HomeMy WebLinkAboutExhibit 2AMENDED 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
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ARTICLE 1
ARTICLE 2
2.1
2.2
2.3
ARTICLE 3
3.1
3.2
3.3
3.4
3.5
ARTICLE 4
4.1
4.2
4.3
ARTICLE 5
5.1
5.2
5.3
ARTICLE 6
6.1
DEFINITIONS; INCORPORATION OF RECITALS, EXHIBITS
AND ATTACHMENTS; AND EFFECTIVE DATE 3
NATURE OF THIS AGREEMENT; GROUND LEASE
ATTACHED; NEW CONSTRUCTION SCHEDULE, OPTIONS TO
EXTEND, NEW PAYMENTS SCHEDULE, RELATED DEFAULTS
AND NOTES REGARDING CONDITIONS RELATED THERETO 3
Nature of this Agreement; Term 3
Ground Lease(s) 4
New Construction Schedule, New Payments Schedule, Options to Extend,
Related Defaults, and Notes Regarding Conditions Related Thereto 4
INSPECTION PERIOD 5
Termination of Access and Indemnification Agreement ... 5
Inspections 5
Environmental Inspections 6
Indemnification 6
Insurance 7
AGREEMENT CONDITIONS AND DELIVERIES 7
Flagstone's Acknowledgments and Deliveries 7
Other Conditions and Deliveries 9
Outside Date 11
SECURITY DEPOSITS 12
Security for the Easements 12
Additional Security for the Ground Lease(s) 12
Deposits; Letters of Credit 12
EXECUTION AND DELIVERY OF GROUND LEASE(S) 13
Conditions Precedent to Execution and Delivery of Each of the Ground
Leases 13
6.2 Special Additional Conditions Precedent with Respect to Component by
Component Development 19
6.3 Outside Dates 19
ARTICLE 7 DEVELOPMENT OF PROJECT 19
7.1 Development Plans 19
7.2 Use and Ownership of Development Plans and Permits and Approvals in
the event of Termination 20
7.3 Platting and Other Development Matters 20
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7.4 License(s)/Easements for Pre -Development Work 20
7.5 Indemnification and Waiver . 22
7.6 Issuance to Flagstone of Marine Operating Permit for Existing Marina 22
7.7 Marina Approvals 23
7.8 Water and Sewer Agreement 26
ARTICLE 8 COORDINATION WITH CITY; APPROVAL PROCEDURES 27
8.1 Coordination with City 27
8.2 Chief Executive Officer Approval Procedures 28
8.3 Chief Executive Officer Approvals; Disclaimer 29
ARTICLE 9 DISCHARGE OF LIENS 30
9.1 No Liens 30
9.2 Discharging Liens 30
9.3 Hold Harmless and Indemnification Agreement 31
ARTICLE 10 CONDEMNATION 31
10.1 Material Taking 31
10.2 Less than a Material Taking 31
10.3 Award 31
ARTICLE 11 DEFAULT AND REMEDIES; TERMINATIONS 31
11.1 Events of Flagstone's Default 31
11.2 Remedies for Flagstone's Default 32
11.3 City's Default 33
11.4 Terminations 33
ARTICLE 12 REPRESENTATIONS BY FLAGSTONE AND CITY; DEFENSE
AND RELEASE 34
12.1 Flagstone's Representations 34
12.2 City's Representations 35
12.3 Disclaimer of Representations by Flagstone 35
ARTICLE 13 MISCELLANEOUS 36
13.1 Assignment 36
13.2 Notices 36
13.3 Applicable Law 36
13.4 Severability 36
13.5 Waiver/Deferral 36
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13.6 No Third -Party Beneficiary 37
13.7 Enforcement Costs 37
13.8 Entire Agreement 37
13.9 Headings 37
13.10 References 37
13.11 Brokers 37
13.12 No Partnership or Joint Venture 38
13.13 Counterparts 38
13.14 Jurisdiction and Venue 38
13.15 Waiver of Jury Trial 38
13.16 No Conflicts of Interest 38
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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
("City"), 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 ("County"), 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
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
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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
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,
attachments, 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
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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 terms 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 Agreement; 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 (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
component by component basis, Flagstone must meet any and 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
Parking/Retail Components, February 1, 2013, (c) for any of the Hotel Components (if
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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 Regarding 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 3 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
Lease(s) attached hereto and incorporated hereby as Exhibit C, (ii) consistent with the
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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 Tnspections 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, 3rd 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 Inspection(s) 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 Chief Executive Officer 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
may disclose all information obtained with respect to the Inspections to its principals,
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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 Chief Executive Officer. 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 Chief Executive Officer, 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 the Chief Executive Officer
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
done or to be done in the future and agrees to indemnify and hold harmless 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,
including, without limitation, the entry by any one or more of Flagstone and its agents,
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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 did and also 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 on 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 Flagstone's Acknowledgments and Deliveries.
