HomeMy WebLinkAboutExhibitEXHIBIT A
This Exhibit A is an attachment to City Commission Resolution No. 10-
adopted , 2010, contains material business terms, and becomes
Composite Attachment 3 to the Amended and Restated Agreement to Enter Into
Ground Lease (hereinafter, the "Agreement to Enter") and to the form of Amended
and Restated Ground Lease(s) (hereinafter the "Ground Lease(s)"). All terms used
herein but not defined herein shall have the defmitions given to them in the
Agreement to Enter or in the form of Ground Lease(s).
I. GENERAL CONSTRUCTION SCHEDULE FOR ALL MAJOR PROJECT
COMPONENTS.
Flagstone/Ground Lessee shall have the time periods set forth below to
commence and complete construction of the various Major Project Components, as such
Major Project Components are approved in accordance with the Major Use Special
Permit and as such are defined in Section of the form of Ground Lease(s).
Throughout this Exhibit A, (a) "Commence(s) Construction" or "Start(s) Construction"
shall mean that all material plans and permits are approved and issued and the actual act
of physical construction has begun; and (b) "Completion Date" shall mean the date upon
which the earlier of the temporary certificate of occupancy ("TCO") or a certificate of
occupancy ("CO"), has been issued for the completion of construction.
Until 2/1/2013 36 months from 2/1/2010 to Start Construction of both the Marina
Component and the Retail/Parking Components.
(a) As described in Section VI(c) below, Marina Component
construction may be started earlier and separately once
applicable conditions precedent for Marina Component
have been met.
Until 7/31/2014 54 months from 2/1/2010 to the Completion Date of the Marina
Component.
(a) If Marina Component Starts Construction earlier than
2/1/2013, then Flagstone shall have 18 months from such
earlier start date to the Completion Date of the Marina
Component.
Until 1/31/2016 72 months from 2/1/2010 to the Completion Date of Retail/Parking
Components.
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(b) Parking spaces for Hotels may be completed separately
with construction of Hotels Components.
(c) Flagstone agrees to design, construct and provide utility
lines needed for all Components in connection with its
construction of each of the Major Project Components on a
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component by component basis as necessary and as
approved by the City and as required by the Master
Declaration as a condition precedent to executing the first
Ground Lease.
Until 2/1/2018 96 months from 2/1/2010 to Start Construction of both Hotels
Components, if the two (2) 5-year Options to extend described
below are not exercised, therefore until 01/31/2020 (being twenty-
four (24) months) to the Completion Date. Flagstone cannot
exercise the second Option if no hotel construction has
commenced by 1/31/2023.
Until 2/1/2023 156 months from 2/1/2010 to Start Construction of a Hotel
Component, if only the first 5-year Option to extend is exercised.
Accordingly, the first Option period ends on 1/31/2023.
(d) During the first Option period, a Hotel Component must be
completed within twenty-four (24) months after
Construction Commencement, therefore until 01/31/2025 to
the Completion Date of at least one Hotel Component.
Accordingly, both the Rent(s) payments schedule and the
Option payments schedule in this Exhibit A would apply
throughout the entire period of construction, even if the
Completion Date of such construction period runs beyond
the Option period.
(e)
(f)
The first 5-year Option period runs from 02/01/2018
through 01/31/2023. The first Option period payment is
$250,000 per annum ($125,000 per Hotel Component per
annum) with monthly payments beginning 02/01/2018 for
the first Option period ending 01/31/2023.
All Option payments are to be paid monthly in advance
beginning on the first day of the month. The first Option is
exercised by Flagstone's giving not less than thirty (30)
days advance written notice prior to 1/31/2018 to the City
for the first Option period to begin.
Until 2/1/2028 216 months from 2/1/2010 to Start Construction of the second
Hotel Component if Flagstone exercises the second 5-year Option
to extend; accordingly, the second Option period ends on
1 /31 /2028:
(a) The second 5-year Option period runs from 02/01/2023
through 01/31/2028. The second 5-year Option period
payment is $315,000 per annum ($157,500 per Hotel
Component per annum) with monthly payments beginning
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(b)
02/01/2023 for the second Option period ending
01/31/2028, but second 5-year Option is not available
unless the first Hotel Component Starts Construction before
the end of the first 5-year Option period on 01/31/23.
