporation, its Managing Partner By: Name: Mehmet Bayraktar Title: President Date: 228999 16 Exhibit 4.1.3 Investor List 1. Flagstone Island Gardens, LLC 2. Mehmet Bayraktar 228999 17 Exhibit 4.1.4 List of Organizational Documents (To Be Updated for Document Execution) 1. Certificate of Formation of Flagstone Island Gardens, LLC dated December 4, 2002, filed on December 9, 2002 with the Secretary of State, State of Delaware. 2. Certificate of Merger of Flagstone Properties, LLC (a Florida limited liability company) and Flagstone Island Gardens, LLC (a Delaware limited liability company) dated December, 2002, whereby Flagstone Island Gardens, LLC is designated as the "Surviving LLC", together with: (i) Articles of Merger dated December, 2002; (ii) Plan of Merger dated December, 2002; (iii) Consent of Sole Member of Flagstone Properties, LLC dated December, 2002; and (iv) Consent of Sole Member of Flagstone Island Gardens, LLC dated December, 2002. 3. Operating Agreement dated December , 2002. NOTE: Articles of Organization for Flagstone Properties, LLC were filed on May 24, 2002 with the Secretary of State, State of Florida. 228999 18 Exhibit 4.1.5 Expressions of Interest 228999 19 228999 t Exhibit 4.2.2 Sinding Letter from DCA 20 Exhibit 4.2.6 Previously Existing Occupants 1. John J. Waterman ("Blue Sea II" - 2 vessels) - slips 36 & 37 2. Lazaro Sanchez (Casablanca Seafood - 5 vessels) - slips 23, 25, 26, 27 & 28 — "Fish Market" 3. Inelda deArmas (De Armas Seafood - 3 vessels) - slips 32, 33, 34 — "Fish Market" 4. Bruce Purdy (Blackbeard Charters - 3 vessels) - slips 38, 40, and 42 228999 21 EXHIBIT 5.3 ESCROW AGREEMENT (To be further revised) THIS ESCROW AGREEMENT ("Agreement") is made as of the _ day of , 20___, by and among THE CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida ("City"); FLAGSTONE ISLAND GARDENS, LLC, a Delaware limited liability company ("Flagstone") (City and Flagstone are sometimes collectively referred to herein as "Principals"); and SHUTTS & BOWEN LLP ("Escrow Agent"). RECITALS: A. City and Flagstone have entered into that certain Agreement to Enter Into Ground Lease having an effective date of January 1, 2003 (the "Agreement to Enter into Ground Lease") as amended and restated by that certain Amended and Restated Agreement to Enter Into Ground Lease having an effective date of February 1, 2010 (collectively, the "Agreement to Enter Into Ground Lease"). Unless otherwise defined herein, all capitalized terms used herein shall have the respective meanings given to them in the Agreement to Enter Into Ground Lease. B. Pursuant to Section 5.1 of the Agreement to Enter Into Ground Lease, Flagstone has delivered to Escrow Agent (subject to clearance of funds) the Easement Deposit (in the amount of Thirty -Five Thousand Dollars and No/100 ($35,000.00)) or such portion thereof which, in combination with the amount of any Easement LOC delivered to City pursuant to Section 5.1 of the Agreement to Enter into Ground Lease, is equal to Thirty -Five Thousand Dollars and No/100 ($35,000.00). C. Pursuant to Section 5.2 of the Agreement to Enter Into Ground Lease: if Flagstone determines to develop the Project all at once, then Flagstone must within three (3) business days after entering into the Ground Lease must deliver to Escrow Agent the Additional Deposit (in the amount of Two Million Dollars and No/1.00 ($2,000,000), or such portion thereof which, in combination with the amount of any Additional LOC delivered to City pursuant to Sections 5.2 and 6.1.7 of the Agreement to Enter into Ground Lease, is equal to Two Million Dollars and No/100 ($2,000,000). In accordance with Section 6.1.7, the Construction Budget shall be submitted. no later than 60 days prior to the Commission meeting date for consideration of the respective ground lease(s). (i) If .Flagstone determines to develop the Proiect then Flagstone must within three (3) business days after, entering into the Ground Lease deliver to_Escrow Agent\ (a) the Security Deposit (such amounts increasing to accordance with Section 5.1. of the Agreement to Enter to Two Million Dollars ($2,000,000), and (b) the Hold Harn-Aess Indemnification and Security Deposits required by Section IX of Composite 228999 22 Attachment 3 to the Agreement to Enter into Ground Lease (with the Escrow Agent and the Courts in such applicable amounts.) basis,eenVenent fhenFlagstetie mustWsimss days Aer enteti. b budgeted fei4be-evera,11- ej ct-�levelepn =, a-tlie-"Adr�itaeez�l-ASpesi-}-o�¢�`) p�a�ide-te-tl3e-C�ty�l�c-Additi©i��l-bOC—••--o�-(�-a-e�l�i�at3en-theree t'—al•1-so-t)-i��t-the eembinatiaa4iereaf-equals-thL-required-pi.epeAieizate-ar-newt-e�the-P-r-o3eet-develeprneail bud +csb, o-ci3reugho , the tffffis of the respeetive Q-41-o.,..d I @ases-, . (iii) The Easement Deposit, together with the Addifiena4-5ecu1ity Rent Deposit(s)yand the Bold Ilalmless Indemnification and Security Deposit(s) to the extent hereafter so delivered by Flagstone to Escrow Agent, is hereinafter referred to as the "Escrowed Funds". D. This Agreement is intended to be the Escrow Agreement referenced in Section 5.3 of the Agreement to Enter Into Ground Lease and referenced in Section .IX of Composite Attachment 3: NOW, THEREFORE, in consideration of the amount of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Recitals. The foregoing recitals are true and are hereby affirmed, agreed to and made a part of this Agreement. 2. Escrowed Funds. Escrow Agent shall cause the Escrowed Funds to be placed in a money market account, savings account or other similar interest bearing account in a banking institution duly licensed under the federal or state banking laws and located in Miami -Dade County, Florida. As used herein, the term "Escrowed Funds" shall include any interest earned thereon. Escrow Agent shall hold and disburse the Escrowed Funds only in accordance with the provisions of this Agreement. 3. Disbursement. (a) To City In Case of Default without Dispute. If and only if City is entitled to receive the Escrowed Funds pursuant to Section 11.2 of the Agreement to Enter into Ground Lease, City shall give written notice to Escrow Agent and Flagstone thereof. Such notice shall state with specificity the nature of the uncured Event of Flagstone's Default giving rise to City's right to so receive the Escrowed Funds. Unless Flagstone, within fifteen (15) days after City gives such written notice to both Flagstone and Escrow Agent, gives written notice to Escrow Agent and City disputing City's right to receive the Escrowed Funds (a "Disbursement Dispute Notice"), Escrow Agent shall 228999 23 distribute the Escrowed Funds pursuant to Section 11.2 of the Agreement to Enter into Ground Lease, whereupon this Agreement and Escrow Agent's duties hereunder shall be deemed terminated. (b) In Case of Dispute. If Flagstone gives a Disbursement Dispute Notice to City and Escrow Agent within such fifteen (15) day period, there shall be deemed to be a dispute concerning the Escrowed Funds, which dispute shall be handled in the manner provided by Paragraph 5 below. (c) Ground Lease(s). If any Ground Lease is. or any Ground Leases are mutually executed and delivered pursuant to the provisions of the Agreement to Enter into Ground Lease, the Escrowed Funds shall be disbursed in the manner provided by Section 5.4(b) of each Ground Lease. 