4.1.1 Acceptance 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.
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
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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: O 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. 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
and/or voting agreements among the members thereof (collectively, the "Organizational
Documents"), and Flagstone has provided to the Chief Executive Officer 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(s) of Flagstone shall not enter into any voting agreements the effect of
which would cause Mehmet Bayraktar and/or other qualified members of the Bayraktar
Family, to become contrary 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 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
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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 Chief Executive Officer to any 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 Officer
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
MUSP Approval currently expires on July 8, 2010. The MUSP Approval is hereby
extended for two (2) periods of two (2) years each from the current expiration date. With
the extensions referenced herein, the new expiration date of the MUSP Approval is July
8, 2014. 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 Chief Executive Officer 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 II ("Downtown DRI"), which
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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 Chief
Executive Officer 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 Executive Officer. 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 Chief
Executive Officer 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
Executive Officer 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 and
that for any future updates, if and as applicable, Flagstone further agrees that it will make
any required submissions in a timely manner.
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
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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.
(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
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 party 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 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
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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
Date"). Therefore, the parties acknowledge and agree that notwithstanding anything
contained herein to the 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.
ARTICLE 5
SECURITY DEPOSIT
5.1 Security 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 Exhibit 7.4.1 (collectively, the "Easements"). Upon 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/100 ($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 Easement
Security equals Thirty -Five Thousand and No/100 Dollars ($35,000.00) in the aggregate.
The Easement Security 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 this Agreement and/or the
Easements to be performed or observed by Flagstone.
5.2 Additional Security for the Ground Lease(s). Within three (3) business
days after Flagstone enters into each Ground Lease with the City for each Major Project
Component , Flagstone shall either (a) deliver to the Escrow Agent the additional pro rata
deposit amount(s) determined by multiplying TWO MILLION DOLLARS ($2,000,000)
by a fraction where the numerator is the amount of dollars budgeted for the development
of such Major Project Component and the denominator is the amount budgeted for the
overall Project development (the "Additional Deposit") or (b) provide to City, at
Flagstone's sole cost and expense, an additional Letter of Credit in the same
proportionate amount (the "Additional LOC") (the Additional Deposit or the Additional
LOC, as applicable, hereinafter the "Additional Security"). Notwithstanding the
foregoing, Flagstone shall be permitted to utilize any combination of cash or Letter of
Credit so long as the Additional Security equals the required amount in the aggregate.
Flagstone shall continue to maintain the Additional Security on a component by
component basis by the required proportionate amount of the Project development budget
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throughout the terms of the respective Ground Leases. The Easement Security and the
Additional Security (collectively, the "Agreement Security") shall provide security for
the faithful performance by Flagstone of all of the provisions of the Easements and of this
Agreement to be performed or observed by Flagstone.
5.3 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 set forth in
Exhibit 5.3 (the "Escrow Agreement"), which Escrow Agreement shall be executed by
City, Flagstone and Escrow Agent simultaneously with the execution of the this
Agreement in connection with the Easements and shall continue for Additional Security
to be deposited 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 the 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
the Chief Executive Officer 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
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 or waived by the Chief Executive Officer on a component by component basis,
and (b) at the election of Flagstone or its lenders one Ground Lease or 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
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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 Chief Executive Officer, from time to time, such written documentation as
may be reasonably requested by the Chief Executive Officer to evidence the same.