All Option payments are to be paid monthly in advance
beginning on the first day of the month. The second Option
is exercised by Flagstone's giving not less than thirty (30)
days advance written notice prior to 01/31/2023 to the City
for the second Option period to begin.
(c) During the second Option period, the second Hotel
Component must be completed within twenty-four (24)
months after Flagstone Commences Construction, therefore
until 01/31/2030 to reach the Completion_ Date of the
second Hotel Component that commenced construction
during the second Option period. Accordingly, both the
Rent(s) payments schedule and the Section IV Option
payments schedule in this Exhibit A would apply
throughout the entire period of construction, even if such
construction period runs beyond the Option period.
H. GENERAL RENT(S) PAYMENT SCHEDULE FOR ALL MAJOR
PROJECT COMPONENTS.
During the periods outlined below, Flagstone/Ground Lessee shall pay to the City
the amounts outlined below.
2/1/2010
$300,000
$300,000 is a Pre -payment of Construction Rent
to City
2/1/2011
$500,000
$500,000 is a Pre -payment of Construction Rent
to City
2/1/2012
$750,000
$750,000 is a Pre -payment of Construction Rent
to City
2/1/2013
$640,000
$1,000,000 Construction Rent is the amount
actually received by City since $360,000 was pre-
paid for this year per above schedule and Section
II(h) below, unless there is no credit pursuant to
Section VI(c) below.
2/1/2014
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$640,000
$1,000,000 Construction Rent is the amount
actually received by City since $360,000 was pre-
paid for this year per above schedule and Section
II(h) below, unless there is no credit pursuant to
Section VI(c) below.
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2/1/2015
$640,000
$1,000,000 Construction Rent is the amount
actually received by City since $360,000 was pre-
paid for this year per above schedule and Section
II(h) below, unless there is no credit pursuant to
Section VI(c) below.
2/1/2016
$1,140,000
$1,500,000 Construction Rent is the amount
actually received by City since $360,000 was pre-
paid for this year per above schedule and Section
II(h) below, unless there is no credit pursuant to
Section VI(c) below.
2/1/2017
$1;565,000 `.
$1,675,000 Construction Rent is the amount
actually received by City since $110,000 was pre-
paid pursuant to the above schedule and Section
II(h) below, unless there is no credit pursuant to
Section VI(c) below.
2/1/2018 and
annually
thereafter
$2,000,000*
$2,000,000 Base Rent until termination of Ground
Lease(s), unless subject to Section VI(c) below.
Additionally, Percentage Rent payments begin as
described in (d) below.
Once payment of Base Rent begins from Flagstone to the City, the City is
obligated six (6) months thereafter under the State Waiver (as defined in
Section VII below) to pay an annual fee to the State of Florida.
During the thirty-six (36) months after 02/01/10 to 01/31/2013, Flagstone
has a 10-day grace period beyond the first of each month to make each
"Pre -Paid Construction Rent" payment, and agrees to not require any
notice from the City in the event of non-payment of any "Pre -Paid
Construction Rent" payment. In the event that Flagstone defaults for non-
payment, Flagstone also agrees to waive its defenses as to non-payment
against the City, immediately vacate and turn over to the City for the
City's possession all of Flagstone's rights, and interests in the Property
and the easement areas, remove from such easement areas and from the
Property all of its property of whatever kind as requested in writing by the
City Manager, and immediately (i) return or sign over, as applicable, to
the City all of Flagstone's rights, directly or indirectly, in the permits,
plans, specifications, and all related governmental approvals, documents,
instruments, and agreements as necessary related to the Property, and (ii)
deliver to the City all of such permits, plans, specifications, and all related
governmental approvals, documents, instruments, and agreements which
are in Flagstone's possession or in Flagstone's control.
(c) All payments to the City (for various Rents and for Option payments) are
to be paid monthly in advance beginning on the first day of the month,
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except for the additional lump sum payment described in Section VI (c)
below.
(d) Additional provisions regarding Percentage Rent payments are included in
the form of each Amended and Restated Ground Lease(s). As stated
therein, Percentage Rent on the Gross Revenues of each Component
begins on the third anniversary after each Major Project Component is
Open for Business. "Open for Business" means the earlier of the date that
the applicable Major Project Component receives either its TCO or CO.