4. Escrow Agent. (a) The duties of Escrow Agent are purely ministerial in nature and shall be expressly limited to the safekeeping of the Escrowed Funds, and for the disposition of same in accordance with this Agreement. Each of the parties to this Agreement shall and do jointly and severally indemnify Escrow Agent and hold Escrow Agent harmless from and against any and all claims, liabilities, damages, costs, penalties, losses, actions, suits, or proceedings at law or in equity, or any other expenses, fees, or charges of any character or nature, which Escrow Agent may incur or with which Escrow Agent may be threatened directly or indirectly arising from or in any way connected with this Agreement or which may result from Escrow Agent's following of instructions from the parties, whether or not litigation is instituted, unless caused by the gross negligence or willful misconduct of Escrow Agent. (b) Escrow Agent shall not be liable, with respect to its role as Escrow Agent, (i) to any of the parties for any act or omission to act except for Escrow Agent's own gross negligence or willful misconduct, (ii) for any legal effect, insufficiency, or undesirability of any instrument deposited with or delivered by Escrow Agent or exchanged by the parties under this.Agreement, (iii) for any loss or impairment of funds that have been deposited in escrow while those funds are in the course of collection, or while those funds are on deposit in a financial institution, if such loss or impairment results from the failure, insolvency, or suspension of a financial institution, (v) for the expiration of any time limit or other consequence of delay, unless a properly executed written instruction, accepted by Escrow Agent, has instructed Escrow Agent to comply with such time limit, (vi) for the default, error, action, or omission of any party to this Agreement other than Escrow Agent, or (vii) for Escrow Agent's compliance with any legal process, subpoena, writs, orders, judgments, and decrees of any court, whether issued with or without jurisdiction, and whether or not subsequently vacated, modified, set aside, or reversed. Escrow Agent may consult with counsel of its own choice. (c) Escrow Agent may (i) act in reliance upon any writing or instrument or signature which it, in good faith, believes to be bona fide and genuine, (ii) 228999 i 24 assume the validity and accuracy of any statement contained in such a writing or instrument, and (iii) assume, unless it has actual knowledge to the contrary, that any person purporting to give any writing, notice, advice, or instructions in connection with the provisions of this Agreement has been duly authorized to do so. Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner, and execution, or validity, of any instrument deposited in escrow, or as to the identity, authority, or right of any person executing same. Escrow Agent's duties under this Agreement shall be limited solely to those provided in this Agreement. Each party to this Agreement acknowledges and agrees that nothing in this Agreement shall prohibit Escrow Agent from serving in a similar capacity on behalf of others. (d) The parties hereby acknowledge and agree that (i) Flagstone is a client of Escrow Agent, and has an on-going attomey/client relationships with Escrow Agent, and (ii) Escrow Agent's performance of its duties under this Agreement may require Escrow Agent to take actions or positions which might otherwise be in conflict with its role and duties in connection with such ongoing attomey/client relationship. Accordingly, except for acts of gross negligence or willful misconduct by Escrow Agent, and except for matters involving the attorney/client privilege between Escrow Agent and Flagstone, the parties hereby voluntarily and knowingly, fully, finally, completely and irrevocably (i) waive any such actual, apparent or alleged conflict between Escrow Agent's duties under this Agreement and any other duties which Escrow Agent may have to Flagstone, and (ii) remise, release, discharge and forever free Escrow Agent and each of its partners, employees and agents, of and from any and all liability, claims, debts, obligations, demands, judgments, actions, causes of action, suits, sums of money, accounts, covenants, agreements, promises, damages, liabilities and charges of every kind and nature, at law or in equity, and whether in tort, contract, or otherwise, that the parties now or in the future have, may have or may claim to have against Escrow Agent or any of its partners, employees or agents based on, arising out of, in connection with, or in any way pertaining to, any such actual, apparent or alleged conflict, unless the same is caused by the gross negligence or willful misconduct of Escrow Agent, and agree that Escrow Agent may continue to act as attorney for Flagstone throughout the transactions contemplated hereby. 5. Disputes. If, in Escrow Agent's sole opinion, any dispute arises among any of the parties to this Agreement and/or any third parties (whether concerning this Escrow Agreement, Escrow Agent's duties hereunder, the disposition of the items held in escrow, or any other matters pertaining to the escrow), or if Escrow Agent shall be uncertain as to its duties or rights under this Agreement or shall receive instructions, claims, or demands from any of the other parties to this Agreement and/or any third parties with respect to the Escrowed Funds which in Escrow Agent's sole opinion, are in conflict with any provision of this Agreement, or if Escrow Agent is joined as a party to a . lawsuit by virtue of the fact that it is holding the Documents: (a) Escrow Agent, upon giving written notice to all other parties to this Agreement, may (but shall not be obligated to) refrain from performing any further duties under this Agreement, hold the Escrowed Funds in escrow, and/or continue to hold any 228999 25 itemsthen being held in escrow by Escrow Agent, until such time as such dispute, uncertainty or lawsuit shall have been resolved to Escrow Agent's satisfaction, or by a final order or judgment of a court of competent jurisdiction; and/or (b) Escrow Agent may interplead the Escrowed Funds by filing an interpleader action in the Circuit Court in and for Miami -Dade County, Florida (to the jurisdiction of which all parties do hereby consent) and depositing the Escrowed Funds into the registry of the court, whereupon Escrow Agent shall be relieved and released from any further liability as Escrow Agent under this Agreement. 6. Term of Agreement (a) This Escrow Agreement shall remain in effect unless and until it is canceled in any of the following manners: i Upon written notice given by all Principal(s) of cancellation of designation of Escrow Agent to act and serve in said capacity, in which event cancellation shall take effect no earlier than twenty (20) days after notice to Escrow Agent of such cancellation; or ii Escrow Agent may resign as escrow agent at any time upon giving notice to Principal(s) of its desire to so resign; provided, however, that resignation of Escrow Agent shall take effect no earlier than ten (10) days after the giving of notice of resignation; or iii Upon compliance with all escrow provisions as set forth in this Escrow Agreement. (b) In the event Principal(s) fail to agree to a successor escrow agent within the period described hereinabove, Escrow Agent shall have the right to deposit the Escrowed Funds into the registry of an appropriate court and request judicial determination of the rights between Principal(s), by interpleader or other appropriate action, and Principal(s) hereby, jointly and severally, indemnify, defend and hold Escrow Agent harmless from and against any damages or losses in connection therewith including, but not limited to, reasonable attorneys' and paralegals' fees and court costs at all trial and appellate levels, except for acts of gross negligence of willful misconduct of Escrow Agent. (c) Upon termination of the duties of Escrow Agent in either manner set forth in subparagraphs 6(a)(i) or 6(a)(ii), Escrow Agent shall deliver the Escrowed Funds to the newly appointed escrow agent designated by the Principal(s), and Escrow Agent shall not otherwise have the right to withhold the Deposit from said newly appointed escrow agent. (d) Escrow Agent shall not be bound by any modification, cancellation or rescission of this Escrow Agreement unless in writing and signed by all Principal(s) 228999 26 and Escrow Agent. In no event shall any modification of this Escrow Agreement, which shall affect the rights or duties of Escrow Agent, be binding on Escrow Agent unless it shall have given its prior written consent. 7. Notices. Any and all notices required or permitted to be served pursuant to the terms of this Agreement shall given in the manner required by the Agreement to Enter into Ground Lease; provided, however, that notices to Escrow Agent shall be sent to the following address: , Shutts & Bowen LLP 201 South Biscayne Blvd. 1500 Miami Center Miami, Florida 33131 Attn: Kevin D. Cowan, Esq. and Alexander I. Tachmes, Esq. 8. Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without application of conflict of law principles. In the event any action, suit, or proceeding is instituted as a result of any matter or thing affecting this Agreement, the parties hereby designate Miami -Dade County, Florida, as the proper jurisdiction and the venue in which same is to be instituted. 9. Bindinz Assignmen. This Agreement shall be binding upon the parties and their respective successors and permitted assigns. Neither City nor Flagstone may assign this Agreement except to the same party as the Agreement to Enter into Ground Lease may be assigned in accordance with its terms. 