6.1.1 Construction Plans and Specifications. The Chief Executive
Officer 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 Chief Executive Officer 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 Closing of Construction Loan(s); Other. For each Major
Project Component, Flagstone shall have closed its Initial Construction Loan(s) with an
Approved Initial 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
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 Equity Requirement. Flagstone shall have provided
to the Chief Executive Officer written evidence satisfactory to the Chief Executive
Officer 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
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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 Chief Executive Officer 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
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 Chief Executive Officer 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
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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 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 Chief Executive Officer 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 Chief Executive Officer 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 Chief Executive Officer 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").
6.1.8 Construction Schedule. Prior to the applicable Lease
Delivery Date for each Major Project Component, Flagstone shall provide to the Chief
Executive Officer evidence of all necessary Project Approvals as described in Subsection
6.1.13 below, and the Chief Executive Officer 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 Chief Executive
Officer's approval; provided that Flagstone shall provide prompt advance written notice
to the Chief Executive Officer 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 Chief
Executive Officer shall have received and approved in his or her good faith, reasonable
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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 Chief Executive Officer, 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 Management 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 Executive
Officer 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 Hotel(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 Chief Executive Officer 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 attorn to the City pursuant to a subordination, non -
disturbance and attornment agreement acceptable to the Chief Executive Officer, in 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 Chief Executive Officer
in his or her reasonable discretion. Any such affiliated operator or franchisor shall
execute a subordination agreement reasonably acceptable to the Chief Executive Officer.
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.
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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 Project 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 Chief Executive Officer in his or her reasonable
judgment.
(b) Flagstone shall (i) obtain and provide to the Chief Executive Officer
the Florida Department of Transportation Approvals ("FDOT Approvals") and City
Approvals for site utility work (being undertaken prior to or after the first Lease Delivery
Date) by such time period as necessary 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 work 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)
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 Chief Executive Officer 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. Chief Executive Officer shall have approved in 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"
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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 by
Component Development. With reference to component by component development,
the Chief Executive Officer 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 attomment 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 Chief Executive Officer shall have received a Master
Declaration, subject to City Commission approvals 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 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.
6.3 Outside Date(s). As set forth in Section 2.1.3, the parties
agree and 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
contrary, either party shall have the absolute right to terminate this Agreement by
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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.
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 Platting 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
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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
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
necessary from the applicable Governmental Authority(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 term as necessary for development of the
Project, with security deposit requirements, 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 Exc pt 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
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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
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
marina on Watson Island (the "Operating Permit"), from the City to Flagstone. The
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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
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 Chief Executive Officer, 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
"Meea-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
Executive Officer, 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 -Yacht
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Marina subject to and in accordance with the terms and conditions of the Ground Lease
for the Marina Component.
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 teriii 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 Chief Executive Officer for his or her approval in accordance with the Chief
Executive Officer Approval Procedures and obtained such approval.
7.7.1.4 After approval of the Mega -Yacht Marina Plans by the
Chief Executive Officer, with whatever modifications as were agreed upon at that time,
all subject to and in accordance with the Chief Executive Officer 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 "Corps"),
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 Chief Executive officer in writing of such modifications at that
time. For any future modifications, the Chief Executive Officer 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 than 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 Chief Executive Officer shall have ten (10) business days from
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the date of receipt of such notice to review the modifications and advise Flagstone in
writing that the 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 Executive Officer. 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
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
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taken by Flagstone as described in such meeting or written update, and City shall not be
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
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
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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 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).
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.
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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 ("WASA"),
written confirmation that the water and sewer facilities described in these documents have been
properly completed, conveyed and/or dedicated and accepted by WASA, 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.
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Exhibit 4.1.2
Environmental Condition Acceptance Notice of March 10, 2006
(to be attached upon document execution)
Exhibit 4.1.3
Investor List
1. Flagstone Island Gardens, LLC
2. Mehmet Bayraktar
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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.
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Exhibit 4.1.5
Expressions of Interest
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Exhibit 4.2.2
BindingLetter from DCA
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Exhibit 4.2.6
Existinz 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
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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 ("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:
(i) if Flagstone determines to develop the Project all at once, then Flagstone
must within three (3) business days after entering into the Ground Lease deliver to Escrow
Agent the Additional Deposit (in the amount of Two Million Dollars and No/100 ($2,000,000),
or such portion thereof which, in combination with the amount of any Additional LOC delivered
to City pursuant to Section 5.2 of the Agreement to Enter into Ground Lease, is equal to Two
Million Dollars and No/100 ($2,000,000).