Base Rent may begin sooner than 02/01/2018 (i.e., if both Hotels are Open
for Business prior to that time as set forth in the Amended and Restated
Hotel Ground Lease).
(e)
As stated in the applicable Amended and Restated Ground Leases, once
Base Rent begins, it continues each year for the remaining term of the
applicable Ground Lease(s). On the first anniversary of the
commencement of the Base Rent for each Major Project Component, the
Base Rent thereafter becomes subject to an annual Consumer Price Index
("CPI") adjustment as set forth in the Ground Lease(s). Percentage Rent
on the Gross Revenues of each Major Project Component begins on the
third anniversary after each Major Project Component is Open for
Business.
(f) If the Marina Component and the Retail/Parking Component(s) both Start
Construction prior to 2/1/2013, then on the first day of the month
following the date when both the Marina Component and the
Retail/Parking Component have started construction, the Construction
Rent payment (subject to credits described in (h) below) becomes at least
$1,000,000 per year, as opposed to the lesser Prepaid Construction Rent
payment amounts shown on the above Section II General Rents Payment
Schedule.
(g)
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If both the Marina Component and the Retail/Parking Component(s) Start
Construction by 2/1/2013, then as shown on the above chart, Flagstone is
entitled to a credit back each year beginning 2/1/2013 for the period
shown on the Section II General Rents Payment Schedule in the amount of
$30,000 per month for fifty-one (51) months and of $20,000 for the 52nd
month. If Flagstone Starts Construction of both the Marina Component
and the Retail/Parking Components prior to 2/1/2013, then the total credit
back amount is reduced by 1/36t for each month prior to 2/1/2013 that
both such Components have commenced. Conversely, if Flagstone does
not Commence Construction of both the Marina Component and the
Retail/Parking Components by 1/31/2013, then no credit of Prepaid
Construction Rent is allowed and the City keeps all of the Prepaid
Construction Rent amount received.
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(h)
If no construction begins by 2/1/2013 on any Major Project Component,
then the City keeps all Prepaid Construction Rent, Flagstone agrees to not
require any notice from the City to terminate for failure to begin
construction, and Flagstone also agrees to waive its defenses against the
City, immediately vacate and turn over to the City for the City's
possession all of Flagstone's rights and interests in the Property and the
easement areas, remove from such easement areas and from the Property
all of its property of whatever kind as requested in writing by the City
Manager, and immediately (i) return or sign over, as applicable, to the
City all of Flagstone's rights, directly or indirectly, in the permits, plans,
specifications, and all related governmental approvals, documents,
instruments, and agreements as necessary related to the Property, and (ii)
deliver to the City all of such permits, plans, specifications, and all related
governmental approvals, documents, instruments, and agreements which
are in Flagstone's possession or in Flagstone's control.
III. OPTION PAYMENT SCHEDULE (FIRST OPTION).
Flagstone has two (2) 5-year Options ("Option(s)") to extend the date to
Commence Construction of the Hotels Components, and Flagstone has the choice to
build either one Hotel Component or two Hotel Components; that choice triggers Option
payments for one Hotel Component or two Hotels Components accordingly.
If Flagstone exercises the first Hotel Option period for only one Hotel
Component, Flagstone must also pay to the City the following additional Option payment
amounts.
2/1/2018
$125,000
$2,000,000
$2,125,000 (Base Rent plus
Option payment)
2/1/2019
2/1/2020
2/1/2021
2/1/2022
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$125,000
$125,000
$125,000
$125,000
$2,000,000
$2,000,000
$2,000,000
$2,000,000
$2,125,000 (Base Rent plus
Option payment)
$2,125,000 (Base Rent plus
Option payment)
$2,125,000 (Base Rent plus
Option payment)
$2,125,000 (Base Rent plus
Option payment)
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If Flagstone exercises the first Hotel Option period for two (2) Hotel(s)
Components, Flagstone must also pay to the City the following additional Option
payment amounts.