10. Waiver: Modification. The waiver of any terms, provision or condition of this Agreement shall be effective only if in writing and signed by all the parties to this Agreement, and then only in the specific instance and for the particular purpose for which it was given. No failure to exercise and no delay in exercising any right or power under this Agreement shall operate as a waiver thereof. No modification, amendment, cancellation or rescission hereof shall be valid and binding„ unless it is in writing and signed by all parties to this Agreement. 11. Counterparts. This Agreement may be executed in any number of counterparts. Each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one Agreement. This Agreement may be executed via facsimile transmission, and facsimile counterparts shall have the same force and effect as original signatures. 12. Enforcement Costs. If any civil action, arbitration or other legal proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys' fees, court costs and all expenses (including, without limitation, all 228999 27 such fees, costs and expenses incident to arbitration, appellate, bankruptcy and post- judgment proceedings), incurred in that civil action, arbitration or legal proceeding, in addition to any other relief to which such party or parties may be entitled. Attorneys' fees shall include, without limitation, paralegal fees, investigative fees, administrative costs and all other charges billed by the attorney to the prevailing party. IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to be executed as of the date first above written. THE CITY OF MIAMI, a municipal Attest: corporation of the State of Florida By: By: Priscilla A. Thompson, City Clerk Carlos Migoya, City Manager Date: Date: APPROVED AS TO INSURANCE REQUIREMENTS: By: Lee"LeeAnn BrehniGary .Reshefsky Interim Risk Management Director APPROVED AS TO FORM AND CORRECTNESS: By: Julie O. Bru, City Attorney FLAGSTONE ISLAND GARDENS LLC, a Delaware limited liability company By: FLAGSTONE DEVELOPMENT CORPORATION, a Delaware corporation, its Managing Partner 228999 28 By: Name: Mehmet Bayraktar Title: President Date: SHUTTS & BOWEN LLP Lo Name: Title: Date: 228999 29 Exhibit 6.1.4 Pre -Approved Candidates for Development Team • Eric Kuhne & Associates • Spillis Candella 228999 30 Exhibit 6.1.5 Pre -Approved Hotel Operators and/or Franchisors • Hilton group, including, but not limited to, Conrad Hotels • Starwood group, including, but not limited to, W Hotels, St. Regis Hotels, Starwood Luxury Collection • Rosewood Hotels • Hyatt group, including, but not limited to, Park Hyatt • Raffles Group, including, but not limited to, Raffles Hotels • Marriott group, including, but not limited to, Bulgari Hotels • The Peninsula Group • Four Seasons Group, including, but not limited to, The Regent hotels • The Rocco Forte group, including, but not limited to, RF Hotels • Kempinski Hotels & Resorts • Six Continents Hotels • Mandarin Oriental • Fairmont Hotels & Resorts 228999 31 Exhibit 7.2 List of Permits and Approvals Held by Flagstone (to be updated upon document execution) 228999 32 Exhibit 7.4.1 List of Licenses/Easements (to be update upon document execution) 228999 33 2009100813435250 MIAMI]M E a Carlos Alvarez, Mayor Department of Environmental Resources Management Environmental Resources Regulation Division 701 NW 1st Court, 6th Floor Miami, Florida 33136-3912 T305-372-6567 F 305-372-6407 PERMIT NO: MOP -000306-2009/2010 (A) -GEN WATSON ISLAND MARINA 1220 MAC ARTHUR CSWY MIAMI, FL 33132 - PERMITTEE: Ms. Lillian A Ser, Esq. FLAGSTONE ISLAND GARDENS, L.L.C. 1674 MERIDIAN AVENUE, 3RD. FLOOR MIAMI BEACH, FL 33139 MARINE FACILITIES ANNUAL OPERATING PERMIT DESCRIPTION OF FACILITY/EQUIPMENT miamidade.gov This document, issued.under the provisions of Chapter 24, Miami -Dade County Code (Ordinance Number 89-104), shall be valid from 01 -OCT -2009 through 30 -SEP -2010. The above named permittee, is hereby authorized to operate the marine facility at the above location which consists of the following: Commercial Boat Docking Facility. Total wet slips: 43 Total dry slips: 0 Total commercial vessels: 40 Total recreational vessels: 3 Number of liveaboards: 0 Days of week in operation: 7 This facility is subject to conditions listed below and in the following pages (if any) of this permit. SPECIFIC CONDITIONS 1. This facility must be operated in accordance with.the "Best Management Practices" attached hereto and incorporated herein by reference as part of this permit. 2. All applicable conditions from previously executed local, state, and federal permits issued for the above -referenced marine facility shall be enforced. 3. All fixed or floating non -water dependent structures in, on, over, or upon tidal waters, unless previously approved by a Class I permit, are prohibited. 4. All permanent sewage pumpout systems and portable pumpout systemsrequired at this facility pursuant to DERM, state, or federal permits shall be maintained on site and in fully operable condition at all times in order to convey sewage to the sanitary sewer system. Designated slips for pumpout stations shall be kept open at all times except while a vessel is discharging sewage to the pumpout system. There shall be no overboard discharge of sewage to tidal waters from vessels at this facility. This prohibition also includes discharges from approved Coast Guard Type 1 or 2 flow-through marine sanitation devices. All vessel occupants shall use shoreside facilities unless the vessel is equipped with a Coast Guard approved holding tank system or is directly connected to the facility's sewage pumpout system. 5. The facility owner/operator is required to maintain a submerged land lease from the state of Florida if any vessels or structures are located over state-owned submerged lands. Use of state-owned submerged lands without a lease or other form of consent from the State of Florida is prohibited. 6. Unless otherwise approved by DERM, fueling of vessels at this facility shall be prohibited. ade County sat of ironmental Resources Management k _ c z'r ,,...-..-''r':':.'f�jf[.i"7,•" :'",�' Vii^. , .F'�: t,�-R Espinosa, F L., Directoi Page 1 of 2 Facilities approved for fueling operations shall maintain on-site spill prevention, containment, and recovery equipment and materials including, but not limited to, absorbent pads, booms, and sweeps and shall maintain staff trained in the deployment and operation of said equipment at all times. Fueling at approved facilities shall be conducted only at the designated fueling location in order to contain any spills that may occur. A floating containment boom large enough to enclose the area of the vessel being fueled, but with a minimum length of fifty (50) feet, shall be available at all times during fueling operations. Said equipment shall be deployed and operated in the most effective manner possible when spills occur. 7. The maximum number of vessels that may be stored, docked or moored at this facility may not exceed the number of slips as referenced above in this Operating Permit. This condition shall not apply to appurtenant vessels such as dinghies and tenders that are associated, by ownership, design and common usage, with a primary vessel docked, moored or stored at the facility, and therefore, are affixed to/carried by and stored on the primary vessel. 8. Harassment of manatees is prohibited. Harassment includes, but is not limited to, feeding, watering, physical contact, and/or any interference in their normal behavior or movements. GENERAL CONDITIONS 9. The applicant, by acceptance of this document, agrees to operate and maintain the subject operation so as to comply with the requirements of Chapter 24 of the Code of Miami -Dade County. 10. if for any reason, the applicant does not comply with or will be unable to comply with any . condition or limitation specified on this document the applicant shall immediately notify and provide the department with the following information: (a) a description of and cause of non-compliance; and (b) the period of non-compliance including exact dates and times; or, if not corrected, the anticipated time the non-compliance is expected to continue, and steps taken to reduce, eliminate, and prevent recurrence of the non-compliance. The applicant shall he responsible for any and all damages which may result and may be subject to enforcement, action by the department for penalties or revocation of this document. 