(ii) if Flagstone determines to develop the Project on a component by
component basis, then Flagstone must within three business days after entering into the
particular Ground Lease for each Major Project Component either (x) deliver to the Escrow
Agent the additional pro rata deposit amount(s) determined by multiplying Two Million Dollars
($2,000,000) by a fraction where the numerator is the amount of dollars budgeted for the
development of such Major Project Component and the denominator is the amount budgeted for
the overall Project development ( the "Additional Deposit"), or (y) provide to the City the
Additional LOC in the same proportionate amount, or (z) a combination thereof, all so that the
combination thereof equals the required proportionate amount of the Project development budget
throughout the terms of the respective Ground Leases.
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(iii) The Easement Deposit, together with the Additional 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.
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 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.
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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) 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 may be a
client of Escrow Agent, and may have an on -going attorney/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 attorney/client relationship. Accordingly, except for acts
of gross negligence or willful misconduct by Escrow Agent, the parties hereby voluntarily and
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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, independent contractors, 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, independent contractors, 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 and in connection with any litigation regarding these transactions and/or the Property.
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 Escrowed
Funds:
(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 items then
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
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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) 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:
Attn:
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. Binding; Assignment. 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
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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. Executed counterparts of his Agreement may be
delivered electronically or via facsimile transmission, and such electronic or facsimile
counterparts shall have the same force and effect as counterparts with 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 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:
LeeAnn Brehm
Risk Management Director
APPROVED AS TO FORM
AND CORRECTNESS:
By:
Julie O. Bru, City Attorney
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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:
ESCROW AGENT:
By:
Name:
Title:
Date:
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Exhibit 6.1.4
Pre -Approved Candidates for Development Team
• Eric Kuhne & Associates
• Spillis Candella
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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
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Exhibit 7.2
List of Permits and Approvals Held by Flagstone
(to be updated upon document execution)
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Exhibit 7.4.1
List of Licenses/Easements
(to be update upon document execution)
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Exhibit 7.6
Existing Marina Operating Permit
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Exhibit 9.2.1
Existing Liens
(to be executed upon document execution)
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Exhibit 9.2.3
Hold Harmless and Indemnification Agreement
(to be executed upon document execution)
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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 Official 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 to the Public Records of Miami -Dade County, Florida.
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Exhibit 12.1.4
Existing Insurance Coverages
(to be updated upon document execution)
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Composite Attachment 1
Resolutions of City
(to be updated and included upon document execution)
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Attachment 2
Company Authorization of Flagstone
(to be updated upon document execution)
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Composite Attachment 3
Exhibit A to City Commission Resolution No. , adopted
Construction Schedule, Options to Extend, Payments Schedule, Related Defaults and Notes
(to be included upon document execution)
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Attachment 4
City Commission Resolution No. 09-0263, adopted May 28, 2009
Regarding
Labor Peace Agreements
(to be included upon document execution)
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access to such information before a party is required to produce such information.
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 Agreement").The WASA Agreement expired in September, 2009. The City
agrees that with the approval of this Agreement, the City hereby authorizes the Chief
Executive Officer 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 City.
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 Chief Executive Officer, (ii) have
authority to coordinate, expedite and respond for the City on behalf of the Chief
Executive Officer 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 City 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 Executive Officer. Responsibilities of the Consultant shall
include the review of plans and development issues, assistance with permitting and
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inspection issues during the construction and development process and recommendations
directly to Chief Executive Officer and Ombudsman. 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.
8.2 Chief Executive Officer Approval Procedures. Any matter requiring Chief
Executive Officer approval under this Agreement or in connection with the Project (any
such matter, an "Approval -Requiring 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 Executive Officer:
8.2.1 Except for those instances expressly set forth herein where approval may
be withheld by the Chief Executive Officer his or her "sole discretion" or "sole and
absolute discretion", any other approvals tobe given by the Chief Executive Officer
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 prior approvals already given, thirty (30) days shall be given) of
submission to Chief Executive Officer 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 than seven (7)
calendar days of receipt by City of Flagstone's initial 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 period
(or thirty (30) day, as applicable) shall not commence until such additional information
and materials are received by City;
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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 the
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 not 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.