2/1/2018
2/1/2019
2/1/2020
Annual Option
payments. (for
Two hotels)
$250,000
$250,000
$250,000
$2,000,000
$2,000,000
$2,000,000
ivai Amounts .
o the City,
$2,250,000 (Base Rent plus
Option payments)
$2,250,000 (Base Rent plus
Option payments)
$2,250,000 (Base Rent plus
Option payments)
2/1 /2021
2/1/2022
$250,000
$250,000
$2,000,000
$2,000,000
$2,250,000 (Base Rent plus
Option payments)
$2,250,000 (Base Rent plus
Option payments)
(a) As indicated in Section II(a) above, once payment of Base Rent begins
from Flagstone to the City, the City is obligated six (6) months thereafter
under the State Waiver (as defined in Section VII below) to pay an annual
fee to the State of Florida.
(b)
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Flagstone can exercise the Option for only one Hotel Component or for
both Hotel Components, or stop Option payments at any time by giving
written notice to the City at least ten (10) days before the date that the next
Option payment is due, but if Flagstone elects not to exercise the Option
for one or both Hotel Component(s), or fails to make any Option
payment(s), then Flagstone must turn over to the City immediately any
applicable Hotel Ground Lease(s), Flagstone also agrees to waive its
defenses as to failure to pay the required Option payments, immediately
vacate and turn over to the City for the City's possession all of Flagstone's
rights and interests in the Hotel Component(s), any Hotel Ground Lease,
and the applicable easement areas, remove from such easement areas all of
its property of whatever kind as requested in writing by the City Manager,
and immediately (i) return or sign over, as applicable, to the City all of
Flagstone's rights, directly or indirectly, in the permits, plans,
specifications, and all related governmental approvals, documents,
instruments, and agreements as necessary related to the applicable Hotel
Component(s), and (ii). deliver to the City all of such permits, plans,
specifications, and all related governmental approvals, documents,
instruments, and agreements relating to the applicable Hotel
Component(s) which are in Flagstone's possession or in Flagstone's
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(c)
control, and City has the rights to seek a new developer for the applicable
Hotel Component(s).
For Any Hotel(s) Component(s) that Start(s) Construction during the first
Option period and continue construction into the second Option period,
the Option payments shall increase on 02/01/23 to the second Option
period Option payment amount(s) set forth below in Section IV, and shall
continue at such second Option payment amount(s) until the Completion
Date. Such Option payments for the Hotel(s) Component(s) are in addition
to the required Construction Rent, Base Rent, Percentage Rent, CPI
Adjustments, Marina Rent, and any other Rents for the Hotels and any
other Major Project Components.
IV. OPTION PAYMENTS SCHEDULE (SECOND OPTION).
If Flagstone exercises its second Hotel Option period for one Hotel Component
only, Flagstone must pay to the City the following additional amounts:
2/1/2023
Annual Option
i'en t (For
$157,500
$2,000,000
$ 2,157,500
2/1/2024
$157,500
$2,000,000
$ 2,157,500
2/1/2025
$157,500
$2,000,000
$ 2,157,500
2/1/2026
$157,500
$2,000,000
$ 2,157,500
2/1/2027
$157,500
$2,000,000
$ 2,157,500
If Flagstone exercises its second Hotel Option period for two Hotel Components,
Flagstone must pay to the City the following additional amounts:
2/1/2023
Annual Option
payments:(
Two hotels)
$315,000
$2,000,000
nnual Am
to the Ci
$ 2,315,000
2/1/2024
$315,000
$2,000,000
$ 2,315,000
2/1/2025
$315,000
$2,000,000
$ 2,315,000
2/1/2026
$315,000
$2,000,000
$ 2,315.000
2/1/2027
$315,000
$2,000,000
$ 2,315,000
(a) As indicated in Section II(a) above, once payment of Base Rent begins
from Flagstone to the City, the City is obligated six (6) months thereafter
under the State Waiver (as defined in Section VII below) to pay an annual
fee to the State of Florida.