11. As provided in Section 24-15 of the Code of Miami -Dade County, the prior written approval of the Department of Environmental Resources Management shall be obtained for any alteration to this facility. 12. The issuance of this document does not convey any vested rights or any exclusive privileges. Nor does it authorize any injury to public or private property or any invasion of personal rights, nor any infringement of federal, state or local laws or regulations. Nor does it relieve the applicant from liability for harm or injury to human health or welfare or property. 13. This document is required to be posted in a conspicuous location at the facility site during the entire period of operation. 14. This document is not transferable. Upon sale or legal transfer of the property or facility covered by this document, the applicant shall notify the department within thirty(30) days. The new owner must apply for a permit within thirty (3 0) days. The applicant shall be liable for any non-compliance of the source until the transferree applies for and receives a transfer of this document. 15. The applicant, by acceptance of this document, specifically agrees to allow access to the named source at reasonable times by department personnel presenting credentials for the purposes of inspection and testing to determine compliance with this document and department rules. 16. This document does not indicate a waiver of or approval of any other department permit that may be required for other aspects of this facility. 17. This document does not constitute an approval by DERM or certification that the applicant is in compliance with applicable laws, ordinances, rules or regulations. The applicant acknowledges that separate enforcement actions may be initiated by DERM and that this document does not constitute compliance with orders issued in conjunction with enforcement actions for correction of violations. 18. Failure to comply with any condition of this document, or the requirements of Chapter 24, Code of Miami -Dade County may subject the applicant to the penalty provisions of said Chapter including civil nenalties un to $25,000 per day per offense and/or criminal penalties of $500 per day or not less than $1000 per day for violations of Section 24-42.4, Sanitary Sewer.Discharge Limitations and Pretreatment Standards and/or sixty (60) days in jail. Page 2 of 2 File Number: 04-01046 0 Enactment Number: R-04-0702 Island Gardens Marina facility concurrently; (3) restriction on the number of vessels moored at the facility to fifty (50) concurrently; and (4) restriction.that service vessels can only operate within the immediate vicinity of the docking facility, with terms and conditions as more particularly set forth in said Covenant. Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.{2} Date: OCTOBER 28, 2004 Mover: COMMISSIONER WINTON Seconder: VICE CHAIRMAN GONZALEZ Vote: AYES: 4 - COMMISSIONER GONZALEZ, WINTON, SANCHEZ AND ALLEN ABSENT: 1 - COMMISSIONER REGALADO Action: ADOPTED WITH MODIFICATIONS Date: NOVEMBER 13, 2004 Action: SIGNED BY THE MAYOR I, Priscilla A. Thompson, City Clerk of the City of Miami, Florida, and keeper of the records thereof, do hereby certify that this constitutes a true and correct copy of Resolution No. R-04-0702, with attachments, passed by the City Commission on 10/28/2004. November 03, 2008 City C! rk, Deputy Clerk (for P. A. Thompson, Date Certified City Clerk) {1} The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. (2) If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Ciry of Miani Page 2 of 2 R-04-0702 City of Miami S ��Mcoii ` ' Master Report Enactment Number: R-04-0702 File Number: 04-01046 Version: 1 File Type: Resolution Reference: File Name: Flagstone Island Gardens Covenant Requester: Cost: City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com Status: Passed Controlling.Body: City Commission Introduced: 9/1/2004 Final Action: 10/28/2004 Title: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE A COVENANT RUNNING WITH THE LAND IN FAVOR OF MIAMI -DADS COUNTY ("COVENANT"), IN SUBSTANTIALLY THE ATTACHED FORM, TO PROVIDE FOR: (1) LIMITATIONS ON FUELING TO LESSEES OF THE DOCKING FACILITIES AND PUBLIC AGENCY VESSELS; (2) RESTRICTION ON THE NUMBER OF POWERBOATS LESS THAN ONE -HUNDRED FEET IN LENGTH THAT CAN BE MOORED AT THE FLAGSTONE ISLAND GARDENS MARINA FACILITY CONCURRENTLY; (3) RESTRICTION ON THE NUMBER OF VESSELS MOORED AT THE FACILITY TO FIFTY (50) CONCURRENTLY; AND (4) RESTRICTION THAT SERVICE VESSELS CAN ONLY OPERATE WITHIN THE IMMEDIATE VICINITY OF THE DOCKING FACILITY, WITH TERMS AND CONDITIONS AS MORE PARTICULARLY SET FORTH IN SAID COVENANT. Sponsors: Notes: Indexes: Attachments: 04 -01046 -cover memo.pdf, 04-01046-exhibitA.pdf, 04-01046-exhibitB.pdf, 04-01046-exhibitC.pdf, 04 -01046 -exhibit agenda review form.pdf,04-01046-exhibit attachmentA.pdf,04 01046 -exhibit attachmentB.pdf,04-01046-exhibit attachmentC.pdf,04-01046-exhibit attachmentD.pdf,04-01046-exhibit attachmentE.pdf,04-01046-exhibit attachmentG.pdf,04-01046-exhibit attachmentH.pdf,04-01046-exhibit attachmentI.pdf,04-01046-Substitute Cover Memo.pdf, History of Legislative File Version: Acting Body: Date: Action: Sent To: Due Date: Return Date: Result: City Commission 1 Office of the Mayor 10/28/2004 ADOPTED WITH MODIFICATIONS 11/13/2004 Signed by the Mayor Office of the City Clerk 11/16/2004 Signed and Attested by City Clerk Office of the City 12/9/2004 Reviewed and Attorney Approved Action Note: Modifications made by Law. Pass City of Miami Page I Printed on 11/3/2008 `A „ EXHIBIT A n" A.. LEGAL DESCRIPTION (SUBMERGED AREA) CGh 4ENCE AT A POJNT, NARKED-SY A 5X8- 1IAMMV IRON ROI? AND CAP $1AMIPED F,O.O,T, 5HoV4 As RT, 51A, 25+50 ON 711E "GFFlE;lhL J AP OF LOCATION AND SUMEY OF A PORTION OF SECTION 87A6, DES)GNAT80 A8 PART OF STATE FO,AD A_j .A IN DARE CouSpy, FI.ORIDe, Pl�R'AREP BY TFl)r VATE ROAD DEPART' S14T CRF 7j'l>r STA79 -OF nORIDA,, AS ''RECORDED IN MAP 8QQK 515 AT PAGE 7t OF THE C'1J13UC R5cCR05 OF DADE •COUN1Y, fLORI17A SAID POINT BEING THE POINT OF' '''ANG ue OF THr ORIGINAL 0ENT7=R UNC OF THE DOUGLAS WAMUR CAUSEWAY' l?LINNIN6 E44VLY 41b 'som EASOLY 'FROM THE WEVERL.Y Limn (WI z ARIDGE) OF WA'iSON ISL.AMD .AS SHOWN ON SliM 3 'UF 7HE SIVE ROAD DEPART4AW RIGHT-;. f' WAY MRP SEG' ON NO- .0706-11-2) 67M--2117, REyLSF� "C€3 25,1189,'SALb MOST NDn., JE'FLY CURVE HAVING A IROUS OF 1-I32.69 FM' ANb A CEi�t'RAL 0IGL1 OF SZ O11DO';�lp'--M5NCt SOUTH 59'251'21? WEE r DI�PAT 1NG t 11Y. .FROL 8AID ClrN'i>:RL.INE A DISTANCE" 'OF -a-87-3S R= 70 h 17RWE=D BUL.KHF.AD UNE1-THW L�OF H 17'9 ' 1" WEST ALONG SAID DUI i(HE U Lm"k DISTANCE OFF 2319186 TZ9 TY' THE POINT -AND PLACE OF 5;+1 WMNOI `THME 5013TH' 49'32'57" WgT OEPA17tING S1IL0 isupKHE�D LINE h :DWA.NC$• OF 55041 FEET' To A, poll�ti' OF I RS=ON TIF THE 7OR, 1133 3ASIN lIMrr AS ESTA811SHID GY US. ' AINY -CORPS O� POIN 05 .AND POPMO1NED .13Y COORP,U1k1'IE5• NORTH 527,57.6,62 '. FSI'', EAST 926,1.V.22, F'YE:i' ,(8ASZ ON. IMM' AMERICAN DATOM 103-10D63) wrm igg Nonmm4Y Lige oF' 114F �IAJvMI k0N SHIP .CHANIiIZ; 7MOR NORTji 31`03'5x' vZ `•iUPAI; IRE: 1. rim or SAID %Ji NIto. LAIN A nISwag -OF 4•x#.44 FEET 'ill A KIM or "TER$=()N SVtrN 7iIE EL57 Rt�k1T-UF 1YA1' L1A1B 0tT f11E Et^ Mt CDASIIAL %7£RVAY, THM10E NO.BT}i .0.27',54•" WESY 'ALONG ",sJ1' 1D BAST RIGHT-OF-WAY UNE A D57ANP9 OF '5-.14.4,3 F= TO A FOIirr OF IX7FR5EC ON 'KMj THE soMEq'Ly Rf0HT--oF-WAY• UNE OF.WD AOUXAS W'CARTHUR - CAt E1YAY, SAID POINT OF INTERS OrDbN•,BEING A; POINT -ON A GUAYE CONCAVE $.OhITi- MED H&V'NG • A wfU5 or 10,715.59 Fr=, A WIAL IJN.E 74 SAID •POINT' S ARS So4TH II1'15`15° -EAST+ 1HENOE RON EAsMLY FOR 387,4.6 FEEL ALONG VE ARO 9F SA1D CURI+E;Atip ,�L4NG %D SOUMEBRLY 4014T -OF -WAY UNE, THROUGH A CENT44L AKI.E d,.rbzg4'T'7` -M A POINT OF 7MCENCY; THENtit SOirM ZT10'5511 ZkST •Cl1MNUING EAST1:RLY.AWNa 7VZ SAID SDLMOLY RIGHT -Pr -WAY 11NE A'7L5Tr'd'10E OF 32.06 MWr MWE DR Lq$ TO A POINT OF LMfi2Sl 1IbN 14Yi}i D{i5T1NG SOLMEAD LINM TKNOE 96M 3712'Z1" SkST AU' t4G SAIQ 0UL1ZR AD UNE A MSTANOE OF 92 7.4 P-EZr TO TNN: pt3Nr 07 BEfir'NNII�lG, ' CONTAINING 13.35 ACRES DF SUBMERGED LAND MPRE OR L'SS, 13:•LEGAL'D'ESCRIPTION (ADDITIONAL SUBMERGED AREA E) PORTIONS OF SUBMERGED LANDS L'fING WESTERLY OF WATSON ISLAND, CITY OF 'MAMI, MIAMI-DADE COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED A5 FOLLDWS; COMMENCE AT POINT CF TANGENCY STAMON 25+50 ON THE CENTERUNE. OF GENERAL -DOUGLAS floc ARTHUR CAUSEWAY .