8.3 Chief Executive Officer Approvals; Disclaimer. Notwithstanding anything to
the contrary contained in this Agreement, Flagstone acknowledges that any approvals by
the Chief Executive Officer 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 Chief Executive Officer 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 Chief
Executive Officer 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 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
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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.
9.2 Discharging Liens.
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 acting as
lead party (but with the City joining as and if necessary since the action involves City
Property) shall have six (6) months after the date of execution of this Agreement plus any
appeal period, to remove, discharge, or transfer the Existing Liens (if the same are liens
against the Property at that time). If Flagstone fails to all cause such Existing Liens to be
discharged, removed, or transferred to bond within such six (6) month plus pending
appeal period(s) time frame(s), then the 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 Existing Liens by deposit or bond proceedings, or by any other manner permitted by
law (provided however, that before City pays any amounts on behalf of Flagstone in
connection herewith, City shall provide Flagstone five (5) days prior written notice of its
intent to do so hereunder.) Any amount(s) so paid by City and all costs and expenses
incurred by City in connection with the discharge of such Existing Liens shall be
reimbursed to City by Flagstone, together with interest thereon at the highest lawful rate
permitted by law from the date of the City's making of 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 rate(s) thereon, and
Flagstone shall reimburse the City and pay the accrued interest within seven (7) calendar
days following such written notification. In keeping with their respective covenants of
good faith and fair dealing, the parties will cooperate with each other regarding the
necessary court matters involving Flagstone's removal of the Existing Liens from the
Property.
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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
herewith, City shall provide Flagstone five (5) days prior written notice of its intent to so
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
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
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
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
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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 party 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;
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
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.
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11.1.7. Any failure of Flagstone to make any payment or any deposit
required by the Escrow Agreement 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 Hold Harmless and Indemnification Agreement.
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 City fails to perform or observe any of the covenants,
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
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
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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.
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 Project. 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
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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, fmancial, 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.
12.1.4 Insurance. Flagstone currently holds 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
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;
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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 challenge. Furthermore, Flagstone acknowledges
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
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) .
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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.
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
Agreement. Any waiver or deferral hereunder must be waived or deferred in writing by
the waiving or deferring party.
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.
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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
whole 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
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,
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 be 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 have the same effect as original
signatures..
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
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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 Agreement or the Ground Lease(s), nor shall any member, official, or
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
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)
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IN WITNESS WHEREOF, City and Flagstone have caused this Agreement to be
executed as required by law as of the date set forth beside the parties signatures below.
Attest:
By:
Name: Priscilla A. Thompson
Title: City Clerk
Date:
APPROVED AS TO FORM AND
CORRECTNESS:
By:
Name: Julie O. Bru
Title: City Attorney
ATTEST:
By:
Name:
Title:
Date:
THE CITY OF MIAMI, a municipal corporation
of the State of Florida
By:
Name: Carlos Migoya
Title: City Manager
Date:
APPROVED AS TO INSURANCE
REQUIREMENTS:
By:
Name: LeeAnn Brehm
Title: Risk Management Director
FLAGSTONE ISLAND GARDENS LLC, a
Delaware limited liability company
By: FLAGSTONE DEVELOPMENT
CORPORATION, a Delaware corporation, its
Managing Partner
By:
Name: Mehmet Bayraktar
Its: President
Date:
Sworn to and subscribed before me this day of . 2010, by
who () is personally known to me, or () has produced as identification.