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(b) Because Flagstone has twenty-four (24) months to complete construction
of any Hotel(s) Component, Flagstone shall continue to make Option
payments to the City beyond 01 /31 /28 until such time that the final
Hotel(s) Component(s) construction has reached the final Completion
Date. Flagstone can stop Option payments at any time by giving written
notice to the City at least ten (10) days before the date that the next Option
payment is due, but if Flagstone elects not to or fails to make any Option
payment(s), then Flagstone must turn over to the City immediately any
Hotel Ground Lease(s), Flagstone also agrees to waive its defenses as to
failure to pay the required Option payments, immediately vacate and turn
over to the City for the City's possession all of Flagstone's rights and
interests in the Hotel Component(s), any Hotel Ground Lease, and the
applicable easement areas, remove from such easement areas all of its
property of whatever kind as requested in writing by the City Manager,
and immediately (i) return or sign over, as applicable, to the City all of
Flagstone's rights, directly or indirectly, in the permits, plans,
specifications, and all related governmental approvals, documents,
instruments, and agreements as necessary related to the applicable Hotel,
and (ii) deliver to the City all of such permits, plans, specifications, and all
related governmental approvals, documents, instruments, and agreements
relating to the applicable Hotel Component(s) which are in Flagstone's
possession or in Flagstone's control, and City has the rights to seek a new
developer for the applicable Hotel Component(s).
(c) If Flagstone does not Start Construction of the second Hotel Component
by 02/1/2028, then both the City and Flagstone have their separate rights
to terminate the Agreement to Enter and Flagstone must immediately
vacate and turn over to the City for the City's possession all of Flagstone's
rights and interests in the Property related to the second Hotel Component
and the easement areas, remove from such easement areas and from the
Property related to the second Hotel Component all of its property of
whatever kind as requested in writing by the City Manager, and (i) return
or sign over, as applicable, to the City all of Flagstone's rights, directly or
indirectly, in the permits, plans, specifications, and all related
governmental approvals, documents, instruments, and agreements as
necessary related to the applicable Hotel, and (ii) deliver to the City all of
such permits, plans, specifications, and all related governmental approvals,
documents, instruments, and agreements relating to the applicable Hotel
Component(s) which are in Flagstone's possession or in Flagstone's
control, and City has the rights to seek a new developer for the applicable
Hotel Component(s).
(d) Flagstone has a 10-day grace period beyond the first of each month to
make each Option payment, and agrees to not require any notice from the
City in the event of non-payment of any Option payment. In the event that
Flagstone defaults for non-payment, Flagstone also agrees to waive its
defenses as to non-payment against the City, immediately vacate and turn
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over to the City for the City's possession all of Flagstone's rights and
interests in the Property and the easement areas, remove from such
easement areas and from the Property all of its property of whatever kind
as requested in writing by the City Manager, and immediately (i) return or
sign over, as applicable, to the City all of Flagstone's rights, directly or
indirectly, in the permits, plans, specifications, and all related
governmental approvals, documents, instruments, and agreements as
necessary related to the Property, and (ii) deliver to the City all of such
permits, plans, specifications, and all related governmental approvals,
documents, instruments, and agreements which are in Flagstone's
possession or in Flagstone's control.
V. ADDITIONAL AGREEMENTS CONCERNING HOTEL COMPONENTS.
(a) No - Hotel Component can start construction until ,both the Marina
Component and the Parking/Retail Components have Start Construction.
(b)
If a Hotel(s) is Open for Business prior to 72 months from 02/01/10 (being
01/31/16), then the payment -amount is increased to $1,500,000 per
annum (in accordance with Section II General Rents Payment Schedule
above) at the end of the month that one Hotel is Open for Business.
Further, when the second Hotel is Open for Business then, also, regardless
of the above Section II General Rents Payment Schedule, the payment
amount is increased to $2,000,000 per annum in Base Rent at the end of
the month that the second Hotel is Open for Business. Base Rent of
$2,000,000 per annum continues each year thereafter.
(c) Once a Hotel Component reaches its Completion Date„ the Option
payments for that Hotel Component stop. For the portion of any
construction period that extends into the Option period, all applicable
Option payment(s) (and all ongoing Construction Rent payments) shall
continue until the Completion Date. (Pursuant to the applicable Ground
Lease(s), the "Percentage Rent Payment Beginning Anniversary Date"
starts running for any Hotel on the date when it is Open for Business and
Percentage Rent payments begin on the third anniversary of the
Percentage Rent Payment Beginning Anniversary Date in order to give
that Hotel a Stabilization Period).
(d) The second Option period cannot be exercised unless one Hotel
Component has started construction before the end of the first Option
period. If one Hotel Component does not Start Construction before the end
of the first Option period, then the Option period terminates and no section
Option exists.