(S.R. A -1-A) STATE PROJECT SECTION Na. (8706-112) 87060-2f i 7 RIGHT OF WAY MAP AS RECORDED IN PLAT HOOK 56 AT PAGE 71 OF THE PUBLIC RECORDS OF MM) DADE'COUNTY, FLORIDA THENCE 1585'10'14N FOR 1384_.81 FEET TO 'THE POINT OF BEOINNINC OF TEMPORARY FASEMIENT "E_; THENCE 549'32',7"W FOR 101.38 FEET TO A POINT ON THE EASTERLY LII,i S OF A TURNING BASIN.; THENCE N 31,'03'50'W ALONG SAID EASTERLY L,IMTS FOR 965,07 FELT TO A POINT PN THE CENTERLINE OF THE INTERCOASTAL WATERWAY; T-HEtECE NO3'27'5¢,V AWNG SAID CENTERLINE FOR 402.9:.3- FEET TO A POINT '.UN THE SQUT R- RLY RIGHT OF WAY LINE OF STATE ROAD A -1-A SAID POINT ALSO BEI -90 ON A CURVE THAT. IS CONCAVE. T0, THE NORTH I`IAVIN6 A RADIUS OF 10,718.58 FEET, TRWE'EASTERLY ALONG THE ARC -OF SAID CJ)RVE THROUGH A CENTRAL ANGLE OF 1`20'14" FOR AN ARC DISTANCE OF 250.10 FELT TO A POINT ON THE EAST RIGHT OF WAY LINE OF SAID INTERCOASTAL WATERWAY; .THENCE S03"Z.7'54,"E ALONG SAID EAST -RIGHT QF WAY LINE' FOR 658,577 FEET TO A POINT ON THE EASTERLY LINE OF AN E43EMiENT THAT IS RECORDED IN OFFICIAL RECDRDS BOOK 3623.AT PAGE 751 OF THE PUBLIC RECOR05 OF MIAMI-DADE COUNTY, FLORIRAi' THENCE. S31'03'50'E ALONG• SAID EhSTERL' LINE FOR 803.20 FEET Tp THE POINT -OF BEGINNING. 'CONTAINING 4.85 ACRES MORE OR LESS (211,:57-3 SQUARE FET) Flagstone Island Gardens.Mega-Yacht Harbor Manatee Protection Plan Revised August 7, 2008 The Flagstone Island Gardens Mega -Yacht Harbor project ("Project") proposes to construct a 50 - slip international mega -yacht facility on Watson Island with supporting upland amenities adjacent to the turning basin at the west end of the Port of Miami/Government Cut. This document confirms the proposed Project's compliance with the approved Miami -Dade County Manatee Protection Plan (MDCMPP) and details the Project specific measures being taken to ensure the protection of manatees during marina operations. The MDCMPP designates the area between the Project shoreline and the -Port turning basin for "Freight Termi.nals/Large Vessel (>100') Berthing". Additionally, the Watson Island shoreline itself is designated as a "Special Use" Marina or Transitory Dock area. The MDCMPP states that this designation is "for mooring vessels for special uses such as commercial fishing, charter fishing boats, and ocean-going luxury yachts" (page 96). Both of these designations are based on the site's nearby access to deep water and short route to the Atlantic Ocean. The proposed Project° is compliant with the "Large Vessel Berthing" and "Special Use" designations of the MDCMPP and all uses that are proposed for vessels that are not over 100 feet in length are consistent with the functions that currently exist onsite. This is one of the most preferable sites in Miami -Dade County to accommodate the public demand for vessel mooring with minimal risk to the manatee population. Additional information regarding the historic and proposed marina functions onsite and manatee protection measures are discussed below: Existing Marina Functions The existing Watson Island Marina facility includes 43 wet slips authorized under a Miami -Dade County Marine Facilities Operating Permit (MOP). These slips have been leased out by the City of Miami (property owner) for commercial and recreational vessel uses including commercial and charter fishing, boat rental/cruise operations, and transient recreational slips. The Watson + Island Marina facility has been used historically by vessels ranging in Iength from 20 to 150 feet. The commercial vessels using the facility are estimated to average 2 trips per day and transient recreational vessels average fewer trips per day. A public fuel dock is also located at the Watson Island Marina. Reviews of aerial photography and dock records indicate that the Watson Island Marina facility has been used extensively by commercial and recreational vessels. According to dock check records provided by the City's dockmaster, an average of 20 vessels have moored at Watson Island Marina -at any given time over the past 6 years. This data does not differentiate between power and sailing vessels. Follow-up discussions with the City's dockmaster for Watson Island Marina indicate that the 43 slips were fully Ieased to vessel owners between 1987 and 1992. Prior to 1998, records are scarce. However, a review of aerial photography provides some data regarding mooring history. C.) Flagstone Island Gardens Manatee Protection Plan Compliance August 7, 2008 Page 2 Since 1985 when the MPP was being developed, 23 or more powerboats have been documented at the marina in aerial photographs reviewed with Miami -Dade County Department of Environmental Resources Management (DERM) staff. Proposed Mia -Yacht Harbor Facility Manatee Protection Connnliance. The state -approved MDCMPP provides marine facility siting recommendations based on criteria including minimal manatee/boat travel pattern overlap, minimal benthic community disturbance and compatibility with surrounding land uses. As noted above, the proposed Project uses art,- consistent reconsistent with the MDCMPP designations and historic uses onsite. The greatest potential risk to manatees would occur as vessels travel north or south within the Intracoastal Waterway. Mega -yachts, the primary target vessels for the proposed facility, travel at slower speeds and must utilize Government Cut for deep water ingress/egress. Given the size and typical travel patterns of these vessels, it is not likely that.they would travel north or south in the Intracoastal Waterway, particularly .not for significant distances or at significant speeds: Vessels less than 100 feet in length that may utilize the facility will similarly utilize Government Cut for ocean access and function consistent with historic travel patterns. Construction Marina construction activities will comply with standard manatee protection guidelines and permit conditions. Manatee habitat (seagrass beds) is proposed to be dredged to accommodate the mega -yacht drafts; these unavoidable impacts will be mitigated through restoration of seagrass habitat within Biscayne Bay. Design and Operations The proposed mega -yacht facility will accommodate vessels up to 465 feet in length. The maximum vessel number of 50 will be limited to no more than 23 vessels less than 100 feet in length at any time, with specific sub -categories noted below. Of the 23 vessels less than 100 feet in length authorized at the facility, the majority will be oceangoing luxury yachts, with the balance being facility service vessels, water taxis and launched yacht tenders. Speed Zones: Vessel speed restrictions in the vicinity of the Project provide valuable protection to manatees within their foraging areas and travel corridors. These speed zones are well enforced by local, state, and federal agencies. Large Vessel Pfooring: All docks that will accommodate large vessels (100 feet or greater in length) are now designed as pile supported structures. The marginal dock provides the required standoff from the bulkhead at the Project site. Small Yachts and Tenders: As market studies conducted relative to the proposed Project indicate that it may not be economically viable to fill all proposed slips year-round with vessels greater than 100 feet in length, the applicant has requested authorization to offer a maximum of 14 slips Flagstone Island Gardens Manatee Protection Plan Compliance August 7, 2008 Page 3 (consistent with the historic use by powerboats) for powerboat vessels, including yacht tenders, less than 100 feet in length, at any point in time. Tenders may be launched from yachts to conduct inspections of their vessels and provide other service functions. Launching of these tenders will be controlled by the dockmaster and strictly supervised. Due to strict security controls, these vessels will likely be limited in their movement within or outside of the facility. Water Taxis; Two slips are proposed for water taxis to convey upland hotel and harbor guests to local waterfront destinations. A public fuel dock is not proposed at the Project site; fuel services will only be provided to vessels leasing a slip at the facility (and public agency vessels, such as the Florida Marine Patrol). Additionally, the applicant has agreed to limit fuel services in this manner to compensate for the proposed transient .water taxi use to ensure no net increase in potential impacts to manatees. Fishing Vessels: Four slips are proposed for use by commercial fishing vessels at the facility: It is anticipated that the travel patterns and functions of these fishing vessels will be similar to the existing/historic commercial and