Notary Public
My commission expires:
List of Exhibits and Attachments attached
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Exhibit A
Exhibit B
Exhibit C
Exhibit 3.3.1
Exhibit 3.5
Exhibit 4.1.1
Exhibit 4.1.2
Exhibit 4.1.3
Exhibit 4.1.4
Exhibit 4.1.5
Exhibit 4.2.2
Exhibit 4.2.6
Exhibit 5.3
Exhibit 6.1.4
Exhibit 6.1.5
Exhibit 7.2
Exhibit 7.4.1
Exhibit 7.6
Exhibit 9.2.1
Exhibit 9.2.3
Exhibit 12.2
Exhibit 12.1.4
Composite Attachment 1
Attachment 2
Composite Attachment 3
Attachment 4
LIST OF EXHIBITS
Legal Description of the Property
Definitions
Form of Ground Lease(s)
Approved Environmental Consultants
Insurance
Title Matters
Environmental Condition Acceptance Notice
Investors List
List of Organizational Documents
Expressions of Interest
Binding letter from DCA
Existing Occupants
Escrow Agreement
Pre -Approved Candidates for Development Team
Pre -Approved Hotel Operators and/or Franchisors
List of Permits and Approvals Held by Flagstone
List of Licenses/Easements
Marina Operating Permit
Existing Liens
Hold Harmless and Indemnification Agreement
Permitted Title Exceptions
Existing Insurance Coverages
Resolutions of the City (to be updated)
Company Authorization of Flagstone
Exhibit A to City Commission Resolution No. 10-
adopted , 2010, regarding Construction
Schedule, Options to Extend, Payment Schedules, and Related
Defaults and Notes
City Commission Resolution No. 09-0263, adopted May 28, 2009,
regarding Labor Peace Agreements
224088
Draft of 05/05/10
Exhibits and Attachments to Amended and Restated Agreement to Enter into Ground Lease
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.
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Exhibits and Attachments to Amended and Restated Agreement to Enter into Ground Lease
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.
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Exhibits and Attachments to Amended and Restated Agreement to Enter into Ground Lease
Exhibit B
Definitions
Any capitalized term used but not defined in this Agreement, including, without
limitation, this Exhibit B, shall have the meanings assigned to the same in the Ground Lease.
1.1 "AAA" shall have the meaning ascribed to such term in Section 6.1.10 of this
Agreement.
1.2 "Additional Deposit(s)" shall have the meaning ascribed to such term in Section 5.2 of
the Agreement.
1.3 "Additional LOCfs)" shall have the meaning ascribed to such term in Section 5.2 of the
Agreement.
1.4 "Additional Security" shall mean and refer to either the Additional Deposit or the
Additional LOC as elected by Flagstone pursuant to Section 5.2.
1.5 "Agreement" shall mean and refer to this "Agreement to Enter into Ground Lease" by
and between City and Flagstone.
1.6 "Agreement Security" shall mean and refer to the Easement Security and the Additional
Security collectively.
1.7 "Amended Partial Modification of Restrictions" shall have the meaning ascribed to such
term in Section 4.2.5 of this Agreement.
1.8 "Approval -Requiring Matter" shall have the meaning ascribed to such term in Section
8.2 of this Agreement.
1.9 "Board of Trustees" shall have the meaning ascribed to such term in Section 4.2.5 of this
Agreement.
1.10 "Chief Executive Officer" means the administrative head of the City's government who
is authorized to execute this Agreement and other documents, including notices required
hereunder.
1.11 "Chief Executive Officer Approval Procedures" shall mean and refer to the procedures
for submittal by Flagstone and review and approval by the Chief Executive Officer of any
Approval -Requiring Matter as described in Section 8.2 hereof.
1.12 "City" shall have the meaning ascribed to such term in the first paragraph of this
Agreement.
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Exhibits and Attachments to Amended and Restated Agreement to Enter into Ground Lease
1.13 "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 for the applicable Major Project Component.
1.14 "Commence(s) Construction" shall mean that all material plans and permits are approved
and issued and the actual act of physical construction has begun.
1.15 "Construction Plans and Specifications" shall have the meaning ascribed to such term in
Section 6.1.1 of this Agreement.
1.16 "DCA" shall have the meaning ascribed to such term in Section 4.2.2 of this Agreement.
1.17 "Development Plans" shall have the meaning ascribed to such term in Section 7.1 of this
Agreement.
1.18 "Development Team" shall have the meaning ascribed to such term in Section 6.1.4 of
this Agreement.
1.19 "Disclosed Investors" means all Investors other than Non -Disclosed Investors.
1.20 "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 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.
1.21 "Downtown DRI" shall have the meaning ascribed to such team in Section 4.2.2 of this
Agreement.
1.22 "Easement Deposit" shall have the meaning ascribed to such term in Section 5.1 of the
Agreement.
1.23 "Easement Security LOC" shall have the meaning ascribed to such term in Section 5.1 of
the Agreement.