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If the second Hotel Starts Construction before the end of the first Option
period and continues construction into the second Option period, then the
Option payments applicable to the second Option period shall be due upon
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commencement of the second Option period until the second Hotel
Component reaches its Completion Date.
VI. ADDITIONAL AGREEMENTS CONCERNING FLAGSTONE
FORFEITURE / CITY TERMINATION RIGHTS.
(a) Subject to Section VI(c) and Section VII(c) concerning the Marina
Component, if both the Marina Component and the Parking/Retail
Components do not Start Construction by 02/01/2013, then Flagstone's
rights to build any Components expires and ceases, the Agreement to
Enter is terminated, City retains all Prepaid Rent (as consideration for the
extension of time until 1/31/2013) and Flagstone must turn over to the
City immediately the applicable Ground Lease(s), Flagstone also agrees to
waive its defenses as to failure to begin construction against the City,
immediately vacate and turn over to the City for the City's possession all
of Flagstone's rights and interests in the Property and the easement areas,
remove from such easement areas and from the Property all of its property
of whatever kind as requested in writing by the City Manager, and
immediately (i) return or sign over, as applicable, to the City all of
Flagstone's rights, directly or indirectly, in the permits, plans,
specifications, and all related governmental approvals, documents,
instruments, and agreements as necessary related to the Property, and (ii)
deliver to the City all of such permits, plans, specifications, and all related
governmental approvals, documents, instruments, and agreements which
are in Flagstone's possession or in Flagstone's control.
(b) If any Hotel Component does not Start Construction according to the
applicable deadline under the construction schedule and the Option
schedule(s) (as applicable), then Flagstone's rights to build the applicable
Hotel Component expires (but Flagstone's obligations under the payment
schedule for the Marina Component, the Parking/Retail Component, and
any Hotel Component that is/are complying continues to the end of the
applicable Ground Lease(s)). Any time Flagstone loses the right to
construct a Hotel(s) Component, then Flagstone must turn over to the City
immediately the applicable Ground Lease(s), Flagstone also agrees to
waive its defenses as to failure to begin construction against the City,
immediately vacate and turn over to the City for the City's possession all
of Flagstone's rights and interests in the applicable Hotel Component, any
Hotel Ground Lease, and the related easement areas, remove from such
easement areas and from the Property all of its property of whatever kind
as requested in writing by the City Manager, and immediately (i) return or
sign over, as applicable, to the City all of Flagstone's rights, directly or
indirectly, in the permits, plans, specifications, and all related
governmental approvals, documents, instruments, and agreements as
necessary related to the applicable Hotel Component, and (ii) deliver to
the City all of such permits, plans, specifications, and all related
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governmental approvals, documents, instruments, and agreements which
are in Flagstone's possession or in Flagstone's control.
(c) Notwithstanding anything in this Exhibit A to the contrary, Flagstone may
separately ground lease and separately construct the Marina Component
prior to 2/1/2013 if the conditions precedent for the Marina Component
are met. As stated in Section VII(c), once Flagstone starts construction on
the Marina Component by 2/1/2013, there are to be no cross default
provisions between the Marina Ground Lease and any other Ground
Lease(s), and the Marina Ground Lease is intended to be separate and
independent. If the Retail/Parking Components do not Start Construction
by 2/1/2013, and Flagstone loses the right to construct the balance of the
Project per Section VI(a) above, then the Marina Component can be
constructed separately with Flagstone paying all Prepaid Construction
Rent, Construction Rent, Percentage Rent and all other Rent amounts
without any credit of Prepaid Construction Rent; provided, however, that
if the Marina Component Starts Construction before 02/01/2013 but
extends beyond 01/31/13 from the commencement of construction to the
Completion Date for the Marina Component, and Flagstone does not
Commence Construction of the Retail/Parking Component, then Flagstone
must continue to pay to the City (i) monthly during the construction period
Prepaid Construction Rent(s) in accordance with this Exhibit A through
01/31/13, plus (ii) a lump sum payment amount on 01/31/13 so that City
receives a total amount of $1,000,000 per annum in Construction Rent
(without any credits to Flagstone) from the Construction Commencement
up to and including 01/31/1. If the construction period extends beyond