charter fishing vessel use of the site. Service Vessels: Three service vessels and one non -motorized small barge are proposed to assist with facility operations and will be controlled by the harbor master. The service vessels will be approximately 30 feet in length and will not leave the harbor and fishing/water taxi pier area. Services by these vessels will include deploying fuel containment booms, security services and providing tug -type assistance to incoming and outgoing mega -yachts. At no time will the total number of vessels in the harbor exceed 50 (including all proposed vessels in the preferred design) and at no time will the total number of vessels less than 100 feet in length exceed 23 in harbor waters. . ConcInsions New mega -yacht slips associated with the proposed Project are compliant with the "Large Vessel ' Berthing" and "Special Use" designations of the MDCMPP. Slips for vessels less than 100 feet in length (23 total: 14 for non -fishing vessels and yacht tenders, 2 for water taxis, 4 for fishing vessels, and 3 for service vessels) will not result in an increased risk to manatees, as they are consistent with the existing and historic uses described above. F:1Projen12017?S�permiltiog�F:mdt Attaehmcntsp&.O&o7 Raised M=I -protection fta d.. Date: To: From: Subject: 0 0 ,September 7.2, 2006 Memorandum M"N"'MADE Honorable Chairman Joe A. Martinez and Members, Agenda item No. 5(EE) Board of County CVnmissioners George M. Burge County Manage Class I Permit Application by Flagstone Island Gardens, LLC and the City of Miami to Dredge 15.89 Acres of Submerged Bay Bottom for the Creation of a 50 -Slip Mega Yacht Marina, Request for a Variance from Section 24-48.24 of the Code of Miami -Dade County for the Placement of Non -Water Dependent Fixed Structures Over Tidal Waters, and Acceptance of a Restrictive Covenant Running With the Land In Favor of Miami -Dade County Attached, please find for your consideration an application by Flagstone Island Gardens, LLC and the City of Miami for a Class I Permit, a Request for Variance from Section 24- 48.24 of the Code of Miami -Dade County, and acceptance of a Restrictive Covenant Running With the Land in favor of Miami -Dade County. Also, attached is the recommendation of the Director of the Department of Environmental Resources Management and a Resolution seeking the Board's approval of the aforesaid application,.. variance request, and acceptance of the restrictive covenant. Assi tant County Manager MIAMI�DAD� Memo `candu4t1 Q]� Date: August 31, 2006 To: George M, B Count ana From: rl it ctor --r^ E ' esources Management Subject: Class I Permit Application by Flagstone island Gardens, LLC and the City of Miami to Dredge 15.81 Acres of Submerged Bay Bottom for the Creation of a 50 -Slip Mega Yacht Marina, Request for a Variance from Section 24-48.24 of the Code of Miami - Dade County for the Placement of Non -Water Dependent Fixed Structures Over Tidal Waters and Acceptance of a Restrictive Covenant Running With the Land in Favor of Miami -Dade County RECOMMENDATION I have reviewed the application for a Class I Permit, the Request for Variance from Section 24-48.24 of the Code of Miami -Dade. County, and the Restrictive Covenant Running with the Land proffered by Flagstone Island Gardens, LLC and the City of Miami. Based upon the applicable evaluation factors set forth in Section 24.48.3 and 24-48,25 of the Code of Miami -Dade County, I recommend.. that the Board approve this application, grant the variance request, and accept the Restrictive Covenant for the reasons set forth below. BACKGROUND The proposed project was previously approved by the Board on November 30, 2004, via Resolution No, R-1343-04. Pursuant to Section 24-48.19 of the Code of Miami -Dade County, Class I permit approvals by the Board shall only be valid for a period of 18 months from the date of approval unless another time period is stated in the approving Resolution.' The applicants have stated that due to the complexity of design and the time required to obtain the United States Army Corps of Engineers permit for the proposed project, the final construction plans have not yet been completed. Therefore, the Class I permit could not be obtained within the originally allowed 18 -month period, which expired on May 30, 2006. Pursuant to the requirements in Section 24-48.19 of the Code, the applicants have filed a new Class I permit application for the construction of the same project as previously approved, In addition, the applicants have requested that Board approval for this application be valid for 24 months rather than the typical 18 months. The project area is located on Watson Island in the City of Miami. The project site was previously a municipal marina owned and operated by the City of Miami. The proposed project involves the construction of a 50 -slip mega yacht marina with two main access piers. The two main access piers will make an inward tum at 470 linear feet from the seawall forming the marina basin. A portion of the proposed piers will be bi-level to provide a separate public access area to view Biscayne Bay. In addition, stairs are proposed to provide non-public access to the lower service level of the dock. The proposed project also includes the dredging of 15.81 acres of submerged Bay bottom to depths of minus eighteen (-18) feet and minus twenty-five (-25) feet with one foot of allowable over -dredge. The applicants have stated that dredging to these depths is necessary to accommodate. the deeper drafts of mega yachts [vessels greater than 100 feet in length] that could not be moored at the previously existing marina. As proposed, the completed marina will be able to accommodate mega yachts with a maximum length not to exceed 465 feet. .7-- 0 George M. Burgess County Manager Page 2 Section 24-48.3 of the Code of Miami -Dade County requires that the Department of Environmental Resources Management (DERM) base its recommendation for approval, denial, or approval subject to conditions, limitations or restrictions, for Class I Permits on the applicable evaluation factors. One of these factors is consistency with recommendations of Miami -Dade County's Manatee Protection Plan (MDCMPP). The MDCMPP identifies the area of Biscayne Bay where this project is proposed as suitable for construction or expansion of large vessel docking facilities. As the applicants have stated that the purpose of this project is to create a mega yacht marina, the applicants have agreed to limit the total number of non -mega yacht power vessels (less than 100 feet in length) mooring at this facility. In order to maintain consistency with the MDCMPP, and considering the existing historic use of the site, the Class I permit shall require that the maximum number of powerboats that are less than 100 feet in length, as measured at the water line, that will be moored at the proposed docking facilities located at the marina, shall not exceed a total of 23 powerboats at any one time. Of the maximum allowable powerboats, not more than two shall be water taxis to be used by the guests of the marina, not more than four shall be commercial fishing or diving charter boats, and not more than three shall be marina service vessels. In order to ensure compliance with this condition, the City of Miami has proffered the attached Restrictive Covenant Running with the Land as part of the Class I Permit requirements. In addition, this project was evaluatedto identify any potential conflicts with the proposed future. construction of the Port of Miami Tunnel, Staff discussed details of this project with consultants and representatives from the Florida Department of Transportation (FDOT) and the Miami -Dade County Seaport Department. No conflicts were identified. However, if approved, the Class I Permit for this project will require that the applicant coordinate construction activities with FDOT regarding work on the Port of Miami Tunnel. As part of this project, the applicants propose to dredge 15,81 acres of submerged Bay bottom to achieve the targeted water depths. The proposed dredging will impact various marine resources within the project footprint, including seagrass habitat, hard bottom/sponge communities, macro algal communities, and several acres of benthic ihfaunal habitat. In order to mitigate for impacts to seagrass areas and to the hard bottom/sponge habitat, the applicants propose *to create additional replacement habitat. Restoration of the lost seagrass habitat will be accomplished by filling a previously