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Exhibits and Attachments to Amended and Restated Agreement to Enter into Ground Lease
1.24 "Easement Security" shall mean and refer to either the Initial Deposit or the Initial LOC
as elected by Flagstone pursuant to Section 5.1.
1.25 "Effective Date" shall have the meaning ascribed to such term in ARTICLE 1 of this
Agreement.
1.26 "Escrow Agent" shall mean and refer to an escrow agent mutually acceptable to the
parties. 1.27 "Escrow Agreement" shall have the meaning ascribed to such term in
Section 5.3 of this Agreement.
1.28 "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 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
Section 4.2.4 and/or Section 4.2.6 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.
1.29 "Event of Flagstone'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 11.1
hereof.
1.30 "Flagstone" shall have the meaning ascribed to such term in the first paragraph of this
Agreement.
1.31 "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 C.
1.32 "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 any of the
equity investors in the Project; and (iii) holders of any note, debenture, mortgage or other
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Exhibits and Attachments to Amended and Restated Agreement to Enter into Ground Lease
security instrument in any Project Component(s) and/or Flagstone, other than an
Approved Lender (as defined in the Ground Lease).
1.33 "Investor List" shall have the meaning ascribed to such term in Section 4.1.3 of this
Agreement.
1.34 "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 Executive Officer and
Flagstone.
1.35 "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.
1.36 "Lease Delivery" shall have the meaning ascribed to such term in the first paragraph of
ARTICLE 6 of this Agreement.
1.37 "Lease Delivery Date" the means the circumstances of usage of such term as set forth 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 to be filed with the City in connection with the obtaining of the Major Use
Special Permit.
1.42 "MUSP Approval" shall have the meaning ascribed to such teiiu in Section 4.2.1 of this
Agreement.
1.43 "NOPC" shall have the meaning ascribed to such term in Section 4.2.2 of this
Agreement.
1.44 "NOPC Application" shall have the meaning ascribed to such term in Section 4.2.2 of
this Agreement.
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Exhibits and Attachments to Amended and Restated Agreement to Enter into Ground Lease
1.45 "NOPC Approval" shall have the meaning ascribed to such term in Section 4.2.2 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 6.1.5 of this
Agreement.
1.48 "Organizational Documents" shall have the meaning ascribed to such term in Section
4.1.4 of this Agreement.
1.49 "Partial Modification of Restrictions" shall have the meaning ascribed to such term in
Section 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 6.1.9 hereof prior to issuance of the master building permit
for the a Major Project Component of the Project on 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 a Major Project Component of
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, firm, partnership, corporation, joint venture,
association, company, or any other legal or business entity investment enterprise.
1.52 "Project" 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 6.1.13 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 "Property" shall have the meaning ascribed to such term in the first recital of this
Agreement.
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Exhibits and Attachments to Amended and Restated Agreement to Enter into Ground Lease
1.56 "Relocated Occupants" shall have the meaning ascribed to such term in Section 4.2.6 of
this Agreement.
1.57 "Security Deposit" shall mean and refer to any and all of the Easement Deposit,
Easement LOC, the Additional Deposit or the Additional LOC , as such forms of security
may be elected by Flagstone in Article V of this Agreement.
1.58 "Start(s) Construction" shall mean that all material plans and permits are approved and
issued and the actual act of physical construction has begun.
1.59 "Total Security" shall mean and refer to the Easement Security, the Easement LOC, the
Additional Security and the Additional LOC, collectively, as set forth in Article V of this
Agreement.
1.60 "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.
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Exhibits and Attachments to Amended and Restated Agreement to Enter into Ground Lease
Exhibit C
Form of Ground Lease
JSEE END OF AGREEMENT]
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Exhibits and Attachments to Amended and Restated Agreement to Enter into Ground Lease
Exhibit 3.3.1
Approved Environmental Consultants
1. PBS & 3 (Post Buckley) - Contact: William Pitcher
2. Langan - Contact: Christina Gonzalez
3. K & B Kaderabek & Barreiro Consultants, Inc. -Contact: Thomas Kaderabek
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Exhibits and Attachments to Amended and Restated Agreement to Enter into Ground Lease
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 performing 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 Statutes. 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 at least "7".
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Exhibits and Attachments to Amended and Restated Agreement to Enter into Ground Lease