01/31/13, then Flagstone shall pay to the City commencing 2/1/13 One
Million Dollars ($1,000,000) per annum in Construction Rent (without
any credits to Flagstone) to the Completion Date. Once the Marina
Component reaches its Completion Date, Flagstone shall pay to the City
the "Marina Rent" as defined in the Base Rent Section of the faun of
Ground Lease in the amount of $400,000 per annum plus the Percentage
Rent and plus the CPI adjustment as both are defined in Section of the
Ground Lease. Once payment of Marina Rent as a Base Rent begins from
Flagstone to the City, the City is obligated six (6) months thereafter under
the State Waiver (as defined in Section VII below) to pay an annual fee to
the State of Florida. The Marina Component as defined in Section _ of
the form of Ground Lease shall be constructed as and shall provide the
necessary services as other marinas accommodating the quality and
services of the proposed tenants of the mega -yacht facility and must
include among other things: (i) fractional ownership provided that the
same can be structured as an Approved Time Share License in accordance
with State law requirements; (ii) slips, dockage, or other accommodations
for (in addition to other marine vessels) water taxis, as well as amphibious
aircraft, seaplanes, and other air-sea amphibious craft (so long as such
amphibious aircraft, seaplanes, and other air-sea amphibious craft are not
brought or allowed upon the Upland Parcel of the Property); (iii) the 100-
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foot Setback improvements constructed within the 100-foot Setback which
shall include only and be limited to a fish market and dock master
facilities, which will include public restroom facilities, shower facilities
and laundry facilities for exclusive use of the Marina tenants, a full -service
marine store (which may be inside the dock master's office and must
include marine apparel, equipment, services, bait, tackle and other
necessary items), and (iv) and in the area behind the 100-foot Setback in
an agreed upon portion of the upland adjacent thereto (as set forth in the
Plans to be approved as conditions precedent in the Agreement to Enter),
which shall include only and be limited to one Upscale Restaurant (as
defined below), parking facilities, fire -marine facilities, sewage facilities,
and which may include, by way of example and not limitation, all facilities
ancillary to the foregoing. Notwithstanding the foregoing, as part of the
Marina Component, Flagstone must build and own or lease to a gnnlified
third -parry one upscale restaurant in the upland area (the "Upscale
Restaurant") (x) that qualifies for, obtains, and maintains in full force and
effect in accordance with applicable laws a full liquor license, and (y) that
is of the same quality and price range as Prime 112 and Smith and
Wollensky on Miami Beach .and Ocean Air in the City of Miami. All
improvements in the 100-foot Setback and the agreed upon upland area for
the Marina Component must conform to the requirements of the Major
Use Special Permit.
(d) Notwithstanding anything to the contrary in this Exhibit A, if the
construction period of any Major Project Component exceeds the time set
forth for construction of such component in Section I above, then
Flagstone must continue to pay the Construction Rent in Section II above
until such Major Project Component reaches its Completion Date.
Additionally, if construction is continuing during the Option period(s),
then Flagstone shall pay both Construction Rent and the applicable Option
payments related to its choice to construct either one or two Hotel
Components.
VII. CROSS DEFAULTS; SEPARATE DEFAULTS.
(a) Except as set forth in Section VII(b) and (c) below, during the period prior
to the earlier of 96 months from 02/01/10 (being 01/31/18) or the date
upon which the first Hotel is Open for Business, Ground Leases for the
separate Major Project Components shall be cross -defaulted for any Base
Rent payment defaults, Prepaid Construction payment defaults, and any
Construction Rent payment defaults.
(b) Upon the earlier of 96 months from 02/01/10 (being 01/31/18) or the date
upon which the first Hotel is Open for Business, (i) the Base Rent,
Percentage Rent, and all other payments to the City each year thereafter
shall be apportioned to each separate Major Project Component Ground
Lease for direct payments to the City by each separate Ground Lease
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lessee in an amount reflecting each separate Major Project Component's
respective percentage share of the total Project Development Costs to that
point in time, and (b) the Ground Leases for the separate Major Project
Components shall not be cross -defaulted for any defaults, including but
not limited to any defaults in payments of Base Rent, Prepaid Construction
Rent, Construction Rent, Percentage Rent, or any other Rent, with each
separate lessee being solely responsible for any payment default(s) to the
City.