dredged area of Biscayne Bay near the Julia Tuttle Causeway to a shallower depth and then capping it with clean sand to support seagrass growth. Replacement of the lost hard bottom/sponge habitat will be accomplished by filling a previously dredged deep depression in the same area and capping it with a coarse material suitable for the growth of a hard bottom/sponge community. To offset the other project -related impacts the applicants propose to place 2,439 cubic yards of limestone riprap boulders under the proposed dock structures and to place 25,670 cubic yards of limestone riprap boulders at a DERM-approved artificial reef site in Biscayne Bay. In addition to requesting approval for the proposed dredging and construction of the marina, the applicants are requesting a variance from Section 24-48.24 of the Code of Miami -Dade County, which prohibits non -water dependent, fixed structures over tidal waters of the County. The applicants propose to construct planters, roof structures, storage closets, security fences, vessel fueling service lines, and two pylons with statues, all of which are proposed for placement on the piers over tidal waters. Specifically, the applicants propose to construct planters along each edge of the second level piers. Said planters will border the two piers for approximately 470 linear feet, resulting in approximately 940 linear feet of planters on each of the piers. In addition, the applicants propose to install two covered structures at the end of the second level on each of the main piers. The applicants have indicated that due to the overall length of the pier structures, the covered structures are necessary to provide refuge from the elements at the far end of the pier. On the terminus of the main piers (i.e. harbor entrance) the applicants propose to install poles that will be a George M. Burgess County Manager Page 3 approximately 70 feet in height with 10 -foot high statues on the top. Lastly, the appllcants propose to install fuel• lines running along the piers to provide in -slip fuel services to vessels moored at the docking facility. The proposed project has been designed in accordance with all relevant Miami -Dade County coastal construction criteria and is also consistent with all other Miami -Dade County coastal protection provisions, with the exception of the proposed non -water dependent fixed structures for which the applicants are seeking a variance. Please find attached two Project Reports from the DERM Coastal Resources Section, which sets forth in more detail the reasons why the request for a variance and project are recommended for approval by DERM pursuant to the applicable evaluation factors set forth in Section 24-48.3 and in Section 24-48.25 of the Code of Miami -Dade County, Florida. The conditions, limitations, and restrictions set forth in the Project Report attached hereto are incorporated herein by reference hereto. Attachments Attachment A: Class I Permit Applications Attachment B: Affidavit of Ownership Attachment C: Applicants/Agents Letter, Engineer Certification Letter and Project Sketches Attachment D: Names and Addresses of Owners of All Riparian or Wetland Property Within Three Hundred (300) Feet of the Proposed Work Attachment E: Seagrass Mitigation Plan Attachment F: Benthic Mitigation Plan Attachment G: Harbor Operations Plan Attachment H: Manatee Protection Plan . Attachment l: Restrictive Covenant Running with the Land Attachment J: Zoning Memorandum Attachment K: Project Report for Proposed Work — Class I Permit Attachment L: Project Report for Variance Request — Fixed Non -Water Dependent Structures ........... ................................ �1 NOTICE OF PUBLIC HEARING RELATING TO AN APPLICATION BY FLAGSTONE ISLAND GARDENS, LLC AND THE CITY OF MIAMI FOR A CLASS I PERMIT TO DREDGE 15.81 ACRES OF SUBMERGED BAY BOTTOM FOR THE. CREATION OF A 50 -SLIP MEGA YACHT MARINA LOCATED ON WATSON ISLAND IN THE CITY OF MTA \ TZ A REQUEST FOR A VARIANCE FROM SECTION 24-48.24 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA, TO ALLOW THE PLACEMENT OF NON -WATER DEPENDENT FIXED STRUCTURES OVER TIDAL WATERS, AND ACCEPTANCE OF A RESTRICTIVE COVENANT RUNNING WITH THE LAND 1N FAVOR OF MIAMI-DADE COUNTY BOARD OF COUNTY COMMISSIONERS MIAMI-DADE COUNTY, FLORIDA NOTICE IS HEREBY GIVEN pursuant to Article IV, Division 1 of Chapter 24 of the Code of Miami -Dade County that the Board of County Commissioners of Miami -Dade County will hold; and conduct a Public Hearing' on a request by Flagstone Island Gardens, LLC and the City of Miami for a Class I Permit to dredge 15.81 acres of.submerged bay bottom for the creation of a 50 -slip mega yacht marina, a request for a variance from Section 24-48.24 of the Code of Miami -Dade County, Florida to allow the placement of non -water dependent fixed structures over tidal waters, and acceptance of a restrictive covenant Winning with the land in favor of Miami -Dade County. Such Public Hearing will be held on the 12th day of September, 2006, at 9;30 am o'clock, at the County Commission Chambers on the 2nd Floor of the Stephen P. Clark Center in Miami, Florida. Plans and details concerning the work requested in the application may be reviewed by interested persons at the office of the Miami -Dade County Department of i ,S Environmental Resource Management, 4th Floor,' 33 S.W. 2nd Avenue, Miami, Florida, 3130. Oral statements will be heard and appropriate records made. For accuracy of records all important facts and arguments should be prepared in writing in triplicate, with. two copies being submitted to the Deputy Clerk of the County Commission at the hearing or mailed to her beforehand (Kay Sullivan, Deputy Clerk); 111 N.W. Ist Street, Stephen P. Clark Center, Suite 17-202, Miami, Florida 33128; .and with one copy being submitted beforehand to the Miami -Dade County Department of Environmental Resources Management, 33 S.W. 2nd Avenue, Miami, Florida, 33130. A person who decides to. appeal any decision made by any Board, Agency, or Commission with respect to any hatter considered at its meeting or hearing, will need a record of proceedings. Such person may need to ensure that a verbatim record of the proceedings is made, including the testimony and evidence upon which the appeal is to be based. BOARD OF COUNTY COMMISSIONERS MIAMI -DARE COUNTY, FLORIDA HARVEY RUV IT, CLERK BY: Kay Sullivan, Deputy Clerk 0 MEMORANDUM (Revised) T0: Honorable Chairman Joe A. Martinez DATE: September 12, 2006 and Members, Board of County Commissioners I FROM: � ZyA y A. eenbe g SUBJECT: Agenda Item No. 5 (I) . Cttorney. Please note any items checked. 114"Day Rule" (" 3 Day Rule" for committees) applicable if raised 6 weeks required between first reading and public hearing 4 weeks notification to municipal officials required prior to public hearing Decreases revenues or increases expenditures without balancing budget Budget required Statement of fiscal impact required Bid waiver requiring County Manager's written recommendation Ordinance creating a new board requires detailed County Manager's report for public hearing Housekeeping item (no policy decision required) No committee review r �f Approved Mayor Agenda Item No. 5(I) Veto 09-1206 Override RESOLUTION NO. i RESOLUTION RELATING TO AN APPLICATION BY FLAGSTONE ISLAND GARDENS, LLC AND THE CITY OF MIAMI FOR A CLASS I PERMIT TO DREDGE 15.81 ACRES OF SUBMERGED BAY BOTTOM FOR THE CREATION OF A 50 -SLIP MEGA YACHT MARINA LOCATED ON WATSON ISLAND IN THE CITY OF MIAMI, A REQUEST FOR A VARIANCE FROM SECTION 24-48,24 OF THE CODE OF MI_A.MI-DADS COUNTY, FLORIDA, TO ALLOW THE PLACEMENT OF NON - WATER DEPENDENT FIXED STRUCTURES OVER TIDAL WATERS, AND ACCEPTANCE OF A RESTRICTIVE COVENANT RUNNING WITH THE LAND IN FAVOR OF MIAMI -DADS COUNTY. WHEREAS, this Board desires to accomplish the purposes outlined in the accompanying memorandum, a copy of which is incorporated herein by reference, NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI DADE COUNTY, FLORIDA, that this Board having . considered all the applicable faetors'contained within Section 24-48.3 and Section 24-48.25 of the Code of Miami -Dade County, hereby approves the application by Flagstone Island Gardens, LLC and the City of Miami for a Class I Permit to dredge 15.81 acres of submerged bay bottom for the creation of a 50 -slip mega yacht marina, a request for a variance from Section 24-48.24 of the Code of Miami -Dade County, Florida, to allow the placement of non -water dependent fixed ` structures over tidal waters, and acceptance of a restrictive covenant running with the land in 4 favor or Miami -Dade County, subject to the conditions set forth in the memorandum from C' f r.OK 2,6641 F°AGE 4-c 78 0 \ F°AGE Agenda Item No. 5 W Page No. 2 the Director of the Miami -Dade County Department of Environmental Resources Management, a copy of which is attached hereto and made a part hereof, The issuance of this approval does not relieve the applicants from obtaining all applicable Federal, State, and local permits. , The approval of the Class I permit herein granted shall be valid for 24 months from the date of this approval. The foregoing resolution was offered by Commissioner who moved its adoption. The motion was seconded by Commissioner and upon being put to a vote, the vote was as follows: The Chairperson thereupon declared the resolution duly passed and adopted this 12th day of September, 2006. This resolution shall become effective ten (10) days after the date of its adoption unless vetoed by the Mayor, and if vetoed, shall become effective only upon an. override by this Board. MIAMI-DADE COUNTY, FLORIDA BY ITS BOARD OF COUNTY CO NESSIONERS HARVEY RUVIN, CLERK iM Approved by County Attorney as �— to form and legal sufficiency. 