(c) Notwithstanding anything to the contrary in this Exhibit A, the Marina
Ground Lease will be independent and will not be cross -defaulted with
any other lease or documents. The Marina Component can be constructed
separately under this Exhibit A with Pre -Paid Construction Rent,
Construction Rent, Base Rent, Percentage Rent and all Rent amounts to
apply. If the Retail/Parking Components do not Commence Construction
by the 36th month from 02/01/10 (being 01/31/13), then (i) there will be no
crediting of Prepaid Construction Rent, the City shall keep all Prepaid
Construction Rent received, (ii) the City can terminate the Agreement to
Enter and take back the balance of the Project and the Property, (iii) if the
Marina Component is completed, then the Base Rent under the Marina
Ground Lease will be set from the day after the Completion Date at
$400,000 per annum (plus CPI adjustments, Percentage Rent, any other
applicable Rents, etc.) but, (iv) if the Marina Component does not reach
its Completion Date by 07/311/14 , then the Base Rent for the Marina
Rent (as defined in Section _ of the Ground Lease) from 08/01/10 until
the Completion Date of the Marina Component will continue to follow
Exhibit A (i.e., $1,000,000 per annum for total Construction Rent) but
there will be no credits of any Pre -Paid Construction Rent against Base
Rent since the balance of Project has been taken back by the City.
VIII. STATE WAIVER.
Upon approval of this Exhibit A by City Commission Resolution, the City will
have forty-five (45) days to perform due diligence on the State Partial Waiver of Deed
Restriction (the "State Waiver"). If the State unreasonably conditions approval and the
City advises Flagstone that it intends to terminate due to such unreasonable conditions,
the City must send notice of such State action to Flagstone within such forty-five (45)
days. Upon receipt of such notice, Flagstone will have thirty (30) days to resolve the
dispute satisfactorily. If the dispute concerning such unreasonable conditions is not
resolved, then the City, may determine to cancel the current Agreement to Enter Into
Ground Lease without executing a new Amended and Restated Agreement to Enter Into
Ground Lease.
IX. INDEMNIFICATION/HOLD HARMLESS FOR CITY.
The City Commission in connection with Resolution No. 10-0144 of March 25,
2010 directed, and Flagstone agreed (a) that Flagstone will enter into a Hold Harmless,
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Indemnification, and Security Agreement (the "Hold Harmless, Indemnification, and
Security Agreement") within thirty (30) days of the City's determination in Section X
above to proceed under the new State Waiver, protecting the City against any and all
lawsuits and related costs, (b) that Flagstone shall assist the City in defending against any
and all lawsuits involving liens, judgments, garnishments and any other matters against
Flagstone related to the Property and the easement areas, (c) to the extent any lawsuit is
pending against the City relating to any lien(s) on the subject Property, that Flagstone
shall provide to the City not less than $200,000 in security in such form(s) as satisfactory
to the City Manager at such time as the parties enter into the Hold Harmless,
Indemnification and Security Agreement, (d) Flagstone shall provide to the City
Manager audited financial statements as soon as the same are completed, and any other
information needed in connection with the Hold Harmless, Indemnification and Security
Agreement, and (e) if Flagstone does not provide the foregoing, then the City shall
terminate the existing Agreement to Enter with Flagstone and the City shall not enter into
the contemplated new Amended and Restated Agreement to Enter Into Ground Lease.
X. SECURITY DEPOSITS.
The Amended and Restated Agreement to Enter Into Ground Lease and the form
of Ground Lease(s) provide for security deposits in connection with the easement areas
and the Ground Leases applicable to each Major Project Component.
XI. LABOR PEACE AGREEMENTS.
The parties acknowledge that the City Commission by Resolution No. 10-0144,
adopted on March 25, 2010, has directed that the Project is subject to the provisions of
earlier City Commission Resolution No. 09-0263, adopted May 28, 2009, regarding the
establishment of labor peace agreements prior to and during the operation of hospitality
operations on the Property.
XII. COVENANT OF GOOD FAITH AND FAIR DEALING.
All matters in this Exhibit A contain a covenant of good faith and fair dealing by
Flagstone and the City in reasonably complying with their respective obligations.
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