1� Deputy Clerk ).Peter S. Tell Cj Joe A. Martinez, Chairman Dennis C. Moss, Vice -Chairman Bruno A, Barreiro Jose "Pepe" Diaz Audrey M. Edmonson Carlos A. Gimenez Sally A. Heyman Barbara J, Jordan Dorrin D. Rolle Natacha Seijas Katy Sorenson Rebeca Sosa Sen. Javier D. Souto The Chairperson thereupon declared the resolution duly passed and adopted this 12th day of September, 2006. This resolution shall become effective ten (10) days after the date of its adoption unless vetoed by the Mayor, and if vetoed, shall become effective only upon an. override by this Board. MIAMI-DADE COUNTY, FLORIDA BY ITS BOARD OF COUNTY CO NESSIONERS HARVEY RUVIN, CLERK iM Approved by County Attorney as �— to form and legal sufficiency. 1� Deputy Clerk ).Peter S. Tell Cj Exhibit 9.2.1 Existing Liens FLAGSTONE LAWSUITS Company claiming Lien Amount Filing Date Judgement date Local Case Number COMMENTS Coastal BuildingVDluntary 4 612.50 April 23, 2010 June 6, 2010 2010 -3441 -SP -25 Dismissal 6 10 2010 Maintenance January 22, 2009 N/A N A Sieger SuarezLis ' March 18. 2010 _ 2010 -17467 -CA -01 Pendens No Hearing Scheduled Architects Design, Inc. Stephen James January 26, 2010 NA 2010 -4951 -CA -01 Hearing 9/29/2010 Associates March 20, 2009 NLA NLA Daniel Edelman Inc. ? = October 23, 2009 - 2009 -78233 -CA -01 Hearing 8/11/2010 N JA Beach Tower, $$236,203.95 July 21, 2009 2009 -41142 -CA -01. Hearing 8/5/2010 LLC Lillian A. Ser $674,031.78 July 1, 2009 October 22, 2009 2009 -49662 -CA -01 Hearing 9/3/2010 Miller Legg & $3,340.00 August 25, 2009 October 20, 2009 2009 -11179 -SP -05 FINAI-JUDGEMENT Associates Inc. Spillis CandelaNovember 7 11, 2008 -69458 -CA -01 Hearing 10/18/2010 & Partners, Inc. 2008 $913,575.73 FLAGSTONE LIENS Company claiming Lien Amount Filing Date Judgement date Local Case Number COMMENTS Lilian Ser Aril 29, 2010 NLA NLA Writ of Garnishment BICON IN d/b/a S&S NATIONAL WASTE $1,416.94 January 22, 2009 N/A N A PHA Lighting75 650.00 March 4, 2009 NLA Design, Inc. 4 467.19 NLA NA _ Sieger Suarez $1,777,990.79 March 20, 2009 NLA NLA Architectural Ardaman & Associates $27,500 Aoril 24, 2009 N JA 229999 35 Coastal Systems $188,415.83 July 10, 2009 NA NA - International, and Construction Corporation Inc. Langan Engineering & $61,708.51 August 10, 2009 NLA NLA Associates, Inc. Environmental Services $2,137,149.26 FLAGSTONE CLAIMS OF LIEN Construction $8,125.15 N/A N/A N/A Protective Services, Inc. Boca Development and Construction Corporation Landscaping $39,056.64 N/A N/A N/A Associates, Inc. TBE Group, Inc.46 593 N A N A N A Eagle SWS First $23,307.77 N/A N/A N/A Response (Langan Engineering) Miami Awning 11 360.00 NA N A N/A Company $128,442.56 SUBTOTAL $3,179,167.55 -$4,612,5 Voluntary Dismissal TOTAL $3,175,005.05 -- Formatted: Left 228999 36 228999 37 Exhibit 9.2.3 Hold Harmless, -tint#-Indemnification and Securitv Agreement (to be executed upon document execution) 228999 38 Exhibit 12.2 Permitted Title Exceptions 1. Bulkhead line as shown on the plat recorded in Plat Book 74, Page 4. 2. Oil, gas and mineral reservations as set forth in that Deed from the Trustees of the Internal Improvement Fund to the City of Miami, filed April 11, 1949 in Deed Book 3130, Page 257 under Clerk's File No. Y-29610. Note: The right of entry has been released pursuant to [TO BE FILLED IN]. 3. Agreement for Water Facilities recorded March 13, 1998, in Oficial Records Book 18016, Page 2892. 4. Agreement for Sanitary Sewage Facilities recorded April 14, 1998, in Official Records Book 18058, Page 112. 5. Resolution No. 98-23, recorded January 19, 1999, in Official Records Book 18699, Page 1236. 6. Easement in favor of the United States of America set forth in that Grant of Easement for Miami Harbor Turning Basin, recorded April 22, 1963, in Official Records Book 3622, Page 751. 7. Perpetual Easement in favor of Florida Department of. Transportation recorded March 13, 1998 in Official Records Book 18018, Page 1181. NOTE: All recording references are as to the Public Records of Miami -Dade County, Florida. 228999 39 Exhibit 12.1.4 Existing Insurance Coverages (to be updated upon document execution) 228999 40 Composite Attachment 1 Resolutions of City (to be updated upon document execution) 228999 41 C Composite Attachment 2 Company Authorization of Flagstone (to be updated upon document execution) 228999 42 Composite Attachment 3 Exhibit A to City Commission Resolution No. , adopted Construction Schedule, Options to Extend, Payments Schedule, Related Defaults and Notes 228999 43 Composite Attachment 4 City Commission Resolution No. 09-0263, adopted Ma 28, 2009 Reaardin2 Labor Peace Asreements 228999 44 City of Miami Text File Report City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File ID: 09-00450 Type: Resolution Status: Passed Enactment #: R-09-0263 Enactment Date: 5/28/09 Version: 1 Introduced: 4/20/09 Controlling Body: Office of the City Clerk A RESOLUTION OF THE MIAMI CITY COMMISSION DIRECTING THE CITY MANAGER TO REQUIRE "LABOR PEACE AGREEMENTS" AS A CONDITION PRECEDENT TO THE ISSUANCE OR EXECUTION OF CERTAIN CONTRACTS DEPENDENT UPON REVENUES FROM HOSPITALITY OPERATIONS. WHEREAS, the City of Miami ("City") has a financial or proprietary interest in certain capital projects and in revenue producing contracts which include hospitality operations at City -owned venues; and WHEREAS, it is anticipated that the revenues generated by these operations will be used in part to defray the public costs incurred in the construction and maintenance of such capital projects as well as to fund lease, rental or license payments to the City, and the City has a responsibility to the taxpayers to protect these revenues; and WHEREAS, the City acts as a market participant when entering into such contracts; and WHEREAS, it is essential that these hospitality operations be conducted without interruption and that no labor disputes affecting such operations impact the revenues of such capital projects and revenue producing contracts, which would in turn adversely affect the revenue stream to the City; and WHEREAS, the City has. found that the uninterrupted operation of hospitality operations may be threatened by labor disputes, and has found that an efficient way to avoid this problem is by requiring contractors and employers of employees hired to staff hospitality operations to be signatory to a "labor peace agreement" covering the employees who will staff such hospitality operations; and WHEREAS, such labor peace agreements are a method of insuring continuous provision of services under City contracts because under federal law, employers may not unilaterally prohibit unions or their employees from engaging in work stoppages; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: 0 Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. "Hospitality operations" as used herein means services provided at hotels, motels, restaurants, bars, clubs, cafeterias, lodging, and food and beverage at convention or conference facilities. Section 3. The City Manager shall require contractors and employers of employees hired to staff hospitality operations to be City of Miami Page 1 Printed on 9/16/2010 Section 6. This Resolution shall become effective immediately upon its adoption and signature of the Mayor. {2} City of Miami Page 2 Printed on 9/16/2010